\ afm \ Adjudicator's Field Manual - Redacted Public Version \ Chapter 31 Petitions for Temporary Workers (H Classifications). \ 31.7 Nurses (H-1C).
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(a)
Definitions
.
(1)
Registered Nurse
.
In order to obtain a visa as an H-1C nurse, a nurse must:
·
Be licensed where he or she was educated
or
have received nursing education in the United States;
·
Pass an approved examination (currently CGFNS)
or
hold full and unrestricted (U.S.) state license; and
·
Be immediately eligible and qualified to engage in professional nursing immediately upon entering the United States.
(2)
Attestation
.
The petition must include an “attestation” which has been reviewed and stamped as approved by the Department of Labor. (There is no
USCIS
adjudicative role in the attestation process, we merely verify that it contains the DOL stamp.) An attestation for purposes of an H-1C petition is a guarantee signed by the facility which will employ the registered nurse that:
·
The facility is located in a “health shortage area” and is otherwise “qualified” as defined in section 212(m)(6) of the Act;
·
The proposed H-1C employment will have no adverse effect on wages and working conditions of nurses at the facility;
·
The wages offered to H-1C nurses are the same as those offered to U.S. citizen or resident alien nurses at the facility;
·
The facility is taking significant steps (defined in section 212(m)(2)(B)) of the Act to recruit and retain nurses to reduce its dependance on H-1C nurses;
·
There is no strike, or lockout in progress and there has not been a layoff of nurses in the last 90 days nor will there be such a layoff during the 90 days following submission of the petition;
·
Notice has been provided to the bargaining unit (or posted if there is no bargaining unit) in advance of the submission of the H-1C petition;
·
No more than 1/3 of the nurses at the facility are nonimmigrants;
·
The facility will not transfer any H-1C nurses to a different facility or authorize the nurse to accept employment at another facility.
(b)
Decision Procedures
.
(1)
Approval
.
If you are satisfied that the attestation and all other required documents are present and the petition is approvable, endorse the approval block. The initial petition approval may be for a period of up to three years, not to exceed the period of time requested on the petition or the validity of the beneficiary’s license. The beginning date for a petition should be the date requested by the petitioner or the approval date, whichever is later. Approval may occur no more than six months earlier than the date
of need. If the alien is present in the United States and requires a change of status, follow procedures described in
Chapter 30.3
. If the alien is present in the United States and requires an extension of stay, follow procedures described in
Chapter 30.2
. Notify the petitioner of the action taken using CLAIMS
Form I-797
, Notice of Action. If action is completed in a local office on an emergent basis, the file must be returned to the appropriate service center for storage.
(2)
Denial
.
Prepare a notice of denial, also on Form I-797. Advise the petitioner of the right of appeal to the Administrative Appeals Office. Retain the file, in accordance with local procedures, until the appeal period expires or the appeal is received.
(c)
Transmittal of Petition
.
(1)
Visa Applicants
.
If the beneficiary requires a visa, the duplicate of the approved petition, with the supporting documents, shall be sent to the appropriate consul. When advance notice of approval (via fax or cable) is directed to a consul, the petitioner shall be instructed promptly to have the beneficiary contact the consul. The petition, before being mailed, shall be stamped "Approval previously forwarded".
(2)
Visa-exempt Applicants
.
When the beneficiary does not require a visa, the duplicate petition, without supporting documents, shall be forwarded to the appropriate port of entry.
(d)
Adjudicative Issues
. [reserved]