Physical Therapists & Other Health Care Workers

Schedule A, Visa Screens and Licensure

PTs fit under the process called “Schedule A”, which makes PTs eligible to file their immigrant visa petition directly with DHS rather than going through the PERM process. Schedule A requires PTs to “be employed as physical therapists, and possess all the qualifications necessary to take the physical therapist licensing examination in the state in which they propose to practice physical therapy.”  See 20 CFR §656.5.   Thus, the two part analysis to determine whether a PT fits within Schedule A, are:  1. The job duties must be those of a PT; and 2. The PT must meet minimal requirements for licensure.

PTs must be licensed and all fifty states in the USA have established criteria for PT licensure. For example, the current thresholds for licensure in Illinois, Michigan, and Texas, are a master’s degree or its foreign equivalent whereas NY is a bachelor’s degree.  However, many individuals are practicing PTs in these states because their licenses were issued due to grandfathering regulations that are less than today’s standard. The minimum educational standard under these grandfather laws is normally a bachelor’s degree and eligibility often depends upon when an applicant applied for initial licensure.  The creation of a grandfathered PT class of physical therapists means they don’t necessarily have a master’s degree and don’t necessarily qualify for EB2 status.

The visa screen is a necessary component of the PT Schedule A/permanent resident process pursuant to US regulations governing foreign born health care workers. There are two different organizations, CGFNS and FCCPT, responsible for issuing visa screen certifications to physical therapists. The visa screen issued by these entities is a necessary document according to DHS regulations for issuance of the H-1B temporary worker visa and for grant of permanent residency.  The visa screen came into existence in 2003 to ensure that most health care occupations filled by foreign workers met a minimal national standard.

Until September 2009, FCCPT issued two types of visa screen certificates, Type 1 and Type 2.  The Type 1 certificate includes an educational credentials evaluation which compares the applicant’s credentials to current CAPTE accreditation standards.  CAPTE is the organization that sets educational standards for PTs in the United States. The current CAPTE threshold for PTs is a post baccalaureate (master’s degree or above), which standard became effective on January 1, 2006. It will eventually change to a doctorate by December 31, 2015.  The Type 2 certificate was designed for foreign-educated physical therapists that were not holders of a Type I Certificate but did hold a current physical therapy license to practice in the U.S. and needed a Visa Screen health care worker certificate to maintain visa status. In other words, it served mostly that part of the foreign PT workforce that was grandfathered in to licensure under standards that no longer meet current CAPTE standards. Type 2 Certifications does not include an educational credential review; rather, PTs demonstrate that a U.S. state has determined the applicant met their eligibility guidelines for physical therapy licensure and practice.   FCCPT no longer issues Type 2 visa screen certificates since it ended issuance on September 1, 2009.  All individuals applying for an FCCPT visa screen are now required to undergo a comprehensive credentials evaluation for the Type 1 certificate, which as stated before has a master’s degree threshold.

The other provider of PT visa screens, CGFNS, also performs evaluations with all applications.  In order to obtain a CGFNS certificate an individual must currently have the equivalent of a master’s degree.  If an individual obtained a CGFNS visa screen before master’s degree was required by CAPTE, CGFNS will renew the visa screen certificate. However, the CGFNS credentials evaluation for these individuals will state their educational equivalence is less than a master’s degree.

Thus, the possession of a FCCPT Type 1 visa screen inferentially establishes that an individual has the equivalent of a Master’s degree.   For individuals with a foreign degree and an FCCPT Type 2 or CGFNS visa screen, there is no inference that the individual has a master’s degree.

EB2, EB3 and PT Expectations

DHS (Department of Homeland Security) in spring 2009 created a stir when it began to deny H-1Bs for PTs whom did not have master’s degrees but were otherwise licensed.  DHS rationalized that current CAPTE educational standards required a master’s degrees and that H-1Bs for foreign PTs should conform to that national educational standard.  This standard was later rejected by DHS pursuant to intense lobbying since licensure of the individual was actually a more accurate minimum standard to determine whether any PT could be employed in a state.  In fact, not all states have adopted CAPTE standards requiring a post baccalaureate (i.e. NY) so that it was obvious that DHS could not impose a CAPTE standard nationwide where individual states required less than CAPTE standards.  However, this DHS short-lived requirement of a master’s degree (since rescinded) has resulted in many PTs believing that ALL of them fit within the EB2 category.

