Occupational therapists form an important segment of health care professionals in the United States. Working in hospitals, schools, rehabilitation centers, clinics, nursing homes, and in various other community settings, occupational therapists play a significant role in aiding people of all ages, helping them overcome the effects of disability caused by physical or psychological illness, ageing or accident, improving their ability to perform daily tasks at home and at work.
Occupational therapists from outside the U.S. who wish to work in the U.S. have a variety of U.S. visa options to choose from. Each U.S. occupational therapist visa option is designed to serve a particular need, and each type of U.S. visa for occupational therapist comes with its own set of requirements, advantages and limitations, often making it a difficult exercise for foreign national occupational therapists and their employers to identify the one that would be most suitable in their situation. In this article we present a snapshot of the most popular U.S. occupational therapist visa options that are available to foreign national occupational therapists who want to come and work in the U.S. for a temporary period.
The H1B Visa for Occupational Therapists
The H1B program allows U.S. employers to employ foreign nationals in ‘Specialty Occupations’. The Immigration and Nationality Act defines specialty occupation as “an occupation that requires theoretical and practical application of a body of highly specialized knowledge, and attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the U.S.” Many professional positions, including that of occupational therapists, qualify as a specialty occupation.
- The H1B Visa for Occupational Therapists - Eligibility Conditions
In order to seek an H1B visa for occupational therapist, the following important conditions, among others, must be satisfied:
- A bachelor’s degree in occupational therapy or higher or its equivalent must normally be the minimum requirement for entry into the therapist position that is being offered to the foreign national occupational therapist.
- The foreign national occupational therapist must possess at least a bachelor’s degree in occupational therapy or its equivalent. The foreign national occupational therapist who does not have a U.S. bachelor’s degree must obtain an evaluation from a credentialing agency certifying that the foreign degree he or she has received is substantially equivalent to a bachelor’s degree in occupational therapy received at a U.S. institution of higher education.
- The foreign national occupational therapist must take and pass the Occupational Therapist Registered (OTR) certification exam conducted by the National Board for Certification in Occupational Therapy (NBCOT). This is a requirement for all U.S. and foreign educated occupational therapists.
Note: In order to be eligible to take the OTR certification exam, the foreign national occupational therapists must satisfy all NBCOT eligibility requirements and undergo prescreening. Foreign national occupational therapists should check the NBCOT website for the latest information on the eligibility requirements.
- The foreign national occupational therapist must be licensed in the state where he or she intends to be employed or be eligible for licensure.
Note: Licensure requirements vary from state to state. While all applicants for an occupational therapist license must meet certain basic requirements including passing the OTR certification exam and minimum education requirements, individual states may have additional licensure requirements. Foreign national occupational therapists who wish to work in the U.S. must, therefore, check with the respective state regulatory board for the most relevant and up-to-date information about licensure requirements.
Note: USCIS will not deny an occupational therapy H1B visa petition solely for lack of licensure if a state has a specific prerequisite for licensure that would be impossible for the foreign national to possess or obtain before obtaining the visa or work authorization. The employer will have to show that the state has this type of prerequisite and show that the candidate is otherwise eligible for licensure.
Note: Current Immigration Laws require that foreign national health care professionals, including foreign national occupational therapists, complete a screening program before they can receive either a permanent or temporary occupational visa to come and work in the U.S. To satisfy this requirement, foreign national occupational therapists who wish to work in the U.S. on an H1B must obtain either a ‘VisaScreen’ issued by Commission of Graduates of Foreign Nursing Schools (CGF NS) or a ‘Visa Credential Verification Certificate’ from NBCOT.
- The H1B Quota
Timing is a critically important factor to keep in mind when evaluating the option of an H1B for occupational therapists. The H1B visa classification is subject to an annual numerical quota of 65,000, commonly known as the “H1B cap”.
