Nurses and Physical Therapists (EB3 Visa)
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USCIS has released a memo 
The immigrant visa is normally the only option for nurses because most of the non-immigrant visa classifications are not available to the typical registered nurse seeking employment in the United States.
What are the basic requirements for a worker to qualify for a green card?
Employment-based immigrant visas typically involve three main steps. First,
the employer files a Labor Certification application with the U.S. Department
of Labor. The purpose of the application is to test the employer's local labor
market for available workers. If no qualified and available workers are
located, the position is certified as open for a foreign worker.
Second, the employer files an I-140 Alien Worker Petition with the USCIS. The
purpose of this petition is to verify that the foreign worker has the minimum
requirements to fill the open position, and serves to classify the foreign
person as eligible for a particular visa category.
Third, on the basis of the Labor Certification and Alien Worker Petition, the
foreign worker makes an application for an immigrant visa at a U.S.
Consulate. If the foreign worker is legally present in the U.S., he or she may
instead apply for permanent resident status via a process called adjustment of
status. A nurse in the US can simultaneously apply for the I-140 and for
adjustment of status.
The entire process can take several years. Labor certifications can take
anywhere from a month to a year depending on where in the country
the application is filed. The I-140 can take anywhere from a month to a year.
And another year to two years can be added for consular processing or
adjustment of status. As explained below, however, nurses receive processing
that is partially expedited.
Do nurses receive any sort of special treatment in green card processing that
makes the green card application process faster or easier?
Yes, nurses seeking green cards do operate under an easier system and get
their green cards faster than their counterparts in other professions.
Nurses do fit into a green card category with a limited quota. During early
2005, the category for nationals of the Philippines, India and China was
backlogged by several years and many nurses have been affected. Congress
has just signed a bill that will make 50,000 extra green cards available to
nurses so processing should soon return to normal.
As noted above, most employment immigration cases require the employer to
first recruit and test the labor market for qualified citizens or permanent
residents. After this test is complete, the Department of Labor will certify that
no qualified, American worker is immediately available to fill the position. Only
then will the employer be able to sponsor a foreign worker. While these labor
certifications are often successful, they can be time intensive and do not
reflect the immediate needs of the business world.
In 1996, Congress passed legislation that retained nurses on a very short list
of pre-certified occupations for which a labor shortage was recognized. The
list is included in Schedule A of the labor certification regulations and these
types of green card cases are called “Schedule A labor certifications”. The
Department of Labor (DOL) has already determined that there are not enough
American workers who are able, willing, qualified, and available to fill all of
the openings for professional nurses. Therefore, no test of the labor market is
required and the case can be directly filed with the USCIS. This does not
necessarily mean that all cases are approvable or will be handled quickly. The
importance of nursing being pre-certified is that it skips the first and most
time consuming part of the employment based immigration process.
Note that this pre-certification is limited in scope. It only applies to “professional nurses”. Schedule A is not available to Licensed Practical Nurses,
Nurse Assistants, or other nursing aides. Professional Nursing is defined as a
course of study in professional nursing resulting in a diploma, certificate,
baccalaureate degree, or associate degree. More specifically, an acceptable
course of study for professional nurses generally includes theory and practice
in clinical areas such as obstetrics, surgery, pediatrics, psychiatry, and
medicine. Whatever training the nurse has received should result in licensure
in the country in which the training occurred. This coursework may have been
completed at a U.S. nursing school or an approved foreign nursing program.
For an immigrant visa, it is not required that a nurse have a bachelor’s degree
in nursing, only that he or she completed a professional program in nursing
and have subsequently been licensed.
What is the first step in filing for a green card for a nurse?
The initial step in a Schedule A case is to file a Form I-140 application
package to the appropriate supporting documentation to the appropriate
USCIS Service Center. There are four regional USCIS Service Centers. They are
located in Vermont, Texas, Nebraska, and California and each service center
has jurisdiction over a section of the country. A case is properly filed in the
service center having jurisdiction over the place of employment or in the
service center covering the region where the employer’s office is located.
When there is a choice of service centers, employers need to be cautious
because the processing times can vary dramatically. This may account for
varying experiences in the HR industry as to how long it is taking to obtain the
approval necessary before the nurse can apply for consular processing or
adjustment of status. For example, beginning in 2003, the Vermont Service
Center began expediting cases for nurses. Processing at the VSC is down to
less than two months in most nurse cases. However, the other service centers
can take as long as a year for the same kind of petition.
