|1. Nature of Work|
|According to the federal rules, “physical therapist” is defined as “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 (or surgeon).
The Occupational Information Network of Department of Labor further defines the job duties of Physical Therapist to include the following:
– Plan, prepare and carry out individually designed programs of physical treatment to maintain, improve or restore physical functioning, alleviate pain and prevent physical dysfunction in patients.
– Perform and document an initial exam, evaluating the data to identify problems and determine a diagnosis prior to intervention.
– Evaluate effects of treatment at various stages and adjust treatments to achieve maximum benefit.
– Administer manual exercises, massage and/or traction to help relieve pain, increase the patient’s strength, and decrease or prevent deformity and crippling.
– Instruct patient and family in treatment procedures to be continued at home.
– Confer with the patient, medical practitioners and appropriate others to plan, implement and assess the intervention program.
– Review physician’s referral and patient’s medical records to help determine diagnosis and physical therapy treatment required.
– Record prognosis, treatment, response, and progress in patient’s chart or enter information into computer.
– Obtain patients’ informed consent to proposed interventions.
– Discharge patient from physical therapy when goals or projected outcomes have been attained and provide for appropriate followup care or referrals.
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|2. Schedule A Positions, Shortage of Physical Therapist, and Pre-Certification of Physical Therapist|
|In the U.S., the need for the service of Physical Therapist is continuously growing because of the aging of its population and also because of its mobility as a society. However, the supply of the domestically trained Physical Therapist is far short of the need. As such, to attract the foreign-trained physical therapists, the Congress designates the Physical Therapist position as one of the few “pre-certified” positions, and lists it one of the positions in “Schedule A”.
Per the federal regulations, the Schedule A positions are those that “there are not sufficient US workers who are able, willing, qualified, and available for the occupations listed on Schedule A and that the wages and working conditions of US workers similarly employed will not be adversely affected by the employment of aliens”. Due to the shortage of supply for such positions, these positions are “pre-certified”, meaning that when applying for immigration, unlike people applying through almost all other employment-based cases, the employers and the aliens do not need to obtain labor certification from Departmentof Labor before they file the I-140 Immigrant Petition for Alien Worker. Petition for Physical Therapist, therefore, does not involve the highly technical and complicate labor certification to test the job market.
Currently, Schedule A Group I positions contain only Physical Therapist and Professional Nurse two occupations. As for Group II, it is for alien of exceptional ability in science or art field. As people with exceptional ability typically apply for EB-1 as an alien of extraordinary ability, or apply for NIW, Group II is rarely applied.
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|3. Nonimmigrant Visa for Physical Therapist|
Most of alien Physical Therapists apply for H-1B as the status for them to stay in the U.S. before they obtain permanent residency. The application for H-1B for Physical Therapist has to be filed by the sponsoring employer and it is almost same with the ordinary H-1B petitions, except that the alien beneficiary must meet the license requirement of the state he/she will be employed, and that VisaScreen certificate (please refer to VisaScreen section) must be submitted.
People applying for H-1B must always be mindful of the availability of the H-1B cap. However, certain types of employers, e.g. institutes of higher education, for example colleges or universities, or a related or affiliated nonprofit entity, government or nonprofit research organizations are exempted from the cap. Therefore, many hospitals qualify for that waiver and are able to apply for Physical Therapist year-round.
Starting from fiscal year 2005, an additional 20,000 annual H-1B cap has also become available to aliens who obtain master or higher degree in the U.S. As many states now require Physical Therapist candidates to have at least master degree, people meeting this requirement will have more H-1B cap available for application.
(b) TN Visa For Mexican and Canadian Citizens
For Physical Therapists who are citizens of Mexico or Canada, the North American Free Trade Agreement (NAFTA) provides that Physical Therapist is one of the TN professions.
People applying for the TN classification do not need to file to and obtain an approval for a non-immigrant classification from the USCIS. Instead, the alien applicant may just appear at the U.S. custom at the border and apply for the classification with all the TN required document, e.g. credential documentation and offer letter from employer. The TN visa will be issued instantly.
The difference between TN visa and H-1B visa is multiple in addition to the application procedure. Most significantly, TN is only good for one year and has to be renewed annually. H-1B, on the other hand, can be issued for three-year period. On the other hand, TN visa does not have cap restriction. However, as explained above, the H-1B cap issue should not be a big problem for Physical Therapist candidates.
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|4. Immigration for Physical Therapist|
|Aliens applying through EB-2 as a professional holding an advanced degree (master) or has college degree with a position requiring over five-year experience, or through EB-3 as a skilled or unskilled worker, must obtain “Labor Certification” from the Department of Labor before an employer can file an petition to classify the alien as an immigrant employee.
