Temporary Visas for Nurses and Other Professional Workers
By Stanley Mailman and Stephen Yale-Loehr*

To readers of the Wall Street Journal and other publications that survey the business scene, the H-1B is the temporary visa classification perpetually squeezed dry as U.S. companies continue to import virtually anyone who ever learned to program a computer. But as policy-makers debate whether to eliminate or modify the annual cap on H-1B numbers, temporarily lifted to 115,000, federal courts in three cases during the last year have examined the nature of a "specialty occupation," the chief component of the H-1B classification. Those decisions are discussed below.

Until 1989, the H-1 classification belonged to persons of "distinguished merit and ability." By precedent and regulation, the Immigration and Naturalization Service (INS or Service) applied that term to (1) persons of distinction or prominence in their field, and (2) members of the professions.

Included among the professions, according to the Service, are registered nurses, see Matter of Gutierrez, 12 I. & N. Dec. 418 (D.D. 1967), even though in most states they don’t need a bachelor’s degree in their field, the INS hallmark of a profession. In 1989, Congress carved out the H-1A classification exclusively for the use of registered nurses (with a 5-year sunset), requiring H-1A employers to file a detailed attestation showing the steps they were taking to wean themselves from reliance on foreign nurses. At the same time, and for the five years that nurses were eligible for H-1A, Congress excluded them from H-1B, the former H-1 classification.

In 1990, Congress reconfigured the H-1B category. It shifted to the O visa classification certain persons of extraordinary ability and those with a demonstrated record of extraordinary achievement in film or TV production; and to the P classification certain entertainers and athletes. Congress left in the H-1B category fashion models "of distinguished merit and ability" and persons qualified to perform services in a "specialty occupation." Congress defined specialty occupation as requiring: "(A) theoretical and practical application of a body of highly specialized knowledge, and (B) attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States."

In 1995, with the sunset of the H-1A, nurses were no longer barred from the H-1B category. But were they now eligible for H-1B? The Service had been able treat registered nurses as members of a profession under the broad statutory rubric of "distinguished merit and ability," because nursing is traditionally recognized as a profession. See Matter of Gutierrez, supra. But, according to the INS, nursing isn’t a "specialty occupation," as strictly defined by the statute, because it doesn’t require a bachelor’s degree. The INS regulation, however, is somewhat more generous; it permits a position to qualify if it meets any of the following criteria:

• A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
• The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree;
• The employer normally requires a degree or its equivalent for the position; or
• The nature of the specific duties are [sic] so specialized and complex that knowledge required to perform the duties is usually associated with attainment of a baccalaureate or higher degree.

8 C.F.R. § 214.2(h)(4)(iii)(A). But, as nursing doesn’t require a degree, the Service will deny H-1B status to a professionally qualified nurse, even under the regulation, unless: (a) the degree is a state licensing requirement; (b) the hospital or other petitioning facility uniformly requires a degree; or (c) the nurse will be used in a nursing specialty that is particularly complex and ordinarily associated with a degree. See memorandum by Michael L. Aytes, INS Acting Ass’t Comm’r, File No. HQ 214h-C (Nov. 17, 1995), reprinted in 15 AILA Monthly Mailing 22 (Jan. 1996).

As neither hospitals nor licensing agencies ordinarily require a degree, the H-1B definition has proved impregnable to foreign nurses, except those few needed in complex specialties. Consider Defensor v. Meissner, – F.3d – , 2000 WL 2940 (5^th Cir. Jan. 17, 2000). In that case the court rejected an attempt to negotiate an apparent chink in the regulatory definition’s third alternative. The petitioner, a medical-services contract-agency, sought to bring nurses from abroad and lease their services to U.S. hospitals. Although the hospitals did not require a degree, the petitioner claimed to meet the test by itself imposing that requirement on every nurse that it recruited. But the Service successfully argued that the petitioner was at most a token employer, and the nurses would not be functioning in a specialty occupation at their ultimate jobs.

Curiously, the Defensor court suggested that it might not be enough for a job to meet one of the four regulatory criteria that define a specialty occupation. Without deciding the issue, the court opined that the occupation itself might have to meet the statutory definition, which insists on a specialized degree (or its equivalent). If that were so, and the regulation were not there simply to interpret the statute, no registered nurse would be eligible for H-1B status. It isn’t likely that the Service means to press that position, which is at odds with how it has dealt with professional nursing since the H-1B bar against nurses was lifted in 1995, see the Aytes memorandum cited above. And it would be contrary to the treatment of "specialty occupation" generally since that term entered our lexicon in 1990. See the cases discussed below.

