dismissed H-1B Case: Respiratory Therapy

U.S. Department of Homeland Securitv 
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- 20 Masskhusetts Ave. N.W , Rm. ,43062 
Wash~ngton, DC 20529 
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--d~a:~d- U.S. Citizenship and Immigration 
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FILE: WAC 04 007 5068 1 Office: CALIFORNJA SERVICE CENTER Date: FE-j 0 3 2006 
PETITION: Petition for a Nonirnrnigrant Worker Pursuant to Section lOl(a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 5 1 lOl(a)(lS)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
WAC 04 007 50681 
Page 2 
DISCUSSION: The nonirnmigrant visa petition was denied by the Director, California Service Center, and is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. The petition will 
be denied. 
The petitioner is an independent contractor engaged in the business of supplying medical professionals to 
hospitals and other medical facilities. It desires to employ the beneficiary temporarily in the United States as a 
respiratory therapist, at an annual salary of $32,281, for three years. The director determined that the beneficiary 
did not hold the required state licensure from the State of California, and therefore, was not qualified to perform 
the duties of the proffered position. 
On appeal, counsel states that the license requirement is not an absolute rule for issuance of an H-1B visa. 
Counsel also states that the license requirement may be waived in order for the professional to take the state board 
examination for respiratory therapist. Counsel submits a brief to support his argument. 
Section lOl(a)(l5)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1 10l(a)( lS)(H)(i)(b), 
defines an H-l(b) temporary worker as: 
an alien . . . who is coming temporarily to the United States to perform services in a specialty 
occupation described in section 214(i)(l) . . . and with respect to whom the Secretary of Labor 
determines and certifies to the Attorney General that the intending employer has filed with the 
Secretary an application under section 212(n)(l). . . . 
Section 214(i)(l) of the Act, 8 U.S.C. 5 1184(i)(l), defines the term "specialty occupation" as an occupation that 
requires: 
(A) theoretical and practical application of a body of highly specialized knowledge, and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) 
as a minimum for entry into the occupation in the United States. 
Section 214(i)(2) of the Act, 8 U.S.C. 5 1184(i)(2), states that an alien applying for classification as an H-1B 
nonimrnigrant worker must possess: 
(A) full state licensure to practice in the occupation, if such licensure is required to 
practice in the occupation, 
(B) completion of the degree described in paragraph (l)(B) for the occupation, or 
(C) (i) experience in the specialty equivalent to the completion of such degree, and 
(ii) recognition of expertise in the specialty through progressively responsible 
positions relating to the specialty. 
WAC 04 007 5068 1 
Page 3 
The regulation at 8 C.F.R. $214.2(h)(4) states: 
(v) Licensure for H classij7cation - (A) General. If an occupation requires a state or local license 
for an individual to fully perform the duties of the occupation, an alien (except an H-1C nurse) 
seeking H classification in that occupation must have that license prior to approval of the petition 
to be found qualified to enter the United States and immediately engage in employment in the 
occupation. 
(B) Temporary licensure. If a temporary license is available and the alien is allowed to perform 
the duties of the occupation without a permanent license, the director shall examine the nature of 
the duties, the level at which the duties are performed, the degree of supervision received, and 
any limitations placed on the alien. If an analysis of the facts demonstrates that the alien under 
supervision is authorized to fully perform the duties of the occupation, H classification may be 
granted. 
The petitioner's foreign education has been determined by a credentials evaluation service to be equivalent to 
a Bachelor of Science degree in respiratory therapy from a regionally accredited institution of higher 
education in the United States. The State of California, the state in which the beneficiary would work as a 
respiratory therapist, requires that all respiratory therapists be licensed. See California Business and 
Professions Code, Section 3761. The record does not establish that the beneficiary possesses the required 
license, or is otherwise exempt from obtaining a license. The California Business and Professions Code does 
not allow the duties of the occupation to be performed with a temporary license. The beneficiary is, therefore, 
not qualified to enter the United States and immediately engage in employment as a respiratory therapist. 
