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Inge Larish focuses her practice on patent litigation and has more than 20 years of national patent litigation and other intellectual property litigation experience, including International Trade Commission (ITC) investigations. She has litigated patent cases in a number of diverse technologies, including computer-aided design, software, computer architecture, signal processing, semiconductors, LEDs, digital and mechanical devices, and optics; wireless communications devices, including LTE, LTEA, CDMA, EVDO, WCDMA, 802.11 and Bluetooth; communication network architectures; electro-optic systems and devices; audio and video processing algorithms (MPEG4, H.264, MP3); GPS; and chemical compounds. Inge has experience in all stages of patent litigation, through trial and appeal, claim construction briefs and hearings, technical and expert depositions, hearings, expert reports, Daubert hearings, interlocutory appeals, preliminary injunctions including direct examination and crossexamination of witnesses, summary judgment practice including oral argument, pre- and post-trial motion practice, and appellate practice. She also has experience in trade secret and unfair competition litigation and in trademark and copyright litigation. Her national litigation experience includes trial and lead counsel experience.
Inge has a master's in engineering from the University of Illinois. Her experience also includes programming in C and Pascal. She is a former NASA fellow for display research and design. Inge was the articles editor of the University of Illinois Law Review and a member of the Law Review from 1992 to 1994. She is a recipient of the University of Illinois Rickerts Award for Excellence in Legal Writing and of AmJur awards in property, civil litigation, and torts. She received honors in moot court and high honors in legal writing. Prior to law school, Inge earned a NASA postbaccalaureate research fellowship and a graduate student award from the Society for Information Display for her research on heads-up displays in aviation. She was a law clerk to the Honorable Paul Michel (ret.) of the U.S. Court of Appeals for the Federal Circuit.
In the Matter of Certain Wireless Devices, Including Mobile Phones and Tablets II, Inv. No.337-TA-905 Case lead for Liability and Tech. D.I. in representation of Respondent ZTE Corporation and ZTE (USA) Inc. in patent litigation before the International Trade Commission. Hearings, discovery, depositions, claim construction, case management and strategy, expert reports.
VStream Technologies LLC v. LG et al., Civil Action No. 6:14-cv-00296 (E.D. Tex.) Case lead – representation of ZTE in patent litigation. First-chair hearings, discovery, claim construction, case management, mediation.
Personal Audio v. Acer et al., Civil Action No. 6:14-cv-00008 (E.D. Tex.) Case lead – representation of ZTE in patent litigation; first-chair claim construction hearing, hearings, discovery, claim construction, case management.
Adaptix v. ZTE Corp. , ZTE (USA) Inc., Boost Mobile LLC, et al.,Civil Action Nos. 5:15-cv-165 (N.D. Cal.); 6:14-cv-443 (E.D.Tex.) Case lead – representation of ZTE in patent litigation. Obtained transfer to N.D. Cal. from E.D. Tex. Discovery, Markman claim construction, firstchair hearings in Northern District of California, discovery, claim construction, case management and strategy.
Adaptix v. ZTE Corp., ZTE (USA) Inc., Sprint Spectrum LP, et al.,Civil Action Nos. 5:15-cv-166, (N.D. Cal.); 6:14-cv-444 (E.D.Tex.) Case lead – representation of ZTE in patent litigation. Obtained transfer to N.D. Cal. from E.D. Tex. Discovery, Markman claim construction, firstchair hearings in Northern District of California, case management and strategy.
Adaptix v. ZTE Corp., ZTE (USA) Inc., T-Mobile USA, Inc., et al.,Civil Action Nos. 5:15-cv-167 (N.D. Cal.); 6:14-cv-445 (E.D.Tex.) Case lead – representation of ZTE in patent litigation. Obtained transfer to N.D. Cal. from E.D. Tex. Discovery, Markman claim construction, firstchair hearings in Northern District of California, case management and strategy.
Adaptix v. ZTE Corp., ZTE (USA) Inc.,U.S. Cellular Corp., et al.,Civil Action Nos. 5:15-cv-168 (N.D. Cal.); 6:14-cv-446 (E.D.Tex.) Case lead – representation of ZTE in patent litigation. Obtained transfer to N.D. Cal. from E.D. Tex. Discovery, Markman claim construction, firstchair hearings in Northern District of California, case management and strategy.
Novatel Wireless, Inc. v. ZTE Corp. et al., 3:12-cv-02576-CAB-JMA (S.D. Cal.) Representation of ZTE in patent litigation. Co-first-chair claim construction hearing, depositions, case management and strategy, expert reports.
Super Interconnect Technologies LLC v. ZTE (USA) Inc., Civil Action No. 6:13-cv-740-KNM (E.D. Tex.) Case lead – representation of ZTE in patent litigation.
Cellular Communications Equipment v. ZTE Corp. et al., Civil Action No. 6:13-cv-511-LED (E.D. Tex.) Representation of ZTE in patent litigation. Hearings, discovery, claim construction, case management.
SPH America LLC v. ZTE Corp. et al., Civil Action No. 3:13-cv-2326 (S.D. Cal.) Representation of ZTE in patent litigation. Hearings, discovery, claim construction, case management.
Cellular Communications Equipment v. HTC Corp. et al., Civil Action No. 6:13-cv-507-LED (E.D. Tex.) Representation of HTC in patent litigation. First-chair hearings, discovery, claim construction, case management.
