dismissed H-1B Case: Physical Therapy

identit)rili data deleted to
..pre~t clearly unwarranted
InvasIonefperaonaJ. privacy
PUBLIC COpy
U.S.Department of Homeland Security
20 Massachusetts AvenueNW, Room 3000
Washington, DC 20529
u.S. Citizenship
and Immigration
Services
FILE: EAC 05 089 50556 Office: VERMONT SERVICE CENTER . Date: HAR 0't 2007
INRE: Petitioner:
Beneficiary:
PETITION: Petition foe a Nonimmigrant Worker Pursuant to Section 101(a)(15)(H)(i)(b) of the
Immigration and Nationality Act, 8 U.S.C.§ 1101(a)(15)(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.
~ad/:~c;..u
4L Robert P. Wiemann, C
JV' Administrative Appeal
www.uscis.gov
/
EAC 05 089 50556
Page 2
DISCUSSION: The director initially approved the nonimmigrant visa petition. 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 recruitment and staffing agency that seeks to employ the beneficiary to perform as a
physical therapist for one of its client organizations . The petitioner, therefore, endeavors to classify the
beneficiary as a nonimmigrant worker in a specialty occupation pursuant to section 101(a)(15)(H)(i)(b) of
the Immigration and Nationality Act (the Act) , 8 U.S.C. § 1lOl(a)(l5)(H)(i)(b).
· The record of proceeding before the AAO contains: (1) the 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) the Form 1-290B and supporting brief . The AAO reviewed the
record in its entirety before issuing its decision.
The director denied the petition on the basis of his determination that the beneficiary lacks physical therapy
licensure, and that the beneficiary was not maintaining valid nonimmigrant status at the time the petition was
filed. The director also looked beyond the record of proceeding. Noting that the petitioner currently
employs eight accountants, the director stated that "[i]t is questionable that a company of your size and
scope would require the services of such a large accounting staff performing virtually identical duties."
· The director also denied the petition-e-citing tsection 274C(a) of the Act-s-because Citizenship and
Immigration Services (CIS) was unable to make a determination of the "validity of any positions offered
or claims made, or the authenticity of any documents submitted by [the petitioner]" due to "the large
number of obvious and intentional alterations to various documents submitted by [the petitioner] as well
as a number of misleading statements made by [the petitioner] ." In particular , the director found that
· "contracts between [the petitioner] and the beneficiary as well as pay statements for several
beneficiaries ... had been obviously altered" to remove sponsorship or filing fee deductions. The director ·
also noted inconsistencies in the number of employees the petitioner listed in the various petitions it had
filed and in income tax statements submitted with those petitions. Finally , the director found that the
petitioner made "false and misleading statements" in petitions it filed for "in-house accountants"
concerning the number ofaccountants working for the petitioner.
The AAO finds that the director erred in denying the petition on the basis of evidence not in the record of
proceeding and without giving the petitioner an opportunity to address the reasons for denial. Each
petition filing is a separate proceeding with a separate record. See 8 C.F .R. § lO3.8(d). In making a
determination of statutory eligibility, CIS is limited to the information contained in the record of
proceeding . See 8 C.F.R. § 103 .2(b)(16)(ii). Furthermore , 8 C.F.R. § 103.2(b)(l6)(i) requires the director
to advise the petitioner "if a decision will be averse to the.. .petitioner and is based on derogatory .
information considered by the Service and of which the ... petitioner is unaware ", and give the petitioner
"an opportunity to rebut the information in his /her own behalf before the decision is rendered. " The
director's May 12,2005 request for additional evidence did not give the petitioner adequate notice of the
director 's intention to deny the petition on the basis of misrepresentations or alteration of documents or an
opportunit y to rebut this information. : .
The AAO nonetheless agrees with the director that the record does not demonstrate that the beneficiary .
possesses the licensure requisite for performing the duties of the proposed position. Pursuant to
8 C.F .R. § 214.2(h)(4)( v), if the State requires licensure in order to work in the specialty occupation , the
beneficiary must possess the license prior to approval of the H-1B petition: .
EAC 05 089 50556
Page 3
(A) General. 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-IC 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 ..
(B) Temporary licensure. If a temporary license is available and the alien is allowed to
perform the duties of the occupation without a permanent license, the director shall
examine the nature of the duties, the level at which the duties are performed, the degree
of supervision received, and any limitations placed on the alien. If an analysis of the facts
demonstrates that the alien under supervision is authorized to fully perform the duties of
the occupation, H classification may be granted. .
