- Defining “Health Care Occupation” and “Specialty Occupation”
- Material Covered by the Velarde Memo
On May 20, 2009, the Chief of Service Center Operations at the United States Citizenship and Immigration Services (USCIS) — Barbara Q. Velarde — issued a Policy Memorandum titled “Requirements for H-1B Beneficiaries Seeking to Practice in a Health Care Occupation” (“Velarde Memo”) [PDF version]. The Memorandum deals with H1B licensure issues for petitions filed on behalf of beneficiaries seeking employment in a healthcare specialty occupation. In this article, we will examine the Velarde Memo and what it means for H1B petitions for employment in a health care specialty occupation.
To learn about H1B licensure for other H1B petitions, please see our full articles on the approval of H1B petitions for a beneficiary with no license [see article] and for a beneficiary with a temporary license [see article].
The Velarde Memo defines “health care occupation” for the purpose of the policy guidance as the professional that are listed in 8 C.F.R. 212.15(c), and those that meet the definition of “specialty occupation” at 8 C.F.R. 214.2(h)(4)(ii)(4). The “specialty occupation” requirement is a general H1B requirement.
Please see the following link for the text of 8 C.F.R. 212.15 [PDF version].
The definition of “specialty occupation” in 8 C.F.R. 214.2(h)(4)(ii)(4) is as follows:
Specialty occupation means an occupation which requires theoretical and practical application of a body of highly specialized knowledge in fields of human endeavor including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts, and which requires the attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States.
The Velarde Memo addresses H1B petitions filed on behalf of beneficiaries seeking employment in a “health care occupation” that is also a “specialty occupation.”
The Velarde Memo covers H1B petitions for beneficiaries in health care occupations who have:
- An unrestricted license to practice a health care occupation in the state of intended employment;
- A restricted license to practice a health care occupation in the state of intended employment; or
- No license to practice a health care occupation in the state of intended employment.
The Velarde Memo explains that if “the petitioner provides documentary evidence that the beneficiary has a valid license to practice a health care occupation in the state in which the beneficiary will be employed, the adjudicator should not look beyond the license.” The effect of this guidance is that, provided the petitioner provides documentary evidence of the license, “[t]he beneficiary will be considered 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).” Nevertheless, the petitioner will still be required to submit evidence that the beneficiary is admissible under section 212(a)(5)(C) of the Immigration and Nationality Act (INA). Section 212(a)(5)(C) sets forth statutory requirements pertaining to admissibility for aliens seeking to enter the United States to work in a health care occupation.
The Velarde Memo is applicable to beneficiaries with bachelor's degrees, master's degrees, or doctoral degrees in the healthcare occupation.
In the following subsections, we will review the Velarde Memo's guidance in each of the three foregoing cases.
If the beneficiary has an unrestricted license to practice a health care occupation in the state of intended employment, and if the H1B petition is otherwise approvable, the Velarde Memo instructs adjudicators to approve the H1B period for the full H1B period requested, which may be up to 3 years. However, even with an unrestricted license, an H1B petition may not be approved beyond the validity of the associated labor condition application (LCA). Furthermore, if the state requires that the unrestricted license be renewed periodically, the Velarde Memo instructs adjudicators to not take the renewal date into account in determining the validity period of the petition approval.
At 82 FR 82443, the DHS took the position that new regulations dealing with H1B licensure did not have any effect on unrestricted extendable licenses in health care occupations [see section]. The DHS specifically stated that it “will continue to adjudicate these petitions [for unrestricted extendable licenses] consistent with the policy guidance articulated in the 2009 Velarde Memorandum.”
If the beneficiary has a restricted license to practice a health care occupation in the state of intended employment, and if the H1B petition is otherwise approvable, the Velarde Memo instructs adjudicators to approve the petition for a period of one year, or for the duration of the restricted license, whichever is longer. The Velarde Memo explains that an example of a restricted license is a license approved except for mandatory supervised practice. The rule for approval of petitions based on a restricted license is found at 8 C.F.R. 214.2(h)(4)(v)(E).
There are limited circumstances in which an H1B petition filed on behalf of a beneficiary without a license to practice a health care occupation in the state of intended employment may be approved. The Velarde Memo explains that the petitioner must establish that the beneficiary cannot obtain the license due to the fact that the state of intended employment requires that the beneficiary be in possession of a social security card and/or a valid immigration document in order to be licensed. On January 17, 2017, those provisions were codified into the regulations, and the new 8 C.F.R. 214.2(h)(4)(v)(C) allows for an H1B petition to be approved on behalf of a beneficiary without a license if he or she would be able to procure the license if not for a “similar technical requirement.” To learn more about the new rule, please see our full article [see article].
In adjudicating a petition for a beneficiary without a license, the Velarde Memo instructs adjudicators to “ascertain the requirements for licensure” in the state of intended employment and to determine whether the beneficiary is otherwise qualified to procure a license but for the lack of a social security card and/or a valid immigration document (or a “similar technical requirement” under the new regulations). If the adjudicator is unable to ascertain the state's requirements for licensure, the adjudicator may send the petitioner a request for evidence asking the petitioner to provide documentary evidence of the state's requirements.
Finally, the petitioner will be required to provide evidence that the beneficiary:
- Has filed an application for a license in accordance with the state or local rules and procedures; and
- Cannot obtain a full unrestricted license in the state in which he or she will practice due to the requirement for possession of a social security card, valid immigration document, and/or physical presence in the United States in the form of a letter from the State Board.
Although not included in the Velarde Memo, the new 8 C.F.R. 214.2(h)(4)(v)(C) also allows for submission and consideration of evidence that the failure to obtain a full unrestricted license is due to the inability to meet a “similar technical requirement” that could be alleviated with the approval of the petition.
An H1B petition for a health care occupation worker in a specialty occupation without a license may not be approved for a period in excess of one year. Furthermore, the approval of the petition does not constitute approval by the USCIS for the beneficiary to engage in any activity requiring possession of a State or local license. Rather, the approval of the petition is to “facilitate the state or local licensing authority's issuance of such a license to the alien, provided all other requirements are satisfied.”
If the petitioner subsequently requests an extension of stay on behalf of the beneficiary, the petitioner will be required to show that the beneficiary has been granted a valid unrestricted license to practice in the health care occupation in the state in which he or she will be working. If the beneficiary lacks the requisite license at the time the extension request is filed, the petition will be denied.
A petitioner for an H1B worker in a health care occupation is required to meet certain requirements specific for health care occupation workers. Additionally, the licensure rules for petition approval are slightly different in some respects from other H1B petitions, especially for unrestricted extendable licenses. An H1B petitioner for a health care worker in a specialty occupation should consult with an experienced immigration attorney for a full understanding of the rules and filing requirements for such petitions.