H-1B Petitions for Which a State License is Required for Employment - - the USCIS Provides Guidance in Catch-22 Situations
I recently obtained H-1B approval (not a FY 2009 cap case) for a therapist who required licensing in the State of New Jersey but who could not obtain that licensing until after the H-1B petition was approved.
Matters like this can present a classic Catch-22 situation: on the one hand, the H-1B Beneficiary cannot obtain the required license that is necessary to practice his or her profession from a State but they can’t get that license without first obtaining H-1B approval; on the other hand, the USCIS may not approve the H-1B petition without proof that the Beneficiary has obtained the required license.
A recent Memorandum by the USCIS provides common sense guidance to adjudicators in deciding such cases. The Adjudicators Field Manual (Chapter 31) has now been updated to allow for a temporary, one-year USCIS approval of the H-1B petition (assuming all other requirements have been met) that then allows the State (or other licensing authority) to issue the license.
In order for the USCIS to approve the H-1B petition for this one year period, the Beneficiary must prove that he or she has filed an application for the required license and that they are fully qualified to receive the license (that is, that the H-1B beneficiary has met all the educational, training, experience and any other requirements required for the license).
It is incumbent upon the employer and Beneficiary to file a timely request to extend the H-1B status during this one year time period with proof that the Beneficiary has, by then, obtained the license.
The USCIS makes it very clear in the Memorandum that this one year approval does NOT imply that it is authorizing the Beneficiary to actually work at the job that requires the license—the State must issue the license first.
