Member Article

Many employers currently have employees on staff on temporary work visas, and employers likely know that in order to continue to employ employees not born in the U.S., the employer must sponsor the employee for permanent residency in the U.S. (i.e,. a green card). The green card process has multiple steps, which, depending on a variety of factors, may take several years to complete. In addition to being a lengthy process, sponsoring an employee for a green card can also be complicated, as the employer must work with different government agencies, including the U.S. Department of Labor. Employers sponsoring registered nurses and physical therapists (Schedule A workers) have one advantage, however, and that is federal regulations governing the green card process for Schedule A workers entirely eliminate the need to work with the U.S. Department of Labor. The Schedule A regulations significantly cut down on the time and costs normally associated with sponsoring an employee for a green card.

The green card process most often begins with Labor Certification (often referred to as PERM) with the U.S. Department of Labor. In accordance with the Immigration and Nationality Act, the various Labor Certification federal regulations were written to protect U.S. workers’ jobs. Arguably one of the most complicated parts of sponsoring an employee for a green card, PERM requires an employer undergo a series of recruitment steps to prove to the U.S. Department of Labor there are not sufficient U.S. workers who are able, willing, qualified and available to fill the job opportunity in the area of intended employment, and the employment of the foreign worker will not adversely affect the wages and working conditions of workers in the U.S. similarly employed.[1] From start to finish, this process, which includes recruitment and filing an application with the U.S. Department of Labor, may take one to two years. If the employer meets its burden, the U.S. Department of Labor will certify the application filed on behalf of the worker, allowing the process to move forward and on to the next step in securing a green card.

Schedule A refers to U.S. Department of Labor regulations codified at 20 CFR §§656.10 and 656.15, which include a list of pre-certified occupations where the secretary of the Department of Labor has determined there are not sufficient U.S. workers who are able, willing, qualified and available, and that the wages and working conditions of U.S. workers similarly employed will not be adversely affected by the employment of aliens in such occupations. Practically speaking, the Schedule A regulations make obtaining green cards for registered nurses and physical therapists significantly easier, faster, and less expensive than securing a green card other types of occupations, as the requirement for an employer to conduct recruitment and file an application with U.S. Department of Labor is eliminated.

The benefits of the Schedule A regulations to U.S. health care employers are significant when it comes to registered nurses in particular.  Typically, U.S. employers bring foreign-born workers into the U.S. on temporary visas, such as the H-1B visa, to work while their green card applications are being processed. Unfortunately, current U.S. immigration law limits the temporary work visa options available to registered nurses. The H-1B visa is the most common temporary work visa, and registered nurses do not qualify for an H-1B visa, as this visa type dictates the offered position must require a bachelor’s degree or higher as entry into the occupation, and that the foreign national have a degree in a specific specialty relevant to the occupation. Because an individual can enter the field of nursing with less than a bachelor’s degree, in most instances, foreign-born registered nurses can only come to the U.S. after their applications for permanent residency have been approved. The elimination of the PERM process for this occupation means U.S. health care employers can bring registered nurses to the U.S. much sooner than they could were the employer required to spend the additional one to two years necessary to complete the PERM process.

The benefit of eliminating PERM is also significant for U.S. health care employers seeking to bring foreign-born physical therapists to the U.S. While physical therapists are eligible for an H-1B work visa, the annual numerical limits placed on new H-1B visas, and the implementation of a lottery to determine which cases are selected for processing when more petitions are filed than there are H-1Bs available, means not every case filed by a U.S. employer on behalf of a prospective employee will be selected and approved. The Schedule A regulations provide an opportunity for employers who are unable to secure an H-1B for prospective physical therapists to bring those same candidates into the U.S. much sooner through the acquisition of a green card as a result of not having to first go through the PERM process. 

We strongly recommend U.S. employers consult with experienced immigration counsel to evaluate their options for securing permanent resident status for foreign educated health care professionals to fill their staffing needs.

[1] INA §212(a)(5)(A)(i).