On October 1, 2008 the annual quota of 65,000 H-1B visas will become available to take effect for employment for the 2009 fiscal year (October 1, 2008 to September 30, 2009). H-1B visas are available where the job offered is in a specialty occupation, i.e., the position requires a minimum of at least a 4 year bachelors degree or the equivalent and the foreign national has at least a 4 year bachelors degree or the equivalent. Petitions by employers to obtain one of these 65,000 H-1B visas can be filed as early as 6 months prior to October 1 each year.
For the annual quota of H-1B visas to become available October 1, 2008, the earliest filing date will be Tuesday April 1, 2008. If the law is not amended between now and April 1, 2008 to increase the quota, it is anticipated that the entire annual quota will be exhausted on April 1, 2008. On the first day of filing in April 2007, it was reported that 150,000 H-1B visa petitions were filed to claim one of the 65,000 H-1B visas to become effective on October 1, 2007. A random lottery was held among the 150,000 petitions filed to determine which would receive one of the 65,000 H-1B visas. As stated above, it is anticipated that the same scenario will develop on April 1, 2008 except with even more petitions being filed that day. Therefore, it is critical that H-1B petitions subject to the annual quota be received by USCIS on Tuesday April 1, 2008 in order to have any chance of obtaining one of the 65,000 H-1B visas to become available on October 1, 2008. Petitioning employers must start now to prepare such petitions and must send them by guaranteed overnight delivery (e.g., FedEx, USPS Express Mail, etc.) on Monday March 31, 2008 for delivery on Tuesday April 1, 2008.
The annual quota limitations do not apply to extensions of H-1B's for the same employer, changes of employer from one H-1B employer to another , H-1B employer petitions seeking concurrent H-1B employment, and petitions filed by exempt petitioners. Exempt petitioners include institutions of higher education and their related or affiliated nonprofit entities, nonprofit research organizations and governmental research organizations.
Registered nurses are generally not eligible for H-1B visas because all states permit nurses to be licensed with less than a 4 year bachelor's degree. However, in rare cases, it may be possible to obtain an H-1B visa for a nurse where the petitioning employer can prove the following:
- A bachelors degree or higher degree or its equivalent is normally the minimum requirement for entry into the position;
- The degree requirement is common to the industry for parallel nursing positions;
- The employer normally requires a degree or its equivalent for the position; or
- The nature of the position's duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor's or higher degree or its equivalent.
In certain cases, 3 years of specialized training and/or experience can be substituted for each year of college level training that the nurse is missing toward a 4 year degree.
In summary, in rare cases a registered nurse may be eligible for an H-1B visa if both the position and the individual nurse meet the requirements described above.
Certain advanced practice nurse occupations may qualify for H-1B visas if the position requires and the individual has advanced practice certification.
Certain upper level nurse managers in administrative positions may qualify for an H-1B visa.
H-1B visas continue to be viable options for physical therapists, pharmacists and other occupations that require a 4 year degree.
For citizens of Canada and Mexico, the TN visa or classification is available under the North American Free Trade Agreement (NAFTA) as an alternative to the H-1B visa for registered nurses and other professions listed in NAFTA.
If you have any questions pertaining to this information or are an employer and wish to discuss bringing H-1B healthcare professionals onboard, please contact us for a free consultation.
