sustained H-1B Case: Physical Therapy

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prevent dearly unwarranted 
tnwn of persopal pnhgcy 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
Date: OCT 
PETITION: Petition for a Nonirnrnigrant Worker Pursuant to Section lOl(a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § 1 10 1 (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. Wiernann, Director 
Administrative Appeals Office 
WAC 03 186 51633 
Page 2 
DISCUSSION: The service center director denied the nonirnmigrant visa petition and the matter is now 
before the Administrative Appeals Office (AAO) on appeal. The appeal will be sustained. 
The petitioner is a skilled nursing facility that seeks to employ the beneficiary as a physical therapist intern. 
The petitioner endeavors to classify the beneficiary as a nonirnmigrant worker in a specialty occupation 
pursuant to 6 lOl(a)(lS)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
6 1 lOl(a)(15)(H)(i)(b). 
The director denied the petition because the beneficiary is not qualified to perform the duties of a specialty 
occupation. On appeal, counsel submits a brief and additional evidence, including letters from similar 
businesses. 
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. 5 214.2(h)(4)(iii)(C), to qualify to perfonn services in a specialty occupation, an alien 
must meet one of the following criteria: 
(I) 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. 5 214.2(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 03 186 51633 
Page 3 
Pursuant to 8 C.F.R. 5 214.2(h)(4)(v)(C): 
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. 
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 intern. The petitioner indicated that 
a qualified candidate for the job would possess a bachelor's degree in physical therapy and qualifications for 
state licensure. 
The director found that the beneficiary was not qualified for the proffered position because the record 
contains no authorization for a physical therapist intern position from the Physical Therapy Board of 
California. On appeal, counsel states, in part, that the beneficiary is qualified for the position because she 
holds the equivalent of a U.S. bachelor's degree in physical therapy and is an applicant for a U.S. license as a 
physical therapist. Counsel states further that the beneficiary, acting in the capacity of a physical therapist 
intern, is not required to hold a California license because she will be under 100 percent supervision of a 
registered physical therapist. 
Pursuant to the California Code of Regulations Title 16, Division 13.2 5 1399.10. Supervision of Physical 
Therapist License Applicants: 
Pursuant to Section 2639 of the code, a physical therapist license applicant whose application 
for licensure has been filed and reviewed by the board may perform as a physical therapist if he 
or she is under the direct and immediate supervision of a physical therapist licensed by the 
board. "Direct and immediate supervision" means a supervisor shall at all times be responsible 
for and provide adequate supervision of the work performed by the physical therapist license 
applicant and shall be in close proximity to the location where the physical therapist license 
applicant is rendering physical therapy treatment. The physical therapist license applicant shall 
document each treatment in the patient record, along with his or her signature. A supervising 
physical therapist shall countersign with his or her first initial and last name in the patient's 
record on the same day as patient related tasks were provided by the physical therapist license 
applicant. 
A supervising physical therapist shall document receipt of the letter authorizing physical 
therapist license applicant status and record the expiration date of such status in the employee 
record. A supervising physical therapist shall require the applicant to provide documentation of 
the license issued at the conclusion of the of the physical therapist license applicant status. If 
the applicant fails to pass the licensing examination all privileges to work as a physical 
therapist license applicant shall terminate. . . . 
WAC 03 186 51633 
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The proffered position is that of a physical therapist intern for the petitioning entity, a rehabilitation and 
healthcare facility established in 1970, with 300 employees and a gross annual income in excess of $10 
million. In its Occupational Outlook Handbook (Handbook), 2004-2005 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 record contains a copy 
of the beneficiary's foreign bachelor's degree in physical therapy, and an evaluation from a company that 
specializes in evaluating academic credentials concluding that the beneficiary's foreign degree is equivalent to 
a U.S. bachelor's degree in physical therapy. The record also contains a letter addressed to the beneficiary, 
dated January 28, 2004, from the Licensing Services of the Physical Therapy Board of California, which 
states, in part: "The Physical Therapy Board of California received your application for physical therapist 
licensure." The record additionally contains a letter, dated November 20, 2003, from the petitioner's 
administrator indicating that the beneficiary would be working "under 100% supervision of a Registered 
Physical Therapist." As such, the beneficiary meets the qualifications of 8 C.F.R. $ 214.2(h)(4)(v)(C). In view 
of the foregoing, it is concluded that the petitioner has demonstrated that the beneficiary is qualified to 
perform the duties of a specialty occupation within the meaning of regulations. 
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 sustained that burden. Accordingly, the appeal will be sustained and the petition will 
be approved. 
ORDER: The appeal is sustained. The director's order is withdrawn and the petition is approved.