News Update - April 16, 2011FAM on State Licensure Requirements for H-1B NonimmigrantsThe Foreign Affairs Manual ("FAM"), which acts as guidance to consular posts, was updated at the end of March to reflect the current USCIS interpretation that where an H-1B applicant is otherwise qualified for approval except for lack of a state license for which he/she can only apply upon entry to the U.S., U.S.C.I.S. can approve the H-1B petition for a one-year period to allow for license procurement. This FAM update recognizes the inconsistencies between state laws on licensing - that some states allow an alien to take a licensing exam as a visitor while other states require nonimmigrant applicants to obtain H-1B status and a social security number beforehand. The revised footnote, 9 FAM 41.53 N4.1, now states that "a visa should not be denied based solely on the fact that the applicant does not already hold a license to practice in the United States." (CT:VISA-1635; 03-31-11). The previous version stated that where a state or local license is required for a job, "an alien seeking H classification to fill that position, other than a registered nurse…, must have that license before a petition can be approved on his or her behalf to confer H nonimmigrant status." (TL:VISA-64; 8-7-92).
† The author is a 30+ year practitioner of immigration law based in New York City. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Administration in the Intelligence Reform Act of 2004. ‡ This article © 2011 Alan Lee, Esq.
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