Shortage of Physical Therapists and Nurses Allows for Short-Cut to Permanent Residency

By Marylou Fabbo - Skoler Abbott

April 18, 2023

Employers in the healthcare industry may have a leg up when tapping foreign workers for employment via EB-2 employment-based permanent residency (i.e. “green card”).  The EB-2 is a permanent worker (immigrant) visa allowing an individual holding an advanced degree to enter the United States for employment, and the visa holder will be eligible to apply for permanent resident (green card) status.  The EB-2 is reserved for those who have advanced degrees, those who can demonstrate they have extraordinary ability in their field, and those who qualify for National Interest Waivers (“NIW”).  Physical Therapists and Professional Nurses qualify for the NIW.  So what does that mean?  

Employers that have registered individuals for the H-1B selection process know how frustrating it can be when their workers are not chosen in the H-1B lottery, leaving the employer unable to petition for an H-1B visa.  Due to the national shortage of physical therapists and nurses, those groups have an alternate, easier route to employment and permanent residency that avoids any lottery process.

To sustain economic growth, U.S. employers may hire workers from other countries when it is not possible to find qualified and willing U.S. workers for the position. There are primarily two categories of shortage-based immigration: 1) labor certification; and 2) “Schedule A.”  Labor certification is a process through which a U.S. employer proves that it cannot find a minimally qualified U.S. worker for a specific position in a specific location. “Schedule A” is a list of occupations for which the U.S. Department of Labor has already determined there is an insufficient number of U.S. workers who are able, willing, qualified and available.  Inclusion on Schedule A also establishes that the employment of foreign workers in such occupations will not adversely affect the wages and working conditions of U.S. workers similarly employed.   Therefore, the employer does not need to go through the lengthy labor certification.  Currently, the only occupations explicitly listed on Schedule A are Physical Therapists and Professional Nurses, and they may bypass the requirement that an employer prove there’s a shortage of workers in those categories.

Who is Considered a Physical Therapist?

For Schedule A purposes, a Physical Therapist is a person who applies the art and science of physical therapy to the treatment of patients with disabilities, disorders, and injuries to relieve pain, develop or restore function, and maintain performance, using physical means, such as exercise, massage, heat, water, light, and electricity, as prescribed by a physician.  

To be eligible for the EB-2 visa, the individual must be (1) a physical therapist with a 4 Year Bachelor Degree in physical therapy, or equivalent; and, (2) have a state license or a letter from the State Licensing Authority for the state of intended employment stating that the Foreign National Physical Therapist is qualified to take that state’s written licensing examination for Physical Therapists. The minimum degree requirement may vary depending on the state or the specific position.  In some states, you may need to have a master’s degree or higher.

Who is Considered a Professional Nurse?

For Schedule A purposes, a Professional Nurse is a person who applies the art and science of nursing, which reflects comprehension of principles derived from the physical, biological, and behavioral sciences. Professional nursing generally includes making clinical judgments involving the observation, care and counsel of persons requiring nursing care; administering of medicines and treatments prescribed by a physician or dentist; and participation in the activities for the promotion of health and prevention of illness in others.  A program of study for Professional Nurses generally includes theory and practice in clinical areas such as obstetrics, surgery, pediatrics, psychiatry, and medicine.  The classification for which the nurse is eligible depends on whether the position requires, and the beneficiary has, an advanced degree.

What About the Family of EB-2 Visa Holders?

Another advantage of the EB-2 visa is the potential for the visa-recipient’s family to come to the U.S.  If the petition is approved, the individual’s spouse and unmarried children under the age of 21 may be eligible to apply for admission to the United States in E-21 and E-22 immigrant status, respectively.

How Do You Apply for the EB-2 Visa for your Physical Therapist or Professional Nurse Candidate?

While much easier than following the PERM labor process or seeking an H-1B visa, there still are several steps and filing requirements associated with submitting an EB-2 visa petition.  Therefore, employers that are considering employing foreign workers as Physical Therapists and/or Professional Nurses and are unfamiliar with the process are advised to seek immigration counsel.

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