A recent adjudicatory trend at U.S. Citizenship and Immigration Services (USCIS) disregards the Department of Labor Regulations for “Schedule A” permanent residence applications for registered nurses. The DOL regulations recognize three ways a registered nurse can meet the license requirement at the time of the I-140 filing: (1) full and unrestricted state license in the state of intended employment; (2) passing score on the NCLEX-RN examination; or (3) certificate from CGFNS (now called TruMerit). Yet there is a recent USCIS trend to deny “Schedule A” applications if the employer truthfully lists the “state license” on the prevailing wage determination without any qualifiers that NCLEX or CGFNS certificate can qualify for a state license for the I-140 petition.

In essence, USCIS is treating a requirement at the time the nurse begins working as a requirement at the time of the I-140 filing, contrary to the DOL regulations. And, USCIS focuses on the specific wording of the “state license” requirement and elevates the phrasing over the regulations, resulting in arbitrary and capricious decisions.

This approach to deny approvable immigrant petitions based on the wording of prevailing wage determinations rather than the governing regulations has significant impact, especially when coupled with USCIS’ extremely long processing times and backlog of immigrant visas.

The Emerging Issue

The issue arises when employers accurately list a state nursing license as a requirement for a registered nurse position on the prevailing wage determination. USCIS has recently taken the position in some adjudications that because the prevailing wage determination references a state nursing license, the foreign nurse must possess that license at the time the I-140 immigrant petition is filed.

That reading conflates a requirement “at the time of starting employment” as a requirement “at the time of the I-140 filing”. The USCIS position conflicts with the DOL regulations governing Schedule A registered nurse petitions. Under Department of Labor regulations at 20 C.F.R. §656.15(c)(2), a registered nurse may satisfy the licensure component of Schedule A eligibility through any one of three alternatives: (1) A CGFNS certificate; (2) A full and unrestricted nursing license in the state of intended employment; or (3) A passing score on the NCLEX-RN examination.

The regulation uses the word "or," making clear that a nurse needs to satisfy only one of the three alternatives at the time of the I-140 filing, although the full state license is needed when the nurse starts working in the U.S. Yet in some I-140 denials, USCIS has denied I-140 petitions where the prevailing wage determination lists the state license requirement, and the nurse has a passing score on the NCLEX-RN examination but doesn’t yet have the full state license. In those decisions, USCIS is effectively disregarding two of the three pathways that the Department of Labor expressly established if the petitioner truthfully states the license requirement without qualifiers.

There are several problems with the USCIS interpretation.

The USCIS Decisions Confuse Job Requirements with Immigration Eligibility Requirements

For decades, the U.S. Department of Labor (DOL) has recognized registered nurses and physical therapists as shortage occupations, designated as “Schedule A”. Schedule A petitions – applicable only to Registered Nurses and Physical Therapists as shortage occupations – bypass the PERM labor certification process. However, a petitioner must still obtain a prevailing wage determination form (ETA 9141) and complete an uncertified labor certification form (ETA 9089) to submit to USCIS with the I-140 Petition. On the prevailing wage determination, the employer/petitioner must list the minimum job requirements for the position: education requirements, experience requirements, and any special requirements such as certifications, licensure, etc.

In the U.S., every registered nursing position requires a state license in the state of intended employment to practice as a nurse. A nurse must have a state license to practice nursing when the nurse begins working. While each state requires a license on the first day the beneficiary starts working, the DOL has codified regulations that allow an international nurse to show eligibility for a state license, at the time of the I-140 petition, through methods short of the full and unrestricted state license.

Despite the DOL regulations allowing alternatives to a state license at the time of the I-140 petition, USCIS has recently treated the license as a requirement the beneficiary must meet at the time of the I-140 filing when an employer/petitioner lists the “state license” on the prevailing wage determination. As such, USCIS is confusing a state requirement applicable when the nurse starts working with a requirement for the immigrant petition.

