Nurses and Physical Therapists

As a result of the shortage of nurses and physical therapist in the United States the government has made it possible for nurses and physical therapist in other countries to migrate to the United States or adjust status without undergoing the entire labor certification procedures. As a result nurses and physical therapist can get their green cards faster that people in other professions.

 SPONSORING NONIMMIGRANT FOREIGN NURSES

Nonimmigrant visa options for nurses are limited. Which combination of foreign nursing
credentials and U.S. nursing position requirements will qualify for which classification(s) require a fact-based determination. In some cases, more than one alternative may be available. In some cases, no alternative may be available.

TN

Under the North America Free Trade Agreement (NAFTA), a citizen of Canada or Mexico may work in a professional occupation in the United States provided that:

• The profession is on the NAFTA list;
• The alien possesses the specific criteria for that profession;
• The prospective position requires someone in that professional capacity; and
• The alien is going to work for a U.S. employer. The NAFTA classification, TN, includes 63 professions. The registered nurse is one of the 63 professions.

H-1B “SPECIALTY OCCUPATION”

Aliens in certain specialized RN occupations are more likely than typical RNs to be eligible for H-1B status. If a prospective employer believes that a particular RN may qualify as an H-1B nonimmigrant, the prospective employer may file a Form I-129 with the appropriate Service Center. RNs do not typically meet the general requirements for H-1B Specialty Occupation Classification. A specialty occupation is defined as a field of employment, which requires:

• Theoretical and practical application of a body of highly specialized knowledge;
• A bachelor’s or higher degree in the specific specialty (or its foreign degree equivalent), which is a minimum for entry into the occupation in the United States.

H-1B status generally is not available to most RNs because every state and the District of Columbia permits a person who does not hold a bachelor’s degree in nursing, but who meets the educational and testing requirements set by law, to obtain an RN license. Nonetheless, certain nurses may be able to meet statutory and regulatory requirements and receive H-1B approval by establishing that they practice in a specialized field of nursing that does require a bachelor’s degree in nursing as the minimum for entry into the specialty.

In order to qualify an RN position as a H-1B, the petitioning employer must show:

• bachelor or higher degree or equivalent is normally the standard minimum requirement for entry into the particular specialty occupation;
• The degree required for the subject position must be commonly required for similar positions within the employer’s/petitioner’s industry. Alternatively, the petitioner must demonstrate that the subject position is so complex or unique that it can be performed only by an individual with the degree or equivalent that is listed as a job requirement;
• The employer must normally require the same degree or its equivalent for the subject position;
• The specific duties of the position must be so specialized and complex that knowledge required for performance of the duties is usually associated with attainment of a bachelor level or higher degree.

Aliens in Certain Specialized RN Occupations May be Eligible for H-1B Status

Although general RNs will not typically be eligible for H-1B status, certain specialized nursing occupations are likely to require a bachelor’s or higher degree as the minimum requirement for entry into that specialized field and, consequently, have a great chance of satisfying the H-1B requirements. Positions that require nurses who are certified advanced practice registered nurses (APRN) will generally be H-1B equivalent due to the advanced level of training and education required for certification. Furthermore, employers may require that the prospective employee hold advanced practice certification (i.e., clinical nurse specialist, certified registered nurse anesthetist, certified nurse-midwife, or certified nurse practitioner). If the APRN position requires that the employee be certified in that practice, then the nurse will be required to possess an RN, at least a BSN, and some additional graduate level education (such as a master’s degree).
It is also important to note that there are also nursing specialties that require a higher degree of knowledge and skill than a typical RN. Certification examinations may be available to RNs who are not advanced practice nurses, but who possess additional clinical experience in certain areas (e.g., school health, occupational health, rehabilitation nursing, emergency room nursing, critical care, operating room, oncology, and pediatrics). The petitioner may be able to demonstrate that the H-1B petition may be approved by demonstrating that the position meets the requirements outlined above and by demonstrating that the individual meets those requirements.

Nurses in Administrative Positions

Certain other nursing occupations, such as an upper-level “nurse manager” in a hospital administrative position, may be H-1B equivalent since administrative positions typically require, and the individual must hold, a bachelor’s degree. (See Bureau of Labor Statistics, USDOL, Occupational Outlook Handbook at 269.) Nursing Services Administrators are generally supervisory level nurses who hold an RN and a graduate degree in nursing or health administration.

SPONSORING FOREIGN NURSES AS LAWFUL PERMANENT RESIDENTS

Issuance of Employment-Based immigrant visas typically involves three main steps.  

