Bypassing the Labor Certification Application for Professional Nurses and Physical Therapists

Employers looking to hire permanent workers in occupations listed on the U.S. Department of Labor’s Schedule A, including Professional Nurses and Physical Therapists, are able to bypass the time-consuming process of applying for a certified labor certification application through the U.S. Department of Labor (DOL).

Please note that this page will not focus on the National Interest Waiver (NIW), which is an alternative method for bypassing the Labor Certification Application for individuals whose employment in the U.S. would benefit the national interest. For more information on the National Interest Waiver, please see here.

How are professional nurses and physical therapists treated differently when they apply for an employment-based green card?

In general, in order for an employer to hire a foreign worker to permanently work in the United States on an EB-2 or EB-3 employment-based green card, the employer must navigate the permanent labor certification program, or PERM process. Usually, one of the most time-consuming and complex steps of the PERM process is the requirement that the employer first test the labor market and show the government that there are no U.S. workers available to fill the position being offered to the immigrant worker.

After doing so, the employer would receive a certified labor certification application from the U.S. Department of Labor (DOL). Through its certification, the DOL confirms to the U.S. Citizenship and Immigration Services (USCIS) that “there are not sufficient U.S. workers able, willing, qualified and available to accept the job opportunity in the area of intended employment and that employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.” In general, it is only after the employer receives this certification that it can submit the green card application to USCIS.

But the process is streamlined for employers seeking to permanently hire professional nurses or physical therapists. Professional nurses and physical therapists are explicitly listed in the Schedule A (they belong to what is called “Group 1”), which means that employers looking to permanently hire them are able to bypass the time-consuming process of applying for a certified labor certification application through the DOL and can immediately file the green card application for the immigrant worker.

Why are professional nurses and physical therapists given this preferential treatment?

The DOL has determined that there is a national shortage of professional nurses and physical therapists. Furthermore, the DOL has concluded that the employment of foreign workers as professional nurses or physical therapists “will not adversely affect the wages and working conditions of U.S. workers similarly employed.” As a result, the government does not require labor certification for these occupations.

How does one qualify as a “professional nurse”?

To qualify as a professional nurse for purposes of the Schedule A, the government will be looking to ensure that the individual satisfies one of the following: that they 1) have a Commission on Graduates in Foreign Nursing Schools (CGFNS) Certificate, 2) have passed the National Council Licensure Examination for Registered Nurses (NCLEX-RN) exam, or 3) hold a full and unrestricted (permanent) license to practice nursing in the state where they intend to work.

How does one qualify as a “physical therapist”?

To qualify as a physical therapist for purposes of the Schedule A, one must satisfy all the required qualifications to take the physical therapist licensing examination in the state where they plan to practice physical therapy.

Can an individual who qualifies as a professional nurse or physical therapist apply for an employment-based green card under Schedule A on their own?

No. To apply for an employment-based green card under Schedule A, a U.S. employer must file the petition on the individual’s behalf.

What is the process for applying for an employment-based green card?

Once an individual qualifies as either a professional nurse or a physical therapist, the process is generally as follows:

1. The individual receives a permanent job offer from an employer to work as a professional nurse or physical therapist.
2. The employer files with USCIS the following:
   1. A Form I-140 petition (“Immigrant Petition for Alien Worker”), including a prevailing wage determination.
   2. A completed PERM labor certification petition (the petition does not need to have been certified by the DOL – this is a key benefit of applying pursuant to Schedule A).
   3. Documentation that the employer has complied with the DOL’s notice posting rules.
   4. Proof that the individual satisfies the licensing or certification qualifications as a professional nurse or physical therapist.

What should be provided as proof that the individual satisfies the licensing or certification qualifications?

The following documentation serves as proof of qualification:

For physical therapists: a letter or statement signed by an authorized state physical therapy licensing official in the state where the individual will be employed, stating that the individual is qualified to take that state’s written licensing examination for physical therapists.

For professional nurses, documentation of one of the following: that the individual has received a Certificate from the Commission on Graduates of Foreign Nursing Schools (CGFNS); that the individual has passed the National Council Licensure Examination for Registered Nurses (NCLEX-RN); or that the individual holds a full and unrestricted (permanent) license to practice nursing in the state where they intend to be employed.

What are the notice posting rules the employer must comply with?

If the position is covered by a collective bargaining agreement, this  entails providing notice to the union representative that an application for permanent labor certification has been filed for the relevant job opportunity, and that any person may submit to the Dept. of Labor evidence bearing on the application.

If the position is not covered by a collective bargaining agreement, the employer must post a notice of the employment filing in a conspicuous place for ten consecutive business days and, additionally, in “any and all in-house media, whether electronic or printed,” that is typically used for recruitment of similar positions at the employer’s organization. The notice must be provided between 30 and 180 days before filing the application.

Are there other occupations in addition to professional nurses and physical therapists who are able to bypass the labor certification application?

Yes, those with exceptional ability in the sciences or the arts (including the performing arts), may also be able to bypass the labor certification application, since they are included in what is referred to as Schedule A “Group 2.”