Mark A Ivener, A Law Corporation

USCIS Issues Guidance to Employers Whose H-1B Petitions for Health Care Specialty Occupations Are Denied


U.S. Citizenship and Immigration Services (USCIS) issued guidance on July 17, 2009, to certain employers who received a denial of Form I-129, Petition for Nonimmigrant Worker, requesting H-1B classification for a beneficiary to practice in a health care specialty occupation before May 20, 2009.

If the I-129 was denied solely on the basis that the beneficiary did not possess a master’s or higher degree in the field, the petition may be reopened on service motion and will be adjudicated in accordance with the May 20, 2009, memorandum on “Requirements for H-1B Beneficiaries Seeking to Practice in a Health Care Occupation” (PDF). That memo provides clarification on the standards for H-1B health care specialty occupations. USCIS will only review denials of petitions for which it has received a written request for review from the petitioning employer or its representative.

Employers whose I-129 petitions were denied on the above basis should send an e-mail to the USCIS Service Center that issued the denial to request review. An affirmative request for review from the petitioner or its representative is required to expedite this process, USCIS said. The agency said that it is providing a “special accommodation to the public” by initiating Service Motions to Reopen (upon receiving an e-mail request) in lieu of requiring petitioners to file an appeal. USCIS is not requiring petitioners to submit an appeal fee or any other fee in this instance.

Requests should include “PT/OT Service Motion Request” in the subject line of the e-mail, and will be accepted through August 14, 2009. Requests for review of H-1B health care specialty occupation petitions that were adjudicated at the California Service Center should be e-mailed to: csc-ncsc-followup@dhs.gov.
Requests for review of H-1B health care specialty occupation petitions that were adjudicated at the Vermont Service Center should be e-mailed to: vsc.ncscfollowup@dhs.gov.

Affected petitioners requesting USCIS review of their H-1B petitions are not required to submit a copy of the May 20, 2009, memorandum, but should explain how the beneficiary meets the standards set forth in that memorandum. Also, as with the reopening on a Service Motion, USCIS must be satisfied before approval that the beneficiary is currently eligible to practice in his or her respective health care occupation in the state of intended employment. USCIS advises petitioners to document this evidence. In any case where USCIS cannot make a final decision on the record before it, USCIS may request additional information. If the petition was denied upon additional grounds, or if the petitioner fails to submit requested evidence of the beneficiary’s continuing eligibility, the original denial of the case will be affirmed.

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Mark A. Ivener, A Law Corporation, a nationally recognized law firm, has successfully assisted hundreds of clients in immigration matters.

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