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Bloggings On The H-1B Visa

by Anthony F. Siliato and Scott R. Malyk

Editor's note: Here are the latest entries from Anthony F. Siliato and Scott R. Malyk's blog.

May 28, 2009

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

Editor's note: An updated version of this blog posting may be found at the link above (06/02/09).

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 requirements for H-1B beneficiaries seeking to practice in certain heath care occupations.

The Velarde Memo instructs that if the petitioner (employer) provides documentary evidence that the beneficiary has a valid license to practice a health care occupation 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). This 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.

At first glance, one might interpret this guidance to mean that USCIS has changed its historic position on the nursing profession, finally coming around to agree that licensed nursing, much like occupational therapy, is a “specialty occupation” and, therefore, is eligible for the H-1B visa nonimmigrant visa category.

Unfortunately, upon further consideration, it appears that is not so. Specifically, footnote one (1) of the Velarde Memo advises that the Memo’s guidance only applies to those health care occupations that meet the definition of “specialty occupation” which requires the attainment of a bachelor’s degree or higher in a specific discipline as a minimum for entry into the occupation in the U.S.  In other words, interpreted literally, the Velarde Memo applies only to specialty health care occupations that USCIS has already deemed to require at least a bachelor’s degree, such as occupational therapists, physical therapists, speech pathologists, select clinical laboratory scientists and medical technicians. Consequently, it seems to follow that the Velarde Memo does not serve to modify the current treatment of Licensed Practical Nurses (“LPRs”), Licensed Vocational Nurses (“LVNs”) or Registered Nurses (“RNs”). Rather, it appears that USCIS remains steadfast in its historically incongruous position that LPRs, LVNs and RNs are not specialty occupations, and are thereby ineligible for the H-1B visa category, as those positions do not require at least a bachelor’s degree.

Hence, with regard to the other (non-nursing) health care occupations listed above, the Velarde Memo 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”).  Importantly, the Velardo Memo instructs that 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