H-1B Series: The H-1B Beneficiary's Required Qualifications, Part 4
George N. Lester IV
Special Requirements: Licensed Professionals and Physicians
The regulations provide that holding a state license, registration, or certification authorizing a foreign national to practice a specialty occupation is another acceptable circumstance for H-1B qualification. This should be viewed as an evidentiary accommodation, however, not a waiver of the requirement for a four-year university degree. The job must still be in a qualifying specialty occupation that normally requires a baccalaureate degree for entry. If the foreign national holds a professional license but no college degree, the petitioner must still meet the degree equivalency standards. In such a situation, however, the license will be highly probative evidence. Thus, petitioners are always best advised to submit both the license and regular academic credential documentation or experience letters. Holding a U.S. state license in an occupation that is widely accepted as professional, however, such as civil engineering, would lessen or obviate the need to obtain an independent foreign credential evaluation report or expert evaluation of the foreign national's experience.
Indeed, the regulations provide that, if licensing is normally a requirement for the profession, the foreign national must have such a license prior to approval of the petition in addition to the requisite academic credentials. The H-1B petitioner should therefore always determine before filing whether a particular profession is one that normally requires a state license, such as law, public school teaching, or civil engineering. If so, evidence of the foreign national's licensure must be submitted to the INS.
If the foreign national does not have the requisite license, the petitioner must explain why a license is not required for its particular position. For example, in public school systems licensure is normally required for a teaching position, but often the requirement can be waived where a teaching candidate has special skills, such as foreign language proficiency, for which the system has an immediate need. Or in law firms it is common to hire foreign lawyers who lack a U.S. license to serve in legal positions entitled "foreign lawyer," "foreign law consultant," "law clerk," or something similar, which maintains the specialty occupation nature of the job but eliminates the requirement for a state license to practice law inherent in a regular attorney position.
B. The Licensing "Catch-22"
Frequently, a position offered to an H-1B beneficiary may require a license issued by the state where the job is located in order to work in the position. Veterinarian or public school Teacher are examples. However, the H-1B beneficiary, while otherwise qualified in academic or experience background, may not be able to get the license from the state because he or she is outside the country and cannot apply unless in the U.S. with legal authorization to work and a social security number. The person cannot enter the U.S. legal to work and obtain a social security number, though, without H-1B petition approval. But, the H-1B petition cannot be approved if the person does not qualify by holding the license.
What do you do in this conundrum?
There are two strategies. First, look closely at the employer's actual requirements and at regulations for practicing the occupation, to see if the license requirement can be waived, or if the person can begin work in the occupation on a provisional basis, perhaps under special supervision of person holding license, until the license is obtained. In the case of a public school teacher, for example, as described above a local school system often has the discretion to waive the license requirement for teachers with certain special skills. In this case, a statement or letter showing official evidence of the waiver should be included in the petition.
In another example, depending on a particular state's rules a Veterinarian with all the right academic or experience needed to qualify for a license may be able to practice provisionally under the direct supervision of a licensed Veterinarian for a limited period of time while applying for the license. Similarly, an attorney who has sat for the bar exam and awaits the results, or who may be licensed in a different state from where the job is located, may qualify to be hired by a law firm in an attorney position while the state's license is pending. Thus, in these situations, the license is not required to actually start in the job, even though it may ultimately be a required to stay in the job after some initial period. The petitioner should include detailed evidence, such as a statement from the licensing authority in the state, explaining these special circumstances. The petitioner should also be prepared for INS to approve the initial petition only for the provisional period, with a requirement that an extension be filed after the license is issued.
Where it is simply not possible to establish a waiver of the license requirement or the "provisional employment" circumstance, INS recently recognized the "Catch-22" nature of the problem and created a special allowance. In November 2001, a memorandum was issued spelling out a policy for H-1B petitions in professions where a state license is required but not held. Provided that the "only obstacle to obtaining state licensure is the fact that the alien cannot obtain a social security card from the SSA" or the "alien's lack of physical presence" in the U.S., then the petition can be approved for a one year period, at the end of which an extension petition will have to be filed showing that the license has been obtained. The petition should include evidence that "all other regulatory and statutory requirements for the occupation have been met," and evidence from the state licensing board that the only obstacle to issuance of the license is the lack of a social security card or physical presence.
