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Hammond Law Firm on Nurse Immigration

PT OT Masters Issue: Update

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As blog readers are aware, in the last few weeks, the USCIS has denied several physical therapist and occupational therapist cases for H-1b visa petitioners. The USCIS is making several critical mistakes in their application of their regulation. Any one of these reasons compels the USCIS to approve these cases. Taken together, the case is even clearer.


1. The most compelling reason is that the purpose of the specality occupation regulation is to create a Bachelors degree educational "floor" for H-1(b) eligibility. The USCIS' interpretation creates a Masters Degree floor.


2. The employer's job offer meets the third alternative standard of that regulation: the employer is offering a position that requires a degree.


3. The USCIS found that the positions of PT and OT have a national standard. To make this determination, USCIS relied exclusively on the Department of Labor's Occupational Outlook Handbook. The OOH is simply a restatement of common job requirements. It is neither conclusive nor definitive. CGFNS, FCCPT and NBCOT have all weighed in on the issue. All three letters have explained to USCIS that the OOH is wrong. There is no national Masters Degree standard for PTs and OTs. Any denials based on this finding of fact are factually incorrect.


Read each letter: CGFNS, FCCPT, NBCOT No.1, and NBCOT No.2


4. The relevant states themselves continue to issue licenses to these workers. This is further evidence that the OOH's conclusions are incorrect, and USCIS ought not rely on this publication.


5. Congress has been worried that USCIS would get into the educational evaluation business. In order to make sure that USCIS would not do what they are currently doing, in 1996 Congress passed INA 212(a)(5)(C) (Healthcare Worker Certificate statute, or HWC). The HWC says that before any PT or OT can be approved by USCIS, an independent credentialing organization must issue a Certificate that says that, among other things, that the PT or OTs international education is equal to US workers of the same occupation. The very nature of the issuance is that the education is comparable.

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Comments

  1. Lauraine Miguel's Avatar
    I just would like to follow up in this issue. Does the USCIS already responded to the letters that were sbmitted by NBCOT?
  2. Puteri's Avatar
    Ask him to consult a good laeywr. Even if he's illegal, the US does not condone criminal acts regardless of immigration status or citizenship. Working illegally although a crime, is not as heinous as swindling and exploitation. Americans are not given the right to do criminal acts against anybody just because they are illegal.
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