Amongst other areas of expertise, Immigration Compliance Group specializes in obtaining temporary and permanent immigration benefits for foreign nurses, physical therapists and other allied healthcare professionals.
APPLYING HEALTHCARE SKILLS ON A TEMPORARY BASIS
The H-1B visa is a temporary nonimmigrant visa classification in which the beneficiary can work for the petitioning U.S. employer. The H-1B visa is a dual intent visa. This means that beneficiaries can receive extensions of their H-1B status and travel abroad on their H-1B visa, even after submitting a green card application.
H-1B visas are not normally available for Registered Nurses since a 4-year Bachelor’s Degree is not a minimum requirement to become a Registered Nurse in the United States. However, Advanced Practice Nurses and Nurse Managers may qualify for H-1B visas.
Employers must prove that a bachelor’s degree or higher, or its equivalent, is the minimum requirement for entry into the position when petitioning for H-1B visa status for Registered Nurses (as mentioned above) and Physical Therapists.
Most H-1B visas are subject to the H-1B cap. Certain types of employers, such as colleges, universities, and other institutions of higher education, related or affiliated nonprofit entities, the government, and nonprofit research organizations are exempted from the H-1B cap. Many hospitals qualify for the H-1B cap exemption and are able to petition for H-1B visas at any time.
In addition, 20,000 H-1B visas are available to foreign nationals who obtain a master’s or higher degree from a U.S. institution of higher education.
Under the North America Free Trade Agreement (NAFTA), citizens of Canada or Mexico can work in a pre-approved professional occupation in the U.S. if:
1. The foreign national possesses the specific criteria for that profession; 2. The position requires someone in that professional capacity; and 3. The foreign national is going to work for a United States employer.
Unlike H-1B visa applicants, TN visa holders must be able to demonstrate that they intend to depart from the U.S. when they complete their TN stay. TN’s are issued in 1-year increments. TN visa holders who apply for their green card while in TN status may not be able to extend their TN stay or travel abroad while their green card application is pending.
Currently there is no specific temporary nonimmigrant nurse visa available in the United States. Foreign nurses, if eligible, can apply for H-1B or TN classification.
Foreign Nurses can only qualify for H-1B visa status if their position requires at least a bachelor’s or higher degree and they have the required degree or its equivalent. Many nursing positions, including general and staff registered nurse positions, require a two-year associate’s degree rather than a four-year bachelor’s degree, which makes the H-1B visa category unobtainable for most healthcare employers that want to hire a foreign nurse. When an employer can prove that a nursing position requires a 4-year degree or higher, then the H-1B temporary nonimmigrant visa classification may be accessible. An example is the Advanced Practice Registered Nurse (APRN) position which requires advanced education and training for certification.
Additional qualifying nursing occupations are as follows and will generally be H-1B equivalent if the position requires, and the foreign nurse has obtained, advanced practice: Certified Registered Nurse Anesthetists (CRNA), Certified Nurse Midwives (CNM), certain Nurse Practitioners (NP), and certain Clinical Nurse Specialists (CNS). Other nursing occupations may also qualify for H-1B visa status. For example, upper level hospital administration positions, such as a Nurse Manager, may be H-1B equivalent since these positions typically require, and the applicant must have, a bachelor’s degree.
Further, Canadian and Mexican nurses can apply for TN visa status, since registered nurses are on the list of approved NAFTA professions. Nurses must prove their eligibility for TN status by exhibiting that they have a provincial or state license or degree. To work in the United States, nurses must provide authorization from the state nursing board in the state of intended practice. The authorization can be in the form of a permanent state license, temporary state license, or other evidence permitting the foreign nurse to work as a registered nurse in the desired state.
A VisaScreen Certificate is required for H-1B and TN visa applicants. The VisaScreen Certificate is composed of three parts: (i) a credentials review; (ii) successful completion of either the Commission on Graduates of Foreign Nursing Schools (CGFNS) qualifying examination or the National Council Licensure Examination for Registered Nurses (NCLEX-RN); and (iii) passage of an English proficiency examination. The VisaScreen Certificate program is administered by the International Commission on Healthcare Professions (ICHP), a division of CGFNS, for the purpose of verifying that the foreign health care worker’s education, training, licensing, experience, and English competency are comparable to American health care workers.
Physical therapists are generally eligible for H-1B visa status since a four-year bachelor’s degree is usually required for the physical therapist occupation in the United States.
