dismissed H-1B Case: Physical Therapy

COPY 
U.S. Department of Homeland Security 
20 Mass Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
h, 
FILE: EAC 04 072 50844 Office: VERMONT SERVICE CENTER 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(l 5)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 9 1 101 (a)(l S)(H)(i)(b) 
ON BEHALF OF PETEIONER: 
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, Director 
Administrative Appeals Office 
EAC 04 072 50844 
Page 2 
DISCUSSION: The director of the service center 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 provides health care services and personnel. It seeks to employ the beneficiary as a physical 
therapist. The petitioner, therefore, endeavors to classify the beneficiary as a nonimmigrant worker in a 
specialty occupation pursuant to section 10 1 (a)(lS)(H)(i)(b) of the Immigration and Nationality Act (the Act), 
8 U.S.C. !$ 1 lOl(a)(lS)(H)(i)(b). 
The director denied the petition, finding that the petitioner failed to submit the beneficiary's license or other 
evidence showing that the beneficiary is immediately eligible to engage in the proposed position, that of a 
physical therapist. The director found the submitted application for a limited permit insufficient to establish 
that the beneficiary is qualified for the proposed position. 
Section 214(i)(2) of the Act, 8 U.S.C. 8 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. 
The regulation at 8 C.F.R. 8 214.2(h)(4)(v)(A), which relates to licensure for the H classification, states that if 
an occupation requires a licensure for an individual to fully perform the duties of the occupation, an alien 
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. 
On appeal, counsel states that the beneficiary's education has been approved by the New York State 
Education Department (NYSED) for the purpose of taking the National Physical Therapy Examinations. 
Counsel asserts that the NYSED did not issue a limited permit to the beneficiary because CIS denied the 
beneficiary's H-1B petition. Counsel cites to section 6735, Article 136 of the New York Consolidated Laws, 
which relates to limited permits for physical therapists. Counsel submits into the record a document entitled 
"Authorization to Test." 
Upon review of the record, the petitioner has not established that the beneficiary is qualified to provide 
services as a physical therapist in the state of New York. 
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, an appeal brief, and additional documents. The AAO reviewed 
the record in its entirety before issuing its decision. 
Counsel correctly stated that section 6735, Article 136 of the New York Consolidated Laws, which relates to 
limited permits for physical therapists, reads as follows: 
EAC 04 072 50844 
Page 3 
Limited permits. 
a. The department of education shall issue a limited permit to an applicant who meets 
all requirements for admission to the licensing examination. 
b. All practice under a limited permit shall be under the supervision of a licensed 
physical therapist in a public hospital, an incorporated hospital or clinic, a licensed 
proprietary hospital, a licensed nursing home, a public health agency, a recognized 
public or non-public school setting, the office of a licensed physical therapist, or in 
the civil service of the state or political subdivision thereof. 
c. Limited permits shall be for six months and the department may for justifiable cause 
renew a limited permit provided that no applicant shall practice under any limited 
permit for more than a total of one year. 
d. Supervision of a permittee by a licensed physical therapist shall be on-site 
supervision and not necessarily direct personal supervision except that such 
supervision need not be on-site when the supervising physical therapist has 
determined, through evaluation, the setting of goals and the establishment of a 
treatment plan, that the program is one of maintenance as defined pursuant to title 
XVIII of the federal social security act. 
e. The fee for each limited permit and for each renewal shall be seventy dollars. 
On appeal, counsel asserts that although the beneficiary is eligible for a limited permit, the NYSED did not 
issue a limited permit to the beneficiary because CIS denied the beneficiary's H-1B petition. Counsel's 
assertion is not persuasive as the AAO finds that the petitioner submitted no supporting evidence in the record 
reflecting that NYSED did not issue a limited permit to the beneficiary on the ground that CIS denied the 
beneficiary's H-1B permit.' The documents in the record, "An Application for Limited Permit" (an 
application for a limited permit application), and "Authorization to Test" (authorizes the beneficiary to take a 
physical therapy examination from July 11, 2004 to September 9,2004) do not report on NYSED's decision 
relating to issuing a limited permit to the beneficiary. The statements of counsel on appeal or in a motion are 
not evidence and thus are not entitled to any evidentiary weight. See INS vs. Phinpathya, 464 U.S. 183, 188- 
89 n.6 (1 984); Matter of Ramirez-Sanchez, 17 I&N Dec. 503 (BIA 1980). 
As related in the discussion above, the petitioner has not established that the beneficiary is qualified to 
perform the duties of the proposed position. Accordingly, the AAO shall not disturb the director's denial of 
the petition on this ground. 
1 According to section 6735, Arhcle 136 of the New York Consolidated Laws, limited permits are issued for 
six months and a limited permit may be renewed for justifiable cause provided that no applicant shall practice 
under any limited permit for more than a total of one year. 
a EAC 04 072 50844 
Page 4 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. 
The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed. The petition is denied.