IMMIGRATION UPDATE

On May 20, 2009, the U.S. Citizenship and Immigration Services (USCIS) issued a new policy memo on the requirements for H-1B beneficiaries seeking to practice in a health care occupation. The purpose of this memo is to clarify the standards for adjudicating H-1B petitions filed on behalf of beneficiaries seeking employment in a health care specialty occupation.  

As a starting point, the adjudicators are to consult the U.S. Bureau of Labor Statistics’ Occupational Outlook Handbook (OOH) to determine whether the position being offered qualifies as a specialty occupation as defined the Immigration and Nationality Act (INA).   However, if the OOH does not contain the required information about the profession, adjudicators may consult other authoritative sources that indicate whether the position in question qualifies as a specialty occupation (e.g., State licensing board standards). If there are more than one authoritative source exists, an adjudicator are advised to consider all evidence and sources before making a decision  whether an applicant qualifies to perform in a specialty occupation.

Beneficiary in Possession of a License

For beneficiaries who possess a valid license to practice a health care occupation in the state in which the beneficiary will be employed, the beneficiary will be considered to meet the qualifications to perform services in a specialty occupation for the purposes of the H-1B program.  The adjudicators do not need to investigate further.   However, the foreign worker will still need to provide certificate from the CGFNS or other equivalent organization that his qualifications are equivalent and comparable to the U.S. standards and his command of English is sufficient for the profession.

For those applicants who have an unrestricted license for the health profession, and the petition is otherwise approvable, an adjudicator should approve the H-1B petition for the full three year or the maximum period allowed by the labor condition application (LCA).  This USCIS memo specifically points out that the renewal date of a unrestricted license should not be a consideration when setting the validity period.  On the other hand, if the applicant possesses only a restricted license, she should only be approved for a period of one year, or until the end of the licensing period, whichever is longer.

Beneficiary not in Possession of a License

Generally speaking, a health professional must obtain a required license from the state in which he will be working.  However, there are some states or health professional boards which would not issue a license before the applicant has been granted a legal employment status (e.g., H-1B) or a social security number.  In these situations, the applicant is caught in a chicken and egg problem because without the license he would not be able to get his legal status and social security number.  To help resolve this dilemma, the memo advises the adjudicator to first ascertain the requirements for licensure (including educational degree requirements) in the health care occupation in that state to determine whether the beneficiary possesses the qualifications to perform the job duties based on regulatory requirements.  If the adjudicator cannot make a determination, he or she may issue a request for evidence (RFE) asking the petitioning employer to provide additional evidence regarding the state licensures requirements  Furthermore, the beneficiary must also establish that he/she did attempt to apply for a license in accordance with state or local rules and procedures, but cannot obtain a full unrestricted license in the state in which he/she will practice due to the requirement for possession of a social security card, valid immigration document, and/or physical presence in the United States in the form of a letter from the State Board.

After gathering all the requirements, an adjudicator, if convinced that the applicant qualifies for H-1B status, may approve the H-1B petition for a period of one year. It should be noted that such an approval does not in any way endorses the approval of the state license.  The USCIS memo emphasizes that it is merely a means to facilitate the state or local licensing authority’s issuance of such a license to the alien, provided all other requirements are satisfied. For this group of cases, any future requests for extension of status must be filed with evidence that the applicant has been granted a valid unrestricted license to practice the health care occupation in the state in which he/she will be working. Without a valid unrestricted license at the time the extension of stay petition is filed, the application for extension of H-1B status will be denied. Generally speaking, a health professional must obtain a required license from the state in which he will be working.  However, there are some states or health professional boards which would not issue