PERM Impacts Physical Therapist and Nurse Filings

The PERM regulation, which regular MurthyDotCom and MurthyBulletin readers are aware goes into effect on March 28, 2005, retains many of the concepts and provisions from the prior labor certification regulations. Included in this carry-over from current provisions are Schedule A occupations, including Physical Therapists and Nurses.

Schedule A occupations are those recognized and identified by the U.S. Department of Labor (DOL) as occupations that do not have sufficient U.S. workers who are able, willing, qualified, and available and in which the wages and working conditions of U.S. workers will not be adversely affected by the hiring of foreign nationals for these positions. These occupations are “pre-certified,” or certified in advance. Thus, they do not have to undergo the labor certification process to determine whether U.S. workers are available. These professionals have to file with the U.S. Citizenship and Immigration Services (USCIS), bypassing the DOL labor certification process. Effective from March 28, 2005, the documents that must be filed with the Schedule A occupations will change.

Physical Therapists Filing under PERM

Under PERM, as with the current system, the position of physical therapist is pre-certified. This means that it is not necessary to file a request for a labor certification with the DOL for this occupation. It is necessary, however, to submit the labor certification forms, as well as other documentation, with the USCIS in connection with the employer’s required I-140 Immigrant Petition for Foreign Worker. This remains the case under PERM.

Under PERM, physical therapists must file a letter or statement, signed by an authorized physical therapy licensing official in the state of intended employment, indicating that the foreign national is qualified to take that state’s written licensing examination. In addition, physical therapists must submit two Forms 9089 (PERM labor certification forms). This filing must include a prevailing wage determination (PWD) by the appropriate State Workforce Agency (SWA) and evidence that a notice of filing the Form 9089 was provided to the bargaining representative or the prospective employer’s current employees. The notice must include notification that a labor certification has been filed for the position, provide information that any person may submit evidence regarding the application to the DOL, contain a description of the job, and include a rate of pay for the position. The rate of pay included for the position must not be less than the prevailing wage (or actual wage, if higher). Physical therapist applications must be submitted by the sponsoring employer.

Nurses Filing under PERM

Registered Nurse (RN) positions are also pre-certified. Thus, the required documentation is also submitted with the employer’s I-140 petition to the USCIS. An RN must file documentation showing that s/he possesses a certificate from the Commission on Graduates of Foreign Nurses Schools (CGFNS); that s/he holds a full and unrestricted (permanent) license to practice nursing in the state of intended employment; OR that s/he has passed the National Council Licensure Examination for Registered Nurses (NCLEX-RN). In addition, a nurse must submit two Forms 9089, which include a PWD by the appropriate SWA and evidence that a notice of filing the Form 9089 was provided to the bargaining representative or the employer’s employees. The notice must indicate that a labor certification has been filed for the position, provide information that any person may submit evidence regarding the application to the DOL, contain a description of the job, and include a rate of pay for the position. The rate of pay included for the position must not be less than the prevailing wage (or actual wage, if higher). Nurse applications must also be submitted by the sponsoring employer.

DOL Response to Public Comments

The DOL received numerous comments about nurses. Some suggested alternatives to the CGFNS certificate, permanent state license in the state of intended employment, or passage of the NCLEX-RN. The DOL felt that these options were sufficient to cover qualified nurses. The DOL specifically indicated that proof of the nurse’s having passed the CGFNS nursing skills examination is insufficient since it does not reveal the nurse’s English language proficiency, which is indicated by the issuance of the CGFNS certificate.

Other comments objected to the prevailing wage determination (PWD) requirement for Schedule A nurses as a prevailing wage determination (PWD) was not previously required. The DOL indicated that the employer has always been required to certify that it is offering at least the prevailing wage for the occupation and that this is not very different. Therefore, this additional step was retained in the final regulation.

Conclusion

All Schedule A cases filed for physical therapists and nurses on or after March 28, 2005 must meet these new criteria. It is important that employers of nurses and physical therapists speak to qualified immigration attorneys to understand these filings, as the regular labor certification process is not available to these categories of professionals.