• First, the employer must establish, through the labor certification process, that there is a shortage of sufficient workers willing and able to provide the services the alien nurse is to provide and that the immigration of the alien nurse will not adversely affect wage and working conditions in the United States.
• Second, the Form I-140 is filed at the USCIS Service Center with geographic jurisdiction over the place of employment.
• Once the Form I-140 is approved and it has been determined that the alien has the minimum requirements, the alien beneficiary becomes eligible to apply for an immigrant visa, once the priority date is current.

If the alien is present in the United States in a lawful status, approval of the Form I-140 may permit the alien to apply for adjustment of status, instead of going abroad to obtain an immigrant visa.

Schedule A Labor Certification

As noted above, aliens who seek to enter the United States in specified Employment-Based permanent visa categories are excluded from the United States unless the Secretary of Labor has certified to the Secretary of State and Attorney General that there are not sufficient workers who are able, willing, and qualified U.S. workers, and available at the time of application for a visa and admission to the United States and at the place where the alien is to perform such skilled or unskilled labor, and the employment of such alien will not adversely affect the wages and working conditions of U.S. workers similarly employed. This process is normally called a labor certification.

Every petition must be accompanied by an individual labor certification from the DOL or by an application for Schedule A designation. To apply for Schedule A designation, a fully executed uncertified Form ETA 9038 in duplicate must accompany the Form I-140 petition. Schedule A is a list of occupations which have been pre-certified by the DOL and it has been determined that there are not sufficient U.S. workers who are able, willing, qualified, and available for the occupations, and that the wages and working conditions of U.S. workers similarly employed will not be affected by the employment of aliens in Schedule A occupations. Nursing is an occupation that has been pre-certified by the DOL. It is important to note that this pre-certification only applies to “professional nurses.” Professional nurses’ duties generally include the making of clinical judgments concerning the observation, care, and counsel of persons requiring nursing care and administering of medicines and treatments prescribed by the physician or dentist; and the participation in activities for the promotion of health and the prevention of illness in others. A program of study for professional nurses generally includes theory and practice in clinical areas such as obstetrics, surgery, pediatrics, psychiatry, and medicine. Certified nurses assistants, licensed vocational nurses, practical nurses, and nurse aids are not professional nurses.

The sponsoring employer should include the following documentation:

• Properly filed petition/Form I-140.
• Either DOL certified labor certification, ETA 9038 in duplicate.
• Form G-28 if represented by an attorney.
• Any document containing foreign language submitted to USCIS shall be accompanied by a full English language translation, which the translator has certified as complete and accurate, and by the translator’s certification that he or she is competent to translate from the foreign language into English.
• Evidence that the prospective U.S. employer has the ability to pay the proffered wage. Evidence of this ability shall be either in the form of copies of annual reports, federal tax returns, or audited financial statements. In appropriate cases, additional evidence, such as profit/loss statements, bank account records, or personnel records may be requested.
• Evidence of the beneficiary’s qualifications, such as proof of nursing diploma or degree, proof of nursing registration/licensure from the country where the degree was obtained, etc.

CGFNS Certification Program

The Commission on Graduates of Foreign Nursing Schools (CGFNS) has been designated to provide the certificate to applicants who seek to perform labor as a professional nurse. Once the screening is successful, the certifying organization (currently, only CGFNS for nurses) issues what is called a Visa Screen certificate. The alien must still meet all other regulatory and statutory requirements for the Employment-Based classification sought as well as for adjustment of status. In particular, the issuance of a Visa Screen certificate would not preclude a nurse being sanctioned for practicing in a particular state
without any license that that state may require.

Immigrant Visa Processing/Adjustment of Status

A Visa Screen certificate must be obtained before an immigrant visa will be issued. So once the Form I-140 has been approved and a Visa Screen certificate obtained, a nurse is then eligible to apply for an immigrant visa through consular processing. If they are in the United States in a lawful status they may apply to adjust their status to that of a lawful permanent resident. Rather, presentation of the Visa Screen certificate indicates that the alien’s education, training, license, and experience suggest that he or she should not have any problem in getting licensed following entry.

For applicants as yet unlicensed in the state in which they intend to work, rather than requiring proof that the alien has enrolled for such testing, the post should just judge the alien’s intent to work for the petitioning health care provider. If the post is satisfied that the alien intends to work for the petitioner, it should accept the presumption that the alien will take all necessary steps to follow through on state licensing. Once in the United States, nurses are required to adhere to licensing requirements of the state in which they intend to work. Requirements vary from state to state. It is imperative to look up each state’s requirements.