On July 17, 2009, USCIS issued guidance to certain employers who have received an erroneous denial of a Form I-129, Petition for Nonimmigrant Worker, requesting H-1B classification for a beneficiary to practice in a health care specialty occupation. This guidance was necessitated by a series of USCIS decisions denying H-1B petitions for health care specialty occupations. Relying on erroneous information contained in DOL publications, the USCIS wrongly concluded that certain health care specialty occupations required at least a master’s degree and then denied the H-1B petitions when the employee beneficiary lacked this degree.
To address this problem, Barbara Velarde, Chief of USCIS Service Center Operations, issued a memorandum, dated May 20, 2009, entitled, “Requirements for H-1B Beneficiaries Seeking to Practice in a Health Care Occupation.” This memorandum clarified the standards for H-1B health care specialty occupations so that USCIS examiners would adjudicate these petitions correctly.
The July 17, 2009 guidance permits employers who have received an erroneous H-1B petition denial to seek additional review from the USCIS instead of filing an appeal. However, the USCIS will not review any case on its own. USCIS will review an H-1B petition denial only if it has received a written request from the petitioning employer/representative. These requests for review may be filed electronically and should include “PT/OT Service Motion Request” in the subject line. USCIS will accept requests through August 14, 2009.
Requests for review of H-1B health care specialty occupation petitions adjudicated at the California Service Center should be sent to: email@example.com. Requests for review of H-1B health care specialty occupation petitions adjudicated at the Vermont Service Center should be sent to: firstname.lastname@example.org. Requests for review need not include a copy of the May 20, 2009 Velarde memorandum, but they must explain how the beneficiary meets the standards set forth in the memorandum. Furthermore, as with any H-1B petition for a health care worker, the evidence must show that the beneficiary is eligible to practice in his or her particular health care occupation in the state of proposed employment.
Remember, this Friday, August 14, 2009 is the last day that USCIS will accept employer requests for review of erroneous denials to H-1B health care specialty occupation petitions.