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H-1B Option for Physical Therapists

Physical Therapists continue to be in demand in the U.S. The Bureau of Labor Statistics projects that their employment will grow by 30% from 2008 to 2018. A recent report by the American Physical Therapy Association shows that the vacancy rate of physical therapists ranges from 13.1% in outpatient settings to 18.6% in long term care settings.

Many physical therapists are recruited from foreign countries such as Philippines and India. There are two ways that they enter the U.S., namely, as nonimmigrants or immigrants.

The most common nonimmigrant option is the H-1B route. H-1B is reserved for specialty occupations and has an annual cap of 65,000. Hospitals and other health care facilities may be exempted from the cap if they are nonprofit organizations affiliated with an institution of higher education.

The position of physical therapist is a specialty occupation. But there was a question over a year ago as to whether a bachelor’s or master’s degree was required for H-1B. The Occupational Outlook Handbook in its 2009 edition stated that the minimum requirement for a physical therapist in the U.S. is a master’s degree so the USCIS denied H-1B petitions for physical therapists that did not have a master’s degree.

But the issue was resolved by the USCIS in a memo dated May 20, 2009. In that memo the USCIS said that in adjudicating H-1B petitions filed on behalf of beneficiaries in health care specialty occupation, the Occupational Outlook Handbook is only a starting point and that other authoritative sources such as the state licensing board standards must be consulted.

The USCIS memo went on to state that if the beneficiary has a valid license to practice physical therapy in the state of intended employment, the beneficiary will be considered to meet the qualifications to perform services in a specialty occupation, regardless of whether the said beneficiary has a bachelor’s degree or a master’s degree.

The license may be unrestricted or restricted. If it is unrestricted the H1-B petition is approvable for up to 3 years. If it is restricted (e.g., license approved except for mandatory supervised practice) the petition may be approved for one year or for the duration of the license, whichever is longer.

There are states that do not issue a license because of a lack of social security card and/or evidence of employment authorization. So long as the beneficiary complies with the requirements for licensure and has filed an application for a license in accordance with the state rules and procedures, the H-1B petition may be approved but only for a period of one year.

If the beneficiary is abroad and therefore cannot take the licensure examination as it’s given only in the U.S., the H-1B petition may still be approved for one year provided the physical therapist has completed all the licensure requirements and is allowed to take the test once he/she arrives in the U.S.

A visa screen certificate is required to be submitted with the H-1B petition. This may be obtained from the Commission on Graduates of Foreign Nursing Schools (CGFNS) or the Foreign Credentialing Commission on Physical Therapy (FCCTP). The certificate which is valid for 5 years certifies that the physical therapist’s education, experience and training and English proficiency are equivalent to those of a U.S. worker.

Heavy Visa Demand Puts Nurses in U.S. in Tight Spot

The heavy demand for visa numbers in the employment-based 3rd preference category (EB-3) has resulted in the slow movement of its cutoff date. The June 2010 cutoff date is June 22, 2003. This means that only those beneficiaries whose priority date is before that date may be scheduled for an immigrant visa interview at a US Consulate abroad or may file for adjustment of status in the U.S. 

The slow movement has created difficulties particularly for nurses currently in the U.S. who wish to adjust their status to permanent residency. They usually fall under one of three situations. 

There are those who were able to file their adjustment applications before the retrogression but their applications were denied because they could not submit their Visa Screen certificates before the deadline set by the U.S. Citizenship and Immigration Services (USCIS). These nurses cannot lawfully remain in the U.S. and the employment authorization granted to them when they filed their adjustment applications is no longer valid. 

There are those who have passed their licensure exams and have found employers willing to sponsor them for I-140 petition. Their I-140 approval will register them on the waiting list but once their nonimmigrant visa status expires, their presence in the U.S. becomes unlawful. 

Then, there are those who have just arrived on a nonimmigrant visa, usually B-2, that is still valid. They may change to another nonimmigrant visa status such as F-1 student which is valid for the duration of their studies. They may also change to H-1B if they are certified as Advanced Practice Registered Nurses or are upper level Nurse Managers, and they may be able to stay here for another six (6) years, or longer if they have an approved I-140 petition and a visa number is not available. 

