NURSES, PHYSICAL THERAPISTS, AND OCCUPATIONAL THERAPISTS
As stated by the U.S. Citizenship and Immigration Services, “Noncitizens seeking admission as a nonimmigrant or immigrant primarily to perform labor as a health care worker, other than as a physician, are not admissible to the United States unless they present certification from a USCIS-approved credentialing organization verifying that they have met the minimum requirements for education, training, licensure, experience, and English proficiency in their field.” Health care occupations that require a certification include licenses practical nurses, licensed vocational nurses, registered nurses, physical therapists, and occupational therapists.
Specifically, the certification verifies the noncitizen has:
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Education, training, licensing, and experience that:
- Are comparable with that required for an American health care worker of the same type;
- Are authentic and, in the case of a license, unencumbered; and
- Meet all applicable statutory and regulatory requirements for admission into the United States (this verification is not binding on DHS, which makes its own admissibility determination).
- The necessary level of competence in oral and written English as shown by passage of one or more nationally recognized, commercially available, standardized test(s) of the noncitizen's ability to speak and write; and
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Passed either:
- A predictor test (if the majority of States licensing the profession in which the noncitizen intends to work recognize a test predicting a worker's success on the profession's licensing or certification examination), or
- The occupation's actual licensing or certification examination.
Nurses have an alternative certification process. A foreign nurse may present a certified statement from the Commission on Graduates of Foreign Nursing Schools (CGFNS) or an approved equivalent independent credentialing organization if it verifies that the foreign nurse:
- Has a valid and unrestricted license in the State of intended employment;
- Intends to be employed in a state that verifies that foreign licenses are authentic and unencumbered;
- Passed the National Council Licensure Examination (NCLEX); and
- Graduated from certain English language nursing programs.
Foreign nurses may be able to work in the United States on a temporary basis or apply for a green card. Nonimmigrant status options available to nurses are the H-1B visa, the TN visa (available only to citizens of Mexico and Canada), and the E-3 visa (available only to citizens of Australia). H-1B status requires at least a bachelor's degree, and so it may be challenging to qualify for H-1B as a registered nurse. In cases of a clinical nurse or a nurse practitioner, however, H-1B is easier to obtain because most U.S. states require at least a bachelor's degree for these positions.
Generally, EB-2 and EB-3 employment-based immigrant petitioners must obtain a labor certification from the Department of Labor that verifies that there are no qualified U.S. workers available for the position. However, for certain occupations, known as Schedule A, the DOL has pre-certified the occupations in which petitioners do not need to obtain a labor certification. Instead, EB-2 and EB-3 Schedule A petitioners file the Form I-140, Immigrant Petition for Alien Workers, and an uncertified labor certification directly with USCIS. Current Schedule A occupations are registered nurses, physical therapists, and aliens of exceptional ability.
EB-3 visas allow foreign workers with specified qualifications to immigrate to the United States to work in a full-time, permanent position. The immigrant visa is typically the only option for registered nurses to live and work in the United States. A foreign nurse seeking an employment-based green card must have an employer sponsor.
There are two threshold requirements for eligibility as an EB-3 nurse:
- A degree or diploma from a nursing school in a foreign country or from a nursing school in the United States, and
- Nursing license in a foreign country or in a U.S. state.
Physical therapists and occupational therapists must present certification from a USCIS-approved credentialing organization verifying that they have met the minimum requirements for education, training, licensure, experience, and English proficiency in their field.
Most physical therapists qualify for EB-2 green cards because this occupation usually requires a graduate degree, such as a Master's in Physical Therapy or a Doctorate of Physical Therapy.
The U.S. Citizenship and Immigration Services provides the following information on submitting health care worker certifications:
Immigrant petitions:
For immigrant petitions, there is a two-step process after obtaining a labor certification from the Department of Labor, if applicable (employers seeking to hire professional nurses or physical therapists apply for Schedule A, Group I certification by filing an uncertified labor certification and visa petition directly with USCIS):
Step 1: Generally, the Form I-140, Immigrant Petition for Alien Worker, is first filed by an employer on behalf of the prospective noncitizen worker. In adjudicating the I-140 petition, USCIS reviews all eligibility requirements. In addition to evaluating the petitioner's continuing ability to pay the proffered wage, this review includes examination of the beneficiary's qualifications (for example, education, experience, licensure, and/or training as set forth in the job opportunity's requirements on the labor certification and the preference category and Schedule A Group I requirements as applicable).
For physical therapists, 20 CFR 656.15(c)(1) requires that the employer include evidence to establish that the beneficiary currently has (and had at the time of filing) a permanent license to practice in the state of intended employment or, in the alternative, a letter or statement, signed by an authorized state physical therapy licensing official in the state of intended employment with the petition submission to USCIS. The letter must confirm that the noncitizen is qualified to take that state's written licensing examination for physical therapists.
For nurses, 20 CFR 656.15(c)(2) requires that the employer include CGFNS certification, a full and unrestricted (permanent) license to practice nursing in the state of intended employment, or passage of NCLEX-RN as part of the petition submission to USCIS.
Schedule A Group I applications require other evidentiary submissions such as a prevailing wage determination covering the proffered position in the geographic location where the work will be performed and a notice of filing either posted at the facility or location of the employment or, if applicable, sent to the appropriate bargaining unit.
Step 2: If the noncitizen worker is in the United States, they may file a Form I-485, Application to Register Permanent Residence or Adjust Status. It is only upon the filing of an I-485 that the health care worker certification is required and will be used to determine admissibility for adjustment of status. While the noncitizen worker may receive interim benefits such as a work permit and travel permission with the favorable exercise of discretion, the filing and adjudication of the Form I-485 is dependent upon an immigrant visa number being available and the validity of the underlying visa petition.
If the noncitizen worker is living outside the United States or living in the United States, but chooses to apply for an immigrant visa abroad, USCIS will send the approved petition to the Department of State's (DOS) National Visa Center (NVC), where it will remain until an immigrant visa number is available. The noncitizen worker must present the health care certification to the consular officer at the time the visa is issued.
Nonimmigrant petitions:
For nonimmigrant petitions seeking admission, an extension of stay, or a change of status, there are two considerations:
Consideration 1: The petitioner files a Form I-129, Petition for a Nonimmigrant Worker, or Form I-129CW, Petition for a CNMI-Only Nonimmigrant Transitional Worker, for approval of the noncitizen worker's classification as a nonimmigrant. In adjudicating the petition for the classification requested, USCIS reviews all eligibility requirements, including licensure, if applicable. The health care certification must be presented at the time of visa issuance or admission (if the noncitizen worker is visa-exempt).
Consideration 2: If the noncitizen is already in the United States, the Form I-129 may also serve as a petition to extend the period of the noncitizen's authorized stay or to change their status. Although the Form I-129 petition classification may be approved, the request for an extension of stay or change of status will be denied if the petitioner fails to submit the health care worker certification required by law. See 8 CFR 212.15(a).
Please note: USCIS does not accept a health care worker certification as the sole evidence that the foreign worker has met the minimum requirement for the given position and is, therefore, eligible for the requested visa classification. While the health care worker certification verifies the worker's credentials for admissibility into the United States under INA 212(a)(5)(C), it is not binding on DHS. See 8 CFR 212.15(f)(1)(iii).
A valid health care worker certification must be presented each time a health care worker seeks admission into the United States, changes status, extends status, or adjusts status. The certification requirement is no longer applicable once the worker becomes a lawful permanent resident.
