remanded H-1B Case: Medicine

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PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
FILE: WAC 04 249 52 191 Office: CALIFORNIA SERVICE CENTER Date: MAR 2 2 ~1~06 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section I Ol(a)(l S)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. $ 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. 
2zkd24f~w Robert P. Wiemann, Di ct 
Administrative Appeals dice 
WAC 04 249 52191 
Page 2 
DISCUSSION: The director of the service center denied the nonirnmigrant visa petition and the matter is now 
before the Administrative Appeals Office (AAO) on appeal. The director's decision is withdrawn and the 
petition remanded for entry of a new decision. 
The petitioner is a medical and service company that seeks to employ the beneficiary as a medical research 
assistant. The petitioner, therefore, endeavors to classify the beneficiary as a nonimmigrant worker in a 
specialty occupation pursuant to section lOl(a)(lS)(H)(i)(b) of the Immigration and Nationality Act (the Act), 
8 U.S.C. $ 1 lOl(a)(lS)(H)(i)(b). 
The director denied the petition because the proffered position is not a specialty occupation. On appeal, 
counsel submits a brief and additional and previously submitted evidence. 
Section 214(i)(l) of the Act, 8 U.S.C. $ 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. 
Pursuant to 8 C.F.R. $ 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, the position must meet one of the 
following criteria: 
(I) 
 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) interprets the term "degree" in the criteria at 8 C.F.R. 
$ 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 1-129 and supporting documentation; (2) the 
director's request for additional evidence; (3) the petitioner's response to the director's request; (4) the 
WAC 04 249 52191 
Page 3 
director's denial letter; and (5) Form I-290B and supporting documentation. The AAO reviewed the record in 
its entirety before issuing its decision. 
The petitioner is seeking the beneficiary's services as a medical research assistant. 
 Evidence of the 
beneficiary's duties includes: the Form 1-129; the attachments accompanying the Form 1-129; the petitioner's 
support letter; and the petitioner's response to the director's request for evidence. According to this evidence, 
the beneficiary would perform duties that entail reviewing medical journals regarding health issues and 
developments that may be relevant to patients; eliciting detailed histories from patients, finding the details of 
the patients' past illness history and current symptoms; under the physician's request, conducting radiologic 
tests; reviewing patients' charts and researching medical literature and then discussing with physicians the 
possible diagnosis for unusual cases and suggesting possible tests and procedures that may be relevant to the 
diagnosis; and discussing the possible diagnosis with the physician to ensure correct diagnostic needs for each 
patient. The petitioner requires a baccalaureate degree for the proposed position. 
In denying the petition, the director stated that the proposed position resembles a medical assistant and 
radiographer as those occupations are described in the Department of Labor's Occupational Outlook 
Handbook (the Handbook), and that the Handbook discloses that those occupations do not require a 
bachelor's degree in a specific specialty. The director stated that although the Handbook reveals that a 
physician assistant takes medical histories of patients, the majority of the proposed duties do not resemble 
those of a physician assistant. A medical research assistant, the director stated, is normally associated with a 
medical scientist that works in a research and development field. The director found that the record did not 
show the petitioner as engaging in clinical studies or laboratory research. According to the director, the 
proposed duties are generic in nature, providing no detail as to the unique, complex, or specialized nature of 
the beneficiary's position. 
On appeal, counsel states that the director arbitrarily and erroneously classified the proposed position as that 
of a medical assistant. Counsel states that the petitioner is the largest medical services provider in its field, 
primarily targeting the Chinese community in southern California. Counsel asserts that by requiring a 
bachelor's degree (or its equivalent) the petitioner minimizes medical malpractice lawsuits. Counsel states 
that CIS previously approved an H-1B petition filed by the petitioner on behalf of the beneficiary for the same 
position. According to counsel, the petitioner recently hired a person holding a bachelor's degree in radiation 
sciences to occupy a medical research assistant position. Counsel maintains that the proposed duties are 
specialized, complex, and unique, requiring a bachelor's degree or its equivalent. Counsel asserts that the 
beneficiary is qualified for the proposed position and that CIS previously reached this conclusion. 
Upon review of the record, the petitioner has established one of the four criteria outlined in 8 C.F.R. 
5 2 14.2(h)(4)(iii)(A). Therefore, the proffered position is a specialty occupation. 
The AAO finds that the petitioner satisfied the regulation at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(4): that the nature 
of the specific duties is so specialized and complex that the knowledge required to perform them is usually 
associated with the attainment of a baccalaureate or higher degree. The AAO finds that the proposed position 
is comprised of the duties of a radiologic technologist and technician and a physician assistant (PA), as those 
WAC04249 52191 
Page 4 
occupations are depicted in the Handbook. The Handbook's information relating to a radiologic technologist 
and technician is as follows: 
Radiologic technologists and technicians take x rays and administer nonradioactive materials 
into patients' bloodstreams for diagnostic purposes. Some specialize in diagnostic imaging 
technologies; such as computerized tomography (CT) and magnetic resonance imaging 
(MRI). 
