When a US Consulate misinterprets a regulation created by another government agency and begins to apply it improperly, the impact is far-reaching and we are currently seeing an example of that from the US Consulate in Manila.  According to the FSBPT, over 1,000 qualified physical therapists have been authorized to take the NPTE exam being offered in May and many of those candidates are from the Philippines.  The test is only being offered in the US and passage of the test is a requirement to obtain a US PT license, obtain an H-1b, and ultimately work as a PT in the U.S.  In years past, test-takers would routinely seek a B visa (visitor’s visa) from the Consulate and barring other non-qualifying factors, the B visas were issued as matter of routine.  Last week, all of that changed. The Manila Consulate, citing an internal guideline 9 FAM 41.53 N4.1 is taking the position that a U.S. license is no longer required for the USCIS to issue an H-1b visa. This interpretation is in direct contradiction of regulations issued by the USCIS at 8 CFR 214.2 (h)(4)(v) which specifically state “If an occupation requires a state or local license for an individual to fully perform the duties of the occupation, an alien seeking H classification in that occupation must have that license prior to approval of the petition” Granted, the USCIS has carved out several exceptions to this regulation, most notably, allowing persons who have met all licensure requirements except the issuance of a social security number (which can only be issued once someone arrives in the U.S. and is authorized to work, thereby creating a catch 22 situation, solved by the created exception) to be approved for an H-1b. The exceptions, which were memorialized in 2 memos, Velarde, May 2009 and Neufeld, March 2008 did NOT invalidate the essential requirement contained in the regulation; that being, a license is required to obtain an H-1b for a PT. A regulation can’t be invalidated by a memo or by an internal guideline and certainly a regulation created by the USCIS can’t be invalidated by the Department of State.  Unfortunately, that is precisely what has occurred, as the Manila Consulate has taken the position that 8 CFR 214.2 (h)(4)(v) no longer exists and thus if there is no longer the need for a license to obtain an H-1, there is no longer the need to take and pass the NPTE and thus, no longer the need to be issued a B visa. Did you follow the bouncing ball and note that the action of the refusal to issue a B visa is predicated on faulty information and a misinterpretation of a sister government agency’s regulation.  We have sought the direct intervention of the USCIS among others, to address this issue and we remain hopeful that the Manila Consulate, after a more thorough review of this issue will reach the conclusion that their interpretation of the USCIS regulation is overly broad and frankly, let me just say it, wrong. We are urging the Manila Consulate to immediately resume the processing and issuance of B visas to otherwise, qualified test-takers. The failure by the Manila Consulate to do the right thing and follow the law will result in a major impact to many US hospitals, rehab facilities, and PT travel companies literally costing millions of dollars. In addition, the hopes and dreams of Filipino PT’s seeking to work in the U.S. will be destroyed.