USCIS Issues Guidance on H-1B Specialty Occupation Licensure Requirements
U.S. Citizenship and Immigration Services (USCIS) sent guidance (PDF) to the field on March 21, 2008, updating the Adjudicator’s Field Manual on accepting and adjudicating H-1B petitions for specialty occupations when a required professional license cannot be obtained because of state licensing requirements mandating possession of a valid immigration document, such as an approved H-1B petition, as evidence of employment authorization before the license can be issued. USCIS noted that this situation creates a “Catch-22” adjudicative difficulty for the agency because approval of the H-1B petition may be contingent on the beneficiary’s possession of the required license. USCIS stated that in such situations, it will allow the temporary approval of the petition provided all other requirements are met. Such an approval will not constitute authorization for the beneficiary to practice his or her profession without the required license but should be considered “merely a means to facilitate the State or local licensing authority’s issuance of such a license.”
USCIS instructed adjudicators to approve an H-1B petition for a one-year validity period if a state or local license to engage in the profession is required and the appropriate licensing authority will not grant the license absent evidence that the beneficiary has been granted H-1B status. As a condition to approving such a petition, USCIS stated, the beneficiary must demonstrate that he or she has filed the licensing application in accordance with state or local rules and procedures. Further, adjudicators should verify that the beneficiary is fully qualified to receive the license, meaning that all educational, training, experience, and other substantive requirements must be met at the time of filing of the petition. Where appropriate, USCIS noted, the adjudicator may issue a request for evidence.
Any petition that requests an extension of stay on behalf of a beneficiary who has been granted H-1B status under this provisional measure, USCIS said, must show that the beneficiary has obtained the requisite license. If he or she has not obtained the license at the time the petition and extension are filed, the petition will be denied.
USCIS referenced earlier guidance applicable in other contexts. For example, in 2001 the agency’s precursor, the Immigration and Naturalization Service, instructed adjudicators to approve H-1B petitions for a one-year period for teachers who could not obtain state licensure unless they could obtain social security numbers, which in turn could not be obtained unless the teachers were already authorized to work in the U.S. At the end of the one-year period, the teacher was required to file another petition with a request for extension, and also present evidence at such time that the license had been obtained.