While the employer’s education requirements listed on the prevailing wage determination and the employer’s experience requirements (if any) listed on the prevailing wage determination must be met at the time of the I-140 filing, the state license requirement is different because the Department of Labor Regulations specifically provides an alternative to a full state license at the time of the I-140 filing.

Requiring the state nursing license at the time of the I-140 filing (instead of the alternative of an NCLEX-RN passing score or CGFNS certificate provided in the Department of Labor Regulations for “Schedule A” applications) is contrary to the clear language of the regulations, the intent of the regulations, and long-standing USCIS policy and practice. Moreover, hinging approval of Schedule A on the phrasing of the license requirement on the prevailing wage elevates scrivener’s drafting over government regulations and leads to an arbitrary and capricious result.

The USCIS Decisions Conflict with the Plain Language of the Regulations

The plain language of the regulations allows the three methods to prove the licensure component: CGFNS certificate, passing score on NCLEX, or state licensure. Specifically, the DOL Regulations state the following:

An employer seeking a Schedule A labor certification for an alien to be employed as a professional nurse [§656.15(a)(2)] must file as part of its labor certification application documentation that the alien has received a Certificate from the Commission on Graduates of Foreign Nursing Schools (CGFNS); that the alien holds a full and unrestricted (permanent) license to practice nursing in the state of intended employment; or that the alien has passed the National Council Licensure Examination for Registered Nurses (NCLEX-RN). Application for certification of employment as a professional nurse may be made only under this §656.15(c) and not under §656.17

Each of these three methods pertains to licensure. First, the “full and unrestricted license to practice nursing in the state of intended employment” is the state requirement for every state in the U.S. that is applicable on the first day the nurse begins working in the state. Second, the passing score on the “National Council Licensure Examination (NCLEX-RN)” is the national test that all U.S. states require as the substantive requirement for licensing as a registered nurse. Third, the “Certificate from the Commission on Graduates of Foreign Nursing Schools (CGFNS)” (now called TruMerit) is rarely obtained anymore but was the most common method of “Schedule A” qualification more than two decades ago when the NCLEX-RN examination was not offered overseas. At that time CGFNS became credentialed and offered a predictor exam – called the CGFNS exam – which was an acceptable indication of whether a nurse could pass the NCLEX-RN examination in the U.S. and thereby would be able to obtain the state nursing license after arrival in the U.S.

The Regulations are clear about how a registered nurse can meet the licensure requirement at the time of the I-140 filing. The Regulations provide alternatives to “full and unrestricted license to practice in the state of intended employment” at the time of the I-140 filing. The regulations use “or” rather than “and”, meaning that a nurse needs to meet only one of the three methods. Thus, while an employer may have specific education requirements or specific experience requirements, the state licensure requirement can be met by either of the following three at the time of the I-140 filing with the expectation that the nurse will obtain the full state license by the first day she/he begins working: (1) Certificate from CGFNS; or (2) full and unrestricted license to practice nursing in the state of intended employment; or (3) passing score on the NCLEX examination, which is the nurse licensing examination.¹

The beneficiary must meet employer requirements. This is undisputed as it relates to the education requirements and the experience requirements. As to the license requirements, the beneficiary must meet the “Schedule A” regulations regarding the license requirement at the time of the I-140 filing. That is, the nurse must have either a CGFNS certificate, NCLEX-RN passing score, or state license at the time of the I-140 filing. The phrasing of the state licensure requirement on the prevailing wage determination does not override or nullify the Department of Labor regulations. USCIS must follow the regulations.

The USCIS Decisions Contradict the Purpose Behind the Regulations

Not only does the plain language of the regulations provide for three methods for a nurse/beneficiary to meet the eligibility for Schedule A I-140 approval, but the clear intent of the regulations was to allow alternatives to the full and unrestricted license to practice nursing in the state of employment at the I-140 stage.

