Americans are more active than ever before, and physical activity often means injuries. As the American “Baby Boom” population reaches “Senior Citizen” status, more and more Americans are requiring physical therapy. At the same time, health care providers are faced with a lack of qualified, U.S.-born physical therapists. Given this scenario, immigration practitioners are frequently retained by foreign-born physical therapists educated in or out of the United States, and by the hospitals and clinics desiring to hire them.   This article serves as a basic primer for the immigration attorney whose clients are a physical therapist and a willing employer, and needs to know how to obtain the necessary work permits and licenses for the physical therapist to begin working. It will cover the required steps for obtaining both non-immigrant and immigrant status as a physical therapist.

This article will assume basic knowledge of how to file an H-1B (foreign workers from certain countries can also consider H-1B1, TN, or E-3) or immigrant visa petition (I-140), and will focus on the differences in filing applications for physical therapists from other employment-based occupations. Unlike professional nurses, physical therapists do qualify for H-1B status and can be brought quickly to the United States provided licensure, credentialing, and §343 Certificate (also known as Visa Screen or FCCPT Certificate) steps are taken early and there is a visa available.

Like other employment-based petitions, it is especially critical for physical therapy clients to have high-quality, certified copies of all educational and licensure documents. These will be required throughout the process, and submitted to several governmental offices and licensure agencies. For some phases of the process, boards of authority will only accept records and transcripts directly from the source, but having solid working copies is a must.   Physical therapists and health care facilities both should be informed that the costs of immigration for these clients are greater than non–health care positions. Additional fees for licensing exams, English language tests, preparation courses, licensing applications, credentials evaluations, the §343 Certificate, and possible recruiting agency fees can all add up.

NONIMMIGRANT OPTIONS

For the physical therapy client who wants to apply in a non-immigrant category, there are several options—the H-1B classification, the H-1B1 classification for clients from Singapore or Chile, the E-3 classification for clients from Australia, and the TN classification for clients from Canada or Mexico. Physical therapists fit well into all of these categories, and each offers its own set of advantages and disadvantages.   H-1B/ H-1B1/ E-3 Classification   According to data compiled by the U.S. Department of Labor, the second highest number of job openings certified under the H-1B program is for the occupation of therapist. Physical therapists comprise the largest component of that occupation.   With the cap back down to 65,000 per year, availability of H-1B classification might be one of the biggest obstacles to overcome. Many hospitals and other medical facilities will qualify for exemption from the cap on the basis of being a nonprofit organization affiliated with an institution of higher education (typically a medical school) so be sure to explore this option especially when H-1B numbers have run out for the fiscal year..        Caveat: The first time the physical therapist moves to a non–cap-exempt facility, he or she will be subject to the cap, so timing on the job move may be important.   H-1B’s for physical therapists are just like any other H-1B except that the practitioner must also address the licensing issue in the state of employment and the §343 Certificate issue.

Prior to July 26, 2004, non-immigrant health care workers enjoyed an exemption from the §343 Certificate requirement. This exemption has ended and the §343 Certificate requirements of IIRAIRA §343 are currently in effect for all new H-1B filings for enumerated health care workers including physical therapists.  Technically the §343 Certificate is an admissibility issue and does not relate to Petition approval; it is required for a change of status or at the time of visa issuance.  Best practice is to obtain the certificate early in the process and submit with the Petition.   State licensure is discussed in more detail, infra, as it applies to both non-immigrant and immigrant physical therapy petitions. Since state licensure examinations are only given in the United States, the overseas physical therapist must complete all of the licensing steps except the final one of taking the test. The overseas physical therapist may be eligible for a temporary license in many states. He or she may also enter in H-1B status as a physical therapy intern or assistant working under the direct supervision of a licensed physical therapist to obtain a Social Security number and sit for the state licensing exam. It is helpful to include a letter from the state licensing board that all steps are completed to sit for the test, and this can be done shortly after entry into the United States.

