Below are three important developments in health care-related immigration that we need to bring to your attention:
1. Valid Health Care Certificates Are Required for Immigration Applications: Many health care workers are under the impression that the health care certificates they used to enter in valid nonimmigrant status are valid indefinitely and need not be renewed to support renewal or green card applications. The USCIS, however, requires FNs to submit a valid health care certificate with each application, both nonimmigrant renewals and green card applications, until the FN is admitted to lawful permanent residence. As a general rule, these certifications are valid from three to five years, but can take several months to renew. For this reason, it is important for employers to make sure that the FNs continue to have a valid health care certification so that they can remain in status without an unanticipated interruption.
2. USCIS Requires a Master’s Degree or Foreign Equivalence for Physical Therapists: Health care employers sponsoring physical therapists for permanent residence often seek to qualify them for the employment-based second (“EB-2”) preference to speed up the process. To qualify for the EB-2 preference, however, the sponsored physical therapy position must require a master’s degree (or foreign equivalent) or, alternatively, a bachelor’s degree plus five years’ progressively responsible experience, and the sponsored physical therapist must satisfy this requirement. Many sponsored physical therapists have obtained degrees in five-year physical therapy programs that standard credentials evaluations equate to the EB-2 qualifying master’s degree.
The USCIS, however, has been challenging these evaluations because it does not believe that degrees from these programs equate to the qualifying master’s degree. In making this assessment, the USCIS has indicated that it relies almost exclusively on the American Association of Collegiate Registrars and Admissions Office’s EDGE database, which does not support the claim that these programs issue degrees equivalent to a U.S. master’s degree. Before preparing these applications, therefore, health care employers must first secure an EDGE evaluation to be certain that the sponsored FN has a degree that satisfies the USCIS requirements.
3. Proper FN Nurse Priority Date Should Be Verified: As we have noted in previous alerts, most employment- and family-based immigration is limited by annual quotas. These quotas have resulted in significant delays for employers sponsoring FNs for immigrant visas so that they can come here to work as registered nurses (“RNs”). Many RNs were sponsored years ago and no longer have job offers from the employer that filed their original I-140 petition. To immigrate to the United States now, these RNs must find another employer to file a new I-140 petition on their behalf. However, it is important to note that they retain their place in the immigration line (i.e., a priority date) that attached to the initial I-140 petition, unless it has been revoked for fraud or misrepresentation.
When these new I-140 petitions have been filed, however, the USCIS has not been consistent in granting the new employer’s request to retain the sponsored RN’s original priority date. For this reason, new employers in this situation must verify that the new I-140 approval notice accurately reflects the proper priority date. If there is a discrepancy, the employer should immediately contact the USCIS to correct the error. It is critical to effect this correction before the file is transferred to the National Visa Center so that the immigrant visa will be issued in a timely manner within the appropriate eligibility period.
At Epstein Becker Green, we have significant experience supporting clients in the health care sector with their immigration needs. Please contact us if you need guidance on these or any other immigration issues.