Visa Options for Nurses and Allied Healthcare Professionals

For years, the U.S. has suffered from a serious shortage of qualified healthcare workers. Foreign healthcare workers are a crucial resource for meeting this need. However, it is often more difficult to secure temporary or permanent work authorization for a foreign healthcare professional than for foreign workers in other professional occupations. Petitions filed on behalf of foreign healthcare workers are subject to special requirements, and the visa options available to them are limited. This article will discuss the healthcare certification requirement as well as options for nonimmigrant (temporary) and immigrant (permanent) employment-based visas for non-physician healthcare workers.

Healthcare Certification

Federal law requires certain types of healthcare workers applying for nonimmigrant and immigrant visas to obtain certification that their education and training is comparable to the education and training obtained by U.S. workers in the same occupations. There are seven occupations covered by the certification requirement: nurses, occupational therapists, physical therapists, speech-language pathologists and audiologists, clinical laboratory scientists (medical technologists), clinical laboratory technicians (medical technicians), and physician assistants. Certification is not required of any other non-physician healthcare occupation. Most certifications must be obtained from the Commission on Graduates of Foreign Nursing Schools (CGFNS). CGFNS calls its certification the "VisaScreen certificate."

Not all healthcare professionals in these occupations are required to obtain a VisaScreen certificate. Students, trainees in J-1 or H-3 status, and foreign nationals who will work in a non-clinical setting (e.g., teachers, researchers and medical consultants to the insurance industry) are not required to obtain certification. In addition, healthcare facility managers and other managerial employees are exempt, but supervisory employees who have a direct effect on patient care are not exempt from the certification requirement.

The VisaScreen certification process includes an analysis of the applicant's healthcare education (comparability review); validation of all U.S. and foreign licenses, past and current; and an assessment of the applicant's proficiency in the English language. Registered nurses are also required to provide proof of their nursing knowledge by presenting evidence of a passing score on the National Council Licensure Examination for Registered Nurses (NCLEX-RN), or by taking and passing the CGFNS Certification Program Qualifying Examination.

Certain applicants are exempt from parts of the VisaScreen certification process:

• Applicants are exempt from the English proficiency requirement if their entry-level professional education was obtained in the U.S., Canada (except most of Quebec), the U.K., Ireland, Australia or New Zealand, and both the language of instruction and the language of the textbooks used was English.
• Nurses, occupational therapists, physical therapists, and speech language pathologists and audiologists are exempt from the educational comparability review if they obtained their entry-level education in the United States from a school accredited by a CGFNS-approved accreditation organization.

Mere possession of a state license does not exempt foreign workers from any part of the VisaScreen certification process, as most state licensure processes do not assess English language competency or review foreign licenses for restrictions.

Certain registered nurses are eligible for the more streamlined application for a Certified Statement, which may be used in lieu of a VisaScreen certificate. The Certified Statement option is available to registered nurses who meet the following requirements: (1) the nurse must have graduated from an approved school of nursing in the U.K., Australia, Canada (except most of Quebec; CGFNS has identified five approved schools located in Quebec in which English is the primary language of instruction), South Africa, New Zealand, Ireland, Trinidad and Tobago, Jamaica, Barbados or the United States, where English was the primary language of instruction; (2) the nurse must have passed the NCLEX-RN exam; (3) the nurse must be currently licensed to practice in the state of employment; and (4) the state must verify that the nurse's foreign licenses are authentic and unencumbered. (Only a limited number of states verify foreign nursing licenses as part of their state licensure process. Check with CGFNS to find out whether your state's licensure process meets the requirements for the Certified Statement option.)

The VisaScreen certification process can take many months to complete, so foreign national candidates for positions in the covered professions should begin the application process as early as possible. Further information on the VisaScreen certificate can be found on the CGFNS website.

Nonimmigrant Petitions

Temporary (nonimmigrant) work visa options available to healthcare workers depend on the specific occupation, the academic requirements for the position and the citizenship of the worker.

H-1B Specialty Occupations

The H-1B visa is available to foreign nationals who will be employed in professional positions requiring at least a bachelor's degree as a minimum requirement, and who hold at least a bachelor's degree (or foreign equivalent) in the field.

Because the typical RN position requires only an associate degree, most registered nurses do not qualify for H-1B status. However, some specialty nursing positions have been recognized by USCIS as eligible for H-1B status, such as Advanced Practice Registered Nurses, administrative or supervisory positions such as Nurse Manager, and positions that require a higher degree of knowledge and skill, such as critical care and peri-operative nursing positions. Licensed practical nurses and licensed vocational nurses are not eligible for H-1B status.

Employers wishing to file H-1B petitions for their healthcare workers must be aware of the annual cap on H-1B visas.  Please note that nonprofit organizations related to or affiliated with an institution of higher education are exempt from the H-1B cap, and many healthcare employers are cap-exempt for this reason. In addition, citizens of Chile and Singapore are eligible for the H-1B1 visa, which is not subject to the regular H-1B cap.

E-3 Australian Special Occupation Visas

NAFTA "TN" Professionals

Under the terms of the North American Free Trade Agreement (NAFTA), the TN visa is available to citizens of Canada and Mexico working in a limited number of professional healthcare occupations, including: dentists, dieticians, medical laboratory technologists, nutritionists, occupational therapists, pharmacists, physicians (teaching or research only), physiotherapists/physical therapists, psychologists, recreational therapists and registered nurses. NAFTA requires applicants for TN visas to meet occupation-specific eligibility requirements. For example, registered nurses must have either a state or provincial license, or a licenciatura degree. Further information regarding covered occupations and specific eligibility requirements can be found at the NAFTA Secretariat's website under Appendix 1603.D.1. Visas are issued for one year and must be renewed annually.