Cellular Network and Selection LLC v. ZTE Corp. et al., Civil Action No. 6:13-cv-403 (E.D. Tex.) Representation of ZTE in patent litigation. Discovery, claim construction, case management.
Hybrid Audio LLC v. HTC et al., Civil Action No. 6:11-cv-195-LED (E.D. Tex.) Case lead – represented HTC in patent litigation, first-chair hearings, discovery, claim construction, case management, expert reports.
Wi-Lan, Inc. v. Research in Motion et al., Civil Action No. 2:08-CV-247- TJW (E.D. Tex.) Represented PCD in patent litigation.
Wi-Lan, Inc. v. Alcatel-Lucent USA, Inc. et al., Civil Action No. 6:10-CV- 521-LED (E.D. Tex.) Represented HTC America, Inc., in patent litigation.
Synergy Tech & Design Inc. d/b/a Road Armor v. Jim Terry et al., Civil Action No. CV-06-02073 (JSW) (N.D. Cal.) Trial and counsel representing Synergy Tech in copyright, trademark, trade secret and breach of contract matter, including successful defense of counterclaims and motion for disqualification. First-chair hearings in Northern District of California. Successful settlement at mediation prior to trial.
EInstruction v. Qwizdom, Civil Action No. CV-05-0470LED, (E.D. Tex.) Lead counsel representing Qwizdom in patent litigation on defense of infrared remote feedback used in interactive software for classroom technology. First-chair hearings in Eastern District of Texas, successful settlement.
Grand Slam Club v. Int’l Sheep Hunters Assoc., Inc., Civil Action No. CV-06-4643-VEH (N.D. Ala.) Trial and lead counsel representing Grand Slam Club. Successfully obtained preliminary injunction for trademark infringement after two-day evidentiary hearing; trial/first-chair hearings including preliminary injunction.
Modular Arts, Inc. v. TVSA et al,. CV-06-00662-JLR (W.D. Wash.) Trial and lead counsel representing Modular Arts for copyright infringement. Successful settlement for maximum award for copyright infringement.
technology, including briefing and first-chair hearing on claim construction to obtain favorable ruling on all argued claims for Kershaw.
The Topline Corp. v. Dynasty Footwear et al., Civil Action No. CV-06- 1126-JLR (W.D. Wash.) Represented Topline in patent infringement on process for electrostatic fiber shoe outsole technology.
Seattle Pacific Indus, Inc. v. Melmarc Prod., Inc., CV-06-9834-RSM (W.D. Wash.) Lead counsel representing Seattle Pacific Industries for contract dispute over trademark license. Successful settlement at mediation.
Telegenix v. Texas Digital, Appeal No. 02-1032 (Fed. Cir.) Drafted appellate briefing for Texas Digital on appeal of matter to Federal Circuit in seminal case on claim construction; motion practice in Court of Appeals for the Federal Circuit.
Texas Digital v. Telegenix, Civil Action No. 3:98-CV-1537-R (N.D. Tex.) Trial counsel in successful four-week patent litigation trial on four digital display patents resulting in judgment for Texas Digital for $15 million. Motion practice, hearings, expert reports, depositions and all briefing, including summary judgment briefing; Daubert hearing and pre- and post-trial briefing.
Texas Instruments, Inc. v. Hyundai, Electronics Indus. Co., Ltd., Hyundai Electronics America, Inc., and Hyundai Semiconductor America, Inc., Civil Action No. 2:98 CV 73, 74 Represented Texas Instruments as part of a core team of attorneys in a series of 13 patent infringement actions growing out of the expiration of Hyundai’s license under TI patents, including patents for memory and ESD circuits (see 42 F. Supp. 2d 660 (E.D. Tex. 1999) and 49 F. Supp. 2d 893 (E.D. Tex. 1999)). In the first of the cases to be tried, the jury awarded TI $25 million plus willfulness damages. TI then moved for an injunction. The case settled before the judge ruled on the injunction issue with Hyundai taking a nonexclusive license and committing to royalty payments in excess of $1 billion.
Texas Instruments, Inc. v. Samsung, Civil Action Nos. 2:96-CV-1 and 2:96-CV-2 (E.D. Tex.) Represented Texas Instruments as part of a core team of attorneys in patent infringement cases against various Samsung products made by processes that infringed TI semiconductor patents, resulting in Samsung’s agreement to pay TI in excess of $1 billion in royalties over 10-year period.
Perma-Chink v. Nisus (In re Perma-Chink) Appeal No. 2004-M768 (Fed. Cir.) Represented Perma-Chink in a 1292(b) interlocutory appeal to Federal Circuit Court of Appeals; Federal Circuit granted Petition for interlocutory appeal on issues relating to assignor estoppel.
Southern Audio Services v. JBL, Appeal No. 00-1085, 2000 WL 34003538 (Fed. Cir.) Drafted successful appellate brief for JBL to Federal Circuit Court of Appeals; court affirmed summary judgment on Rule 36 summary disposition.
JBL v. Southern Audio Services, Civil Action No. 96-58-B-M2 (M.D. La.) Defended JBL against claims of infringement of a patent related to speaker design, drafted winning summary judgment brief in district court.
