03/22/2008: H-1B Filing for License Required Occupations: USCIS Memorandum of March 21, 2008 Updates AFM
Under the H-1B regulation, those who apply for certain occupations that mandate a license to practice for H-1B are normally not eligible for the petition, such as public school teachers, unless the petition accompanies such license. On the other hand, the State Licensing Boards cannot issue a license even if the aliens are qualified unless the aliens are authorized for employment and possess a social security number. Since a social security number cannot be issued unless the alien is authorized to work, these aliens are trapped in "catch-22" situation unless some type of relief is given by one of these three government agencies. In order to untangle this logjam, the legacy INS issued a policy to approve H-1B petition for one year to allow such aliens to apply for a state license. Yesterday, Mr. Donald Neufeld, Deputy Director of Domestic Operations of USCIS issued a memrandum to update the Adjudicators' Field Manual (AFM) to instruct the field (Service Centers) adjudicators to approve such H-1B petitions for one year on the two conditions, among others: The alien submits an evidence of pending license application before the State Licensing Board and files as initial evidence all the documents to establish that the aliens are eligible for the license but for the employment authorization and social security number requirement. Release of this memorandum and updating of AFM are very timely for these professionals to file FY 2009 H-1B cap petitions on April 1, 2008.