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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.

Changing F-1 Student’s Status to H-1B

To change a nonimmigrant status to another, an applicant must be in lawful status not only up to the time that the application is filed but also up to the time when the new status becomes effective. 

In the case of a change to cap subject H-1B for fiscal year 2011 that starts on October 1, 2010, the applicant must have a valid status until that date. If the applicant is out of status, he/she is required to leave the U.S. and apply for H-1B visa at a U.S. consulate abroad. 

The cap refers to the 65,000 annual numerical limitation imposed on initial H-1B visas. In the last several years, the number of H-1B petitions filed exceeded the cap. The latest United States Citizenship and Immigration Services (USCIS) report shows that so far, 13,500 petitions were received since the start of the filing period on April 1. It is expected that the cap will again be reached before the end of 2011 fiscal year. 

There is a new immigration regulation that automatically allows certain students with a pending or approved H-1B petition to remain in the U.S. during the time when the F-1 status and work authorization would otherwise expire. This regulation provides a way to fill what is referred to as the cap gap so that the students do not have to go abroad to obtain their H-1B visas. 

An example of a cap gap occurs when a student’s optional practical training (OPT) ends in the spring and his/her status expires 60 days after that, leaving a gap of several months before the H-1B status begins on October 1. 

To qualify for the cap gap extension, the H-1B petition must be filed while the student’s authorized duration of status (DS) is still in effect (including any OPT period and the 60 day preparation time known as the grace period.) 

Once the petition is timely filed, the cap gap extension begins and will continue until the adjudication of the petition is completed. To prove continuing status, the student should obtain an updated Form I-20 from his/her designated school official. 

If the H-1B petition is subsequently rejected, denied or revoked, the student will be entitled to the standard 60-day grace period to prepare to depart unless the denial or revocation is based on fraud, misrepresentation or status violation. The grace period begins on the date that the letter of rejection, denial or revocation is postmarked. 

If the H-1B petition is denied or withdrawn, the student may apply for a STEM OPT extension provided that his/her degree is included on the STEM designated degree program list and the application is made within ten (10) days of the denial or withdrawal. STEM refers to degrees in science, technology, engineering and mathematics. Students who obtained such degrees are eligible for a 17-month extension in addition to the twelve (12) months initially granted. 

The student who is granted an automatic extension cannot travel outside the U.S. during the cap gap period. If the student wants to travel, he/she will have to apply for an H-1B visa at a U.S. consulate abroad.

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