Hewlett-Packard v. Intergraph Hardware Technologies Co, Intergraph Corp. v. Dell Computer Corp., Civil Action No. 2:02CV 312 (E.D. Tex.); Civil Action No. 3:03-cv-02517-MJJ (N.D. Cal.) Represented Intergraph as part of core team of attorneys in patent infringement suits on patents relating to computer systems and cache memory coherency.

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*1 BLANSETT PHARMACAL CO., INC.
A petition was filed to cancel a registration of the mark NOLEX for a pharmaceutical composition for the treatment of nasal congestion. [FN1] The grounds for cancellation are that respondent's mark so resembles the mark NALEX previously used by petitioner for pharmaceuticals and related goods as to be likely to cause confusion, mistake or deception.
Respondent admits that the goods of the parties are closely related but denies the remaining allegations of likelihood of confusion. Affirmatively pleading, respondent asserts that it is the owner of the registered marks NOLAMINE [FN2] and NOLAHIST [FN3] for related goods; that NOLEX is a natural extension of respondent's NOL-prefixed family of marks which precedes petitioner's existence; that if NOLEX and NALEX are confusingly similar then petitioner's mark is also confusingly similar to respondent's other registered marks and petitioner cannot claim additional injury from the latest mark; that petitioner has known of respondent's use of NOLEX for a long time and has never objected to it; that as a result of petitioner's failure to object or to oppose its registration, respondent has made substantial investment in promotion of its mark; and that petitioner is not entitled to relief by virtue of laches and estoppel.
Petitioner has filed a motion for summary judgment on the ground that all material facts are established by the supporting declarations filed in connection therewith and by the copy of respondent's registration, also submitted with the motion. Both parties have filed briefs on the motion.
It is asserted that petitioner first became aware of respondent's mark in 1990; that an investigation ensued and respondent was sent a cease and desist letter on May 1, 1990; that settlement negotiations were attempted through August 1990 and, when they were unsuccessful, this petition to cancel was filed.
Petitioner states that, since September 1982, it has used the mark NALEX for nasal decongestant pharmaceuticals similar to those that respondent has marketed under the mark NOLEX since December 21, 1988; that the marks are almost identical and the products marketed under them are pharmaceuticals of similar composition giving rise to a substantial possibility of confusion; that, in the absence of any restrictions in the identification of goods as to trade channels or customers, it is presumed that they are the same for both parties' goods; that in response to a request for opinions from physicians, petitioner received letters from several doctors stating that the use of these similar marks for similar pharmaceuticals is confusing; and that pharmacists have related specific incidents of confusion. The slight difference in these marks is a single letter, argues petitioner, making them similar in sight and sound, a similarity that makes them difficult to distinguish in a handwritten prescription. Petitioner argues that confusion is not only likely, but can be dangerous to public health and safety because two of petitioner's NALEX products contain narcotic elements which many patients should not receive. It is further asserted that respondent's defense of laches cannot bar cancellation of respondent's mark due to the certainty of confusion. Since there are no material issues in dispute, argues petitioner, it is entitled to summary judgment in its favor.
*2 The motion is supported by the declarations of Larry A. Blansett, President of Blansett Pharmacal Company, Inc. and of Daniel J. Manelli, petitioner's attorney and exhibits filed in connection therewith.
In response to the motion, [FN4] respondent argues mainly that the motion is untimely in that it was filed three days before the opening of petitioner's testimony period and that petitioner filed supplemental affidavits of its president and its counsel on August 26, 1991, the first business date of the testimony period. It is respondent's position that the Board should in its discretion deny the motion as untimely.
Respondent asks that, in connection with the question of the motion's timeliness, the Board consider that, if the motion had been filed at the time petitioner answered respondent's interrogatories on May 14, 1991 or at any time within the following two months, respondent would have had the opportunity to take the depositions of the pharmacists quoted by petitioner's president in his declaration; that the doctors' letters to petitioner, which petitioner's president introduces with his declaration, were not produced when respondent's counsel inspected petitioner's documents and deposed petitioner on May 23, 1991 and were not produced to respondent until after discovery closed; and that respondent was therefore precluded from deposing the named pharmacists and doctors. It is asserted that, in any event, the statements attributed to pharmacists as to occurrences of actual confusion and the letters from doctors expressing their views on the likelihood of confusion are hearsay and should not be allowed.
Respondent goes on to assert that there is evidence of substantial contemporaneous use without any instance of actual confusion, supporting a finding of no likelihood of confusion; that the market has been thoroughly tested; that more than fourteen million NOLEX tablets have been distributed since December of 1988 and respondent has not received word of a single instance of actual confusion; that petitioner has not put in the record any evidence of the other factors that the Board traditionally examines, such as the degree of care exercised by those who deal in these goods or the distinctiveness of petitioner's mark; and that petitioner has not addressed the issue of the public perception of NOL-prefixed marks as identifying respondent due to its use of such marks predating petitioner's claimed date of adoption of NALEX. For the foregoing reasons, respondent urges the Board to deny petitioner's motion.
The response to the motion is supported by the declaration of Fredric B. Weinstein, Vice-President of Technical Services of Carnrick Laboratories, Inc., who attests that respondent is the owner of valid and subsisting registrations for the marks NOLAMINE and NOLAHIST; that respondent selected the mark NOLEX believing that it would be associated with its pre-existing and continuing NOLAMINE and NOLAHIST product line; and that, despite respondent's continuous use of the mark NOLEX since December 1988, there have been no instances of confusion reported. Also filed in support of respondent's position were copies of the aforementioned registrations, the declaration of respondent's attorney identifying exhibits attached thereto, which consist of copies of portions of respondent's interrogatories with petitioner's responses thereto, and copies of portions of the discovery deposition of Mr. Blansett.
