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The H-1B Visa Blog by Siliato and Malyk

Velarde Memo Issues New Guidance To Adjudicators On Requirements for H-1B Beneficiaries Seeking To Practice In Certain Health Care Occupations

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The May 20, 2009 Memo from Barbara Velarde, Chief of USCIS Service Center Operations, ("Velarde Memo" or "Memo") provides some important guidance  to adjudicators on the requirements for H-1B beneficiaries seeking to practice in certain health care occupations, which is of significant import to occupational therapists ("OTs") and physical therapists ("PTs"). The crux of this guidance is as follows: advanced degrees are not required for health care professionals enumerated under 8 CFR 212.15(c) (including OT and PT candidates) applying for the H-1B nonimmigrant visa classification--thereby reversing a recent trend of USICS in denying H-1Bs for OTs and PTs who do not possess an advanced degree.


More specifically, the Velarde Memo instructs that if the petitioner (employer) provides documentary evidence that the beneficiary has a valid license to practice in the state in which the beneficiary seeks to be employed, the adjudicator should not look beyond that license. Such beneficiary will be deemed to meet the qualifications to perform services in a specialty occupation as outlined in 8 C.F.R. 214.2(h)(4)(iii)(C)(3).  Importantly, the Memo specifies that this guidance "applies regardless of whether the beneficiary is in possession of a bachelor's degree, master's degree or doctoral degree in the health care occupation."


The Velarde Memo further instructs that if the beneficiary is in possession of an unrestricted license, and the petition is otherwise approvable, an adjudicator should approve the petition for the full H-1B period requested - up to three years - but may not approve the petition beyond the validity of the labor condition application ("LCA").  Of note, the renewal date of an unrestricted license should not be considered when determining the validity period of the H-1B approval. 


If, however, the beneficiary is in possession of a restricted license, (e.g. a license approved except for mandatory supervised practice), and the petition is otherwise approvable, the Velarde Memo instructs the adjudicator to approve the petition for a period of one year, or the duration of the restricted license, whichever is longer. 


To the extent the beneficiary does not have a license from the state in which he/she will be working (e.g. beneficiary cannot obtain a license due to a state statute mandating the possession of a social security card or a valid immigration document as evidence of employment authorization) the Velarde Memo instructs the adjudicator to ascertain the requirements for that particular licensure (including educational degree requirements) in the health care occupation in that state to determine whether the beneficiary is qualified to perform the specialty occupation as outlined in 8 CFR 214.2(h)(4)(iii)(C). If, after conducting such research, the adjudicator is unable to determine the state's requirements for licensure, he/she may send the petitioner a request for evidence ("RFE") asking the petitioner to provide documentary evidence of the state's requirements.


In such a situation, the petitioner is instructed to, among other things, provide evidence that the beneficiary has (i) filed an application for a license in accordance with state or local rules and procedures; and (ii) cannot obtain a full unrestricted license in the state in which he/she will practice due to the requirement for possession of a social security card, etc.


Assuming the petition is otherwise approvable under the above-listed standards, the validity period for such a petition will be one year.


For additional information and frequent updates on a variety of employment-based immigration law issues, please click here to navigate to Meyner and Landis LLP's Corporate Immigration Law News Blog.


Post Authored By: Anthony F. Siliato, Esq. and Scott R. Malyk, Esq. of Meyner and Landis LLP

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