The H-1B regulations provide special criteria and documentary requirements applicable to petitions for foreign national physicians. These rules create additional, more stringent requirements for physician positions that involve direct patient care. Hospitals and medical practice groups are regular users of the H-1B program and must be aware of the rules, which are summarized as follows:
If the physician is coming to the U.S. primarily to teach or conduct research, with no patient care to be performed except that which is incidental to the teaching or research, then the petition simply must include evidence that the beneficiary has graduated from a U.S. or foreign medical school or has a full and unrestricted license to practice medicine in a foreign state. In such circumstances the evidentiary requirements are similar to the requirements for proving professional qualification in any other H-1B job category.
For a direct patient care position, however, the rules provide that, in addition to these criteria:
The regulations do not explain how to prove "national or international renown" for purposes of the exception in the last section. Based on a general interpretation of that term, petitioners would be advised to submit materials in any or all of the following categories of evidence:
- The foreign national must have a license or other authorization to practice medicine from the state where the position is located, or be exempt from such a requirement;
- The foreign national must have passed the Federal Licensing Examination or an equivalent examination designated by the Secretary of Health and Human Services, or be a graduate of a U.S. medical school; and
- The foreign national must have passed the English language proficiency test given by the Educational Commission for Foreign Medical Graduates (ECFMG), or be a graduate of a school of medicine accredited by a body or bodies approved for that purpose by the Secretary of Education.
- However, a foreign national physician graduate of a foreign medical school who is "of national or international renown in the field of medicine" may be exempted from the Federal Licensing Examination and ECFMG requirements.
This concludes discussion of the Beneficiary's required qualifications. The next several articles in this series will focus on the Labor Condition Application.
- reference letters from other medical professionals of national or international renown, stating that the foreign national has national or international renown for his or her abilities as a doctor or other contributions to the medical profession;
- awards, particularly if they are national or international in scope, such as from the World Health Organization;
- articles or presentations published by the foreign national in medical journals or presented at medical conferences;
- media publicity or journal articles describing or making reference to the foreign national or his or her work;
- evidence of the foreign national's working in prominent positions for renowned academic or medical institutions;
- evidence of the foreign national's serving as a speaker or panelist at medical conferences;
- evidence of the foreign national's acting as a peer reviewer of the work of others presented at conferences or published in journals; and
- any other evidence of special contributions or abilities in the medical field.
About The Author
George N. Lester IV is of the
Immigration Practice Group (the "Group") of the law firm of Foley,
Hoag & Eliot LLP. Foley, Hoag & Eliot LLP is a full-service law firm
of 200 lawyers in Boston and Washington, D.C. It was the first large
law firm in Boston to develop an expertise in business immigration
law, and for over thirty years its Group has represented employers in
a full range of procedures to obtain temporary or permanent
authorization to employ foreign professionals. Mr. Lester has
practiced immigration law for ten years, and regularly speaks to
business, academic, and professional groups on immigration topics. As
part of his regular AILA activities, Mr. Lester meets with officials
of the INS Vermont Service Center to discuss H-1B and other liaison
topics. He also serves as Treasurer and a Board Member of the
Political Asylum/Immigration Representation Project (PAIR) in Boston,
and received that organization's Pro Bono Attorney Award for
Dedication and Commitment to Human Rights in May 1996. Mr. Lester is a
1989 graduate of Northeastern University School of Law.
This article is the twelfth in a series by George N. Lester of the Foley Hoag LLP Immigration Practice Group based on a chapter he authored titled "Specialty Occupation Professionals," in the treatise Business Immigration Law: Strategies for Employing Foreign Nationals, edited by Rodney A. Malpert and Amanda Petersen, and appears here with the permission of the publisher. Published by Law Journal Press. Copyrighted by NLP IP Company. All rights reserved. Copies of the complete work may be ordered from Law Journal Press, Book Fulfillment Department, 105 Madison Avenue, New York, New York 10016 or at www.lawcatalog.com or by calling 800-537-2128, ext. 9300.
For the latest updates from the Foley Hoag Immigration Practice Group, particularly including weekly Process Time Updates from the Vermont Service Center, click here.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
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