USCIS Approvals of H1Bs for Professions Requiring State Licensure
Posted Jul 04, 2008
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The USCIS issued a memo on March 21, 2008, providing guidance to adjudication officers in situations where professional licensure is required for a particular H1B specialty occupation. The memo was issued by Donald Neufeld, Deputy Associate Director, USCIS Domestic Operations, and contains an update to the Adjudicator's Field Manual, which is the guidebook used by USCIS adjudicators in making decisions on cases. The memo addresses the common situation in which an H1B petition is filed for a professional in a position that requires a professional license. Typical examples include: physicians, pharmacists, and physical therapists, as well as other licensed professionals.
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Circular Problem : License Requires Employment Authorization
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USCIS regulations provide that, in a case where an occupation requires a state or local license to fully perform the duties of the occupation, the foreign national must have the license prior to the approval of the petition. Some states require proof of legal authorization for employment, however, in order to issue a license. This creates an impossible situation of one's being unable to obtain H1B approval without a license, and not being able to obtain a license without an H1B approval.
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Solution : One-Year H1B Approvals if License Eligible
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Pursuant to the Memo, USCIS adjudicators may approve an H1B petition for a one-year period, in cases where a license is required for the profession and the appropriate state or local agency will not grant such license without evidence that the H1B status has been granted, if two conditions are met.
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- The first condition is that the foreign national must have submitted a timely application for licensure with the appropriate state or local agency.
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- The second condition is that the foreign national must be fully qualified to receive the license and must have all the required education, training, and experience for licensure, as of the time of the filing of the H1B petition.
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License Still Needed
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If an H1B is approved under the provisions set out in the Memo, the foreign national still needs the license in order to engage in the profession. The approval of the H1B does not override the state or local licensing requirement. Additionally, in order to obtain an extension of H1B status after the initial one-year approval, it is necessary to demonstrate that the beneficiary has been granted full and unrestricted state licensure.
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This policy is similar to a policy announced in 2001 with respect to teachers who could not obtain licensure without a social security number (SSN). The SSN could not be obtained without proof of authorization to work in the U.S. This matter was reported in our December 14, 2001 article, H1B Petitions Should be Approved for One Year Without State License, available on MurthyDotCom.
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Conclusion
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The implementation of this Memo effectively resolves the circular problem faced by certain licensed professionals in obtaining H1B status. We at the Murthy Law Firm are grateful for this clarification and guidance from the USCIS, which will help many medical professionals and the many communities that use the services of these professionals.