Latest FAM Revision and Its Impact on B-2 Visa Applicants Planning to Take the NPTE

The Department of State (DOS) has recently revised the Foreign Affairs Manual (FAM), in particular 9 FAM 41.53 N4.1, the section regarding general licensure requirements for H-1B visas. The revision helps those applicants for tourist visas who seek to enter the United States to take the National Physical Therapy Examination (NPTE).

FAM is a reference guide for consular officers as they adjudicate visa applications for foreigners wishing to enter the United States on certain visas. The FAM is constantly updated in response to new policies, misinterpretations of current language, and to foster a clearer application of the law for consular officers. The issuance of tourist and H-1B visas by consular officers are guided in part by FAM.

When someone applies for a tourist visa, there should not be any immigrant intent, and the applicant should meet his burden of showing that he plans to go back to his home country after the temporary visit to the U.S. Prior to this revision by the DOS, consular officers, especially in the Philippines, have denied B-2 visa applications for those seeking to enter the U.S. to take that NPTE exam, even though the applicants intend to come back to their home countries after the NPTE exam, and then reapply at home for their H-1B visas. The revision corrects this misinterpretation by most consular officers.

The language is revised as follows for 9 FAM 41.53 N4.1 General Licensure Requirement for H Nonimmigrant: “The requirements for classification as an H-1B nonimmigrant professional may or may not include a license because States have different rules in this area. If a State permits aliens to enter the United States as a visitor to take a licensing exam, then USCIS will generally require a license before they will approve the H-1B petition. However, some States do not permit aliens to take licensing exams until they enter the United States in H-1B status and obtain a social security number. Therefore, a visa should not be denied based solely on the fact that the applicant does not already hold a license to practice in the United States.”

This revision helps those foreigners seeking to enter the U.S. to take a certain state or national exam in order for them to eventually by eligible for H-1B petitioning. Applicants and attorneys for these applicants are advised to include this new revision in application packets for the B-2 visas. Those who were denied previously may also reapply. Still take note though that other factors for the B-2 visa applications such as non-immigrant intent have to be met in order to get approved.

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