(C) Duties without licensure. In certain occupations which generally require licensure, a
state may allow an individual to fully practice the occupation under the supervision of
·licensed senior or supervisory personnel in that occupation. In such cases.: the director
shall examine the nature of the duties and the level at which they are performed. If the
facts demonstrate that the alien under supervision could fully perform the duties of the
occupation, H classification may be granted.
(D) H-IC nurses. For purposes of licensure, H-IC nurses must provide the evidence
required in paragraph (h)(3)(iii) of this section.
(E)· Limitation on approval of petition. Where licensure is required in any occupation,
including registered nursing, the H petition may only be approved for a period of one
year or for the period that the temporary license is valid, whichever is longer, unless the
alien already has a permanent license to practice the occupation. An alien who is
accorded H classification in an occupation which requires licensure may not be granted
an extension of stay or accorded a new H classification after the one year unless he or she
has obtained a permanent .license in the state of intended employment or continues to
hold a temporary license valid in the same state for the period of the requested extension.
Pursuant to 8 C.F.R. § 214.2(h)(v)(A), 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-IC 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. Licensure would not preclude
the granting of a petition if the only bar to licensure is the fact that a beneficiary is not yet present in the
United States.' .
Counsel submits a July 9, 2003 2letterfrom the State of New York, which states the following:
1. See. Memo~a~dum fro~ ~cting A~si~tan~ Commissioner,. ?ffice of Adjudications,
•••••••• , Soczal~d the Adjudication of H-1B Petitions, HQISD 70/6.2.8-P
(November 20,2001).
2 This letter was two and a half years old at the time it was submitted by counsel. As a temporary license
still has not been submitted, it appears that the beneficiary has not obtained one.
EAC 05089 50556
Page 4
Please be advised that [the beneficiary] has met the following requirements for the issuance
of a limited permit to 'practice Physical Therapy in New York State: submission of an .
application for licensure with appropriate fee and evidence of acceptable education, permit
application, signed by a prospective employer, with appropriate fee.
( .
The limited permit to practice Physical Therapy in New York State may ·be issued upon
receipt of evidence that [the beneficiary] has received a valid status from the Immigration
and Naturalization Service to work in the United States.
This letter indicates that , as of July 9, 2003, the beneficiary was qualified for temporary licensure in
physical therapy. However, there would be restrictions on the temporary license. The duration of the .
license would he six months - renewable, for proper cause, for only an additional six months - and the
temporary licensee would be subject to supervision : Office of the Professions, New York State Education
Department,Education Law, Article 136, section 6735 on limited permits states :
. . .
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 ofthe state or political subdi vision 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. .
The record does not contain any information about the licensed physical therapist' who would be required
to supervise the beneficiary , and it does not provide sufficient evidence describing the level at which the
duties of the proposed position would ' be performed under temporary licensure, the nature of the
supervision that would be imposed on the beneficiary as a temporary licensee at the place of work, and '
any limitations that would be placed on the beneficiary 's practice while under temporary licensure.
Moreover , the petitioner indicates that it seeks a continuation of the beneficiary 's employment without
change. The current petition was filed on February 7 , 2005. The letter indicating that the beneficiary is
eligible for licensure as soon as the licensing authority receives evidence of the beneficiary 's immigration
status does not qualify the beneficiary to work without a license or actual limited permit in this case. The
3 The petitioner submitted a license belonging to in its August 3, 2005 response to the '
director 's request for additional evidence. However, the petitioner made no reference to this license in its
response and did not attempt to establish that this individual worked at that same facility as the
beneficiary, as requested. It is unclear whether this license was submitted in an attempt to demonstrate
that Ms. would supervise the beneficiary, or whether submission of this license was a clerical
error.
EAC 05 089 50556
PageS
/
beneficiary had ample opportunity under the previous visa to obtain the necessary licensure or limited .
permit. The petitioner has failed to submit such license or permit indicating that as of the filing date of
the petition the beneficiary was eligible to immediately begin employment in the State of New York as a
physical therapist.
Therefore ,the record of proceeding does not provide CIS with sufficient information to reasonably
determine that the beneficiary would be authorized to fully perform the duties of the occupation , as
required by the regulation at 8 C.F.R. § 214.2(h)(v)(B) . Therefore, the petition must be denied.
