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Bloggings on Nurse Immigration

by Christopher T. Musillo of the Hammond Law Group

Editor's note: Here are the latest entries from Hammond Law Group's blog

March 03, 2009

PT/OT Update

We are currently experiencing a devastating situation with the USCIS Service Centers. The Service Centers are now denying all H-1B petitions filed on behalf of Physical Therapists and Occupational Therapists, in spite of the fact that the PTs and OTs have the requisite license. USCIS is taking the position that a Masters degree is the requirement for entry into the position and these Beneficiary does not possess a Masters degree.

This is absolute and clear error for two reasons.

First, each state determines who is eligible for licensure to practice in the profession within their state. To protect against any state having a lesser minimum educational entry standard, Congress and USCIS regulation authorize third-party educational evaluators such as CGFNS and FCCPT to issue Healthcare Worker Certificates that certify that the Beneficiary's education is comparable to the education required for licensure in the United States. A license to practice issued by the state of intended employment along with a Healthcare Worker Certificate issued by one of these agencies is conclusive regarding the Beneficiary's eligibility to practice in the profession.

Second, even accepting USCIS' position, FCCPT just has issued a letter indicating that their Type I Healthcare Worker Certificate means that the candidate has the equivalent of a U.S. Masters degree. We are attempting to get the same letter issued by CGFNS and NBCOT, and hope shortly to have these letters. And so even by USCIS' minimum entry standard, these Beneficiaries hold the Masters degrees and ought to be universally approved by USCIS.

We have been in contact with AILA and have fully explained the issue. In turn, we are working AILA and communicating with USCIS HQ. We optimistically are hoping for a quick resolution to the matter. Nevertheless, the new H-1 quota opens on April 1 and is expected to close on the same day (i.e. more than the Congressional limit of 65,000 visas will be filed on April 1).

Therefore, we have initiated discussions with a law firm specializing in administrative appeals and we are pursuing our options in federal court. We have been advised that we quickly could seek declaratory relief/preliminary injunction. HLG has initiated discussion with impacted clients and other immigration attorneys. If we are to pursue this action in federal court, we will need to raise significant legal fees in order to pay the attorneys to file the law suit.

In the action we will also seek EAJA relief. EAJA relief may provide for some or all of the professional fees to be returned.

If you have been impacted by these decisions and wish to join us in the lawsuit, please contact Chris Musillo or Cindy Unkenholt. We will likley have a call on Monday to review the matter and talk about next steps.