Potential "Catch-22"

Certain H-1B jobs, such as healthcare worker or teacher, may require a state or local license as part of the minimum requirements for entry into the occupation. Considering an H-1B petition must show the foreign national beneficiary meets the qualifications for the position, H-1B approval for such positions is conditioned upon the H-1B employee possessing any licenses required by the state or local authorities. In some states, however, H-1B employees must demonstrate they are legally authorized to work in the U.S. prior to receiving a state or local license. Thus, an impossible situation arises when an H 1B employee's state or local licensure is contingent upon having an approved H-1B petition and obtaining H-1B approval is contingent upon having received the requisite license.

Temporary H-1B Approval

The United States Citizenship and Immigration Services (USCIS) has the authority to modify H 1B procedures and temporarily approve an H-1B petition if the foreign national needs H 1B documents to obtain a state or local license. In order to receive temporary H-1B approval, the H 1B petition must verify to the USCIS that at the time of filing:

• All of the necessary requirements for obtaining the license were met including education, training, experience and other substantive requirements;
• The H-1B employee had applied to the state or local licensing board for the required license; and
• The H-1B petition was approvable in all other respects.

The USCIS may also grant temporary H-1B approval to foreign nationals who have not been able to obtain a social security card, but whose H-1B jobs require one.

Validity Period Of H-1B Approval

The USCIS will temporarily approve H-1B visa status, without the required license, for a period of one year. The one year validity period allows the H-1B employee time to obtain the required license, but does not entitle the H-1B employee to work in the profession without licensure. It is absolutely necessary for the H-1B employee to obtain the necessary license prior to working in the profession. A few examples of specialty occupations that may require a license are physical therapist, medical technician, pharmacist, teacher and attorney.

H-1B Extensions

To maintain valid H-1B status and be eligible for H-1B visa extensions, the H-1B employee must actually obtain the state or local license. Any H-1B extension petition that fails to show the H 1B employee has the required license will be denied.