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The H-1B visa: A pathway to work for healthcare workers

The H-1B visa: A pathway to work for healthcare workers
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Application for the H-1B visa is around the corner as the new year of 2023 is fast approaching. This year, the H-1B registration ran from March 1 to March 18. Let’s talk about how it works and if you or someone you know can qualify for it and can even benefit from its cap exemption.

This may benefit those especially in the healthcare industry.

Understanding the H-1B

The H-1B visa is known to be for professionals in general, but what is commonly understated is how healthcare workers can apply for this visa. 

The H-1B visa is a temporary visa for professionals in specialty jobs that typically require a bachelor’s degree or an equivalent. The US employer (not the worker) must file a petition, and if granted, the H-1B will be valid for 3 years and can be renewed for 3 more years.

The cap you need to know

Since there are so many professionals who seek the H-1B visa yearly, the United States government has placed a cap on the number of people who can get them. To decide who to give the H-1B to, they hold a visa lottery – choosing who gets the visa randomly.

The H-1B visa lottery is limited to 65,000 H-1B visas for each fiscal year, with an additional 20,000 saved for people holding a master’s degree or higher from a US institution. 

Before you even start stressing about the H-1B lottery, it’s important to understand which jobs qualify for this visa. Only specialty occupations qualify for an H-1B, which means that the job requires a bachelor’s degree or higher (or its equivalent in work experience) in a specialized field like IT, engineering, or medicine. But, not every medical job is eligible for an H-1B.

Which healthcare workers are eligible for H-1B visas?

While a majority of health care works are educated and specialized, only some types of health care jobs qualify for an H-1B visa. The three main categories of healthcare jobs that qualify for H-1Bs are nurses, physical therapists, and physicians. Here’s what you need to know about each category.

Nurses

As far as nurses go, generally only nurse practitioners, nurse administrators, and nurse managers are generally qualified for an H-1B. Why not RNs? Well, registered nurse (RN) positions normally require only a two-year degree, so RNs don’t meet the standard educational requirement for an H-1B. However, there have been instances where RNs with really specialized knowledge and perhaps an accompanying certificate, e.g. an emergency room cert, may qualify.

Physical therapists 

Because a bachelor’s degree is generally a minimum standard requirement for this kind of work, physical therapists are generally eligible for an H-1B visa. Foreign physical therapists must, of course, have a bachelor’s degree or equivalent, have their educational credentials verified through FCCPT, and obtain a US state PT license. 

Physicians

Doctors may apply for an H-1B visa to participate in a residency program, teach or conduct research, and work at a healthcare facility. Each doctor must pass the three-step examination for medical licensing through the United States Medical Licensing Examination (USMLE). This test examines clinical knowledge, clinical skills, and includes a spoken English assessment. 

There are approximately 127,000 immigrant physicians in the US who account for nearly a quarter of all the country’s licensed physicians. A majority of these doctors come from India, the Caribbean, Pakistan, Philippines, and Mexico. As you can see, the US relies heavily on foreign-born physicians. 

Can healthcare workers be exempted from the cap? 

Yes.

Some hospitals and health care systems qualify for an H-1B cap-exemption. This allows USCIS to approve H-1B visa petitions for some professions beyond its 85,000 annual cap, and applications for such positions can be filed during any time of the year.

A qualifying nonprofit institution of higher learning or a qualifying nonprofit affiliated with an institution of higher learning can be cap-exempt. H-1B cap-exempt health care categories include:

  • Institutions of higher education (colleges and universities)
  • Non-profit entities related to or affiliated with institutions of higher education
  • Nonprofit research organizations
  • Federal government research organizations
  • State and local government research entities

A healthcare organization, such as a hospital, can be cap-exempt if it can prove it’s related to or affiliated with an institution of higher education. This nonprofit relationship or affiliation can take the form of ownership or board control, or even formal research cooperation.

Unsure about how you can get an H-1B visa? Consult your trusted immigration lawyer.

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Visas Available for Filipino Registered Nurses, Physical Therapists & Other Healthcare Workers (including Caregivers)

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October 2020 Visa Bulletin Indicates Priority Dates for EB3 are “Current”

In a recent positive development for visa applicants under the employment-based third preference (often referred to as EB3) category visa, the Department of States just released its October 2020 Visa Bulletin on September 24, 2020. The new release shows that ALL employment-based preference categories for Filipino nationals are now current. When a priority date of a visa petition is current, it means that the visas are available. Many Filipino EB3 visa applicants will benefit from this visa availability including professionals, skilled or even unskilled workers. To take advantage of this visa availability, however, one need to understand the process of immigrating to the United States through employment-based preference categories.

