On May 20, 2009, the U.S. Citizenship and Immigration Services (USCIS) issued a memorandum clarifying the standards for adjudicating H-1B petitions filed on behalf of H-1B professionals seeking employment in health care occupations. The USCIS instructed adjudicators to consult the Occupational Outlook Handbook (OOH) to determine whether a position qualifies as a specialty occupation, but cautioned that alternative authoritative sources also exist which indicate whether a foreign national is qualified to be employed in the occupation. The USCIS stated that where more than one authoritative source exists, an adjudicator should consider all of the evidence presented to determine whether the beneficiary qualifies to perform work in a specialty occupation. The USCIS provided specific guidance on health care occupation standards.

Licensed Professionals

The USCIS states that if the petitioner has presented evidence that the beneficiary has a valid license to practice health care in the state in which he will be employed, the adjudicator should not look beyond the state license to determine the beneficiary’s qualifications. The possession of the license will be sufficient evidence of the beneficiary’s ability to practice health care in a specialty occupation. Whether the beneficiary possesses a Bachelor, Master or PhD degree is irrelevant to this determination.

The beneficiary still needs to present a certificate (a/k/a Visa Screen) from a recognized credentialing organization such as the Commission on Graduates of Foreign Nursing Schools (CGFNS) or the Foreign Credentialing Commission on Physical Therapy (FCCPT), that the alien’s education, training, license, and experience meet all applicable statutory and regulatory requirements.

A Beneficiary who possesses an unrestricted license should be given an H-1B approval for a full three-year period of validity (if requested) regardless of the expiration date on the license. A Beneficiary who possesses a restricted license, should only be given a validity period of one year or until the validity of the restricted license, whichever is longer.

Unlicensed Professionals

Some states will not permit health care workers to practice in a specialty occupation unless they present evidence of employment authorization and/or a Social Security card. In these types of cases, the adjudicator is responsible for reviewing the requirements for licensure to determine if the beneficiary is qualified. If the adjudicator is unable to determine if the beneficiary is qualified, the USCIS instructs adjudicators to send a Request for Evidence. The petitioner will also need to evidence that the beneficiary has filed an application for a license with the appropriate authorities; and cannot obtain a full unrestricted license in the state in which he or she will practice due to the requirement for possession of a Social Security card, valid immigration document, and/or physical presence in the U.S. If the petition is approvable, adjudicators have been instructed that the validity period of the petition should be one year. If the petitioner later requests an extension of stay on behalf of the beneficiary, the petitioner must, at that time, provide evidence of the beneficiary’s valid unrestricted license to practice in a health care occupation.