*3 Summary judgment is an efficient and approved procedure for disposing of cases in which there are no genuine issues of material fact in dispute, thereby allowing judgment to be rendered as a matter of law. See Pure Gold, Inc. v. Syntex (U.S.A.) Inc., 739 F.2d 624, 222 USPQ 741 (Fed.Cir.1984). While the initial burden on such a motion is on the movant, if the movant supports his position, the respondent must come forward with specific materials of his own to show that there are triable issues of fact or he must demonstrate why he cannot do so.
Petitioner has provided proof sufficient to illustrate that there are no genuine issues of material fact outstanding. In response, respondent has failed to demonstrate that such issues exist. Instead, respondent has challenged the timeliness of petitioner's motion and petitioner's standing, raised a question regarding the possibility that petitioner has somehow acted irresponsibly or perhaps illegally in producing its products, and has raised questions regarding the probative value of the alleged evidence of actual confusion by pharmacists and the authenticity and timeliness of the letters from doctors regarding the likelihood of confusion. In addition, respondent has offered its own declaration concerning the absence of actual confusion, has remarked that petitioner has submitted no evidence concerning other factors such as the degree of care exercised by persons dealing in the goods and has asserted that respondent has not even addressed the issue of public perception of NOL-prefixed marks as identifying respondent, owing to its prior use of other NOL-prefixed marks. None of the foregoing raises a genuine issue of material fact.
The rule applicable to the timeliness of summary judgment motions in Board proceedings requires that such a motion be filed prior to the commencement of the first testimony period and provides that the Board may deny as untimely any motion for summary judgment filed thereafter. See Rule 2.27(e)(1). Inasmuch as petitioner's motion was filed before the commencement of its testimony period, it was timely.
With respect to respondent's argument that it was denied discovery of the doctors and pharmacists named by petitioner in connection with its motion, if respondent found itself unable to respond to the motion as a result of that denial of discovery, respondent had the alternative of filing a motion under Rule 56(f) of the Federal Rules of Civil Procedure for a continuance to permit discovery to be taken before responding to the motion. In the absence of such a motion, it is presumed that respondent did not consider such discovery essential to its response.
*4 Petitioner's standing has been shown by the evidence of its use of the mark NALEX on a pharmaceutical which establishes petitioner's real interest in the matter and that there is a real and rational basis for its belief that petitioner is or will be damaged by the continued existence of respondent's registration. See International Order of Job's Daughters v. Lindeburg & Co., 727 F.2d 1087, 220 USPQ 1017 (Fed.Cir.1984). Petitioner's standing to challenge respondent's registration is not affected by its marketing of a narcotic and a non-narcotic form of NALEX, as we noted in footnote 3.
Finally, the fact that respondent owns registrations for its other NOL-prefixed marks has no bearing on this proceeding. The doctrine of "family of marks" is applicable to those situations where a plaintiff asserts that, prior to the defendant's first use of the challenged mark, the plaintiff established a family of marks and that, because of the nature of the defendant's mark it would be assumed by purchasers familiar with plaintiff's "family" that the defendant's mark comprised a member of that "family". See Plus Products v. Medical Modalities Associates, Inc., 217 USPQ 464 (TTAB 1983). Under Section 2(d) of the Lanham Act, a plaintiff in an inter partes proceeding before the Board may rely on any mark which it has registered or previously used and as to which it can make the requisite showing of likelihood of confusion. However, for the defendant in such a proceeding, the issue is whether it can prove priority of use of its mark which is the subject of the proceeding (or, under the "tacking" doctrine, whether it can prove priority of use of a mark which is the legal equivalent of its subject mark, for the same goods or services as those on which the subject mark is used), not whether it can prove priority of use of some other mark or marks. See Baroid Drilling Fluids, Inc. v. Sun Drilling Products, --- USPQ ---- (TTAB 1992). Thus, no genuine issue of material fact is raised by respondent's "family of marks" claim. [FN6] Nor do respondent's arguments relative to the existence of its registrations for the marks NOLAMINE and NOLAHIST raise any such issue with respect to priority by virtue of a "tacking" effect.
In view of the foregoing, and since the question of likelihood of confusion is a question of law, it is clear that summary judgment is appropriate.
Respondent has conceded that petitioner is the prior user and that the goods are similar. Respondent's goods are identified as a pharmaceutical composition for the treatment of nasal congestion. Mr. Blansett has stated in his declaration that the product his company markets under the mark NALEX is a prescription pharmaceutical for the relief of nasal congestion. Although respondent's goods are not specified as being sold by prescription, the identification of goods is not restricted and we can assume that the goods may be dispensed either by prescription or over-the-counter. We can take judicial notice that prescription drugs and non-prescription drugs are prescribed by doctors and dispensed by pharmacists and that such persons are not prone to carelessness. Nonetheless, we believe that confusion and mistake are likely, even by such professionals, where these similar goods are marketed under marks which look alike and sound alike. See In re Merck & Co., Inc., 189 USPQ 355 (TTAB 1975). Both marks begin with the letter "N", have two syllables and end in the letters "LEX". The only difference between the marks is a single vowel, an "A" in petitioner's mark and an "O" in respondent's, which, when handwritten, are frequently indistinguishable. It is our opinion that confusion is highly likely between these marks. We note also that where the marks are used on pharmaceuticals and confusion can lead to serious consequences, it is even more important to avoid that which will cause such confusion. See American Home Products Corporation v. USV Pharmaceutical Corporation, 190 USPQ 357 (TTAB 1976) and cases cited therein.
