Professionals: Rules Concerning H-1B Occupations Requiring Licenses

USCIS H-1B Regulations require that, if a license to engage in a profession in the United States is normally required, a person must possess the license prior to the approval of an H-1B petition. If an H-1B applicant does not possess the requisite license, the H-1B employer must document why a license is not required for the H-1B position.

There are circumstances where an employer can file an H-1B petition on behalf of a person not holding a license for the position. First, the employer can employ the prospective H-1B employee in a position not requiring a license. For example, U.S. law requires that a person must possess a license to practice law as an attorney. However, if a prospective H-1B employee is a foreign lawyer and does not possess a U.S. law license, the individual can be employed as a Foreign Law Consultant (a recognized H-1B specialty occupation) instead of a lawyer. This eliminates the necessity of the license.

In addition, several states have regulations allowing a license to be waived and allowing a person to commence work in the occupation on a provisional basis, normally under the direct supervision of a licensed professional in the occupation. This is common for public school teachers, accountants, veterinarians and others. In these circumstances, an H-1B petition can be approved for the H-1B employee for the provisional period. However, the H-1B employee will be required to provide evidence of licensure for any H-1B extension after the provisional period.

USCIS Policy Solving a Common Licensing Problem

In 2001, the USCIS issued a written policy solving a common problem encountered by professionals seeking H-1B employment in the United States.

The problem involved the situation where many states do not issue licenses unless a person is inside the United States with legal authority to work and in possession of a social security number. The problem is compounded by the fact that a person cannot enter the United States to work in a professional position in H-1B status or obtain a social security number without the approval of an H-1B petition. Further, an H-1B petition cannot be approved unless the person holds the requisite professional license.

Under the USCIS written policy, if the only obstacle to state licensure is that the prospective H-1B employee cannot obtain a social security number or is not physically in the United States, an H-1B petition can be approved for one year. During this one year period, the H-1B employee must obtain the requisite license before an H-1B extension can be filed.

It should be noted that the USCIS imposes very strict rules on cases involving foreign physicians.