When submitting an H1B visa petition for occupational therapist, the employer must be sure that the cap is still open, i.e., the numerical limit has not been reached for the present fiscal year. The USCIS’ fiscal year goes from October 1 to September 30 of each year, and since an H1B petition can be submitted up to six months before the start date of employment, the earliest a petition can be filed is April 1 of the previous fiscal year (e.g. in order to obtain an H1B visa and start working on October 1, 2012, an H1B petition can be filed no earlier than April 1, 2012.)
The regulations, however, provide exemptions to the numerical cap. Foreign nationals who are employed or have received an offer of employment at an institution of higher education, a related or affiliated nonprofit entity, or a nonprofit or governmental research organization may be exempt from the H1B cap. It is therefore strongly advised that employer institution and foreign national occupational therapists evaluate whether or not theH1B petition will be subject to the H1B cap or will be cap-exempt so that proper steps are taken in a timely fashion. Moreover, if the H1B petition is subject to the cap, the start date may be an issue. For example, if an occupational therapist needs to begin employment on September 1 but the cap closed before March of the previous fiscal year, then the employer must wait until April 1 to file the H1B for the new fiscal year. This means that the occupational therapist cannot begin employment until October 1. In this scenario, the employer and the occupational therapist may need to find a way to “bridge the gap” or find a suitable alterative.
- The Period of Admission on an H1B Visa for Occupational Therapists
All foreign nationals who seek to enter on the H1B visa, including occupational therapists, may be admitted for an initial period of up to three years and the period of admission may be extended for an additional three years, for a maximum of six years. The periods of stay may be limited for several reasons including limited duration contracts and limited licensure. Furthermore, the maximum period of six years can only be extended under certain conditions. It is important to remember that the spouse and unmarried children under 21 years of age of H1B occupational therapist visa holders may also seek admission in the H-4 dependent nonimmigrant classification.
The TN Visa for Occupational Therapists
The TN nonimmigrant classification permits qualified Canadian and Mexican citizens to seek temporary entry into the U.S. to engage in business activities at a professional level. The TN visa classification is restricted only to Citizens (not permanent residents) of Canada and Mexico and is only for professionals whose profession is on the NAFTA list. Occupational Therapy is one of the listed professions.
If applying from abroad, no petition is required to be filed with USCIS. Canadian nationals are not customarily required to obtain a TN “visa” and can apply directly at a U.S. Port of Entry with the requisite documentation. Mexican nationals are, however, required to apply at a U.S. Consulate or Embassy to obtain a TN visa. If the individual is in the U.S., a “change of status” petition can be filed.
- The TN Visa for Occupational Therapists- Eligibility Conditions
In order to qualify for a TN visa as an Occupational Therapist, the Canadian or Mexican foreign national occupational therapist must possess and must be able to document that he or she possesses the requisite qualification(s) as required by the NAFTA treaty. The treaty and regulations require that the possess a Baccalaureate or Licenciatura Degree, or state/provincial license. He or she must also have a prearranged full-time or part-time offer of employment with a U.S. employer in a position that requires someone in the specified professional capacity.
Note 1: Current Immigration Laws require that foreign national health care professionals, including foreign national occupational therapists, complete a screening program before they can receive either a permanent or temporary occupational visa to come and work in the U.S. To satisfy this requirement, Canadian and Mexican national occupational therapists who wish to work in the U.S. on a TN must obtain either a ‘VisaScreen’ issued by Commission of Graduates of Foreign Nursing Schools (CGF NS) or a ‘Visa Credential Verification Certificate’ from NBCOT.
Note 2: Canadian and Mexican national occupational therapists who wish to enter in the TN visa classification need not possess licensure to obtain the TN but must obtain a license in order to begin employment and practicing. Licensure requirements vary from state to state. While all applicants for an occupational therapist license must meet certain basic requirements including passing the OTR certification exam and minimum education requirements, individual states may have additional licensure requirements. Foreign national occupational therapists who wish to work in the U.S. must, therefore, check with the respective state regulatory board for the most relevant and up-to-date information about licensure requirements.