8 C.F.R. 5 214.2(h)(4)(v)(A). 
Counsel asserts that until the beneficiary acquires a state license, he will work under the supervision and 
training of a licensed respiratory therapist. Counsel does not, however, offer any evidence in support of that 
position. The record does not establish that the beneficiary is authorized to work as a "respiratory care 
practitioner applicant" under the supervision of a licensed respiratory care practitioner prior to obtaining a 
license. A graduate of an approved respiratory care program who has filed an initial respiratory care 
practitioner application with the Board may, between the dates specified by the board, perform as a 
respiratory care practitioner applicant under the direct supervision of a respiratory care practitioner licensed in 
the state. See California Business and Professions Code, Section 3739 and 3740. The record does not 
establish that the beneficiary is a graduate of a respiratory care program approved by the Board, or that the 
beneficiary has filed a respiratory care practitioner application. The record of proceeding contains a letter 
dated July 15, 2003 from the licensing unit of the Respiratory Care Board (RCB) of California that states that 
the beneficiary's application for California licensure was returned to him. The letter also states that in order to 
practice respiratory care in California, you must possess a current and valid license issued by the RCB. The 
beneficiary is not qualified to work as a respiratory therapist in the State of California prior to receiving a 
license under 8 C.F.R. $ 214.2(h)(v)(A) or (C). As such, the beneficiary is not qualified to perform the duties 
of the proffered position as he does not possess required licensure for the position and is not authorized to 
otherwise work as a respiratory therapist. 
WAC 04 007 5068 1 
Page 4 
Beyond the decision of the director, the position does not qualify as a specialty occupation. The 
regulation at 8 C.F.R. 5 214.2(h)(4)(ii) provides that: 
Specialty occupation means an occupation which requires theoretical and practical 
application of a body of highly specialized knowledge in fields of human endeavor 
including, but not limited to, architecture, engineering, mathematics, physical 
sciences, social sciences, medicine and health, education, business specialties, 
accounting, law, theology, and the arts, and which requires the attainment of a 
bachelor's degree or higher in a specific specialty, or its equivalent, as a minimum 
for entry into the occupation in the United States. 
The regulation at 8 C.F.R. 5 214.2(h)(4)(iii)(A) establishes four standards, one of which an occupation must 
meet to qualify as a specialty occupation: 
(1) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its particular 
position is so complex or unique that it can be performed only by an individual with a 
degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
(4) The nature of the specific duties is so specialized and complex that knowledge 
required to perform the duties is usually associated with the attainment of a 
baccalaureate or higher degree. 
Citizenship and Immigration Services (CIS) interpret the term "degree" in the criteria at 8 C.F.R. 
5 214.2(h)(4)(iii)(A) to mean not just any baccalaureate or higher degree, but one in a specific specialty that is 
directly related to the proffered position. 
The record of proceeding before the AAO contains: (1) Form I-290B and supporting documentation; (2) the 
director's denial letter; (3) the director's request for additional evidence; (4) the petitioner's response to the 
director's request; and (5) Form 1-129 and supporting documentation. The AAO reviewed the record in its 
entirety before issuing the decision. 
The petitioner is seeking the beneficiary's services as a respiratory therapist. In determining whether a 
position qualifies as a "specialty occupation" for purposes of the nonirnrnigrant H-1B visa, CIS will examine 
whether there is a general requirement of specialized study for the position, coupled with whether the position 
has complex and discretionary duties normally associated with the position. Shanti, Inc. v. Reno, 36 F. Supp. 
2d 1151, 1165 (D. Minn. 1999). 
WAC 04 007 5068 1 
Page 5 
The beneficiary's specific duties are listed below: 
1. Administers respiratory therapy care and life support to patients with deficiencies and 
abnormalities of the cardiopulmonary system, under the medical direction and 
supervision in the treatment, management, control, diagnostic, evaluation and care of 
individuals with deficiencies and abnormalities associated with the cardiopulmonary 
system. 
2. Reads prescription, measures arterial blood gases and reviews patient information to 
assess patient condition and determine requirements for treatment, such as type and 
duration of therapy, medication and dosages. 
3. Determines most suitable method of administering inhalants, cautions to be observed and 
modifications which may be needed that will be compatible with medical orders. 
4. Sets up and operates devises, such as mechanical ventilators, therapeutic gas 
administration apparatus, environmental control systems, and aerosol generators. 
5. Operates equipment to ensure specified parameters of treatment, such as volume, gas 
concentration, humidity and temperature to administer medicinal gases and aerosol drugs 
to patients. 
6. Monitors patients physiological responses to therapy, such as vital signs, arterial blood 
gases and blood chemical changes. 
7. Performs bronchopulmonary drainage and assists patient in performing breathing 
exercises. 
8. Performs pulmonary function tests to be used by physician in diagnosis of case. 
9. Observes equipment function and adjusts equipment to obtain optimum results to therapy. 
10. Consults with physician in event of adverse reactions. 
11. Maintains patient's charts that contain pertinent identification and therapy information. 
12. Inspects and tests respiratory equipment to ensure equipment is functioning safely and 
efficiently and orders repairs when needed. 
