RETROGRESSION FAQ UPDATE 02/12/07
While we’re quite optimistic that retrogression will be solved in the near future, HLG is aware that many clients and friends have questions about retrogression, the H-1 cap, and other related issues. With that in mind, HLG offers this Retrogression FAQ. Please feel free to distribute and share this with your clients and friends.
RETROGRESSION FAQ: FOR NURSES AND PTs
Q: What is the latest on retrogression for Schedule A (Registered Nurses and Physical Therapists) I-140 petitions?
A: Immigrant Visas are still currently unavailable for Registered Nurses and Physical Therapists. Hammond Law Group is actively involved in the lobbying effort to obtain a legislative solution. Several bills have been proposed in Congress that would either provide either additional visas for nurses and physical therapists or exempt them from the quota entirely. We will make an immediate announcement when this legislation is passed, but until that time, updates can be found on the Retrogression Advocacy Blog of the Hammond Law Group, LLC website at: http://hammondlawgroup.blogspot.com/
Q: Will it really take four or five years for me to get the green card?
A: Hammond Law Group, LLC firmly believes that there will be a legislative resolution to the problem of retrogression for Registered Nurses and Physical Therapists in the very near future. Therefore, we believe that these visas will be available again soon. When the same situation occurred a few years ago, additional visas were made available within six months. Presently, visas have been unavailable for only a few months. As noted above, legislation has already been proposed in Congress that would either provide additional immigrant visas or exempt Schedule A occupations from the quota entirely. Finally, as a reminder, Schedule A occupations are those designated as national shortage occupations by the United States Department of Labor. Therefore, there is strong motivation for this type of legislation to be passed.
Q: If I am a Physical Therapist, should I file for the “green card” or for the H-1B?
A: That decision will depend upon a number of factors. First, it is important to note that because “Physical Therapist” requires at least a Bachelor’s degree, the position is eligible for H-1B status. However, there is also an annual quota for H-1Bs. There are currently only 65,000 H-1Bs available each fiscal year. An H-1B petition can be filed up to six months in advance, therefore, H-1B petitions for the next fiscal year (October 1, 2007 through September 30, 2008) will be accepted beginning April 1, 2007. Regardless of when that petition is approved, the Physical Therapist cannot enter the United States for employment until the first day of the new fiscal year – October 1, 2007.
The green card case involves three steps: obtaining an approved I-140 from the USCIS; National Visa Center “NVC” processing; and the immigrant visa interview at the U.S. Consulate. If the employer starts the green card process now, the I-140 can be approved and the approved case will be sent to the NVC. This process may take a few weeks or up to six months (depending upon which service center handles the case and whether premium processing is used). However, when the approved case is forwarded to the NVC, the case will be placed on hold. The National Visa Center is not currently “pre-processing” Schedule A cases (they are not issuing Fee Bills or collecting the required documents generally referred to as “Packet III). Processing will not resume until visas are available. Therefore, it is uncertain when the Physical Therapist will be able to enter the United States based upon a green card case. This will depend on when retrogression is resolved and how long it then takes to obtain an interview.
While there are other issues to be considered (for example, a spouse only obtains employment authorization in the green card process) generally the decision is based upon which process will allow the Physical Therapist to enter the United States sooner. At this point we know that the Physical Therapist will not be able to enter in H-1B status until October 1, 2007. If an individual has not yet filed the Immigrant Petition for Alien Worker (Form I-140) it is very likely that the H-1B process will be faster. Note, however, that this depends on when retrogression is resolved and how long it takes the Consulates to schedule interviews for all of those waiting during retrogression. If retrogression is resolved quickly and the employer uses premium processing for the I-140 it is at least theoretically possible (although unlikely) that the green card could be as fast or faster than the H-1B process. This decision changes when the H-1B cap is reached.
Q: What do I need to file for H-1B status?
A: To file for H-1B status, the Physical Therapist will need an offer of employment in the United States and will need a Physical Therapist license in the State of intended employment at the time of filing. A Healthcare Worker Certificate will be required at time of the H-1B nonimmigrant visa interview. This is an important distinction between the ‘green card’ process and the H-1B process. For the ‘green card’ process the Physical Therapist needs only a letter from the state of intended employment indicating that he or she is eligible to sit for the National Physical Therapy Examination (NPTE). The actual U.S. PT license is needed for H-1B status. If the Physical Therapist does not have the required license then H-1B status is not available. Some individuals are unable to obtain visitor visas to the United States to take the NPTE. Those individuals may need to file for the green card rather than H-1B status.
Q: How will I know if my case will be approved before the H-1B quota is reached?
A: For purposes of the H-1B quota, it is the date of filing that is important not the date of approval. The USCIS will announce when they have received enough petitions to reach the quota and therefore no more petitions will be accepted. Last year, this announcement came in late May and once the announcement is made, the USCIS will not accept any further petitions. When the USCIS confirms that have received enough petitions to reach the quota, they will announce that petitions filed by that date will be included within the quota. We expect that the quota may be reached even earlier this year and are recommending that all H-1B petitions be ready to file on April 1, 2007.
Q: What if I do not have my license by April 1, 2007?
A: There are some exceptions, for example H-1B status may be granted for a one year period if the applicant is issued a temporary license. Additionally, if you have met all requirements and are waiting for license issuance or you are licensed in another state and seeking endorsement, it may be advisable to file the H-1B petition on April 1, 2007 in light of the quota. Each case will need to be reviewed individually. We recommend that you discuss this issue with your attorney.
Q: Can I file for both H-1B status and the green card?
A: There is nothing that prohibits a Physical Therapist from filing for H-1B status and a green card. For example if an Immigrant Petition for Alien Worker (Form I-140) has already been filed, the Physical Therapist can still seek and obtain H-1B status. If the petitions are filed by different employers, we recommend that you discuss this issue with your attorney.