When the Occupation Requires a License

USCIS’ approval of an H-1B petition that requires a license, is not authorization for the employee to practice his or her profession without the required license.  USCIS regulation provides that if an occupation requires a state or local license to fully perform the duties of the occupation, the foreign worker must have the license prior to the approval of the petition.

This can be a Catch 22….Some states will not issue a state license unless the individual worker presents evidence to the State Board that they are legally authorized to be employed in the USA.  Some State Boards require the worker to establish to the State Board that they have been granted H-1B status as a prerequisite to issuing the license.  For example, certain State Boards of Pharmacy will not issue a pharmacist license until the worker presents evidence of work authorization.  Teachers have been unable to obtain licensure until they obtain social security numbers which cannot be achieved until one is authorized to work in the USA.

With the above being said, USCIS adjudicators have been instructed to approve H-1B petitions for a one-year period if a State or local license to engage in the profession is required, and the appropriate licensing authority will not provide such license to the worker without evidence that  that they have been granted H-1B status.  At the end of the one-year period, the employer is required to file another petition with a request for extension and also present evidence at that time that state licensure has been obtained.

As a condition to approving petitions involving state or local licensure, the worker must demonstrate that he or she has filed an application for the license according to the State or local rules and procedures and provide evidence that they are qualified to receive the license, and that all educational, training experience and other requirements are met, including healthcare certification, at the time of filing the petition.  For instance, Physical Therapists must provide a letter or statement signed by an authorized state physical therapy licensing official in the state of intended employment, indicating that the PT is qualified to take the state’s written licensing examination for physical therapists and thereafter obtain state licensure.

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If you are not a client of our firm and would like to discuss H-1Bs as well as any other immigration matters, we invite you to contact us.  My email address is leslie@immigrationsolution.net, telephone is 562 612.3996.  If you’d prefer to request a consultation, you can do so here

When should I start my case?

Immigration Solutions accepts H-1B cap-subject cases well in advance to avoid the rush that normally occurs when employers become aware of cap deadlines and when foreign workers obtain job offers that require cap subject visa numbers.  Bottom line, cap-subject cases should be started ASAP.

How long does it take to prepare an H-1B Case?

We do not recommend waiting until the last minute because of the various government agencies that are involved in the process.  With good front-end case strategy, our attorneys’ depth of experience and a streamlined case process, the many steps involved in preparing an H-1B, requiring the cooperation of all parties, can go very smooth and an approvable petition can be filed with all necessary documents.  An approval requires that a case be prepared correctly from the start.  It is often not possible to reverse strategy after the case is filed. Planning ahead is crucial to flush out any issues that need to be overcome.

In summary, the demand for H-1B visas, although not as high in this economy, have tougher documentation standards and Department of Labor delays with new LCA software.  By understanding the issues involved in the H-1B process, Immigration Solutions takes a proactive approach to assure that the needs of their clients are addressed early.

If you are not a client of our firm and would like to discuss H-1Bs as well as any other immigration matters, we invite you to contact us.  My email address is leslie@immigrationsolution.net, telephone is 562 612.3996.  If you’d prefer to request a consultation, you can do so here

The Job Description and Degree Requirement

The job offer and the job description must be for a specialty occupation that requires a minimum of a bachelor’s degree or its foreign equivalent.

What is the definition of a specialty occupation?  A specialty occupation requires the theoretical and practical application of a body of specialized knowledge along with at least a bachelor’s degree or its equivalent. For example, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts are specialty occupations.

Small to medium-size companies are being asked to justify why the position requires someone with a bachelor’s degree and to explain, through various types of evidence including organizational charts, why their business is more unique than other similar businesses in their industry that they would require a candidate with a bachelor’s degree in a particular position.

Bachelor’s Degree equivalency can be attained through a single-source foreign degree that meets US standards, a combination of a degree and work experience, or a work experience alone equivalency that meets the “3 for 1” rule; namely, that 3 years of work experience is equivalent to 1 year of university level education (this requires an expert credential evaluation by a service that is authorized to evaluate work experience).  Note: Bear in mind that if you have a skilled immigration professional that has a strategy in place for your green-card sponsorship (permanent residency), it is essential that your degree and its equivalency be carefully reviewed so that it will be compatible with the classification under which you will be filing.

USCIS now requires very detailed job descriptions that contain the position summary, duties and responsibilities, as well as the percentage of time spent on each job duty.  It is hard to imagine that a job description with a 15-bullet point list of duties and a full page in length is insufficient, but when you work with a skilled immigration practitioner, this can be successfully argued against the O*NET and the OOH which is the primary source of job information for USCIS and the Department of Labor.

In summary: Employers need to be prepared with complete job descriptions for their H-1B prospective employees and document the need for a degreed professional thoroughly in their casework.

If you are not a client of Immigration Solutions, we are available to discuss your H-1B filing needs.  Feel free to contact us.

The Department of Labor will be centralizingi prevailing wage processing.  The agency is scheduled to open its prevailing wage center in Washington, DC to begin centralized processing of PERM, H-1B, H-1B1 and E-3 NIV programs as of January 1, 2010.

Prevailing Wage Requests will be submitted to the National Center rather than to the State Workforce Agencies (SWAs).

The processing times from state to state vary widely at the present time and the determinations are not always consistent.  We’re not sure what to expect with the new program.  At the onset there will probably be longer processing  times, though DOL is assuring that this should result in more consistent prevailing wage determinations over time.

It has been reported that some 20,000 more unannounced employer site visits will be taking place over the next few months by FDNS, but this time it will be to employers who have filed H-1B extensions to determine if there is ongoing compliance by the employer.

It’s been asked, do they have the legal right to do this – just show up and demand to speak with a company’s representative or executive officer?  Yes, they do, although it hasn’t been acted upon to the extent we are now observing until your $500 Fraud Detection and Prevention government filing fee created the revenue to employ some 6,500 FDNS agents.  Up until now, USCIS or DOL agents have always been in a position to do onsite employer visits when they thought necessary – but it’s been rarely acted upon.  Presently, you can add ICE and FDNS to this group – because we’re in a hunt ‘em down, enforcement climate – and it’s the employers who are being targeted.

So, how does an employer handle this?  We don’t recommend that you wait to ask this question and to get your documentation organized when the agent comes knocking.  This is serious business now, and they are not just targeting the small to medium-size employer or the employer who has financial issues and can’t respond to requests to prove the ability to pay the offered wage to the employee.

Therefore, it is recommended that you discuss this with your immigration counsel now.  If you don’t have a representative, we are available to walk you through a program that will not only assist you in organizing your Public Access information and files, but we will give you the tools to prepare the company representative that will handle the agent site visit and to prepare them for the questions that will be asked, what documentation should be organized now and beeasily accessible to present to the agent when requested – and overall, how to successfully respond to a government site visit at your place of employment.

We link to this document:

http://www.docstoc.com/docs/7499686/AILA-Open-Forum—Dept-of-Labor