*5 In view of the foregoing, summary judgment is granted in favor of petitioner. Respondent's registration will be cancelled in due course.
FN1. Regn. No. 1,560,452 issued October 17, 1989, based on an application filed February 10, 1989 claiming use since December 21, 1988.
FN2. Regn. No. 1,152,874 issued May 5, 1981.
FN3. Regn. No. 1,267,627 issued February 21, 1984.
FN4. Among the arguments advanced by respondent was that, because petitioner produces a NALEX non-narcotic product in tablet form and a NALEX liquid which contains a narcotic, there is a greater likelihood of confusion or mistake in dispensing petitioner's own products than there would be between respondent's NOLEX tablets and petitioner's NALEX products; that under petitioner's theory of the propensity for mistakes in dispensing prescription medicines, it has acted at best irresponsibly and perhaps illegally in selling a narcotic prescription medicine under the identical name it uses for a non-narcotic prescription medicine; and that petitioner therefore lacks standing to prosecute the within petition for cancellation notwithstanding its priority. Respondent also argued that petitioner has suggested that at some point it will claim that respondent's use of the mark NOLEX violates FDA regulations.
With respect to these arguments, respondent is advised that this proceeding is concerned with the issues which have been pleaded which are priority of use and likelihood of confusion between the marks NALEX and NOLEX as used on the parties' respective goods. Whether there may or may not be confusion as between the tablet and liquid forms of petitioner's product is not relevant to this proceeding. The case cited by respondent, Geraghty Products, Inc. v. Clayton Mfg. Co., 190 USPQ 508 (TTAB 1976), involved quite different facts than are present in this case. In the Geraghty case, the Board refused to allow the petitioner to assert against the respondent rights which allegedly accrued from the interstate shipment of products which were accompanied by instructions, recommendations or suggestions to violate public policies of the Federal government and the statutory or regulatory public policy of 20 states. No such facts have been pleaded in this case. Nor has there been any pleading with respect to the other matter to which respondent has referred in its argument. A summary judgment motion must be determined only on the issues joined by the pleadings. That determination cannot be influenced in any way by unpleaded issues.
FN5. As to respondent's urging that the fact that there has been no actual confusion reported to it since it began use of its mark should weigh heavily in finding an absence of likelihood of confusion, we note that just two years had elapsed between the first use of the mark by respondent and the filing of the cancellation petition. In American Hospital Supply Corporation v. Baxter Travenol Laboratories Inc., 202 USPQ 226 (TTAB 1979), the Board said that the absence of evidence of actual confusion is not significant where only a little more than two years elapsed between the asserted use date and the filing of the opposition. Moreover, as we have indicated, even assuming that there has, as yet, been no actual confusion, the absence thereof would not alter our decision in this case.
FN6. To the extent that respondent intended to rely on the Morehouse defense (Morehouse Manufacturing Corporation v. J. Strickland and Company, 407 F.2d 881, 160 USPQ 715 (CCPA 1969), we note that a subsisting registration may not be relied on by a defendant as a basis for contesting an attack upon another registration or application unless the mark and the goods or services shown in the subsisting registration are the same as or substantially identical to the mark and goods or services set forth in the defendant's challenged application or registration. It is quite clear that the prior registrations do not involve the same or substantially identical marks as the registration sought to be registered.

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(5) The signature of the person making the petition.
Source: SL 1975, ch 16, § 1; 6 SDR 87, effective March 2, 1980; 12 SDR 151, 12 SDR 155, effective July 1, 1986; 43 SDR 16, effective August 15, 2016.
Cross-Reference: Procedure to initiate rules, SDCL 1-26-13.
20:43:01:02. Agency action on petition for declaratory ruling. After receiving a petition for a declaratory ruling, the board may request from the petitioner any additional information required for the issuance of a ruling. When necessary. the board shall set a hearing date when testimony can be given by parties of interest in the declaratory ruling. Unless the petitioner agrees to a longer period of time, the board shall issue a declaratory ruling within 90 days after the receipt of the petition, within 90 days following the receipt of further requested information, or within 45 days following a hearing held on the petition. The board's action on the petition is the final order of the board in the matter and starts the time running within which an appeal may be taken on its action.
Source: SL 1975, ch 16, § 1; 6 SDR 87, effective March 2, 1980; 12 SDR 151, 12 SDR 155, effective July 1, 1986; 18 SDR 132, effective February 17, 1992; 43 SDR 16, effective August 15, 2016.
20:43:01:03. Board meetings on rules or rulings. The board may hold a meeting by telephone conference call to decide on any petitions filed pursuant to SDCL 1-26-13 or 1-26-15.
Source: SL 1975, ch 16, § 1; 6 SDR 87, effective March 2, 1980; 12 SDR 151, 12 SDR 155, effective July 1, 1986.
Law Implemented: SDCL 1-26-13, 1-26-15.
