The Administrative Appeals Office has entered a ruling in an H1B appeal dealing with the definition of “specialty occupation” that seems a little odd to me. The case illustrates how important it is to carefully describe the job duties in H1B I-129 applications.
The beneficiary of the H1B petition at issue is to be employed as a “dental research assistant”. When the Service Center denied the petition on the grounds that “dental research assistant” is not a specialty occupation, the employer appealed the denial to the AAO.
The AAO noted that the many duties of the dental research assistant position as described by the employer included “assist dentist with diagnosis” of teeth and tissue problems and therefore the offered position “requires the beneficiary to perform duties normally performed by licensed dentists”. The AAO determined that the Service Center was wrong to have decided that the offered position was not a specialty occupation. So far so good for the beneficiary.
But the AAO then went on to hold that if the beneficiary was going to be performing the duties normally performed by a dentist, then the beneficiary had to satisfy the governmental licensing requirements for dentists. In California, where the Beneficiary is proposed to work, the law requires a license to practice dentistry so the AAO remanded the matter back to the Service Center to determine whether the Beneficiary has a license to practice dentistry.
Huh?
The AAO seems to have decided that someone who is being hired to assist a dentist with a dental diagnosis is, under California law, actually making the diagnosis and actually practicing dentistry and therefore needs a dental license.
If the Beneficiary had a license to practice dentistry presumably he or she would be hired by the employer as a dentist, not as a “dental research assistant”. Even if this particular Beneficiary does have a license to practice dentistry under California law but for some reason is only to be hired as a dental research assistant, presumably he or she still would have submitted evidence of that license to the Service Center. So we can safely assume that the Beneficiary does not, in fact, have such a license and will not, on remand to the Service Center, be able to satisfy his or her burden of proof.
The lesson in this case is that care always needs to be taken when filing an H1B petition in describing the duties of a specialty occupation so that the job is not a job that the Beneficiary clearly isn’t qualified for. It looks to me that such care was taken in this case—the listed job duties seem to plainly state that the dental research assistant will be assisting the dentist in the dentist’s diagnosis and not actually making the diagnosis themselves.
The remand looks like a hollow victory for the employer and the Beneficiary.