13. Demonstrates respiratory care procedures to trainees and other health personnel. 
WAC 04 007 50681 
Page 6 
Counsel states that the petitioner has made a bachelor's degree in respiratory therapy a mandatory condition 
to perform the responsibilities as one of its respiratory therapists. Upon review of the record, the petitioner has 
established none of the four criteria outlined in 8 C.F.R. 5 214.2(h)(4)(iii)(A). 
The AAO turns first to the criteria at 8 C.F.R. $ 214.2(h)(4)(iii)(A)(l) and (2): a baccalaureate or higher 
degree or its equivalent is the normal minimum requirement for entry into the particular position; a degree 
requirement is common to the industry in parallel positions among similar organizations; or a particular 
position is so complex or unique that it can be performed only by an individual with a degree. 
Factors often considered by CIS when determining these criteria include: whether the Department of Labor's 
Occupational Outlook Handbook (Handbook) reports that the industry requires a degree; whether the industry's 
professional association has made a degree a minimum entry requirement; and whether letters or affidavits from 
firms or individuals in the industry attest that such firms "routinely employ and recruit only degreed individuals." 
See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1 15 1, 1 165 (D. Minn. 1999)(quoting Hird/Blaker Corp. v. Sava, 712 F. 
Supp. 1 095, I 102 (S.D.N.Y. 1989)). 
The AAO routinely consults the (Handbook) for its information about the duties and educational requirements 
of particular occupations. The duties of the proffered position are those of a respiratory therapist. The 
Handbook notes that training to become a respiratory therapist is offered at the postsecondary level by 
colleges and universities, medical schools, vocational and technical institutes, and the Armed Forces. The 
Handbook also states that an associate degree has become the general requirement for entry into this field. 
Further, the petitioner has not demonstrated that to perform the duties of the proffered position, an individual 
requires a bachelor's degree. The California Business and Professions Code at section 3740 indicates that an 
associate degree in respiratory therapy is sufficient to obtain a license as a respiratory therapist. Thus, the 
information contained in the record of proceeding does not establish that the position is a specialty occupation 
under the first criterion at 8 C.F.R. $ 214.2(h)(4)(iii)(A). 
The record does not include any evidence that a degree requirement is common to the industry in parallel 
positions among similar organizations. The record does not include any evidence from professional 
associations regarding an industry standard, or documentation to support the complexity or uniqueness of the 
proffered position among similar organizations. Thus, the petitioner has not established that the position is a 
specialty occupation under the first alternative prong of 8 C.F.R. 5 214.2(h)(4)(iii)(A)(2). 
The petitioner has not satisfied the second alternative prong of 8 C.F.R. 5 214.2(h)(4)(iii)(A)(2), which 
provides a petitioner the opportunity to show that its particular position is so complex or unique that it can be 
performed only by an individual with at least a bachelor's degree in a specific specialty. The petitioner has 
not established that the proposed duties require a bachelor's degree in respiratory therapy. The petitioner has 
not distinguished the position as unique from or more complex than a respiratory therapist, a position which 
the Handbook indicates requires an associate degree. 
The petitioner asserts that it normally requires an individual with a bachelor's degree for entry into the 
proffered position. The petitioner offers no evidence to establish its past hiring practices for this position, and 
on appeal, counsel states that this is a new position created by the petitioner. Therefore, the petitioner has not 
WAC 04 007 50681 
Page 7 
shown that persons holding bachelor's degrees in a specific specialty were previously routinely hired for the 
proffered position. The petitioner has not established the third criterion at 8 C.F.R. fj 2 14.2(h)(4)(iii)(A). 
Finally, to the extent that they are depicted in the record, the duties of the proffered position are not so 
specialized and complex that the knowledge required to perform the duties is usually associated with the 
attainment of a baccalaureate or higher degree, or its equivalent, in a specific specialty. The Handbook shows 
that the duties of the proffered position are regularly performed by an individual with less than a 
baccalaureate level education. Therefore, the petitioner has not established the fourth criterion of 8 C.F.R. tj 
2 14.2(h)(4)(iii)(A). 
As related in the discussion above, the petitioner has not established the proffered position is a specialty 
occupation. For this additional reason, the petition may not be approved. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Immigration and 
Nationality Act, 8 U.S.C. § 136 1. Here, the petitioner has not met that burden. 
ORDER: The appeal is dismissed. The petition is denied