All too often, it seems that some examiners at USCIS Service Centers are just looking for a way
to deny petitions.
Long-standing policies are ignored and new theories are advanced to deny perfectly-qualified
applicants for immigration benefits.
A few months ago, a few examiners decided on their own that M.B.B.S. degrees which are issued
to physicians from British Commonwealth countries were not equivalent to M.D. degrees issued by
medical schools in the U.S. As a result, many petitions and applications were denied on this
basis. After much protest from the medical community, the USCIS in Washington got involved,
and the situation was rectified in favor of the foreign-born physicians and their U.S. employers.
The latest government boondoggle involves state-licensed physical and occupational therapists.
Though these professionals have always been held to be eligible for H-1B status, some examiner(s)
noticed that the latest edition of the Labor Department’s Occupational Outlook Handbook (OOH) now
says that M.S. degrees are preferred.
Accepting this statement in the OOH as Gospel, the USCIS started to deny immigration benefits to
PTs and OTs with B.S. degrees even though they were in possession of state licenses.
The response to this sudden change in USCIS policy was swift and negative. Under USCIS regulations,
there are three agencies designated to determine whether the credentials of foreign-born health
care workers are equivalent to those of the U.S.-born counterparts: the FCCPT, the CGFNS and the
NBCOT.
On February 19, the Foreign Credentialing Commission on Physical Therapy (FCCPT) weighed in on
USCIS’ “confusion” about this matter. Then, on March 19, the National Board for Certification
in Occupational Therapy (NBCOT) wrote to the USCIS that “immigration officials are misinterpreting
the academic/educational requirements for an occupational therapist”. Finally, on March 26, CGFNS
International wrote to the USCIS and explained why the OOH’s statement that a Master’s degree was
a precondition for a foreign PT to be admitted to the U.S. was “incorrect”.
The hope was that the USCIS headquarters in Washington, D.C. would correct this erroneous
interpretation of the law and regulations prior to start of the H-1B filing season on April
1st.
Unfortunately, USCIS did not issue a policy memorandum until May 20. However, since almost 20,000
H-1B numbers are still available, and “cap-subject” workers cannot change their status to H-1B until October 1, 2009, no harm, no foul.
In its memorandum, the USCIS recognizes that H-1B health care workers must possess an “unrestricted (state) license”, and it is irrelevant whether they possess a B.S. degree rather than an M.S. or Ph.D. degree. We link to the USCIS memo from our “Allied Health Professionals” page at
http://shusterman.com/toc-ahp.html#5
We hope that, in the future, USCIS will adhere to policies which are consistent with the law and
the regulations, and will provide an avenue for practitioners and employers to bring clearly
erroneous decisions to the attention of Headquarters before they develop into trends. Given the
15-month wait at the agency’s Administrative Appeals Office to issue a decision on the appeal
of an H-1B petition denial, this is not an adequate remedy.
It would also be helpful if the USCIS were to clarify that the May 20th memorandum applies to
I-140s as well as to H-1B status, and to all persons in possession of unrestricted state licenses,
not only health care professionals.
I am an international student and am often disheartened at the process to get an education in the US. However, occupational therapy is a profession that is in high demand. It is a rewarding career that offers excellent options in the health care field and provides high salaries as well. That motivated me to hit up http://www.degreesinhealthcare.org to get the info I needed.
Posted by: ed | June 12, 2009 at 11:10 AM