To file for H-1B status, foreign physical therapists must take and pass the National Physical Therapy Examination (NPTE) and be licensed as a physical therapist in the state of intended employment. This is an important distinction between the green card and H-1B processes. To apply for a green card, physical therapists only need a letter signed by an authorized state physical therapy licensing official indicating eligibility to take the NPTE. Foreign physical therapists can apply to enter the U.S. as a visitor to take the NPTE. If the foreign physical therapist cannot obtain a visitor visa, then H-1B status will likely be unavailable. Such individuals may need to file for a green card rather than H-1B status. Since each state has different requirements for licensure, foreign physical therapists should determine the requirements in the state where they intend to practice. A list of state physical therapy boards is available on the Federation of State Boards of Physical Therapy (FSBPT) website at fsbpt.org.
Many states now require physical therapists to have at least a master’s degree. As a result, foreign physical therapists who earn their degree in the U.S. are eligible for the additional 20,000 allotment of H-1B visas.
Physical therapists are also on the list of approved NAFTA professions. Canadian and Mexican Physical Therapists can apply for the TN visa.
Currently, the International Commission on Healthcare Professionals (ICHP), a division of CGFNS, is authorized to issue VisaScreen certificates to both nurses and Physical Therapists. Physical Therapists have an additional option of presenting a Certificate issued by the Foreign Credentialing Commission on Physical Therapists (FCCPT), www.fccpt.org A VisaScreen Certificate is required for both nonimmigrant and immigrant status for Physical Therapists in the United States. For information concerning the FCCPT Type 1 Certificate, please refer to their website.
SCHEDULE A: THE GREEN-CARD OPTION FOR NURSES AND PHYSICAL THERAPISTS
When foreign nationals qualify for Schedule A, they bypass the rigorous recruitment process typically required as part of the labor certification application to test the job market. When nurses, physical therapists, and their employers apply for Schedule A, they do not need to obtain labor certification from the U.S. Department of Labor before filing the I-140 immigrant petition, unlike people applying in almost all other employment-based categories.
Since Schedule A applications do not require the approval of a labor certification, the process for obtaining a green card for qualified nurses and physical therapists can be much quicker than for occupations that require labor certification.
Schedule A establishes that the employment of foreign workers in Schedule A occupations will not adversely affect the wages and working conditions of U.S. workers similarly employed.
Foreign nurses and physical therapists can work at a facility anywhere in the United States and are not limited to working where there is a shortage of people working in these occupations.
Petitioning for the Immigrant Visa Under PERM
On March 28, 2005, the new PERM labor certification regulation took effect. The PERM regulation introduced the Form ETA 9089, which replaced the old Form ETA 750. Although labor certification is not required for nurse and physical therapist applicants, the Form ETA 9089 must be submitted with the immigrant visa petition. Both documents are directly filed with the U.S. CIS Service Center.
PERM requires all employers, including Schedule A employers, to obtain a prevailing wage determination (PWD) from the State Workforce Agency (SWA). The PWD is to be made by the state in which the applicant will be working upon approval of his/her application. There is no centralized format for the wage request. Once the prevailing wage is determined, PERM requires employers to pay the foreign national a salary of at least 100% of the prevailing wage (i.e. the actual wage to be paid for the position cannot be lower than the prevailing wage).
PERM requires employers to post notices regarding the job opportunity for at least ten consecutive business days in two conspicuous locations at the work site. If the employees have a union, the petitioning employer does not need to post notices, but instead must notify the bargaining representative that an immigrant visa petition has been filed. PERM also requires that an employer use any and all in-house media in accordance with the normal procedures used in recruitment for other similar positions in the employer's organization.
The processing of the immigrant visa application takes place either through adjustment of status in the United States or consular processing abroad.
Nurse and physical therapist applicants who are lawfully present in the United States in a nonimmigrant classification that does not require nonimmigrant intent can apply for their green card through adjustment of status. The adjustment of status application can be filed at the same time as the immigrant visa petition, if the immigrant visa quota is current at the time of filing. If the immigrant visa petition is filed before the expiration of the period of authorized nonimmigrant stay in the U.S., the applicant may be authorized to accept employment upon approval of the employment authorization component of the adjustment of status track, as long as any state licensure issues are resolved.