The TN visa is a good alternative to the H-1B visa, as the filing fees are substantially lower and the process is more straightforward. Rather than filing a petition with USCIS, Canadian citizens submit the TN application at a U.S.-Canada land port of entry or an airport pre-flight inspection location as part of their admission into the U.S. Mexican citizens apply at a U.S. consulate in Mexico. However, the TN has its limitations: As with most nonimmigrant statuses, applicants for TN status must demonstrate that they do not have "immigrant intent"—i.e., they do not intend to remain in the U.S. permanently. Therefore, TN status can be problematic for individuals who plan to apply for permanent residence.

Immigrant Petitions

The paths to permanent residence for most foreign healthcare workers are generally the same, but vary at points along the way, depending on the worker's occupation and whether the worker is inside or outside the U.S. when applying for permanent residency. The process consists of three phases: labor certification, the I-140 Petition for Alien Worker, and the I-485 Adjustment of Status application or immigrant visa application.

The Permanent Residence Process

• Labor Certification

For most employment-based permanent residence applications, the first phase is the filing of an application for permanent labor certification (PERM) with the Department of Labor by the employer. PERM is a test of the labor market to determine whether there are any able, willing, qualified and available U.S. workers to fill the position. (Further information about PERM can be found at the attached PDF. LINK TO DOC# 1177312.2. Once the PERM application has been certified, the permanent residence process moves on to the second phase.

Registered nurses and physical therapists are exempt from the labor certification requirement, as the Department of Labor has pre-certified these occupations as having a shortage of U.S. workers. Registered nurses and physical therapists apply for permanent residence through a streamlined process called "Schedule A," where an Application for Schedule A Designation is filed directly with USCIS as part of the second phase of the permanent residence process.

Eligibility for Schedule A was previously a significant benefit; in June 2005, a block of 50,000 immigrant visas were set aside for Schedule A workers, which allowed them to apply for an immigrant visa immediately rather than waiting years for a visa to become available. Those visas were used up in 18 months, however, and Schedule A workers have since been relegated to the EB-3 category, with backlogs currently as long as six years. So, in an ironic twist, the occupations experiencing the most acute shortage must wait the longest for relief.

Relief is available for nurses filling positions that require a master's degree, as they can follow the PERM route and qualify for the EB-2 category. Immigrant visas are usually immediately available for applicants in the EB-2 category, except for those born in India and China.

• I-140 Petition

The second phase in the permanent residence process is the filing of an I-140 Petition for Alien Worker with USCIS. I-140 petitions for registered nurses and physical therapists are filed together with the Application for Schedule A Designation; petitions for all other occupations are filed with the certified PERM application.

• Application for Immigrant Visa/Adjustment of Status

In the third and final phase of the permanent residence process, the foreign national worker applies for an immigrant visa. A foreign national worker residing in the U.S. files an I-485 Application to Adjust Status to Permanent Resident with USCIS, while an applicant outside the U.S. must complete the immigrant visa application process at a U.S. consulate in his home country. The foreign worker may not begin this final phase until the Department of State's visa bulletin indicates that his priority date is current and an immigrant visa is available. (See information regarding priority dates and visa retrogression at 2006 VISA backlog article. If an immigrant visa is immediately available, an applicant inside the U.S. may file the I-485 application concurrently with the I-140 petition, reducing the wait for a green card by many months.

Working in the U.S. While the Permanent Residence Process Is Pending

The permanent residence process is often very lengthy, and employers who have decided to hire a particular healthcare worker and sponsor that individual for permanent residence naturally want him to be able to work while the permanent residence process is pending. For foreign nationals outside the U.S., that is simply not an option: The foreign national may not enter the U.S. until the process is complete and the consulate has issued an immigrant visa.

Foreign nationals who are present in the U.S. and are eligible to file an I-485 application can work pursuant to employment authorization issued to I-485 applicants. This eligibility is a significant benefit, as I-485 applications can take anywhere from six months to several years to process, and post-filing visa retrogression can further increase the wait for a green card. However, foreign nationals who have started the permanent residency process but are unable to file an I-485 application due to visa backlogs must have another source of employment authorization.

The H-1B visa provides the best option for ongoing employment authorization. Foreign nationals who are already in H-1B status can and should maintain their H-1B status during this time, subject to certain limitations. (See 2007 ARTICLE—H-1B Status Into Seventh Year and Beyond for information on maintaining H-1B status during the permanent residency process.) Others who are eligible for H-1B status should consider changing to H-1B status if the circumstances allow. However, as explained above, H-1B status is not available to many healthcare workers, in particular nurses in positions that do not require a bachelor's degree.

A number of other nonimmigrant visas provide work authorization for a limited time. For example, a Canadian or Mexican citizen may work in TN status during the early stages of the permanent residency process. Foreign nationals in F-1 student status may be eligible for one year of employment authorization through Optional Practical Training (OPT).

Conclusion

When considering a foreign healthcare worker for an open position, employers must have a clear understanding of the short- and long-term options available to the candidate. Long-term planning for pursuing permanent residence, especially for healthcare workers not eligible for H-1B status, must be done up front to maximize the foreign national's ability to remain in the U.S. while the permanent residence process is pending.