In addition to radiologic technologists and technicians, others who conduct diagnostic 
imaging procedures include cardiovascular technologists and technicians, diagnostic medical 
sonographers, and nuclear medicine technologists. (Each is discussed elsewhere in the 
Handbook.) 
Radiologic technologists and technicians, also referred to as radiographers, produce x-ray 
films (radiographs) of parts of the human body for use in diagnosing medical problems. They 
prepare patients for radiologic examinations by explaining the procedure, removing articles 
such as jewelry, through which x rays cannot pass, and positioning patients so that the parts 
of the body can be appropriately radiographed. To prevent unnecessary exposure to radiation, 
these workers surround the exposed area with radiation protection devices, such as lead 
shields, or limit the size of the x-ray beam. Radiographers position radiographic equipment at 
the correct angle and height over the appropriate area of a patient's body. Using instruments 
similar to a measuring tape, they may measure the thickness of the section to be radiographed 
and set controls on the x-ray machine to produce radiographs of the appropriate density, 
detail, and contrast. They place the x-ray film under the part of the patient's body to be 
examined and make the exposure. They then remove the film and develop it. 
Experienced radiographers may perform more complex imaging procedures. For 
fluoroscopies, radiographers prepare a solution of contrast medium for the patient to drink, 
allowing the radiologist (a physician who interprets radiographs) to see soft tissues in the 
body. Some radiographers, called CT technologists, operate CT scanners to produce cross- 
sectional images of patients. Radiographers who operate machines that use strong magnets 
and radio waves, rather than radiation, to create an image are called MRZ technologists. 
Radiologic technologists and technicians must follow physicians' orders precisely and 
conform to regulations concerning the use of radiation to protect themselves, their patients, 
and their coworkers from unnecessary exposure. 
In addition to preparing patients and operating equipment, radiologic technologists and 
technicians keep patient records and adjust and maintain equipment. They also may prepare 
work schedules, evaluate purchases of equipment, or manage a radiology department. 
WAC 04 249 52 19 1 
Page 5 
According to the Handbook, a bachelor's degree is not required for radiologic technologists and technicians. 
The AAO finds that the proposed duties corresponding to a PA involve eliciting detailed histories of patients, 
reviewing patient charts and researching medical literature, discussing with physicians to consider possible 
diagnosis for unusual cases, and suggesting possible tests and procedures that may be relevant to the 
diagnosis. The Handbook describes a PA as "working as members of the health care team, they take medical 
histories, examine and treat patients, order and interpret laboratory tests and x rays, and make diagnoses." 
According to the Handbook, all states require that PAS complete an accredited, formal education program and 
pass a national exam to obtain a license. The Handbook states: 
PA programs usually last at least 2 years and are full time. Most programs are in schools of 
allied health, academic health centers, medical schools, or 4-year colleges; a few are in 
community colleges, the military, or hospitals. Many accredited PA programs have clinical 
teaching affiliations with medical schools. 
In 2005, more than 135 education programs for physician assistants were accredited or 
provisionally accredited by the American Academy of Physician Assistants. More than 90 of 
these programs offered the option of a master's degree, and the rest offered either a 
bachelor's degree or an associate degree. Most applicants to PA educational programs already 
have a bachelor's degree. 
Based on the Handbook's information and the submitted evidence, the AAO finds that the proposed position 
qualifies as a specialty occupation. 
1 
The AAO must now consider whether the beneficiary is qualified for the proposed position. 
The record contains a letter from Loma Linda University, which is located in California. The letter states that 
the beneficiary was lacking one unit to complete her bachelor of science degree in radiation and that she "has 
completed that unit and will soon be receiving her diploma." The record shows that the beneficiary 
completed an associate in science degree from Loma Linda University; completed four years of 
undergraduate study at Pasadena City College in California towards the U.S. degree of associate in science 
with a major in applied liberal arts studies and the U.S. certificate in radiologc technology. The record 
reflects that the beneficiary was granted certification as a radiographer by The American Registry of 
Radiologic Technologists. The beneficiary completed three years of employment with the petitioner. No 
The AAO notes that CIS previously approved another petition that had been filed on behalf of the 
beneficiary by the petitioner. Each nonimmigrant petition is a separate proceeding with a separate record. See 
8 C.F.R. 9 103.8(d). In making a determination of statutory eligibility, CIS is limited to the information 
contained in the record of proceeding. See 8 C.F.R. 9 103.2(b)(16)(ii). For this reason, the AAO cannot 
determine the specific grounds for which CIS granted the prior petition. 
WAC 04 249 52191 
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evidence contained in the record, however, demonstrates that the beneficiary has licensure to perform the 
duties of PA in California. The director must afford the petitioner reasonable time to provide evidence 
pertinent to the issue of whether the beneficiary is qualified to perform the duties of a PA, and any other 
evidence the director may deem necessary. The director shall render a new decision based on the evidence of 
record as it relates to the regulatory requirements for eligibility. As always, the burden of proving eligibility 
for the benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. 
ORDER: 
 The director's November 5, 2004 decision is withdrawn. The petition is remanded to the 
director for entry of a new decision, which if adverse to the petitioner, is to be certified to the 
AAO for review.