The historical context is particularly important because both the Department of Labor and USCIS recognized the purpose of the alternative to state license was the barrier nurses face in getting a state nursing license before obtaining work authorization. The Schedule A framework was therefore designed not to require state licensure as part of the immigration petition, but rather to permit a nurse to demonstrate substantive eligibility for licensure through alternative means.

Originally, the Department of Labor regulations recognized two methods to meet the licensure requirement: either a CGFNS certificate or a full and unrestricted nursing license in the state of intended employment. But by the early 2000’s, the NCLEX-RN examination began to be offered in some locations overseas, resulting in more nurses wanting to bypass the CGFNS “predictor” exam of NCLEX-RN and instead take only the NCLEX-RN. This avoided a two-testing process of passing the CGFNS while outside the US and then passing the NCLEX-RN for licensure.

On October 2, 2002, DOL advised the USCIS (then INS) that, in adjudicating EB-3 petitions on behalf of nurses, the Service may also accept documentation that the alien beneficiary has passed the NCLEX-RN examination as eligibility for a Schedule A labor certification. The DOL advised the Service that it would pursue conforming amendments to its regulations at 20 CFR §656.22(C)(2). As a result of the DOL guidance, USCIS issued a memorandum on December 20, 2002, which instructed officers to approve Schedule A petitions where the state nursing authority confirmed that the nurse had passed the NCLEX.

When the DOL issued the final PERM regulations on December 27, 2004, it included NCLEX as another alternative for a registered nurse to meet the license requirement for a “Schedule A” application. The preamble to the regulations explained the following:

Several commenters supported adding a provision allowing alien nurses who pass the National Council Licensure Examination for Registered Nurses (NCLEX-RUN), administered by the National Council of State Boards of Nursing (NCSBN), to qualify for Schedule A. The commenters contended that because every state requires passage of the NCLEX-RN before issuing a permanent license, proof of passing should be another means to qualify under § 656.5(a)(2). Although the availability of the examination only in the U.S. and its territories had been a burden for foreign-trained applicants in the past, the commenters noted that the NCLEX-RN is being given in more locations abroad and some organizations bring foreign nurses to take the examination.

We have determined that passage of the NCLEX-RN examination is consistent with and furthers the policy rationale for allowing CGFNS Certification as an alternative to holding a permanent, full and unrestricted license to practice nursing in the state of intended employment. This final rule includes a provision in § 656.15 allowing certification by demonstrating passage of the NCLEX-RN.

The resulting regulation, now codified at 20 C.F.R. § 656.15(c)(2), provides that an I-140 Immigrant Petition for a “Schedule A” nurse may establish eligibility for licensure by showing either a CGFNS certificate, or a full and unrestricted state license, or passage of the NCLEX-RN examination. The Department’s adoption of NCLEX as a regulatory alternative reflected its recognition that passage of the national licensing examination constituted reliable evidence that the nurse possessed the professional qualifications necessary for state licensure.

The evolution from the original CGFNS-or-licensure framework, to the INS policy in 2002 to begin accepting NCLEX as another alternative state licensure and finally to the DOL Regulations in 2004 codifying NCLEX as an independent regulatory alternative to licensure demonstrates a consistent governmental policy: a foreign nurse need not possess the actual state license before I-140 approval if the nurse can demonstrate, through one of the alternative regulatory mechanisms, that he or she is qualified and will be able to obtain licensure after entering the United States.

Accordingly, in a “Schedule A” I-140 Petition for a registered nurse, the Department of Labor regulations control regardless of how the petitioner/employer lists the state license requirement on the ETA 9141 prevailing wage determination. Therefore, any analysis of the ETA 9089 or prevailing wage requirement must be read in conjunction with the specific Schedule A regulations and the longstanding agency guidance recognizing that full and unrestricted state license is an option but not the only option to meet the license requirement at the time of the I-140 filing.

