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March 3, 2009
PTs OTs and the
Masters degree: Litigation Considered
We are currently experiencing
a devastating situation with the USCIS
Service Centers. The Service Centers
are now denying all H-1B petitions filed
on behalf of Physical Therapists and
Occupational Therapists, in spite of the
fact that the PTs and OTs have the
requisite license. USCIS is taking the
position that a Masters degree is the
requirement for entry into the position
and these Beneficiary does not possess a
Masters degree.
This is absolute and clear error for two
reasons.
First, each state determines who is
eligible for licensure to practice in
the profession within their state. To
protect against any state having a
lesser minimum educational entry
standard, Congress and USCIS
regulation authorize third-party
educational evaluators such as CGFNS and
FCCPT to issue Healthcare Worker
Certificates that certify that the
Beneficiary's education is comparable to
the education required for licensure in
the United States. A license to
practice issued by the state of intended
employment along with a Healthcare
Worker Certificate issued by one of
these agencies is conclusive regarding
the Beneficiary's eligibility to
practice in the profession.
Second, even accepting USCIS' position,
FCCPT just has issued a letter
indicating that their Type I Healthcare
Worker Certificate means that the
candidate has the equivalent of a
U.S. Masters degree. We are attempting
to get the same letter issued by CGFNS
and NBCOT, and hope shortly to have
these letters. And so even by USCIS'
minimum entry standard, these
Beneficiaries hold the Masters degrees
and ought to be universally approved by
USCIS.
We have been in contact with AILA and
have fully explained the issue. In
turn, we are working AILA and
communicating with USCIS HQ. We
optimistically are hoping for a quick
resolution to the matter. Nevertheless,
the new H-1 quota opens on April 1 and
is expected to close on the same day
(i.e. more than the Congressional limit
of 65,000 visas will be filed on April
1).
Therefore, we have initiated discussions
with a law firm specializing in
administrative appeals and we are
pursuing our options in federal court.
We have been advised that we quickly
could seek declaratory
relief/preliminary injunction. HLG has
initiated discussion with impacted
clients and other immigration
attorneys. If we are to pursue this
action in federal court, we will need to
raise significant legal fees in order to
pay the attorneys to file the law suit.
In the action we will also seek EAJA
relief. EAJA relief may provide for
some or all of the professional fees to
be returned. If you have
been impacted by these decisions and
wish to join us in the lawsuit, please
contact
Chris Musillo or
Cindy Unkenholt.
We will likely have a call on Monday to
review the matter and talk about next
steps. We must know of all interested
parties by this Thursday, March 5.
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