Fillipino Nurses Denied Petitions

Date: Monday, October 14, 2002 8:33 AM

************ H-1B NEWSLETTER *************

* Get the Facts on H-1B at *
* www.ZaZona.com *

I don't know how often H-1B petitions are denied. This time the nurses were
denied H-1B visas because the court ruled that they couldn't prove they were
a specialty occupation. This argument could be used when H-1Bs are used to
replace any American in a job that doesn't require a college degree or has
been done by people that didn't have a degree. A good example of that would
be System Administrators.

http://www.ca5.uscourts.gov/opinions/pub/98/98-60340-cv0.htm

Vintage Health Resources and seven Filipino nurses appeal the district
court's affirmance of the Immigration & Naturalization Service's denial of
H1-B visas for the nurses. Because Vintage did not produce evidence
sufficient to show that the nurses were members of a "specialty occupation,"
as required under § 101(a)(15)(H)(i)(B) of the Immigration and Nationality
Act, we AFFIRM the denial of H1-B visas.

Vintage is a medical contract service agency which brings foreign nurses
into the U.S. locating jobs for them at hospitals as registered nurses.
Vintage sought to have seven Filipino nurses classified as H-1B
nonimmigrants, performing services in a "specialty occupation." H-1B aliens
in a specialty occupation may spend up to six years in the U.S., rather than
the one year allowed for regular business travelers.

The INS denied each petition, stating that Vintage failed to establish that
the nurses worked in a "specialty occupation," under § 101(a)(15)(H)(i)(B)
of the Immigration and Nationality Act. See 8 U.S.C. § 1101(a)(15)(H)(i)(B).
A "specialty occupation" is defined in part as one in which the "attainment
of a bachelor's or higher degree . . . (or its equivalent) [is] a minimum
for entry into the occupation in the United States." Id. § 1184(i)(1)(B).

Vintage produced evidence that it only hired nurses with B.S.N. degrees. The
INS claimed, however, that the proper focus of inquiry is not what Vintage
as an employment agency required, but instead what the contracting facility
required, and Vintage failed to establish that the medical facilities where
the nurses would actually work required bachelor degrees. At best, Vintage
showed that such facilities preferred nurses with B.S.N. degrees, but did
not require that nurses have B.S.N. degrees.

Help to Keep ZaZona.com Online

Donate to the Cause at
http://www.zazona.com/Donations.htm

Back to archives