The Neufeld Memo of March 21, 2008 updated the Adjudicator’s Field Manual and provided further guidance to USCIS Officers on the adjudication of H-1B petitions where the beneficiary does not yet have a license and provides for a temporary approval of one year. [2]   A possible drawback for physical therapists (as with all other licensed occupations) in H-1B status is the issue of portability and state licensure. If an H-1B physical therapist wishes to port to an employer in another state, valid licensure in the newly intended state of employment must be secured before the alien is allowed to port to the new employer. Many states permit licensure by endorsement so this should be explored with the licensing agency in the state of intended employment.   H-1B1 classification is available to PT’s who are citizens of Chile or Singapore and E-3’s are available to citizens of Australia subject to their separate quotas.  Both programs have the same licensure requirements as discussed herein.  The §343 Certificate requirement also applies as this is occupation-specific and not visa-classification specific. The details of these programs are beyond the scope of this article.   Is a Masters Degree Required for a PT? In late 2008 and 2009 an issue emerged related to the education requirements for a physical therapist and USCIS began denying many H-1B’s where the physical therapist did not have a foreign master’s degree relying on the Occupational Outlook Handbook. (“OOH”).  The various credentialing agencies weighed in on this issue and advised that USCIS was equating the standards for U.S.trained physical therapists to foreign trained physical therapists; whereas these agencies look at “substantial equivalence” which is defined as education equivalent to the first professional degree in physical therapy in the United States.[3]  USCIS has now resolved the issue with a Memo from Barbara Q. Velarde dated May 20, 2009 stating that the OOH is only a starting point for determining a specialty occupation and the Adjudicator should also look at other authoritative sources such as an unrestricted state license or the evaluation underlying such a license if the license cannot yet be obtained (usually because the Beneficiary is still overseas).[4]

Canada and Mexico/TN Classification

In August 1992, the United States, Canada, and Mexico entered into the North American Free Trade Agreement (NAFTA) providing for expedited admission of business persons from these countries. The implementing legislation for this Agreement went into effect in 1994 and provided for certain business professionals to enter into the United States in the TN non-immigrant category.[5] Schedule 2 of NAFTA includes a list of designated professions qualifying for TN status; the physical therapist profession is on that list.   For physical therapy applicants from either Canada or Mexico, TN classification can be an attractive option. The requirements for the TN are very similar to those for an H-1B, but there are significant differences between them.   The TN application may be presented at the border and obtained instantly or can be obtained as a change of status from within the U.S.while in another valid status.  TNs are not subject to an annual cap, so availability should not be a concern. The TN can be renewed indefinitely, whereas the H-1B is limited to six years (unless the permanent residency process is far enough along), and unlike the H-1B, there is no prevailing wage requirement for the TN. Specialty occupation is generally presumed if the occupation is listed on Schedule 2, whereas in an H-1B petition, practitioners must demonstrate that the position qualifies as a specialty occupation.  TN classification is now granted for three years. On the negative side, TN classification has not been awarded the dual intent designation. H-1B physical therapists can apply for permanent residency while maintaining their non-immigrant status and freely travel in and out of the United States without concern on the basis of the dual intent proviso. TN classification holders cannot apply for permanent residency without risking their TN status especially if they travel outside the United States. Canadians can make TN applications and obtain TN classification at the border, without any prior application to USCIS. Mexican physical therapists cannot apply at the border, but after January 1, 2004, are no longer required to first submit an LCA and petition to USCIS, but rather can apply at the consulate for a TN visa.

IMMIGRANT OPTIONS

This section focuses on the steps required for foreign-born applicants looking to use their education and training as a physical therapist as a path toward permanent residency in the United States.   The immigrant visa option is primarily for applicants currently living overseas, or for applicants willing to return to their home country for visa issuance at a U.S.consulate.   Adjustment of status is an option for applicants who are currently located inside the United States, and who will apply to adjust from their current non-immigrant status to that of a permanent resident.   Schedule A Equals No Labor Certification   In almost all other employment-based cases, the first filing with the government would be for a Labor Certification. But physical therapists, like professional nurses, can bypass the often lengthy process of certification and directly file the I-140 Immigrant Petition for Alien Worker, without a test of the existing labor market.   Congress passed legislation that put physical therapists on a short-list of pre-certified occupations, meaning there is a continuous shortage of qualified,U.S.applicants. The regulations at 20 CFR, §656.10 spell out the need for these Schedule A, Group 1 occupations by stating that “there are not sufficient United States workers who are able, willing, qualified, and available for the occupations listed on Schedule A and that the wages and working conditions of U.S. workers similarly employed will not be adversely affected by the employment of aliens. . . .”

