H-1B Filing Tip #3
When the Occupation Requires a License
USCIS’ approval of an H-1B petition that requires a license, is not authorization for the employee to practice his or her profession without the required license. USCIS regulation provides that if an occupation requires a state or local license to fully perform the duties of the occupation, the foreign worker must have the license prior to the approval of the petition.
This can be a Catch 22….Some states will not issue a state license unless the individual worker presents evidence to the State Board that they are legally authorized to be employed in the USA. Some State Boards require the worker to establish to the State Board that they have been granted H-1B status as a prerequisite to issuing the license. For example, certain State Boards of Pharmacy will not issue a pharmacist license until the worker presents evidence of work authorization. Teachers have been unable to obtain licensure until they obtain social security numbers which cannot be achieved until one is authorized to work in the USA.
With the above being said, USCIS adjudicators have been instructed to approve H-1B petitions for a one-year period if a State or local license to engage in the profession is required, and the appropriate licensing authority will not provide such license to the worker without evidence that that they have been granted H-1B status. At the end of the one-year period, the employer is required to file another petition with a request for extension and also present evidence at that time that state licensure has been obtained.
As a condition to approving petitions involving state or local licensure, the worker must demonstrate that he or she has filed an application for the license according to the State or local rules and procedures and provide evidence that they are qualified to receive the license, and that all educational, training experience and other requirements are met, including healthcare certification, at the time of filing the petition. For instance, Physical Therapists must provide a letter or statement signed by an authorized state physical therapy licensing official in the state of intended employment, indicating that the PT is qualified to take the state’s written licensing examination for physical therapists and thereafter obtain state licensure.
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If you are not a client of our firm and would like to discuss H-1Bs as well as any other immigration matters, we invite you to contact us. My email address is leslie@immigrationsolution.net, telephone is 562 612.3996. If you’d prefer to request a consultation, you can do so here
Tags: DOL, H-1B Cap, H-1B Visa, Specialty Occupations, USCIS