Applicants who are located outside the United States or who are not eligible for adjustment of status can apply for consular processing at a U.S. Embassy or Consulate abroad. Once the immigrant visa petition is approved, the U.S. Citizenship and Immigration Services will notify the U.S. State Department's National Visa Center, which will send instructions to the applicant on how to apply for an immigrant visa at a U.S. Embassy or Consulate, when the immigrant visa quota is available.
A professional nurse is one who “applies the art and science of nursing, including principles derived from the physical, biological, and behavioral sciences. Professional nursing generally includes making clinical judgments about the observation, care, and counsel of persons requiring nursing care; administering medicines and treatments prescribed by a physician; and participating in activities to promote health and prevent illness in others.” A study program for professional nurses generally includes theory and practice in clinical areas such as obstetrics, surgery, pediatrics, psychiatry, and medicine.
Professional nurses must have a diploma in nursing and an unrestricted and unencumbered nursing license from their home country, unless educated in the United States. Professional nurses must also have either a full and unrestricted license in the state of intended employment, or proof that they successfully completed the Commission on Graduates of Foreign Nursing Schools (CGFNS) certification program, or have passed the National Council Licensure Examination for RN’s (NCLEX-RN), administered by The National Council of State Boards of Nursing.
State nursing boards generally require passage of the National Council Licensure Examination (NCLEX-RN). The NCLEX-RN is a frequently scheduled examination offered in the United States and its territories and abroad. Licensure requirements differ in each state. The licensing authority in the state of desired employment should be contacted for licensure guidelines. Contact information is available through the National Council of State Boards of Nursing at ncsbn.org
The alternative to directly pursuing state licensure is for nurse applicants to complete the CGFNS certification program. The CGFNS certification program consists of three parts: (i) a review of foreign nursing credentials; (ii) the CGFNS qualifying exam, which is offered in the United States and abroad; and (iii) an English language proficiency component. CGFNS accepts qualifying results from the English language proficiency examinations known as TOEFL, TOEIC, and IELTS. Native English speaking applicants who received their nursing education in Australia, New Zealand, most parts of Canada, Ireland, the United Kingdom, and South Africa may be exempt from the English language proficiency requirement. Additional details about the CGFNS certification program can be found at cgfns.org.
After the immigrant visa petition is filed, but before obtaining permanent residency approval through adjustment of status or consular processing, nurses must obtain a VisaScreen Certificate. The VisaScreen Certificate is composed of three parts: (i) a credentials review; (ii) successful completion of either the CGFNS qualifying exam or NCLEX-RN examination; and (iii) passage of an English proficiency examination. The VisaScreen Certificate program is administered by the International Commission on Healthcare Professions (ICHP), a division of CGFNS, for the purpose of verifying that the foreign health care worker’s education, training, licensing, experience, and English competency are comparable to American health care workers.
A physical therapist is “a person who applies the art and science of physical therapy to the treatment of patients with disabilities, disorders, and injuries to relieve pain, develop or restore function, and maintain performance. Physical therapists use physical means such as exercise, massage, heat, water, light, and electricity, as prescribed by a physician (or surgeon).”
Unlike Schedule A for nurses, to qualify for Schedule A, physical therapists need only be eligible to take the NPTE and receive licensure in the state of intended practice. Proof of eligibility to take the NPTE can be evidenced in a letter signed by an authorized state physical therapy licensing official. Since each state has different requirements for licensure, foreign physical therapists should determine the requirements in the state where they intend to practice. A list of state physical therapy boards is available on the Federation of State Boards of Physical Therapy (FSBPT) website at fsbpt.org.
HOW Immigration Compliance Group CAN HELP YOU
Immigration Compliance Group’ affiliated attorneys and staff are experienced in preparing and filing nurse, physical therapist and other allied healthcare professional nonimmigrant and immigrant visa applications. We work closely with employers throughout the application preparation process. Whether you are an employer, human resources representative of an employer, or a foreign national, please call us or send us an email message so we can provide you with expert guidance through the complex immigrant and nonimmigrant application processes. Please sign up for our In Focus Monthly Newsletter and NewsFLASHES to stay current concerning the ever-changing immigration issues of the day as they pertain to the healthcare industry. Please Note: This information is of a general nature and should not be construed as legal advice. It is not intended to establish an attorney client relationship. If you need legal advice, it is recommended that you contact an experienced licensed attorney who specializes in immigration and nationality law with an emphasis in healthcare.
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