The physical therapist occupation, a Schedule A occupation, however, falls into a special “pre-certified” category of occupations that are exempted from labor certification process. Therefore, the employer is exempted from labor certification, meaning that the employer is exempted from certain recruitment steps to be followed otherwise by employers filing for other occupations. While other employers have to test the labor market and show that there are no able, willing and qualified U.S. workers to perform the job for which the foreign national is seeking permanent residence, the physical therapist’s employer does not have to test the labor market because the Department a Labor has recognized the unavailability of workers for Physical Therapist occupation. The employer can file the I-140 Immigration Petition for Alien worker directly to the USCIS without first obtaining Labor Certification from Department of Labor as far as certain procedure and credential requirement is met, including the requirement for Health Care VisaScreen certification see below).
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|5. Employment Requirement|
|As the non-immigrant visas and immigrant visas for physical therapists are to be filed by the employers for the employees, all physical therapists applying must first acquire employment, or commitment of employment from an employer. The employers can be hospitals, clinics, and institutions providing physical therapy to patients. Like other employment-based petitions, there is not a set rule restricting the size or scale of operation of the employer. However, the capability of the employer to pay the offered salary, and the authentic need for the position are still issues to be addressed in the petition.|
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|6. The Health Care VisaScreen Certification Requirement|
|(a) VisaScreen Requirement
In July of 2003 the Department of Homeland Security issued a new regulation regarding the VisaScreen requirement. With the promulgation of this new rule, all aliens coming to the U.S. as nonimmigrants and immigrants for the primary purpose of working in the certain designated healthcare occupations must first obtain a professional certification, known as a VisaScreen certificate. Physical Therapist is one of the several designated health care positions which must obtain certification under the new rule.
The VisaScreen requirement, however, does not govern aliens coming to the U.S. to perform services in a non-clinical healthcare occupation. If the alien does not perform patient care or diagnosis either directly or indirectly, VisaScreen is not required. Thus, a purely research, teaching or training position would be exempt from the certification requirement.
(b) The Certification
The purpose of VisaScreen Certification is to make sure that a foreign healthcare worker meets the minimum education, licensing, and English language requirements to practice healthcare in the U.S.
As of now, the three organizations listed below are authorized by the Department of Homeland Security to issue certification:
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|7. Application Procedure for Immigration|
|On March 28, 2005, the new PERM labor certification regulations take effect. Although Physical Therapist is a Schedule A position and labor certification is not required for immigrant application for this position, the PERM regulation has affected the application procedure for Physical Therapist in many aspects.
The following are the highlights of changes to Schedule A cases filed under PERM:
A. The PERM regulation introduced a new 10-page Form ETA 9089 which replaces the old ETA 750 Form. It should be noted that although labor certification issued by the Department of Labor is not required for immigrant application for Physical Therapist position, the application still need to submit the Form ETA 9089.
B. The PERM requires all employers, including those who files for Schedule A occupations, to obtain a prevailing wage determination (PWD) from the State Workforce Agency. The wage determination is to be made by each state with forms they designate. There is not a centralized format for the wage request. Once the prevailing wage is determined, the PERM regulations require employer to match the prevailing wage at least 100%.
Note that the employer is required to pay the 100% of the PWD either when the physical therapist is admitted to take up the certified employment or when he/she is granted the permanent residency status. In other words, the actual wage to be paid for this position cannot be lower than the prevailing wage.
C. PERM continues to require employers to post notices regarding the job opportunity for at least 10 consecutive business days in 2 conspicuous locations at the work site. In addition to the printed post notice, PERM further requires that an employer use any and all in-house media whether electronic or printed in accordance with the normal procedures used in recruiting for other similar positions in the employer’s organization. If the employees have a union, the petitioner must notify the bargaining representative that an immigrant visa petition is being filed. If the employer has notified the bargaining representative, it does not need to post the notice for 10 business days.
D. Immigrant applications for PT are filed directly with the USCIS Service Center and not with the Department of Labor (DOL). All the supporting document, together with the I-140 and ETA 9089 are to be filed to the USCIS.
E. Special Note:
While aliens, especially those from China, India, and Mexico, applying for EB-1, EB-2 and EB-3 immigration applications face severe retrogression problems because of the shortage of the visa number for the applied category, Schedule A positions do not have this problem because of the recapture of the visa number up to 50,000 in June of 2005. In other words, aliens applying for Physical Therapist positions can still file their adjustment of status applications concurrently with the I-140 and ETA 9089, and do not need to wait for the availability of visa numbers.
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|8. What Our Immigration Attorney Can Do for You|
|Immigration attorneys and staff in Lin and Valdez are greatly experienced in preparing and filing the physical therapist immigration and non-immigration applications. We work closely with hospitals throughout the process and assist the employer step by step during the preparation of the applications. Whether you are an alien-born and educated physical therapist who have received an employment offer and is contemplating filing petitions, or are a human resource professionals of the employer, please give us a call or send us an email. We can provide you the guidance you need through the complicate application procedure and legal jungle, and obtain the successful result for you.|
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