20:43:01:04. Procedures in contested cases.Repealed.
Source: SL 1975, ch 16, § 1; 6 SDR 87, effective March 2, 1980; 12 SDR 151, 12 SDR 155, effective July 1, 1986; repealed, 13 SDR 23, effective September 3, 1986.
20:43:01:05. Board hearings -- Procedure. A record of the hearing in a contested case shall be taken by court reporter or recording equipment.
Source: SL 1975, ch 16, § 1; 6 SDR 87, effective March 2, 1980; 12 SDR 151, 12 SDR 155, effective July 1, 1986; 13 SDR 23, effective September 3, 1986; 18 SDR 132, effective February 17, 1992; 43 SDR 16, effective August 15, 2016.
20:43:02:01. Transferred to §§ 20:43:03:01, 20:43:03:04, 20:43:03:08, and 20:43:03:10.
Source: 18 SDR 132, effective February 17, 1992; 19 SDR 32, effective September 6, 1992; 20 SDR 166, effective April 11, 1994; 26 SDR 37, effective September 20, 1999; 27 SDR 57, effective December 12, 2000; repealed, 38 SDR 172, effective April 25, 2012.
20:43:02:02. Transferred to § 20:43:03:05.
20:43:02:03. Content of exams. Repealed.
Source: SL 1975, ch 16, § 1; 6 SDR 87, effective March 2, 1980; 12 SDR 151, 12 SDR 155, effective July 1, 1986; 18 SDR 132, effective February 17, 1992; 20 SDR 166, effective April 11, 1994; 27 SDR 57, effective December 12, 2000; repealed, 38 SDR 172, effective April 25, 2012.
Source: SL 1975, ch 16, § 1; 6 SDR 87, effective March 2, 1980; 12 SDR 151, 12 SDR 155, effective July 1, 1986; 13 SDR 23, effective September 3, 1986; 26 SDR 37, effective September 20, 1999; repealed, 38 SDR 172, effective April 25, 2012.
(9) Completed fingerprint cards necessary to conduct a state and federal criminal background check.
An applicant for a license to practice as a dentist shall pass a written examination administered by the board on the relevant administrative rules and statutes. A cut score of 70 percent is considered passing.
To be considered, a complete application and all supporting documentation must be received at least 30 days before the board meeting to be considered. If requested, an applicant shall appear for a personal interview conducted by the board on a date set by the board.
Source: SL 1975, ch 16, § 1; 6 SDR 87, effective March 2, 1980; 12 SDR 151, 12 SDR 155, effective July 1, 1986; 18 SDR 132, effective February 17, 1992; 20 SDR 166, effective April 11, 1994; 26 SDR 37, effective September 20, 1999; 27 SDR 57, effective December 12, 2000; 38 SDR 172, effective April 25, 2012; 45 SDR 35, effective September 19, 2018.
General Authority: SDCL 36-6A-14(3), 36-6A-44, 36-6A-50(13).
Law Implemented: SDCL 36-6A-14(3), 36-6A-44.
(5) A remediation policy to address candidate deficiencies.
Source: 45 SDR 35, effective September 19, 2018.
General Authority: SDCL 36-6A-14(3), 36-6A-44(4).
Law Implemented: SDCL 36-6A-14(3), 36-6A-44(4).
20:43:03:03. Reciprocity requirements -- Fees. Repealed.
Source: SL 1975, ch 16, § 1; 6 SDR 87, effective March 2, 1980; 8 SDR 95, effective February 15, 1982; 12 SDR 151, 12 SDR 155, effective July 1, 1986; repealed, 18 SDR 132, effective February 17, 1992.
(10) Completed fingerprint cards necessary to conduct a state and federal criminal background check.
To be considered, a complete application and all supporting documentation must be received at least 30 days before the board meeting. If requested, an applicant for licensure by credential verification shall appear for a personal interview conducted by the board on a date set by the board.
Source: SL 1975, ch 16, § 1; 6 SDR 87, effective March 2, 1980; 8 SDR 95, effective February 15, 1982; 12 SDR 151, 12 SDR 155, effective July 1, 1986; 19 SDR 32, effective September 6, 1992; 26 SDR 37, effective September 20, 1999; 38 SDR 172, effective April 25, 2012; 45 SDR 35, effective September 19, 2018.
General Authority: SDCL 36-6A-14(3), 36-6A-47, 36-6A-50(18).
Law Implemented: SDCL 36-6A-14(3), 36-6A-47, 36-6A-50(18).
20:43:03:04.01. Requirements for foreign-trained dentists and dental hygienists. Repealed.
Source: 18 SDR 132, effective February 17, 1992; 26 SDR 37, effective September 20, 1999; 38 SDR 172, effective April 25, 2012; 45 SDR 35, effective September 19, 2018.
20:43:03:04.02. Requirements for temporary registration of dentists and dental hygienists. The board may issue a temporary registration for a specified period of time if an applicant has met all requirements for a license to practice as a dentist or a dental hygienist or if an applicant has met all requirements of SDCL 36-6A-49 and submits a fee of $50.
Source: 18 SDR 132, effective February 17, 1992; 20 SDR 166, effective April 11, 1994; 38 SDR 172, effective April 25, 2012; 45 SDR 35, effective September 19, 2018.