The USCIS Decisions Are Inconsistent with Longstanding Agency Policy

The USCIS decision misapplies the law and long-standing USCIS policy. In recent decisions, the USCIS has made three separate, but related, statements that apply out of context. 

First, USCIS says, “the beneficiary must meet both the schedule A requirements and the position requirements as set by the petitioner for the proffered position.” USCIS misapplies this statement. It is true that a beneficiary must meet the petitioner’s education requirement and the petitioner's experience requirement, and the beneficiary must meet one of the bases for license as designated in the DOL Regulations. The beneficiary does not need to meet the full state license requirement at the time the I-140 petition is filed.

Second, USCIS says, “In evaluating the beneficiary’s qualifications, USCIS must look to the job offer portion of the labor certification to determine the required qualifications for the position; USCIS may not ignore a term of the labor certification, nor may it impose additional requirements.” USCIS cites several cases for this position. However, those cases are distinguishable from “Schedule A” nurse petitions. While they articulate general principles regarding USCIS's role in adjudicating employment-based immigrant petitions and determining whether a beneficiary satisfies labor certification requirements, none addressed the specialized regulatory framework later established by the Department of Labor for Schedule A nurses under 20 C.F.R. § 656.15, which expressly permits alternatives to possession of a full state nursing license at the time of the I-140 filing.

Matter of Silver Dragon Chinese Restaurant was decided in 1986 and involved whether a labor certification was valid when the petitioner did not disclose the beneficiary's ownership interest in the company. The case concerned the integrity of the labor certification process and not whether the beneficiary met the minimum requirements for the position. It did not address professional licensure requirements, Schedule A nurses, or the Department of Labor's later-adopted regulations permitting alternative evidence of nurse licensure eligibility.

Madany v. Smith, 696 F.2d 1008 was decided in 1983. While the case involved a registered nurse whose labor certification required eligibility for Virginia nursing licensure, the case was decided before the DOL established registered nurses as a Schedule A shortage occupation and before the DOL regulations expressly provided alternative methods to demonstrate license eligibility at the I-140 stage.

KRK Irvine, Inc. v. Landon was also decided in 1983. It did not involve a Schedule A shortage occupation (which bypasses labor certification) and was before the DOL regulations for alternative methods to demonstrate license eligibility at the time of filing the I-140.

Unlike those cases, the issue in this case is whether USCIS may determine whether the beneficiary meets the labor certification requirements. The issue is how those requirements should be interpreted when the DOL Schedule A regulations expressly provide that a nurse may meet the state license requirement through alternative means, including a passing score on the NCLEX-RN examination.

The above cases would be relevant and controlling if the beneficiary failed to meet the employer’s education requirement and/or employer’s experience requirement. However, the nursing license requirement is a state requirement, and the Department of Labor Regulations, implemented after all the cases USCIS cited, provide alternative ways a nurse can meet the license requirement at the time of the I-140 filing.

Third, USCIS says, “the only rational manner by which USCIS can be expected to interpret the meaning of the terms” is to examine the job offer “exactly as it is completed by the prospective employer” (emphasis added). However, USCIS has long recognized that for “Schedule A” applications it does NOT have to examine the job offer “exactly” as it is completed by the prospective employer.

For example, in 2006 USCIS issued guidance to its adjudicators specifically instructing officers not to issue requests for evidence or deny I-140 applications merely because of the language on the labor certification form.² Accordingly, adjudicators were instructed to evaluate the petition consistent with the “Schedule A” regulations. That guidance became part of the USCIS Adjudicators Field Manual and stated: 

Minimum Requirements: Remember that qualifying for Schedule A means only that the labor certification requirement has been met. You must make a separate determination on the alien’s qualification for the specific visa classification requested using the evidence described above. The “minimum requirements” in Schedule A case as listed in Item 14 and 15 of Part A of the ETA-750 for petitions filed before March 28, 2005, and in Item H of the ETA-9089 for petitions filed on or after March 28, 2005, may not be a true reflection of the actual education, training, and experience needed to perform the job. In many cases, a Schedule A petitioner will give the particular alien’s qualifications rather than actual minimum requirements, and, because the labor certification form is sent directly to USCIS, this will not be reviewed first by DOL and corrected through DOL involvement. This point is important because many classifications require that the petitioner establish that the position requires a person of a particular caliber. As long as the duties shown on the labor certification application are appropriate for a position that requires licensure as a registered nurse, licensure as a physical therapist, or performance of a worker of exceptional ability, the petition should not be denied, and a request for evidence need not be sent to confirm the precise minimum job requirements.

