H1B Petitions Should be Approved for 1 Year w/out State License
Posted Dec 14, 2001
           
In a November 20, 2001 memo, Thomas E. Cook, the INS Acting Assistant Commissioner, Office of Adjudications, provided guidance regarding H1B applications for positions that require state licensing. The memo instructed Service Center Directors, District Directors, Officers-in-Charge, and the Administrative Appeals Office, that H1Bs are to be approved in cases where the applicant cannot obtain a state license solely because s/he does not have a Social Security number.

The problem arises because certain states require that an individual have a social security card prior to the issuance of a state or local license. However, the regulations governing the Social Security Administration (SSA) prevent issuance of a Social Security Card or number to those who are not present in the U.S. This particular issue arose in the case of H1B petitions filed for public high school teachers. The H1B petitions were filed without the required state teaching license. The teachers could not obtain the licenses, solely because they were outside of the U.S. and, therefore, did not have their social security cards.

In order to remedy this problem, the INS is instructed to approve H1B cases where the applicant does not have the required state license, if the only obstacle to obtaining the license is the social security card or social security number (SSN). That is, the H1 beneficiary must be eligible for licensing in all other respects. In such cases, the H1 should be issued for a period of one year. The H1B petitions filed for these applicants must contain evidence from the state licensing board stating that the social security card is the only obstacle to licensing. In addition, the petitioner must establish that all other requirements for the occupation have been satisfied.

The applicant will have to file for an H1B extension at the appropriate time in order to extend the H1B status beyond the one-year time frame. At that point, the H1B petition could be denied if the H1B employee does not have the appropriate state license. This Memo does not limit the maximum allowable stay in the U.S. in H1B status. It allows for the grant of an initial approval for one year despite absent documentation like the SSN, which would ordinarily be required.

This procedure is consistent with the procedure used to adjudicate H1B petitions where the state license requires that the licensee be physically present in that jurisdiction. The INS memo directs that the INS continue to approve H1B petitions of that nature, where the physical presence is the only obstacle to licensing.

We at The Law Office of Sheela Murthy understand that despite this INS Memo from Nov. 20, 2001, some INS Service Centers have denied H1B petitions based on the person's not having the state license. We trust that henceforth this issue will be resolved by providing the concerned INS examiner/s with the Nov. 20, 2001 INS Memo referred in this MURTHYBULLETIN / MurthyDotCom NewsBrief or otherwise bringing this matter to the attention of the supervisor/s.