This Schedule A designation for physical therapists puts them ahead of the game when it comes to applying for an immigrant visa or permanent residency. They can immediately file their I-140 petition with USCIS once they have found an employer willing to sponsor them, and provided they meet the I-140 filing requirements.  The Receipt of an I-140 Petition by USCIS establishes a Priority Date for PT’s and RN’s for purposes of visa issuance.

Filing the I-140 Labor Petition   When filing the I-140 petition, practitioners should include all of the standard supporting evidence required of any employment-based petition including authority to file under Schedule A, evidence of the employer’s ability to pay the alien’s salary, and evidence of the alien’s qualification for the job. For physical therapists, there are some extra items that must be included, and an increased level of involvement on the employer’s part.   A separate I-140 must be filed for each physical therapist along with the G-28, Forms ETA-9089 in duplicate, posting notice or evidence of notice to bargaining unit, in-house media notice or attestation that in-house media notices are not used, prevailing wage determination, evidence of employer’s ability to pay, educational diploma and transcripts indicating bachelor’s or higher degree and if only a bachelor’s a credential evaluation showing education is equivalent to the first professional degree in physical therapy in the U.S., license in home country, and license in state of intended employment or letter indicating applicant is qualified to sit for the licensing exam upon entry. If the beneficiary is overseas, two sets of all documents must be submitted to USCIS.

Job Posting Notice   As with other Schedule A positions, the I-140 petition must be accompanied by a copy of the job posting notice or notice to any bargaining unit covering the physical therapist position^.[6]   The posting notice must include the employer’s name and address, position being filled, a complete job description, salary, educational and other job requirements, and the notice that foreign-born candidates have applied for labor certification for the position. It must also include addresses and contact information for state workforce and U.S.Department of Labor offices.   The notice must be posted at the employer’s facility for all current employees and prospective applicants to see. Generally postings are made on Human Resources bulletin boards, or other prominent locations for employee notices.   The notice must remain posted for 10 consecutive business days, which has been interpreted to only include Monday through Friday and not holidays regardless of whether the facility such as a hospital is open 24 hours seven days a week, and be signed by the designated company official before it is added to the I-140 filing.  The employer must also publish the notice in any in-house media routinely used by the employer for such employee notices.  If the employer does not use in-house media then you will need an attestation by the employer that it does not employ in-house media for posting employee notices.

Other Documentation   A prevailing wage must be obtained from the State Workforce Agency (This function will be transitioning to USDOL in the near future) for each location where the PT will work and included with the I-140 filing.  Note the validity period on the Prevailing wage Determination and be sure you either post the notice or file the I-140 within this validity period.   Always be sure to include high-quality photocopies of all educational materials—diplomas, transcripts, résumé, certificates—and licensure documentation both in the foreign country (a physical therapist applying abroad must be licensed in the foreign country to obtain a §343 Certificate) and in the state of intended employment.   Make sure to identify the broadest possible petitioner in most cases; accurately describe the employment situation (working at a single facility or traveling to various work sites or client locations); and include evidence of the petitioner’s ability to pay consistent with the most recent Yates Memo of May 4, 2004.[7]If the financial documentation is in a name other than that of the petitioner, include documentation to show the legal relationship of the two entities. If the physical therapist is already employed by the petitioner, include the most recent W-2 and pay stubs to show the petitioner is actually paying the physical therapist.   With visa retrogression becoming an increasing reality for our clients it is useful to have as generic a job description as possible to enable the client to take advantage of AC-21 portability after the I-140 is approved and the I-485 has been on file for 180 days or more.  The client must demonstrate that the new job is in the “same or similar occupation:” so a less restrictive job description will be beneficial for this purpose.   Sec. 343 Certificate Requirement   The Basics   With physical therapy clients, and select other allied health care occupations, one of the first questions to ask is: Have you applied for your §343 Certificate?   The process to obtain the certificate required by Section 343 of IIRIRA is not an overly difficult application to submit, but given the current processing time, the application process should be started early, as it may take many months to complete.   As of July 26, 2004, this §343 Certificate  will be required of all immigrant and non-immigrant health care workers employed in one of the following seven (7) occupations:

• Nurses (including registered, licensed vocational, and practical nurses),
• Occupational Therapists,
• Physical Therapists,
• Medical Technologists (clinical laboratory scientists),
• Medical Technicians (clinical laboratory technicians),
• Speech Language Pathologists and Audiologists, and
• Physician Assistants.