Concurrent Filing of Employer Petition and Adjustment of Status

Persons seeking to immigrate to the United States as employment-based immigrants undergo two processes before an immigrant visas can be issued.

First, they must establish that they qualify in one of the employment-based immigrant categories, by having an employer file an “Immigrant Petition for Alien Worker”.

Second, is either the “Adjustment of Status” for those who are already present in the United States; or, “Consular Processing” for those who are still outside the United States. For those who are already in the US, the Adjustment of Status, can be concurrently filed with the employer petition.

The U.S. Citizenship and Immigration Services (USCIS) does not have to require a previous approval of an employer petition before being able to pursue the second step of the Adjustment of Status process. This is the “concurrent filing” which allows persons applying for permanent residence to file both the Application to Register Permanent Residence together with the employer’s Immigrant Petition for an Alien Worker. This is a huge advantage as applicants who are currently inside the US can wait for their greencard approvals in the United States (without needing to leave the country) and at the same time be qualified to get an employment authorization card pending the greencard approval.

Concurrent filing affects only the Adjustment of Status process and is permitted for applicants who are already in the United States and does not apply to those pursuing consular immigrant visa processing at the U.S. Embassy. It is important to remember, however, that there are numerous legal requirements that an applicant needs to qualify in order to benefit under this concurrent filing procedure. Among others, the applicant is required to be in “lawful” status or has 245(i) eligibility and not subject to grounds of inadmissibility.

Pre-Certified Occupations: Nurses & Physical Therapists

This new development benefits EB3 immigrants who are professionals, as well as other skilled or unskilled workers whose PERM applications have already been approved. Those exempt from the labor certification and who are considered pre-certified under the Schedule A occupations as per Department of Labor regulations may also concurrently file their applications.

There are a significant number of Filipino professionals who are beneficiaries of existing EB3 petitions. But we also know that there are many more Filipino nurses and physical therapists who are already pre-certified and can immediately take advantage of this visa availability. Schedule A occupations are those jobs for which there are not a sufficient number of U.S. workers who are able, willing, qualified, and available to fill the number of available jobs that exist in the United States, and the wages and working conditions of U.S. workers similarly employed will not be affected by the employment of foreign workers in Schedule A occupations. Currently, there are only two designated Schedule A occupations: First are the RNs; and, and Second, are the Physical Therapists.

Other health care workers such as licensed vocational nurses (LVNs), licensed practical nurses (LPNs), certified nurse assistants (CNAs), as well as nurses’ aides and caregivers do not qualify for Schedule A pre-certification. However, they may still qualify and benefit under this concurrent filing if they have approved Labor Certifications or PERMs.

Due to the pandemic and the visa restrictions brought about by Trump Proclamations, there have been very few family-based visas that were issued the past few months; thus, resulting in excess visa numbers that were re-allocated to the employment-based petitions. The forward movement of the priority dates is a result of the infusion of unused family-based visa numbers to the employment-based visas for Fiscal Year 2020.

It is uncertain as to when the employment-based preference categories for Filipino nationals will remain current. But for now until October 31, it is encouraged that those who do qualify explore ways to immediately apply for the visas while the availability remains current for it is unknown when the backlog will build up again.

(Lourdes ‘Atty Lou’ S. Tancinco is an immigrant advocate and legal counsel based in San Francisco CA. She is the principal and co-founder of Tancinco Law PC and may be reached at law@tancinco.com, tancinco.weareph.com/old, facebook.com/tancincolaw, LinkedIn or at 1-888-930-0808)

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Congress Introduces Bills Adding More Visas for Foreign Nurses and Doctors

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The “Healthcare Workforce Resilience Act” was introduced in the House on May 8, 2020 and in the Senate (S.3599) on May 5, 2020 to help address the healthcare shortage in the United States which has become critical during the COVID-19 pandemic. If passed into law, it would cut waiting time for nurses and doctors with approved visa petitions. In summary, it will:

  1. Authorize the recapturing of 25,000 immigrant visas for provisional nurses and 15,000 immigrant visas for physicians.
  2. Visas will be issued according to priority dates regardless of the per country limitations
  3. The Department of States (through the U.S. Embassies) and the Department of Homeland Security (through the USCIS) to expedite the processing of their visas

This proposed legislation will allow nurses with approved immigrant visas and physicians with approved immigrant petitions to come to the United States and work in hospitals and medical facilities where there is a shortage of nurses or unfilled positions. This is the reason also why one of the provisions requires the petitioners of the approved petition must attest that in hiring the professional nurse a U.S. worker has not or will not be displaced.