General Authority: SDCL 36-6A-14(3), 36-6A-44, 36-6A-44.2, 36-6A-47, 36-6A-47.1, 36-6A-49, 36-6A-49.1, 36-6A-50(9).
Law Implemented: SDCL 36-6A-14(3), 36-6A-44, 36-6A-44.2, 36-6A-47, 36-6A-47.1, 36-6A-49, 36-6A-49.1, 36-6A-50(9).
20:43:03:05. Jurisprudence examination -- Fee. Each jurisprudence examination must be submitted to the board with the examination fee of $225 for a dentist or $115 for a dental hygienist.
Source: Transferred from § 20:43:02:02, 45 SDR 35, effective September 19, 2018.
General Authority: SDCL 36-6A-47(10), 36-6A-47.1(10), 36-6A-50(1)(2).
Law Implemented: SDCL 36-6A-47(10), 36-6A-47.1(10), 36-6A-50(1)(2).
20:43:03:06. Annual renewal of license -- Renewal fees. Each person licensed to practice as a dentist or dental hygienist in South Dakota shall annually procure a certificate of registration from the board by July first. Each person licensed to practice as a dentist or a dental hygienist shall maintain a current cardiopulmonary resuscitation (CPR) card. The board accepts only the American Heart Association for the Healthcare Provider, the American Red Cross for the Professional Rescuer, or an equivalent program approved by the board. A dentist shall pay an annual registration fee of $150 plus a continuing education fee of $20, and a dental hygienist shall pay an annual registration fee of $75 plus a continuing education fee of $20.
Source: SL 1975, ch 16, § 1; 6 SDR 87, effective March 2, 1980; 8 SDR 95, effective February 15, 1982; 12 SDR 151, 12 SDR 155, effective July 1, 1986; 13 SDR 164, effective May 10, 1987; 16 SDR 133, effective February 15, 1990; 38 SDR 172, effective April 25, 2012; 45 SDR 35, effective September 19, 2018.
General Authority: SDCL 36-6A-14(5)(6), 36-6A-50(3)(4)(7)(10)(17), 36-6A-52.
Law Implemented: SDCL 36-6A-50(3)(4)(7)(10)(17), 36-6A-52.
20:43:03:07. Continuing education requirements -- Dentists. A dentist shall complete at least 100 hours of board approved continuing education in each five-year licensure cycle. One hour of continuing education may be earned for each hour of attendance at a board approved continuing education course.
(4) The provider organization must be approved by the Academy of General Dentistry Program Approval For Continuing Education.
Credit for nutrition continuing education is limited to 15 hours per five-year licensure cycle. Credit for practice management continuing education is limited to 10 hours per five-year licensure cycle. Credit for home study continuing education is limited to 30 hours per five-year licensure cycle. Credit for cardiopulmonary resuscitation continuing education is limited to 15 hours per five-year licensure cycle. Credit for clinical continuing education is unlimited per five-year licensure cycle. Up to five hours of clinical continuing education may be earned for attendance at exhibits at a state, regional, or national dental conference.
The board's continuing education guidelines shall be reviewed annually.
Source: SL 1975, ch 16, § 1; 5 SDR 68, effective February 13, 1979; 6 SDR 87, effective March 2, 1980; 12 SDR 151, 12 SDR 155, effective July 1, 1986; 13 SDR 23, effective September 3, 1986; 18 SDR 132, effective February 17, 1992; 20 SDR 166, effective April 11, 1994; 26 SDR 37, effective September 20, 1999; 35 SDR 67, effective September 25, 2008; 37 SDR 131, effective January 6, 2011; 38 SDR 172, effective April 25, 2012; 45 SDR 35, effective September 19, 2018.
General Authority: SDCL 36-6A-14(1)(3)(11)(14), 36-6A-55.
Law Implemented: SDCL 36-6A-14(1)(3)(11)(13), 36-6A-55.
20:43:03:07.01. Continuing education requirements -- Dental hygienists. A dental hygienist shall complete at least 75 hours of board approved continuing education in each five-year licensure cycle. One hour of continuing education may be earned for each hour of attendance at a board approved continuing education course.
Five hours of the required 75 hours must be dental radiography continuing education. Credit for dental radiography continuing education is limited to 20 hours per five-year licensure cycle. Credit for nutrition continuing education is limited to 15 hours per five-year licensure cycle. Credit for practice management continuing education is limited to 10 hours per five-year licensure cycle. Credit for home study continuing education is limited to 30 hours per five-year licensure cycle. Credit for cardiopulmonary resuscitation continuing education is limited to 15 hours per five-year licensure cycle. Credit for clinical continuing education is unlimited per five-year licensure cycle. Up to five hours of clinical continuing education may be earned for attendance at exhibits at a state, regional, or national dental conference.
The board's continuing education guidelines will be reviewed annually.
Source: 13 SDR 23, effective September 3, 1986; 18 SDR 132, effective February 17, 1992; 20 SDR 18, effective August 16, 1993; 20 SDR 166, effective April 11, 1994; 26 SDR 37, effective September 20, 1999; 35 SDR 67, effective September 25, 2008; 38 SDR 172, effective April 25, 2012; 45 SDR 35, effective September 19, 2018.
General Authority: SDCL 36-6A-14(1)(3)(11), 36-6A-55.
20:43:03:07.02. Transferred to § 20:43:08:09.01.