Still, even the regulatory requirements have so choked off the ability of hospitals to bring nurses on a temporary basis that just last November 12, Congress enacted the Nursing Relief for Disadvantaged Areas Act of 1999 (NRDAA), Pub. L. No. 106-95. Section 2 of the NRDAA initiates a four-year program during which medical facilities in areas currently underserved by registered nurses may bring them from abroad in a new H-1C classification. The H-1C program limits each nurse to a three-year stay and sets a cap of 500 new H-1C nurses per year. As under the former H-1A program, after which the H-1C is closely patterned, the petitioning health-care facility must file an attestation with the Department of Labor. The attestation requires certain assurances designed to protect the salaries and jobs of the hospital’s U.S. nurses, and to guarantee that it is taking meaningful steps to recruit and retain U.S. nurses.

Two other recent federal cases turned on whether the H-1B job involved a specialty occupation. At issue in Shanti v. Reno, 36 F. Supp. 2d 1151 (D.C. Minn. 1999), was the job of restaurant manager. The Service has a long history of holding that jobs requiring so generalized a degree as one in business administration do not qualify as professional positions, now specialty occupations. See 2 Gordon, Mailman & Yale-Loehr, Immigration Law and Procedure § 20.08[3][b] (1999). And it has regularly rejected managerial jobs, finding that the marketplace hires on the basis of experience rather than a sheepskin and rarely insists on a management degree. See, e.g., Matter of Caron International, 19 I. & N. Dec. 791 (Assoc. Comm’r Exam. 1988) (refusing to recognize a management job as professional in the case of a vice-president of manufacturing, responsible for over 2,000 employees of a major textile firm with annual sales of $90 million).

The Service has resisted H-1B classification for management jobs even after its defeat in Hong Kong T.V. v. Ilchert, 685 F. Supp. 712 (N.D. Cal. 1988). There the court reversed an INS decision that the job of president and chief executive officer of a company with 70 employees and sales of over $8 million failed to qualify as a profession because "only forty percent of business managers have degrees." The court relied instead on the complexity of the duties, which are usually associated with the need for a degree (now one of the four criteria that INS regulations list as qualifying a job in a specialty occupation).

In Shanti, the INS had specifically distinguished Hong Kong T.V. It found that the petitioner there had failed to prove that it met any of the four H-1B criteria, or specifically how "the proposed duties will be as extensive and complex as those of the beneficiary in Hong Kong." See Shanti, 36 F. Supp. 2d at 1165. Finding no abuse of discretion, the court granted the government’s motion for summary judgment.

Louisiana Philharmonic Orchestra v. INS, 44 F. Supp. 2d 800 (E.D. La. 1999), also centered on the fourth test of a specialty occupation and reached a strange conclusion. In seeking to qualify a violinist for H-1B classification, the petitioner conceded that a bachelor’s degree was not an absolute prerequisite to employment. But it showed that 90 to 95% of orchestra members had such a degree or better. Therefore, it argued from the H-1B regulations quoted above: "The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree." The Service countered that "usually associated" with a bachelor’s degree, under the regulation, means "always or nearly always" associated with such a degree. And oddly, the court deferred to that Orwellian construction and found that it was within the agency’s discretion. Still, it remanded with instructions either to grant the petition or to explain rationally its inconsistency in denying this petition while approving the orchestra’s identical petitions in the past.

There are several lessons to learn from H-1B practice. First, the INS generally recognizes the commonly accepted professions as specialty occupations, other than nursing. Second, whereas INS recognition of computer programming positions once depended on fine gradations of job complexity, it is now usually routine. Third, know the four regulatory criteria well; particularly if a position lies in a gray area, show that it meets at least one of the criteria by detailed evidence, and pray. Fourth, try to avoid qualifying someone as a manager, unless as CEO of General Motors with a degree in management, and prepare to show that the company exacts that degree of all its managers and executives at the entry level. Fifth, accept a final INS denial gracefully: the doctrine of deference gives the Service virtual immunity from reversal in federal court.

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Bio info: * Stanley Mailman and Stephen Yale-Loehr are co-authors of Immigration Law and Procedure, published by Matthew Bender and Company, Inc. (http://www.bender.com). Mr. Mailman (smailman@compuserve.com) is counsel to Satterlee Stephens Burke & Burke (http://www.ssbb.com) in New York City. Mr. Yale-Loehr (syl@millermayer.com) is of counsel at Miller Mayer (http://www.millermayer.com) in Ithaca, New York, and teaches immigration law at Cornell Law School.

This article originally appeared in the February 28, 2000 issue of the New York Law Journal. Copyright © 2000 the New York Law Publishing Company. The authors thank the Journal for permission to reprint this article.