The USCIS clarified standards for adjudicating H-1B petitions filed on behalf of beneficiaries seeking employment in a health care specialty occupation. While it is useful to consult the U.S. Bureau of Labor Statistics’ Occupational Outlook Handbook (OOH) to determine whether a position qualifies as a specialty occupation as defined in the Immigration and Naturalization Act (INA), the OOH is not determinative in all cases. Whenever more than one authoritative source exists, the adjudicator is directed to consider all of the evidence presented.
Guidance for Petitions in Which the Beneficiary is in Possession of a License
For H-1B beneficiaries in possession of either an unrestricted or a restricted license to practice a health care occupation in the state of intended employment, the adjudicator should not look beyond the license if the petitioner provides documentary evidence of a valid license. The beneficiary will be considered to meet the qualifications to perform services in a specialty occupation. However, the petitioner will still need to provide evidence that the beneficiary is admissible under the INA, which includes evidence that the beneficiary received a certificate from a recognized credentialing organization. This guidance is applicable to beneficiaries in possession of a bachelor’s degree, master’s degree, or doctoral degree in the health care occupation.
If the beneficiary is in possession of an unrestricted license, and the petition is otherwise approvable, an adjudicator should approve the petition for the full H-1B period requested -- up to three years -- but may not approve the petition beyond the validity of the labor condition application (LCA). Most states require a license to be renewed periodically. If the beneficiary is in possession of an unrestricted license, the renewal date should not be considered when determining the validity period of the approval.
If the beneficiary is in possession of a restricted license (e.g., license approved except for mandatory supervised practice), and the petition is otherwise approvable, an adjudicator should approve the petition for a period of one year, or the duration of the restricted license, whichever is longer.
Guidance for Petitions in Which the Beneficiary is Not in Possession of a License
If the petitioner states that the beneficiary cannot obtain a license to practice the health care occupation in the state in which the beneficiary will be employed due to the fact that the state’s statutes mandate possession of a social security card and/or a valid immigration document as evidence of employment authorization, the adjudicator must ascertain the requirements for licensure (including educational degree requirements) in the health care occupation in that state to determine whether the beneficiary is qualified to perform the specialty occupation as outlined in the INA. If after conducting research the adjudicator is unable to determine the state’s requirements for licensure, the adjudicator may send the petitioner a request for evidence (RFE) asking the petitioner to provide documentary evidence of the state’s requirements. Furthermore, the petitioner will need to provide evidence that the beneficiary:
- Has filed an application for a license in accordance with state or local rules and procedures; and
- Cannot obtain a full unrestricted license in the state in which he/she will practice due to the requirement of possession of a social security card, valid immigration document, and/or physical presence in the United States, as stated in a letter from the State Board.
Assuming a petition is approvable under the above standards, the validity period should be one year. The approval of any such H-1B petition shall not constitute approval by USCIS for the alien beneficiary to engage in any activity requiring possession of such state or local license. 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.
If the petitioner later requests an extension of stay on behalf of the beneficiary, the petitioner must demonstrate that the beneficiary has been granted a valid unrestricted license to practice the health care occupation in the state in which he/she will be working. If the beneficiary does not have the valid unrestricted license at the time the extension of stay petition is filed, the petition will be denied.