WHY RECRUIT AN INTERNATIONAL HEALTHCARE PROFESSIONAL?

According to a 2012 “United States Registered Nurse Workforce Report Card and Shortage Forecast,” published in the American Journal of Medical Quality, 

“With an aging U.S. population, health care demand is growing at an unprecedented pace . . . The number of states receiving a grade of “D” or “F” for their RN shortage ratio will increase from 5 in 2009 to 30 by 2030, for a total national deficit of 918,232 RN jobs. There will be significant RN workforce shortages throughout the country in 2030; the western region will have the largest shortage ratio of 389 RN jobs per 100,000.”

The situation is no better in other allied healthcare occupations.  According to the Department of Labor’s Occupational Outlook Handbook by 2022, employment of Physical Therapists is expected to skyrocket by 36 percent.  The same is true of Occupational Therapists (29 percent), Pharmacists (14 percent), and Speech Language Pathologists (19 percent). 

Contrary to some public perception, International Healthcare Professionals are not undereducated.  Prior to issuance of a visa, the International Healthcare Professional’s education, training, past licenses, and experience must be verified and proved that it is authentic and comparable to an American healthcare worker of the same type.  International Healthcare Professionals must pass English fluency exams prior to visa issuance.

International Healthcare Professionals are also not underpaid.  Because of strict USCIS and DOL wage requirements, International Healthcare Professionals must be paid the greater of prevailing and actual wages.  International Healthcare Professionals cannot have their hours reduced.  The employer must pay the guaranteed minimum hours unless the International Healthcare Professional is unavailable for work because of non-work related factors, such as the worker’s own voluntary request for time off, or in other circumstances where the worker is unable to work.

The PERM labor certification process guarantees that there are no US workers ready, willing, and able of performing the position before any International Healthcare Professional is granted an immigrant visa.  Employers cannot make International Healthcare Professionals sign onerous contracts, including those contain penalty clauses.

Recent studies are pointing to the high quality of care provided by International Healthcare Professionals and the added value that they bring to the US healthcare industry.  Patricia Cortes, Assistant Professor, Markets, Public Policy and Law, Boston University, authored a 2012 study, Relative Quality Of Foreign Nurses In The United States. 

She found that,

"foreign nurses, in particular Filipinos, tend to work in more demanding settings and maintain less desirable schedules - they are more likely to work in hospitals, work full-time, and do shift work, as compared to their native counterparts.

Natives are more likely to work part-time and choose jobs with standard schedules - for example, they tend to work in physicians’ offices and schools, etc. In terms of educational background, the majority of foreign nurses have at least a bachelor’s degree, whereas a larger fraction of natives have an associate degree. A more educated nurse workforce (as measured by the share of nurses in a hospital holding a bachelor’s degree) has been associated with better patient outcomes and higher nurse productivity."

EB-2 IMMIGRANT VISAS FOR PHYSICAL THERAPISTS

Because Physical Therapists have been designated by the U.S. Department of Labor as a ‘Schedule A occupation’, they are exempt from the labor certification process (PERM) required for most employment based immigrant visas.  Physical Therapy positions are eligible for EB-2 classification. The EB-2 category is the immigrant visa classification for positions requiring at least an advanced degree (Master’s degree or higher) or a Bachelor’s degree and five years of progressively responsible experience.

Generally speaking there is no backlog for EB-2 visas for most countries (excluding India, Mexico, and China) and thus an immigrant visa can be obtained “immediately” as soon as the normal case processing is completed. In contrast, obtaining an immigrant visa for an individual filing in the EB-3 classification is currently a lengthy process which takes between four to seven years.

The USCIS has struggled with processing Physical Therapist EB-2 petitions.  At issue is not whether these positions require a Master’s Degree.   At issue is whether the Beneficiaries hold the US equivalent of a Masters Degree.  The problem stems from the fact that many Philippine colleges issue a diploma labeled “Bachelors” degree”.  When US educational evaluators review the diploma, coursework, and credit hours, they equate this education background to a US Masters Degree.  Educators such as FCCPT and 53 US state and territory licensing jurisdictions all universally find that these degrees are equal to a US Masters Degree.  All of the private educational evaluators that we have worked with have also issued Masters equivalent opinions.  The opinion appears to be universal.