Unfortunately for those who have overstayed their temporary visas, if they leave the U.S. because they cannot file their adjustment of status application, the 3-year/10-year bar will kick in and they can kiss their dreams of getting a job in the U.S. goodbye. 

Under immigration laws, those who have overstayed their temporary visa for over six months but less than a year will be barred from reentering the U.S. for three years, while those who have overstayed for more than a year will be barred from reentering for ten years.

No one can determine how long nurses will have to wait for visa numbers. The formula for allocation of visa numbers is rather complex. We can only make an estimate. Nurses fall under the EB-3 category but this category also includes other professionals and skilled workers. EB-3 is allotted 28.6% of the 140,000 annual worldwide quota for all employment-based preferences. 

There is also a per country limit of 7% of the 140,000 visa numbers. A country’s yearly allotment is increased if other countries do not use up their numbers. Each country is allotted 2,800 visas per year. 

It is still hard to say at this point when Congress will get around to passing the immigration reform law that would ease the visa backlog. The Nursing Relief Act that has been introduced every year in the last several years and which would create a separate nonimmigrant visa category for RNs engaged in temporary work has not garnered enough legislative support. And the comprehensive immigration reform bill that would exempt nurses from the immigrant visa quota is still bottled up in the Judiciary committee.

As Immigration Protests Mount Democrats Unveil Plan

The first lawsuit against Arizona’s tough anti-immigrant law was filed last April 29 by a Tucson police officer who claimed that the law would compel him to engage in racial profiling.

Another group composed of clergies filed a petition in Phoenix alleging that the law would target their vehicles travelling in Hispanic neighborhoods.

Three well-known civil rights groups, the American Civil Liberties Union, the Mexican American Legal Defense and Education Fund and the National Immigration Law Center have also announced that they would work together to challenge the constitutionality of the law.

In the meantime, it has been reported that at least ten (10) states including Ohio, Missouri, Maryland, Nebraska, Oklahoma and Texas are preparing to introduce similar anti-immigrant legislations.

National outrage over the law has been growing rapidly. On May 1st, hundreds of thousands took to the streets in at least 70 locations all over the country. Some demonstrators were arrested, including Rep. Gutierrez, the principal author of the Comprehensive Immigration Reform Bill in the House.

Rep. Gutierrez likened the anti-Arizona movement to the civil rights movement of the 1960s. Rev. Jesse Jackson said that “Arizona has become a Selma.”

Only several days ago, President Obama said that Congress “may not have the appetite to tackle immigration reform this year.” But he quickly praised the proposal of Democratic Senators Harry Reid, Richard Durbin, Charles Schumer, Patrick Leahy, Diane Feinstein and Robert Menendez to fix our broken immigration system as soon as possible.

The Democratic proposal is entitled Real Enforcement with Practical Answers for Immigration Reform or REPAIR. It is a “framework of concrete bipartisan ideas” for reform.

It would increase the number of border patrol officers, immigration agents and inspectors at the port of entry. It would also provide for a more effective entry-exit system designed to monitor overstaying visitors.

It seeks to end illegal employment through biometric employment verification. Biometric social security cards would be issued within eighteen (18) months from the date of the enactment of the proposed law.

The legal immigration system would be reformed to maximize economic prosperity. The law would provide immediate green cards to foreign students educated in the U.S. with an advanced degree in science, technology, engineering or mathematics. The existing H and L visas would be reformed and a new H-2C visa for non-seasonal, non agricultural workers would be created.

The family immigration backlog would be cleared over an 8-year period. Unused immigrant visas would be recaptured and spouses and children would be classified as immediate relatives. The per country cap would be increased from 7% to 10%. Children of Filipino World War II veterans would be exempted from the cap. Foreign doctors, nurses, and physical therapists would be given workers visas more easily.

Undocumented immigrants would be legalized in two phases. Phase I would require them to register, be fingerprinted and get a background check. Upon their complete registration, they would be accorded Lawful Prospective Immigrant status (LPI) with right to work and travel. Those who fail to register or those who are not eligible to register would be arrested and deported.

Phase II would start 8 years after the enactment of the law and when the current visa backlogs are cleared. They would be eligible to apply for adjustment to permanent residents.

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