This §343 document certifies that a foreign-born health care worker’s education, experience, training, and English language ability are equivalent to that of a U.S.worker. The Sec. 343 Certificate also verifies that the applicant’s foreign license is current and valid.   The English language proficiency requirement has been waived for graduates of programs in countries in which the primary language of instruction is English. Those countries include Australia, Canada(except Québec), Ireland, New Zealand, the United Kingdom, and the United States.   English Language Proficiency   By regulation, physical therapists are limited to only one choice for the examination track they can take to fulfill the English language proficiency requirement.   Nurses and other health care professionals have the option of taking one of three tests, but physical therapists are required to take the Test of English as a Foreign Language (TOEFL) exam, administered by the Educational Testing Service (ETS) of Princeton,New Jersey.   Information on registration for the TOEFL-ETS English language tests can be found at www.toefl.org.   For §343 Certificate applications, English language test scores must be forwarded directly to the credentialing agency by ETS. The list of minimum required scores and the current fee structure for each examination is also listed on the Web site.   Credentialing Agencies   The role of credentialing agencies is becoming increasingly vital to the health care immigration applicant. Knowing what evaluations and verifications the client needs is as important as knowing where to get them.   For the physical therapy client, the two principal agencies for credential evaluation and licensure verification are the Commission on Graduates of Foreign Nursing Schools (CGFNS) and the Foreign Credentialing Commission on Physical Therapy (FCCPT).

CGFNS   The Commission on Graduates of Foreign Nursing Schools provides §343 Certificate certificates for all seven of the listed health care professions. Application materials for their services can be found at the Web site: www.cgfns.org.   The term “Visa Screen Certificate” was actually coined by CGFNS, and is their own product name for the §343 certificate (and is trademarked). This is important to note because the words Sec. 343 Certificate do not appear anywhere on the final document.   If you are dealing with another credentialing agency, it might choose to not refer to it as a Visa Screen Certificate at all. When used in this chapter, the term §343 Certificate refers to the Visa Screen certificate issued by CGFNS or the FCCPT Certificate issued by FCCPT.   Important language on the certificate will state:   “(applicant) has met all requirements of section   212(a)(5)(C) of the Immigration and Nationality            Act, as specified in Title 8, Code of Federal      Regulations section 212.15(f) for the Profession of Physical Therapist.”   One difference between the CGFNS process and other credentialing agencies, is that CGFNS requires the §343 Certificate applicant to provide a self-reported, typewritten summary of their supervised clinical experience. This is a component of their process to verify educational requirements, and is unique to the CGFNS process. The Sec. 343 Certificate is valid for five years from the date of issuance. It is important to advise your clients to track the expiration date of these Certificates, as certificates issued five years ago are expiring now.

FCCPT

The Foreign Credentialing Commission on Physical Therapy is also designated to review an applicant’s educational and professional credentials, and is authorized to issue the §343 Certificate, but for physical therapists only. Application materials for their services can be found at the Web site: www.fccpt.org.   Since FCCPT is only authorized to handle physical therapists, practitioners might find the FCCPT process less congested than that of CGFNS. Evaluations and certificates from either agency are accepted for the §343 requirement. Be sure to know which type of FCCPT certificate is required before starting the process.   FCCPT: Type I Certificate   This certificate is used primarily for the alien applicant who has never been licensed in the United States. This certificate combines both an educational credentials review and covers the requirements for the USCIS §343 Certificate).   FCCPT: Type II Certificate   This certificate is used for alien applicants who are currently licensed in the United States, and who need the §343 (Sec. 343 Certificate) certificate for nonimmigrant or immigrant processing. The review process for this certificate focuses on the verification of education, verification of current licensure, and the demonstration of English language proficiency.  This option is being discontinued effective September 1, 2009 so all clients should be advised to apply for the Type I Certificate.   FCCPT: Educational Credentials Review   This certificate is used primarily for licensure. The review process focuses on the evaluation of the alien applicant’s individual educational credentials through a course-by-course review of school transcripts and course descriptions. The evaluation is designed to determine that course work content requirements have been met, in order for an applicant’s education to be deemed substantially equivalent to that of a graduate from a U.S. accredited physical therapy program.   Since FCCPT offers a range of options for the physical therapy client, it’s a smart idea to contact them directly. By explaining the client’s current licensure and educational history, FCCPT can recommend which of their services most completely covers the client’s validation needs.   New York State Requirements   The New York State Education Department (NYSED) requires applicants for physical therapy and physical therapy assistant licenses to obtain independent verification of their credentials through either CGFNS or FCCPT.   Foreign-educated physical therapists or physical therapist assistants seeking a license to practice in New York state need to complete a New York State Credentials Verification form and submit it to either CGFNS or FCCPT.   Please note: There is a separate, additional application for licensure in New York state, the Application for Licensure and First Registration. In order to be licensed in New York State, petitioners must complete that application and send it directly to NYSED, not to either CGFNS or FCCPT.