Well, almost universal.  The USCIS often looks to AACRAO as its preferred educational evaluator.  AACRAO’s EDGE evaluation system alone has determined that these Philippine degrees are not equal to a US Master’s Degree.  Throughout the summer MU Law has filed several similar briefs explaining this issue to the USCIS’ Administrative Appeals Office.  While we think we have the better argument, the decision-making rests in the AAO’s hands.  We will let you know as soon as the AAO releases their decision.

Healthcare Immigration Primer: Occupational Therapists

TEMPORARY OPTIONS: Occupational Therapists are eligible for H-1B status because the position requires at least a Bachelor’s degree. H-1B status provides temporary employment authorization in the United States for individuals from any country for any specialty occupation. A Specialty occupation is one which normally requires at least a Bachelor’s degree or the equivalent.

An Occupational Therapist who is a Canadian Citizen is eligible for TN status. [Note: Residency status in Canada is not sufficient for TN eligibility.] TN status is available to Canadian citizens with an offer of employment in the United States in one of forty-three (43) listed occupations.

GREEN CARD OPTIONS: Occupational Therapists have not been designated as a Schedule A occupation, and therefore they are not exempt from the labor certification process (“PERM”). Therefore, the green card process for an Occupational Therapist will require PERM labor certification process followed by either Adjustment of Status or a Consular Interview.

Because the first professional degree required for licensure as an Occupational Therapist in the United States is evolving, some Occupational Therapist positions are eligible for EB-2 classification while others are only eligible for EB-3 classification. The EB-2 category is the immigrant visa classification for positions requiring at least an advanced degree (Master’s degree or higher) or a Bachelor’s degree and five years of progressively responsible experience. The classification is relevant to when an immigrant visa is available. Generally speaking there is no backlog for EB-2 visas for most countries (excluding India and China) and thus an immigrant visa can be obtained “immediately” as soon as the normal case processing is completed. In contrast, obtaining an immigrant visa for an individual filing in the EB-3 classification is currently a lengthy process which takes between four to seven years.

CURRENT ISSUES: Filing EB-2 applications is difficult, although these can be approved in some instances where the employer requires a Bachelors degree and five years of progressive experience or the employer requires a Masters degree.

Healthcare Immigration Primer: Physical Therapists

TEMPORARY OPTIONS: Physical Therapists are eligible for H-1B status because the position requires at least a Bachelor’s degree. H-1B status provides temporary employment authorization in the United States for individuals from any country for any specialty occupation. A Specialty occupation is one which normally requires at least a Bachelor’s degree or the equivalent.

A Physical Therapist who is a Canadian Citizen is eligible for TN status. [Note: Residency status in Canada is not sufficient for TN eligibility.] TN status is available to Canadian citizens with an offer of employment in the United States in one of forty-three listed occupations.

GREEN CARD OPTIONS: Because Physical Therapists have been designated by the U.S. Department of Labor as a ‘Schedule A occupation’, they are exempt from the labor certification process (“PERM”) required for most employment based immigrant visas. Therefore, the green card process for a Physical Therapist will be either the Schedule A I-140 Petition (Consular Processing) if they are outside of the United States or the Schedule A I-140 Petition (Adjustment of Status) if they are already physically present in the United States.

Because the first professional degree required for licensure as a Physical Therapist in the United States is evolving, some Physical Therapy positions are eligible for EB-2 classification while others are only eligible for EB-3 classification. The EB-2 category is the immigrant visa classification for positions requiring at least an advanced degree (Master’s degree or higher) or a Bachelor’s degree and five years of progressively responsible experience.

The EB-2 category is the immigrant visa classification for positions requiring at least an advanced degree (Master’s degree or higher) or a Bachelor’s degree and five years of progressively responsible experience. The classification is relevant to when an immigrant visa is available.

