What are the special licensing requirements for H-1B1 applicants (for Chileans)?

Two questions get mixed together here, and they have different answers. The first is whether a U.S. professional license is needed to qualify for H-1B1 classification. The second is whether a license is needed to work in the occupation once in the United States. For the H-1B1 the answers are no and, in many occupations, yes.

Licensure is not part of the H-1B1 classification test. This is a matter of statutory drafting rather than agency discretion. INA 214(i)(2) makes full state licensure one of the ways of satisfying the specialty occupation requirements, but that paragraph opens by limiting itself to section 101(a)(15)(H)(i)(b), the traditional H-1B. The H-1B1 has its own definition at INA 214(i)(3), and it contains only two elements: theoretical and practical application of a body of specialized knowledge, and attainment of a bachelor’s or higher degree in the specific specialty, or its equivalent, as a minimum for entry into the occupation. Licensure is simply absent from it.

The regulations point the same way. The licensure rule for the H categories at 8 CFR 214.2(h)(4)(v) requires the license to be held "prior to approval of the petition," and its whole machinery assumes a petition. The H-1B1 is not petition-based, and 8 CFR 214.2(h) contains no H-1B1 provisions at all. A related detail is worth noting for comparison: where licensure is required, that regulation limits an H petition to one year unless a permanent license is held. That limitation has no bite for the H-1B1, whose admissions run one year at a time in any event.

The Free Trade Agreement is explicit about what must be presented. Section D of Annex 14.3 lists the showing for a professional: proof of nationality, documentation describing the engagement and the purpose of entry, and documentation of the relevant minimum educational requirements or alternative credentials. A license does not appear on that list.

What this means in practice. Evidence of a U.S. license may certainly be offered in support of an application, alongside the job offer letter and the credential documents, and where it exists it tends to strengthen the case that the position is a specialty occupation and that the applicant is qualified for it. But an application should not be refused for the sole reason that the applicant does not yet hold a U.S. license. Licensure is a post-entry requirement, enforced by the state or other sub-federal authority that regulates the profession.

This is not a free pass. The immigration rule and the professional rule operate independently. Practicing a licensed profession without the required license is unlawful under state law regardless of immigration status, and a position that cannot lawfully be performed is a poor foundation for a visa application. There is also a sequencing trap worth planning around: some state boards will not issue a license until the applicant has a Social Security number or work authorization, which cannot be obtained until after admission. The H-1B regulations acknowledge that problem expressly for petition-based cases, and the same practical difficulty exists here even though the regulation does not address it.

The separate rule for health care workers. One further rule sits outside the licensing question but can defeat an otherwise strong application. INA 212(a)(5)(C), headed "Uncertified foreign health-care workers," makes a person who seeks to enter the United States to perform labor as a health care worker, other than a physician, inadmissible unless he or she presents a certificate from the Commission on Graduates of Foreign Nursing Schools or from an equivalent independent credentialing organization. The certificate verifies that the person’s education, training, license and experience meet the applicable requirements, are comparable to those of an American health care worker of the same type, and are authentic and unencumbered.

Which occupations are covered. 8 CFR 212.15(c) lists licensed practical and vocational nurses and registered nurses, occupational therapists, physical therapists, speech-language pathologists and audiologists, medical technologists, physician assistants, and medical technicians. Physical therapists matter particularly in this category, because physical therapist is one of the four professions for which the Free Trade Agreement allows a substitute credential. See the exceptions to the post-secondary degree requirement. The Commission on Graduates of Foreign Nursing Schools is authorized to certify physical therapists among other fields, and there are English language testing requirements set by the Department of Health and Human Services. The requirement does not reach physicians, or occupations that are non-clinical in the sense that no direct or indirect patient care is involved.

Three requirements, not one. A health care professional applying in this category should expect to deal with all three separately, and 8 CFR 212.15(a)(3) makes the point neatly: the certificate does not itself constitute professional authorization to practice. Classification requires the degree and the specialty occupation, admissibility requires the certificate, and practicing requires the state license. Each is granted by a different body, and obtaining one does not produce the others.

See also the main requirements for an H-1B1 visa, or return to the H-1B1 overview for Chileans. To discuss licensing or certification in a particular profession, contact us.