EB-2 vs. EB-3 for Physical Therapists   Filing for Adjustment of Status   Adjustment of status is requested with Form I-485 and may be filed concurrently with the I-140 if the beneficiary is in the United States. The §343 Certificate is going to be the “central piece” of special, supporting documentation practitioners have to obtain for the physical therapy client. Aside from this, the I-485 application for a physical therapist is very similar to other employment-based applications.   It is important to note that the Sec. 343 Certificate is not required when filing the I-485 Adjustment of Status application; it just needs to be presented prior to final adjudication. If the client has his or her §343 Certificate, include it with the initial filing. If it is not submitted with the initial application, expect to receive a Request for Evidence prior to adjudication.   Filing for an Immigrant Visa   Again, the §343 Certificate requirement is what sets the physical therapy immigrant visa applicant apart from the rest of the crowd.   For visa processing at an overseas consulate, the certificate must be presented at the time of interview. Now that the National Visa Center is collecting documentation for all consulates prior to the interview, the §343 Certificate must be included with the initial DS-230 forms.   Generally, the main hurdle for overseas physical therapy applicants to overcome is the state license requirement. With clients in overseas visa processing, the application for a license and the application for a visa are mutually dependent, meaning in both cases, petitioners need one to get the other.   In most cases, consulates will not issue a visa if the physical therapist client is not yet licensed to practice in his or her intended state of employment. And likewise, most states will not issue a license to a physical therapy applicant without a Social Security number, or without an immigrant visa. Having the beneficiary enter as a physical therapy intern or with a temporary license may overcome this hurdle, but each state’s licensing procedures must be checked.

STATE LICENSING

The Basics   Licensing requirements for physical therapists are overseen on a state-by-state basis, and each state has a slightly different set of requirements. Generally, these requirements can be found through on-line sources, or by contacting the branch of the state’s government that oversees professional regulation.   It is important to know the forms and procedures for the state where the physical therapist plans to practice. It is also very helpful to know the people working in these state offices, as they can help guide one through the often complicated maze of state licensure for foreign-educated therapists.   All 50 states permit a physical therapist applicant to obtain a license through the examination process, and some states allow for licensure through the endorsement process, where the state will accept an applicant’s license from another state, as proof of their credentials as a physical therapist.[8]   Since the goal is to end up with a client who is licensed to practice, it is a good idea to start out with state licensure requirements and work backwards. Knowing what is needed at the end of the process helps plan the path along the way. Certain states will accept credential evaluations from only specific agencies, and some have secondary examinations required above the standard exams for physical therapists in every state.   Also, the current status of the client’s license will determine what exams or additional filings will be required. Practitioners must familiarize themselves with the client’s current licensure status, then examine the requirements of the intended state of employment in order to determine what steps must fall in-between.   State Licensure and Visa Issuance  As mentioned earlier, the application for a state license and for an immigrant visa are mutually dependent. Like the chicken and the egg, practitioners must decide which comes first, and proceed accordingly.   Some states do allow for temporary licensure of foreign-born and educated applicants. These temporary licenses allow the consulate to issue the visa, on the understanding the applicant is coming to the United States for further licensing examinations, or for the issuance of his or her Social Security numbers.   Also, some state regulating agencies will also issue an Authority to Test letter for applicants to present at the consulate. These letters basically state that aside from a state license, the applicant is otherwise qualified for the immigrant visa, and is being allowed to come to the United States to take the physical therapy licensure examination.

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