What kind of documentation must be submitted with an I-140 employmentbased
immigrant petition?
Supporting documentation must be submitted with the I-140 as prescribed in
20 C.F.R. 656.22(c)(2). This supporting evidence includes the following:
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Completed PERM labor certification forms (the recruiting process under PERM need not, however, be completed);
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A posted notice of the job opening. This notice must include a job description, work hours, and rate of pay. The notice must be posted in the worksite for a minimum of ten business days;
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Evidence that the petitioning employer has the financial ability to pay the salary offered to the nurse. Evidence of this ability shall be either in the form of copies of annual reports, federal tax returns, or audited financial statements. If the U.S. employer employs 100 or more workers, the USCIS may accept a statement from a financial officer of the organization;
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CGFNS certificate or nurse license from state where the nurse will be working or proof of passing the NCLEX licensing exam and evidence that the nurse cannot obtain a license because he or she cannot obtain a social security number;
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Nursing diploma or degree;
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Nursing registration/licensure from the country where the degree was obtained.
The CGFNS certificate provides evidence that the nurse has complied with a
three step review of their nursing skills: (1) a credentials evaluation; (2)
passage of an English language proficiency exam; and (3) passage of the
CGFNS qualifying exam. Once these requisites have been met, the
Commission on Graduates of Foreign Nursing Schools will issue the nurse a
CGFNS certificate. The purpose of this certification program is to serve as a
predictive evaluation process to accurately judge which nurses will be able to
meet the requirements for U.S. licensure once admitted to the country. If the
nurse has already passed the NCLEX-RN exam, they are exempted from the
requirement of obtaining a CGFNS certificate.
When does the health care workers credentialing certificate (the “VisaScreen”)
come into the picture?
The VisaScreen certificate must be presented to the USCIS prior to adjustment
of status and a US consulate prior to issuance of a permanent residency visa.
The certificate is NOT required at the start of adjustment application or prior
to an I-140 application’s approval.
What steps are required aside from submitting the I-140 and getting the
VisaScreen certificate?
Upon approval of the I-140 and receipt of the VisaScreen certificate, a nurse is
eligible to obtain their immigrant visa through consular processing. If they are
in the United States in a lawful status they may adjust their status to that of
permanent resident. Adjustment of status applications can be submitted at the
same time as an I-140 application or at any time after the I-140 is submitted
or approved. See the discussion below for more information on adjustment of
status.
Nurses are also required to adhere to licensing requirements of the state in
which they intend to work. Licensing requirements for registered nurses are
maintained on a state-by-state basis, and each state has slightly different
requirements for licensing. To demonstrate eligibility and preparedness for the
NCLEX exam, most states require a combination of materials be submitted
with the license application. The documents may include CGFNS certification,
copies of foreign academic credentials with certified translations, an
education/credentials evaluation and a demonstration of proficiency in English
(e.g. TOEFL exam results).
All states permit an individual to obtain a license through examination, and
some state permit licensing by endorsement, or acceptance of a registered
nurse license from another state or country as evidence of the person's
credentials.
How does a nurse in the US adjust status?
If a nurse is in the United States, then processing via adjustment of status will
typically be easier and it will be possible to get authorization to work much
more quickly than through consular processing.
A nurse's employer must file an I-140 for a nurse in the United States just like
a nurse residing abroad. But a nurse in the US has the ability to take the
NCLEX examination. If the nurse can pass the NCLEX exam, then it is not
necessary to take the CGFNS examination. Otherwise, the nurse would still
need to present a CGFNS certificate or proof that the nurse has a full and
unrestricted license as an RN. A nurse can file an adjustment of status
application as well as an application for an employment authorization
document at the same time they submit the I-140 application. Once the nurse
is licensed by a state and the nurse is in possession of an employment
authorization document, the nurse can begin work. License processing times
vary between the states. USCIS regional service centers are required to
process employment authorization documents in less than 90 days (applicants
have the right to request an interim employment document at a local USCIS
office if 90 days pass after applying). Adjustment applications typically take
18 to 24 months at USCIS regional service centers. A nurse still needs to
present a VisaScreen Certificate prior to completing adjustment of status.
