Introduction

On November 18, 2016, the Department of Homeland Security (DHS) published a new final rule in the Federal Register (FR) titled “Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers,” (see 81 FR 82398) [PDF version]. The rule came into effect on January 17, 2017. To read an overview of all of the changes in the 95-page rule, please see our full article [see article].

The DHS amended 8 C.F.R. 214.2(h)(4)(v)(C), a regulation that details when H1B status may be granted to an individual who is unable to obtain a required professional license. The final rule explains that the amendments are meant to bring the DHS regulations in line with what was already DHS policy, while expanding on existing policy in certain cases.

In this article, we will examine the amended provisions regarding H1B licensing exemptions and what they mean going forward.

To see the full text of the new 8 C.F.R. 214.2, please see the following link [PDF version]. As we noted above, much of the new regulations codify what was existing DHS practice. The following are the Memoranda that were relied upon:

USCIS Memorandum from Donald Neufeld, “Adjudicator’s Field Manual Update: Chapter 31: Accepting and Adjudicating H-1B Petitions When a Required License Is Not Available Due to State Licensing Requirements Mandating Possession of a Valid Immigration Document as Evidence of Employment Authorization” (Mar. 21, 2008) (“Neufeld Memo”) [PDF version]; and
INS Memorandum from Thomas Cook, “Social Security Cards and the Adjudication of H-1B Petitions” (Nov. 20, 2001) (“Cook Memo”) [PDF version].

Rules for Individuals Permitted to Work Without License Under Supervision

The following addresses 8 C.F.R. 214.2(h)(4)(v)(C)(1), which reads as follows:

(C) Duties without licensure. (1) In certain occupations which generally require licensure, a state may allow an individual without licensure to fully practice the occupation under the supervision of licensed senior or supervisory personnel in that occupation. In such cases, USCIS shall examine the nature of the duties and the level at which they are performed, as well as evidence provided by the petitioner as to the identity, physical location, and credentials of the individual(s) who will supervise the alien, and evidence that the petitioner is complying with state requirements. If the facts demonstrate that the alien under supervision will fully perform the duties of the occupation, H classification may be granted.

There are many occupations in which an H1B nonimmigrant may work that require a state license. As 8 C.F.R 214.2(h)(4)(v)(C)(1) notes, in some situations where a license is required, a state may nevertheless permit an individual to practice without a license so long as he or she works under the supervision of a licensed senior or supervisory professional in that occupation. 8 C.F.R. 214.2(h)(4)(v)(C)(1) sets forth the rules for H1B petition approval in such cases.

In determining whether an H1B petition filed on behalf of an individual without a license is approvable in this situation, the United States Citizenship and Immigration Services (USCIS) will consider the following factors as required by the amended regulation:

The nature of the duties and the level at which they are performed;
Evidence regarding the identity, physical location, and credentials of the individual(s) supervising the alien; and
Evidence that the petitioner is complying with the state requirements.

Under the regulation, the USCIS will review all of the evidence to determine whether it demonstrates “that the alien under supervision will fully perform the duties of the occupation.”

At 82 FR 82441, the DHS explains that the amended 8 C.F.R. 214.2(h)(4)(v)(C)(1) does not represent a change in policy, but rather the codification of existing policy derived from agency memoranda and the Adjudicator’s Field Manual (AFM). The DHS added to what had been the text of the proposed rule the final point that the petitioner must submit evidence that it is complying with applicable state requirements. At 82 FR 82443, the DHS explains that it “does not anticipate that petitioners would have to change the way they currently satisfy these requirements.”

Because the burden of proof is on the petitioner to establish eligibility for the benefit sought, the DHS advises petitioners to submit all credible evidence to establish that the petition is approvable.

H1B Approval Where a License is Required But the Beneficiary Has No License

The amended 8 C.F.R. 214.2(h)(4)(v)(C)(2) addresses situations in which an H1B petition may be approved on behalf of an alien who does not have a license to practice in an occupation where such license is required. When permissible, such an H1B petition may be approved for a period of up to 1 year only. In order for a petition to be approvable in such circumstances, the following requirements under 8 C.F.R. 214.2(h)(4)(v)(C)(2)(i) and (ii) must be met (paraphrased):

The license would otherwise be issued provided the alien was in possession of a valid Social Security Number, was authorized for employment in the United States, or met a similar technical requirement;
The petitioner demonstrates through evidence from the relevant licensing authority that the only obstacle to the alien’s licensure is the lack of a Social Security number, lack of employment authorization in the United States, or a failure to meet a similar technical requirement that precludes the issuance of the license before the alien is in H1B status;
The petitioner demonstrates that the alien is fully qualified to receive the license in all other respects (meaning that the alien meets all educational, training, experience, and other substantive requirements); and
The alien must have filed an application for the license in accordance with the applicable rules and procedures, provided that the alien was not prevented from doing so because he or she did not have a Social Security number, employment authorization, or because he or she did not meet another similar technical requirement.

Under 8 C.F.R. 214.2(h)(v)(C)(3), an alien who is approved for one year under 8 C.F.R. 214.2(h)(v)(C)(2) may not have a subsequent petition approved unless:

The alien obtained the required license;
The petitioner is seeking to employ the alien in a position requiring a different license; or
The alien will be employed in that occupation in a different location which does not require a state or local license to fully perform the duties of the occupation.

In short, for a subsequent petition to be approved after one year, the licensing issue must have been resolved. This can happen either by the alien having received the requisite license, or by the petition being for a new job for which that license is not required.

At 82 FR 82442, the DHS explains that it added the “similar technical requirement” language to the regulation after reviewing comments made to the proposed rule. This serves to both clarify and expand on the circumstances in which an H1B petition can be approved on behalf of an alien who lacks a required license. It is important to note that the alien must still be qualified to receive the license at the time the petition is adjudicated but for a “similar technical requirement” that he or she cannot meet until the petition has been approved.

No Change to Unrestricted Extendable Licenses in Health Car Occupations

At 82 FR 82443, the DHS explains that it did not codify or change existing USCIS policy “addressing the approval of petitions for individuals in health care occupations who are issued unrestricted extendable licenses. We discuss the current rules for this in our full article [see article].

Conclusion

The new regulations regarding H1B licensure provide greater certainty regarding application of the rules for approving H1B petitions for individuals without licenses who are working under supervision and for individuals who cannot procure a license without a Social Security number or another requirement satisfaction of which hinges on the approval of the petition. It is important to note that, although we did not discuss it in this article because it was outside the scope of the current rulemaking, there are circumstances in which an H1B petition may be approved on behalf of an individual with a temporary license [see article]. H1B petitioners and beneficiaries should consult with an experienced immigration attorney for guidance through the H1B petitioning process. An experienced immigration attorney will be able to provide guidance regarding any licensure issues if the apply to the specific case.