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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

Bloggings on Updates in Immigration Law

by Carl Shusterman

Editor's note: Here are the latest entries from Carl Shusterman's blog.

May 27, 2009

H-1Bs for Health Care Workers: Advanced Degree Not Required

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 receive 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.