That guidance recognized that the application may list the beneficiary’s requirements as the job requirements rather than the minimum job requirement: listing a requirement that may be higher than the true minimum requirement for the I-140 petition. This guidance shares the same principle that the recent I-140 denials seem to violate: “Schedule A” applications the USCIS does NOT have to examine the job requirements “exactly as it is completed by the prospective employer.”

The USCIS Decisions Impose an Extra-Regulatory Requirement

Ultimately, USCIS is imposing a requirement that neither the Schedule A regulations nor the employment-based immigrant petition regulations impose. The Department of Labor regulations establish three methods by which a foreign nurse may demonstrate eligibility for licensure at the immigrant petition stage. The language of the regulations is plain. The intent of the regulations is plain. Even the long-standing policy and practice of USCIS was to follow the plain language and intent of the regulations. This recent trend by USCIS is a change in practice and exceeds the regulations. Administrative agencies may interpret regulations, but they may not rewrite them.

When a nurse satisfies the employer's education requirements, experience requirements, and one of the three licensure pathways identified in the regulations, denying the petition because the nurse lacks a state nursing license effectively adds a fourth requirement that appears nowhere in the regulatory framework.

The USCIS Decisions Produce Arbitrary Results

The USCIS decisions produce inconsistent results based upon how the license requirement is written on the prevailing wage determination. However, the DOL Regulations should control: the regulations recognize the NCLEX-RN or CGFNS certificate as an alternative to the full and unrestricted state license at the time of the I-140 filing.

While the state license is a universal requirement applicable to every registered nurse position in the U.S., there are various ways a preparer of the ETA 9141 prevailing wage determination may describe the licensure requirement applicable when the nurse starts employment. These variations include but are not limited to: (1) State of Kansas license; (2) state license; (3) “Schedule A requirement of NCLEX-RN, CGFNS certificate or state license in state of intended employment”; (4) NCLEX/CGFNS certificate/state license; (5) state license on first day of employment; (6) eligible for state license; (7) Schedule A requirement at time of petition but license at time of employment; (8) job requires a state license on first day of employment but international nurses may show eligibility for licensure based upon Department of Labor regulations. Regardless of which phrasing is used, the facts do not change: a registered nurse position requires a state license on the first day of employment, and the Department of Labor regulations allow three different methods to meet that license requirement at the time of the I-140 filing. 

The difference in phrasing is not a difference in actual job requirement, but rather a difference in how the requirement is described. Any decision that elevates the phrasing on the prevailing wage determination above the regulations is arbitrary and capricious. Under this reasoning, eligibility would turn not on whether the nurse meets the Regulations, but on how the preparer of the ETA 9141 prevailing wage determination describes the universal state license requirement applicable at the time the nurse starts employment.

An Impact Beyond Immigration Petitions

The significance of this issue extends far beyond immigration procedure. Schedule A exists because the federal government recognized longstanding shortages of qualified nurses and created a streamlined process to help healthcare employers recruit talent from abroad. When USCIS makes decisions that are contrary to the plain language and intent of the regulations, in addition to its long-standing policy and practice, it yields arbitrary and capricious results that directly impact healthcare in the U.S. Nurses encounter barriers, healthcare employers experience delays in nurse arrivals in the U.S. to begin working, and the nation's healthcare system continues to suffer because of the nursing shortages.