Most physical therapists would prefer to file their I-140s in the EB-2 category, which is less backlogged (for most countries there is no backlog) than the EB-3 category, meaning immigrant visas would be available much more quickly than the 5-8 years estimate to become eligible for permanent residency in the latter category.  The EB2 category has a threshold requirement that the job require either a master’s degree (US equivalent or above) or a bachelor’s degree (US equivalent) plus five years of progressive experience subsequent to attainment of the BS/BA degree.    The EB3 category has a threshold of a bachelor’s degree, or, alternatively, two years of prior experience

At the moment, DHS has not stated any policy with regard to PT eligibility for EB2 petition approval. Anecdotally, there have been approval of PT immigrant petitions in the EB2 category but it would be premature to discern a pattern from this development.  Rather, the most rationale approach to determining eligibility for an EB2 petition is to look at state law regarding licensure and to a more limited extent the requirements of the employer. If the state where the PT is licensed requires a master’s degree, then there is good argument to be made that a PT with a master’s degree is EB2 eligible.  Although many states now require a master’s degree for PTs, some do not (i.e. NY) and some PTs licensed in those states do not have master’s degree credentials because they are practicing under standards that are grandfathered.  This creation of a two tier system is something of a paradox in immigration law that muddles the question whether the state’s requirement is really a bachelor’s or a master’s degree.

A good argument can be made that Schedule A/EB2 petitions are appropriate for PTs with master’s degrees in states with CAPTE standards or that require master’s degrees.  Additionally, for the few with master’s degrees in states like NY where the requirement is less than the CAPTE standard (i.e. less than a master’s degree) it is optional whether to file in the EB2 category.  There is some bases to argue that a national standard of a master’s has been implemented by CAPTE and the current visa screen requirement, but it is vulnerable to the argument that state licensure law preempts them. After all, licensure governs the issue of employability and not CAPTE.  It would be best in circumstances where the employee is located in a state with only a bachelor’s degree requirement for licensure to have some other reason to require a heightened standard of education or experience related to supervisory or complex job duties.

As stated previously, the EB2 category recognizes that a bachelor’s plus 5 years of progressive experience is equivalent to a master’s degree.  Thus, a PT with a bachelor’s degree plus five years of progressive experience may be considered for an EB2 petition when the job duties of the position are more complex than is normal even when the state does not require more than a bachelor’s degree as a licensure threshold.  In other words, if the employer has a job related reason to require this particular heightened standard, than it may require a period of experience detached from state licensure requirements. This might be the case where the employee has supervisory duties and/or more complex duties than a normal PT, however, if the job duties or job title stray far from the norm for PTs, DHS might not agree that the position deserves Schedule A recognition since it no longer is a pure physical therapist position.

Occupational Therapists (“OTs”) and Speech Language Pathologists (“SLPs”)

The PERM Labor Certification process is appropriate for individuals applying in categories such as OT and SLP.  In other words, they have not been identified by regulation as Schedule A positions. The first step in filing a PERM labor certification is a period of advertising that is inclusive of an appropriate pattern of recruitment.

The master’s degree is the current standard set by NBCOT for OTRs. OTRs with Bachelor’s degrees were grandfathered in for licensing purposes by NBCOT when the national standards changed to a post-baccalaureate on January 1, 2008.  Alternatively, if the job duties are supervisory or so complex that a bachelor’s degree plus five years of experience is warranted, then it is optional to file in the EB2 category.

SLP seem to fit best into the EB-2 category because almost universally have obtained a Master’s degree (or its equivalent) and that is the national standard for this health worker category.  Although requirements for licensure are set by individual states, SLP educational accreditation standards are set by the Council on Academic Accreditation (CAA), a division of the American Speech-Language Hearing Association (ASHA).  In order to be an accredited SLP program in the U.S., an institution must offer a master’s or other entry-level graduate degree in Speech-Language Pathology.  Additionally, ASHA mandates that in order to receive a Certificate of Clinical Competence subsequent to 2005, an individual must have obtained a master’s degree or higher.

However, as a word of caution, Michigan does not regulate SLPs, and there may be other states without licensure requirements too.

 

---