Maryland Bar Bulletin
Publications : Bar Bulletin : August 2009


Even in the midst of the current economic downturn, many employers in the health-related fields are facing and preparing for a shortage of qualified workers for a variety of positions. The Maryland Hospital Association, for example, recently launched a campaign to combat an expected shortfall of 10,000 nurses in Maryland by the year 2016. In the face of these shortages, employers are continuing to look abroad for healthcare workers.

Workers in select healthcare job classifications will qualify for a relatively expeditious route to U.S. employment authorization via a temporary employment-based process. Other workers will only be eligible for U.S. employment authorization based on an application to obtain permanent residence in the United States. Regardless of job classification, employers of all foreign national workers should ensure their own best interests are represented within the complex and ever-changing immigration system related to healthcare occupations, at a minimum, dealing with reputable recruiting agencies, if help is needed.

Temporary Work Visas for Foreign Healthcare Workers

U.S. Citizenship and Immigration Services (USCIS) makes available to certain professional occupations such as physicians, physical therapists, occupational therapists, some laboratory technicians and advanced-practice nurses a temporary, employment-based classification identified as “H-1B”. To qualify for use of the H-1B classification, a foreign national must seek employment in an occupation which typically requires at least a Bachelor’s degree or its equivalent in a related field. These H-1B workers are authorized to work for a specific employer in the United States for a finite period of time. Typically, USCIS will grant the H-1B worker status and employment authorization in three-year increments, up to a total of six years.

For citizens of Canada and Mexico, certain provisions of the North American Free Trade Agreement (NAFTA) offer a similar temporary status, identified as “TN”, to engage in one of several qualifying medical professions. Qualifying TN occupations include those of dietitian, medical laboratory technologist, nutritionist, occupational therapist, pharmacist, physician (for training or research only), physical therapist, psychologist and registered nurse. USCIS will grant and extend TN status for qualified Canadian and Mexican nationals for an indefinite – albeit temporary – period in a maximum of three-year increments. (Formerly, TN status was granted only for one year at a time.)

the healthcare fields will continue to seek qualified employees from abroad in order to meet an ever-growing demand for quality medical care.

In addition to the regulations governing temporary employment of foreign nationals generally, all employers in the healthcare fields should be familiar with USCIS documentary requirements that are in addition to those arising from the need for a license. TN and H-1B medical professionals including nurses, occupational therapists and physical therapist are subject to specific documentary requirements and in some cases must obtain credentials evaluations from specifically designated agencies before obtaining U.S. employment authorization.

While faster and easier than the process to obtain U.S. permanent residency, employers should be aware that the filing of a petition for a temporary worker, whether H-1B or TN, involves multiple legal obligations – including a requirement that the employer pay for filing fees and expenses. Employers should always ensure their own best interests are represented, and those employers who allow a prospective employee to retain counsel to prepare the submissions may be surprised to find themselves obligated to pay eight to ten-thousand dollars in legal fees and other costs.

U.S. Permanent Residency and Employment

For some occupational classifications, including many medical technicians, a temporary work visa is not an available option. To hire these workers, employers must navigate a highly regulated system of recruitment, called a “PERM” labor certification, administered by the U.S. Department of Labor (DOL). The intent of the PERM labor certification system is to ensure the protection of jobs for qualified and willing U.S. workers. In practice, the PERM process is an onerous, rigidly structured and potentially costly application process that does not comply with real-world recruitment. In fact, the DOL has gone so far as to state it believes a majority of PERM applications are filed for positions for which a qualified U.S. worker is available – in effect, stating that most PERM applications are deniable, if not fraudulent.

A noteworthy exception to the applicability of the PERM system is the immigrant process for physical therapists and professional nurses, who are exempt from the labor certification requirement because the occupation has been classified as a shortage occupation by the U.S. government. These two classifications can bypass the DOL and file the paperwork directly with the USCIS, saving a significant amount of time and money.

Keep Your Best Interests in Mind

Employers in the healthcare fields will continue to seek qualified employees from abroad in order to meet an ever-growing demand for quality medical care. When these petitions and applications reach the door of the adjudicating U.S. government agency, they will bear the employer’s signature. Employers making these filings are incurring significant financial and legal obligations and should be certain that they are in control of the process, something that will avoid the many pitfalls inherent in an application process which, all too often, seemingly verges on the irrational.

Frances O’Connell Taylor practices immigration law with the firm Taylor & Ryan, LLC.

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Publications : Bar Bulletin: July 2009

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