dismissed H-1B Case: Physical Therapy

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PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: 
IN RE: 
WAC 04 167 50663 Office: CALIFORNIA SERVICE CENTER Date: UN 2 6 
Petitioner: 
Beneficiary: 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(l S)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. $ 1 lOl(a)(lS)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
WAC 04 167 50663 
Page 2 
DISCUSSION: The service center director denied the nonimmigrant visa petition and the matter is now 
before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. The petition will 
be denied. 
The petitioner is a rehabilitation center that seeks to employ the beneficiary as a physical therapist. The 
petitioner endeavors to classify the beneficiary as a nonimmigrant worker in a specialty occupation pursuant 
to 5 10 1 (a)(1 S)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1 IOl(a)(l S)(H)(i)(b). 
The director denied the petition because the beneficiary is not qualified to perform the duties of a specialty 
occupation; specifically, he does not hold the required California license to practice physical therapy. On 
appeal, counsel submits a brief. 
Section 214(i)(2) of the Act, 8 U.S.C. $ 1184(i)(2), states that an alien applying for classification as an H-1B 
nonimmigrant worker must possess full state licensure to practice in the occupation, if such licensure is 
required to practice in the occupation, and completion of the degree in the specialty that the occupation 
requires. If the alien does not possess the required degree, the petitioner must demonstrate that the alien has 
experience in the specialty equivalent to the completion of such degree, and recognition of expertise in the 
specialty through progressively responsible positions relating to the specialty. 
Pursuant to 8 C.F.R. $ 214.2(h)(4)(iii)(C), to qualify to perform services in a specialty occupation, an alien 
must meet one of the following criteria: 
(1) 
 Hold a United States baccalaureate or higher degree required by the specialty 
occupation from an accredited college or university; 
(2) 
 Hold a foreign degree determined to be equivalent to a United States baccalaureate or 
higher degree required by the specialty occupation from an accredited college or 
university; 
(3) 
 Hold an unrestricted state license, registration or certification which authorizes him 
or her to fully practice the specialty occupation and be immediately engaged in that 
specialty in the state of intended employment; or 
(4) 
 Have education, specialized training, and/or progressively responsible experience 
that is equivalent to completion of a United States baccalaureate or higher degree in 
the specialty occupation, and have recognition of expertise in the specialty through 
progressively responsible positions directly related to the specialty. 
Pursuant to 8 C.F.R. 3 214.2(h)(4)(v): 
If an occupation requires a state or local license for an individual to fully perform the duties of 
the occupation, an alien (except an H-1A nurse) seeking H classification in that occupation must 
have that license prior to approval of the petition to be found qualified to enter the United States 
and immediately engage in employment in the occupation. 
WAC 04 167 50663 
Page 3 
The record of proceeding before the AAO contains, in part: (1) Form 1-129 and supporting documentation; 
(2) the director's request for additional evidence; (3) the petitioner's response to the director's request; (4) the 
director's denial letter; and (5) Form I-290B and supporting documentation. The AAO reviewed the record in 
its entirety before issuing its decision. 
The petitioner is seeking the beneficiary's services as a physical therapist. The petitioner indicated that the 
beneficiary is a qualified candidate for the job because he possesses a foreign bachelor's degree in physical 
therapy, has completed additional studies related to physical therapy, and has related employment experience. 
The director found that the beneficiary was not qualified for the proffered position because he does not hold 
the required state license fiom California. On appeal, counsel states, in part, that CIS regulations require that 
the beneficiary meet only one criterion of 8 C.F.R. 9 214.2(h)(4)(iii)(C). He states further that the beneficiary 
is qualified for the position because he holds the equivalent of a U.S. bachelor's degree in physical therapy. 
Pursuant to the California Business & Professions Code 5 2630: 
It is unlawful for any person or persons to practice, or offer to practice, physical therapy in this 
state for compensation received or expected, or to hold himself or herself out as a physical 
therapist, unless at the time of so doing the person holds a valid, unexpired, and unrevoked 
license under this chapter. . . . 
The proffered position is that of a physical therapist. In its Occupational Outlook Handbook (Handbook), 
2006-2007 edition, the Department of Labor finds that all states require physical therapists to pass a licensure 
exam before they can practice, after graduating from an accredited physical therapist educational program. In 
this case, the beneficiary holds a bachelor's degree in physical therapy conferred by a Filipino institution, and 
has completed additional studies related to physical therapy. The record, however, does not contain an 
evaluation of the beneficiary's credentials from a service that specializes in evaluating foreign educational 
credentials as required by 8 C.F.R. 5 214.2@)(4)(iii)(D)(3). It is noted that the evaluator from the International 
Education Research Foundation, Inc. stipulates that his evaluation of the beneficiary's credentials is for the 
purpose of physical therapy licensure only. Further, the evaluator does not specify that the beneficiary holds the 
equivalent of a bachelor's degree in physical therapy from a regionally accredited college or university in the 
United States, as asserted by counsel on appeal. The record also contains no evidence that the beneficiary holds 
the required license from the State of California. In view of the foregoing, it is concluded that the petitioner 
has not demonstrated that the beneficiary is qualified to perform the duties of a specialty occupation within 
the meaning of the regulations. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 
8 U.S.C. 
 1361. The petitioner has not sustained that burden. 
ORDER: 
 The appeal is dismissed. The petition is denied.