By Tom Joy, Supervising Attorney

On May 20, 2009 the U.S. Citizenship and Immigration Services (USCIS) issued a Memorandum that finally resolves the issue of whether a Physical Therapist (PT) or an Occupational Therapist (OT) is required to have a master’s degree in order to qualify for an H-1B visa.  Based on a recently added ambiguous statement in the U.S. Department of Labor Occupational Outlook Handbook that a master’s degree was preferred for the occupations of PT and OT, the USCIS started to deny H-1B petitions filed on behalf of PTs and OTs even though they had bachelor’s degrees and state licenses in the state of intended employment, all of which had been acceptable in the past for H-1B petition approval.  The Memorandum properly places the focus on the licensing requirements of the state of intended employment and not on whether the position requires or the person has a bachelor’s degree or master’s degree. 

If the person has a valid license to practice as a PT or OT in the state of intended employment, then the USCIS should not look beyond the license.  The person will be considered to meet the qualifications to perform an H-1B specialty occupation.  This applies regardless of whether the person has a bachelor’s, master’s or doctoral degree.  A person with an unrestricted license is entitled to approval of the H-1B for up to 3 years.  A person with a restricted license (e.g., a license approved except for mandatory supervised practice) is entitled to approval of the H-1B for 1 year or the duration of the restricted license, whichever is longer. 

If the person does not have a valid license to practice as a PT or OT in the state of intended employment (even if the person has a valid license from another state), then the USCIS must ascertain the licensing requirements (including educational degree requirements) for the state of intended employment.  If the person is otherwise qualified for a license except for the state-required social security card, valid immigration document and/or physical presence in the United States, then the person is entitled to approval of the H-1B for 1 year in order to facilitate the state’s issuance of a license.  In order to get an extension of the H-1B beyond 1 year, it must be shown that a valid unrestricted license has been issued. 

H-1B cap-subject cases can still be filed while the annual quota remains available for an employment starting date of October 1, 2009.  H-1B cap-exempt cases, of course, can be filed at any time. 

Please contact Immigration Compliance Group with any questions or set up a telephone conference to personally discuss you specific needs.