However, Anna was informed by her United States employer that her H1B petition was denied. The reason for the denial was reportedly because she did not possess a master’s degree and a license to practice. It was also cited that she did not have a social security number and was not physically present in the US. Anna was very disappointed. She heard that all her other colleagues, also physical therapists (PTs) and occupational therapists (OTs), were similarly denied working visas.
Recently, Anna heard that the US Citizenship and Immigration Service was reconsidering visa denials to all PTs and OTs. She wanted to find out if her case would be among those to be reconsidered.
PTs and OTs are recognized as “specialty occupations” as long as they meet the following requirements: (1) the equivalent of a bachelor’s degree in Physical Therapy or Occupational Therapy; (2) a license to practice in the state of intended employment; and (3) a healthcare certificate from the Commission on Graduates of Foreign Nursing Schools (CGFNS) or the Foreign Credentialing Commission on Physical Therapy (FCCPT). Petitions for H1B visas are usually based on these qualifications.
But early this year, there were a significant number of denials that were based on the fact that the applicants did not possess a master’s degree and the license required for them to practice their profession.
As a reaction to these new denials of petitions for PTs and OTs, a lawsuit was filed against the US Citizenship and Immigration Service (USCIS) by a group of US employers, mostly recruiters and staffing agencies, pointing out the irregularity in the adjudication of these petitions.
On May 20, the USCIS issued a memorandum that clarified the guidelines for adjudicating petitions for working visas of PTs, OTs, and other allied healthcare workers.
For those who have an actual license to practice in a state, the H1B visa petition must be approved regardless of whether the healthcare worker possesses a master’s or doctorate degree.
If the PT or OT possesses an “unrestricted” license, and the petition is otherwise approvable, an adjudicator should approve the petition for the full H1B period requested or up to three years. If the healthcare worker is in possession of a “restricted” license, an adjudicator should approve the petition for a period of one year, or for the duration of the restricted license, whichever is longer.
As in the case of Anna, if one is not in possession of the actual license but passed the board, she or he should still be granted the H1B visa. This is a case where the beneficiary cannot obtain a license to practice in the state where she or he will be employed because the state requires a social security card or a valid immigration document.
According to the memorandum, the petition can still be approved as long as the beneficiary presents proof that she or he actually applied for a license in accordance with state rules and cannot obtain a full unrestricted license because of the prerequisites mentioned.
Last week, the USCIS released another directive asking US employers and petitioners to notify their office through e-mail if their H1B visa petitions were denied due to the misapplication of the rules determining eligibility for OTs and PTs. This is a welcome development. According to an update issued on July 17, USCIS will review the denials and reconsider these petitions.
US employers are still filling up shortages in the healthcare sectors. While the unemployment rate increased in recent months, there are still not enough US-born healthcare workers to meet the increasing demand for healthcare services. The financial crisis has adversely affected healthcare coverage for most Americans, and demand for healthcare services continues to rise.
The US Department of Homeland Security is gracious enough to reconsider H1Bs for petitions that may have been erroneously denied. However, this did not come without active advocacy from practitioners concerned with healthcare immigration.
Filipino healthcare workers who want to migrate to the US should not lose hope. It may just be a matter of time. –Lourdes Santos Tancinco, Philippine Daily Inquirer
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