There are certain specialty occupations that require the appropriate licensure in order to be able to perform the duties required on the job. For example, an attorney would need a license to practice law, an architect requires a license to provide architectural services, and an engineer requires the appropriate engineering license in order to be able to provide engineering services to clients.
H-1B regulations allow for one to work in a specialty occupation that requires licensure in two circumstances:
- Individuals (without a license) working under supervision of a licensed professional; and
- Position requires a license, but the individual has no license due to not having a social security number, employment authorization (to work in the U.S., or some other similar “technical requirement”
The first category will be carefully assessed by USCIS to determine where the individual under supervision fully perform the duties of the occupation. In order to make this determination, USCIS will look to evidence related to the nature of the duties and level at which they are performed, as well as evidence related to the identity, physical location, and credentials of the individual supervising the individual and evidence that the employer is in compliance with state requirements.
The second category involves situations where the individual is ready and able to obtain the required license except for the fact that he or she lacked a social security card, or the proper employment authorization to work in the U.S. (i.e. approved H-1B or other type of work status), or some other reason that can be mounted to a technical deficiency only. In such situations, H-1B can still approved but only for up to 1 year only. Thereafter, in order to be able to extend H-1B status, the individuals must either have obtained the license or by petitioning for another position that does not require a license.
Both situations allow for greater flexibility within the H-1B regulations for those who may not be licensed in certain occupational fields and who fit into one of the two categories outlined above to still be able to obtain H-1B status to work in a position that requires licensure.
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