Beyond the decision of the director, the AAO finds that the petition may not be approved for another
-reason, as the record does not establish that the beneficiary will perform services in a specialty
occupation. Section 2l4(i)(1) of the Immigration and Nationality Act (the Act) , 8 U.S.C. § 1184(i)(1),
defines the term "specialty occupation" as an occupation that requires:
(A) theoretical and practical application of a body of highly specialized knowledge,
and
(B) attainment of a bachelor 's or higher degree in the specific specialty (or its
equivalent) as a minimum for entry into the occupation in the United States .
The term "specialty occupation " is further defined at 8 C.F.R . § 2l4.2(h)(4)(ii) as:
[A]n occupation which requires theoretical and practical application of a body of highly
specialized knowledge in fields of human endeavor including , but not limited to ,
architecture, engineering, mathematics, physical sciences , social sciences, medicine and
health, education, business specialties , accounting, law, theology, and the arts , and which
requires the attainment of a bachelor 's degree or higher in a specific specialty, or its
equivalent, as a minimum for entry into the occupation in the United States.
Pursuant to 8 C.F.R. § 2l4.2(h)(4)(iii)(A), to qualify as a specialty occupation, the position must meet one of
the following criteria:
(1) A baccalaureate or higher degree or its equivalent is normally the minimum
requirement for entry into the particular position;
(2) The degree requirement is common to the industry in parallel positions among
similar organizations or , in the alternative, an employer may show that its particular
position is so complex or unique that it can be performed only by an individual with
a degree;
(3) The employer normally requires a degree or its equivalent for the position; or
(4) The nature of -the specific duties is so specialized and complex that knowledge
required to perform the duties is usually associated with the attainment of a
baccalaureate or higher degree.
CIS interprets the term "degree" in the criteria at 8 -C.F.R. § 2l4.2(h)(4)(iii)(A) to mean not just any
baccalaureate or higher degree, but one in a specific specialty that is directly related to the proposed
position.
.' .
EAC 05 089 50556
Page 6
The AAO notes that the beneficiary would not be performing services at the petitioner's place of
business , but would rather be working at various locations as established by contractual agreements
between the petitioner and its clients. The evidence of record establishes that the petitioner will act as the
beneficiary 's employer in that it will hire, pay, fire , supervise, or otherwise control the work of the
beneficiary .' See 8C.F .R. § 214.2(h)(4)(ii) . '
Pursuant to the language at 8 C .F.R. § 214.2(h)(2)(i)(B), employers must submit an itinerary with the
dates and locations of employment if the beneficiary 's duties will be performed in more than one location.
In his request for evidence, the director asked for contracts of work to be performed. Pursuant to the
Aytes memorandum cited at footnote 1, the director has the discretion to request that that the employer
who will employ the beneficiary in multiple locations submit an itinerary. Vpon review, the director
properly exercised his discretion to request a contract. The February 14,2005 staffing agreement between
the petitioner and ; M.D., P.C . submitted by the petitioner in response to the director's
request for additional evidence does not satisfy 8 C .F.R. § 214.2(h)(2)(i)(B) as it does not provide
information regarding the beneficiary 's work location . As the petitioner has ' not complied with the
. requirements at 8 C.F .R. § 214.2(h)(2)(i)(B), the record does not contain an itinerary, and the petition
may not be approved at this time. . "
, Moreover, this staffing agreement was issued subsequent to the filing of the petition, so the petitioner
cannot use this agreement to establish that a position existed at the time the petition was filed. The
petitioner must establish eligibility atthe time of filing the nonimmigrant visa petition . A visa petition
may not be approved at a future date after the petitioner or beneficiary becomes eligible under a new set
of facts. Matter ofMichelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978).
For this additional reason, the petition may not be approved.
The record does not establish that the beneficiary is qualified to perform the duties of the proposed
position. Beyond the decision of the director, the AAO finds that the record does not contain an itinerary,
, and that the record does not demonstrate that the position existed at the time the petition was filed.
Accordingly, the AAO will not disturb the director's denial of the petition.
The AAO will not address the director's finding that the beneficiary failed to maintain valid nonimmigrant
status prior to the filing of this petition, as such a determination is within the director's sole discretion and
beyond the scope of the AAO' s jurisdiction.
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act ,
8 V.S.c. § 1361.· The petitioner has not sustained that burden.
ORDER: The appeal is dismissed. The petition is denied.
4 See also Memorandum from Assistant Commissioner , INS Office of Adjudications ,
Interpretation of the Term "Itinerary" Found in 8 C.F.R. 214.2(h)(2)(i)(B) as it Relates to the H-IB
Nonimmigrant Classification, HQ 70/6.2.8 (December 29, 1995).