- The Period of Admission on a TN Visa for Occupational Therapists
Canadian and Mexican nationals that enter the U.S. on an occupational therapist TN visa classification may be admitted for a period of up to three years initially.
Note: Currently, because of visa reciprocity, TN visas for nationals of Mexico are limited to one year. Mexican nationals, however, may still be admitted for a period of three years regardless.
The spouse and children under the age of 21 of TN occupational therapist visa holders may be eligible for TD nonimmigrant status, and they do not have to be citizens of Canada or Mexico. They cannot work while in the U.S., but are permitted to study.
The E-3 Visa for Occupational Therapists
The E-3 nonimmigrant classification permits qualified Australian citizens to seek temporary entry into the U.S. to perform services in a specialty occupation. As explained above, occupational therapy qualifies as a specialty occupation. There is an annual numerical quota or cap of 10,500 for new E-3 visas to be issued every fiscal year, however, unlike the H-1B, the quota has never been used up within one fiscal year. The eligibility requirements for an E-3 visa for occupational therapists are generally very similar to those for an H-1B visa discussed above, including the requirements related to OTR certification exam, licensing and screening program.
The main differences between the H-1B and E-3 are the period of admission and application procedures. Australian nationals including occupational therapists, who seek to enter on the E-3 visa, may be admitted for an initial period of up to two years and the period of admission may be extended for up to two years per extension, with generally no maximum limit on the number of extensions. Furthermore, as with the TN visa, Australian nationals do not have to submit a petition to USCIS for the E-3 classification but must apply directly to the U.S. Consulate or Embassy if applying from abroad. If the individual is in the U.S., a “change of status” petition can be filed.
The Spouse and unmarried children under 21 years of age of an E-3 occupational therapist visa holder may also seek admission in the E-3 dependent nonimmigrant classification. The dependents do not have to be Australian to be eligible for E-3 dependent status. An E-3 dependent spouse can work by obtaining employment authorization by filing an I-765. E-3 dependent children are not authorized to work.
As seen here, foreign national occupational therapists who wish to come and work in the U.S. have a range of U.S. visa options to choose from that would enable them to come and work in the U.S. Regardless of the visa option chosen, the eligibility of a foreign national occupational therapist to work in the U.S. primarily depends on his or her ability to meet the credentialing requirements of the NBCOT and satisfy individual state licensure requirements, which, of course, vary from state to state. It is therefore necessary that foreign national occupational therapists check with the NBCOT and state regulatory board where they wish to practice and live regarding the licensure requirements in the respective state before embarking on any immigration related process.
Among the various U.S visa options available to foreign national occupational therapists, each one has its own advantages and limitations. The E-3 visa and TN visa nonimmigrant classifications, for example, allow the foreign national occupational therapist to work immediately in the U.S. as there is no requirement for a petition to be filed with USCIS or quota limitations, generally. Also, the H1B has a numerical cap of 65,000 per year and under an H1B, foreign nationals may be allowed to stay only for a maximum of 6 years, unless certain other conditions related to filing of an Immigrant Visa petition are satisfied. On the other hand, the TN and E-3 visa classifications are restricted to citizens of Canada/Mexico and Australia. Most importantly, for many nonimmigrants, the TN and E-3 visa classifications are not considered to be “dual intent”, and unlike the H1B visa classification, they do not support ‘dual intent’.
There may be other visa options available including H-1B1, E-2 or the Green Card. Each is available or unavailable based on the specific situation presented by the foreign national or the employer. Hence, it is advisable that a foreign national occupational therapist and the employer carefully evaluate all the options against their individual situation and speak with an experienced immigration professional before deciding on which visa option to exercise.
Contact VisaPro if you have any questions regarding immigration for occupational therapists, any U.S. Occupational Therapist Visa, or any type of business or work visas. Our experienced attorneys will be happy to assist you.
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