Generally speaking there is no backlog for EB-2 visas for most countries (excluding India, Mexico, and China) and thus an immigrant visa can be obtained “immediately” as soon as the normal case processing is completed. In contrast, obtaining an immigrant visa for an individual filing in the EB-3 classification is currently a lengthy process which takes between four to seven years.

CURRENT ISSUES: Filing EB-2 applications is a fairly new phenomenon. MU has had several EB-2 applications approved for applications requiring 5 years of experience.

Read the full Healthcare Immigration Primer by clicking here.

Healthcare Immigration Primer: Registered Nurses

TEMPORARY OPTIONS: Registered Nurses are generally not eligible for H-1B status because the position generally does not require at least a Bachelor’s degree or the equivalent. However, it is possible to obtain H-1B status for a Registered Nurse if the position requires a Bachelor’s degree or the equivalent. H-1B status provides temporary employment authorization in the United States for individuals from any country for any specialty occupation. A specialty occupation is one which normally requires at least a Bachelor’s degree or the equivalent.

A Registered Nurse who is a Canadian Citizen is eligible for TN status. [Note: Residency status in Canada is not sufficient for TN eligibility.] TN status is available to Canadian citizens with an offer of employment in the United States in one of forty-three listed occupations.

GREEN CARD OPTIONS: Because Registered Nurses have been designated by the U.S. Department of Labor as a ‘Schedule A occupation’, they are exempt from the labor certification process (“PERM”) required for most employment based immigrant visas. Therefore, the green card process for a Registered Nurse will be either the Schedule A I-140 Petition (Consular Processing) if they are outside of the United States or the Schedule A I-140 Petition (Adjustment of Status) if they are already physically present in the United States.

CURRENT ISSUES: Because some Employers do in fact require a Bachelors degree or the equivalent for some Registered Nurse positions, some Registered Nurses are eligible for H-1B status. The USCIS has acknowledged that certain Advanced Practice nurses as well as some specialty nurse positions (such as Critical Care and Peri-Operative) may be eligible for H-1B status.

To qualify as a specialty occupation [according to 8 CFR §214.2(h)(4)(iii)(A)], the position must meet at least one of the following criteria:

• A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position
• The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, the employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree
• The employer normally requires a degree or its equivalent for the position
• The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with attainment of a baccalaureate or higher degree.

The USCIS takes the position that each year of education is equivalent to three years of experience. Thus, for example, an employer that normally requires a Bachelor’s degree in Nursing or an Associate’s degree and at least six years of experience is able to attest that the position normally requires a Bachelor’s degree or the equivalent.

Read the full Healthcare Immigration Primer by clicking here.

MU Healthcare Immigration Primer: The Series

Over the next few posts MU will be posting basic US immigration information for common occupations such as Registered Nurses, Physical Therapists, and Occupational Therapists. If there are any occupations that you would like us to focus on, please let us know either via email or via the comments.

This posting will focus on some preliminary thoughts and issues that are common in most visa Petitions and Applications. The subsequent postings will highlight the specific occupations.

In all instances, there must be an employer who is the Petitioner of the visa. Generally the Beneficiary must hold the appropriate state license, although a few exceptions will be noted.

For those who are overseas, any healthcare immigration case generally starts with an immigration Petition filing in the United States. Upon approval of the Petition, the case is forwarded to the appropriate US Consulate or Embassy where the visa is issued to the beneficiary.

Upon visa issuance, the Beneficiary can enter the US. Family members generally can attend the interview and are issued derivative visas. Some derivative visas allow the derivatives work authorization and others do not.

There are two broad visa categories: nonimmigrant and immigrant visas. Nonimmigrant visas (also called NIVs or temporary visas) typically are for shorter periods of time. NIVs also tie an employer and employee. In other words if the Beneficiary wants to move to a new employer, a new NIV must be filed.

Once issued, Immigrant visas (also called IVs, green cards, or permanent residency) typically remain valid for 10 years. Immigrant visa holders also become eligible for US Citizenship, ordinarily after 5 years. IVs also may sponsor certain family members for US immigration, although the retrogression for some family categories is lengthy.