(8) A copy of the applicant's current cardiopulmonary resuscitation (CPR) card. The board accepts only the American Heart Association for the Healthcare Provider, the American Red Cross for the Professional Rescuer, or an equivalent program approved by the board.
An applicant for a license to practice as a dental hygienist shall pass a written examination administered by the board on the relevant administrative rules and statutes. A cut score of 70 percent is considered passing.
To be considered, a complete application and all supporting documentation must be received at least 30 days before the board meeting. If requested, an applicant shall appear for a personal interview conducted by the board on a date set by the board.
General Authority: 36-6A-14(3), 36-6A-44.2, 36-6A-50(14).
(4) A remediation policy to address candidate deficiencies.
General Authority: SDCL 36-6A-14(3), 36-6A-44.2(4).
Law Implemented: SDCL 36-6A-14(3), 36-6A-44.2(4).
General Authority: SDCL 36-6A-14(3), 36-6A-47.1, 36-6A-50(18).
Law Implemented: SDCL 36-6A-14(3), 36-6A-47.1, 36-6A-50(18).
20:43:03:11. Lost or destroyed license or registration -- Replacement. A fee of $15 is required for replacement of a lost or destroyed license or registration.
Source: SL 1975, ch 16, § 1; 6 SDR 87, effective March 2, 1980; 12 SDR 151, 12 SDR 155, effective July 1, 1986; 20 SDR 166, effective April 11, 1994; 45 SDR 35, effective September 19, 2018.
20:43:04:01 Recognized specialty practice -- Qualifications.
20:43:04:03 Inspections for safety and sanitation.
20:43:04:04 Dental hygienist -- Practice -- Supervision.
20:43:04:06 Additional duties of dental hygienist.
20:43:04:07 Mobile office or unit--Authority to operate.
Dentists that meet the qualifications of this section must disclose in all advertisements the specialty area in which they practice. Dentists that do not meet the qualifications of this section must disclose in all advertisements that they are a general dentist. This disclaimer shall be clearly legible with print equal to or larger than the print advertising the service or clearly audible with speech volume and pace equal to the advertisement.
This section does not apply to those dentists who began limiting their practices to a recognized specialty prior to April 20, 1972. Declaration to the public of a specialty practice or the inference of specialty status in any other area is a violation of SDCL 36-6A-29 and this section.
Source: SL 1975, ch 16, § 1; 6 SDR 87, effective March 2, 1980; 11 SDR 73, effective November 27, 1984; 12 SDR 151, 12 SDR 155, effective July 1, 1986; 18 SDR 132, effective February 17, 1992; 37 SDR 131, effective January 6, 2011.
General Authority: SDCL 36-6A-14(1), 36-6A-28, 37-6A-29.
20:43:04:02. Dental technician's written work order. Repealed.
Source: SL 1975, ch 16, § 1; 6 SDR 87, effective March 2, 1980; 12 SDR 151, 12 SDR 155, effective July 1, 1986; repealed, 32 SDR 188, effective May 15, 2006.
20:43:04:03. Inspections for safety and sanitation. The board may suspend or revoke any license issued, after opportunity for hearing as provided in SDCL 1-26, for failure of a dentist to maintain the dentist's entire dental office in a clean and sanitary condition without any accumulation of trash, debris, or filth. The dental office must be maintained in full compliance with all health requirements of the city or county, or both, in which it is located. The dentist must maintain the office in compliance with the Guidelines for Infection Control in Dental Health Care Settings, 2003, of the Center for Disease Control and Prevention. The dentist must permit inspection of the dental office at any time by anyone authorized by the board.
Source: SL 1975, ch 16, § 1; 6 SDR 87, effective March 2, 1980; 10 SDR 75, effective January 23, 1984; 12 SDR 151, 12 SDR 155, effective July 1, 1986; 18 SDR 132, effective February 17, 1992; 26 SDR 37, effective September 20, 1999; 38 SDR 172, effective April 25, 2012.
Reference: Guidelines for Infection Control in Dental Health Care Settings, 2003, Center for Disease Control and Prevention. Copies may be obtained from the Center for Disease Control and Prevention free of charge at http://www.cdc.gov/.
20:43:04:04. Dental hygienist -- Practice -- Supervision. A licensed hygienist may practice dental hygiene as allowed by SDCL 36-6A-40 and may perform a hygienist's duties in a public or private institution under general supervision of a licensed dentist. A licensed dental hygienist may in addition perform preliminary examination of the oral cavity and surrounding structures, including periodontal screenings; complete prophylaxis; placement of sealants; and polishing of restorations. This section does not apply to licensed dental hygienists employed by the United States Public Health Service.
Source: SL 1975, ch 16, § 1; 6 SDR 87, effective March 2, 1980; 12 SDR 151, 12 SDR 155, effective July 1, 1986; 18 SDR 132, effective February 17, 1992.
20:43:04:05. Transferred to § 20:43:08:10.
20:43:04:05.01. Transferred to § 20:43:08:11.
20:43:04:06. Additional duties of dental hygienist. In addition to the duties prescribed in SDCL chapter 36-6A and § 20:43:04:04, a dental hygienist, under direct supervision of a dentist, may perform all services permitted other registered dental assistants and dental assistants.
Source: SL 1975, ch 16, § 1; 6 SDR 87, effective March 2, 1980; 10 SDR 75, effective January 23, 1984; 12 SDR 151, 12 SDR 155, effective July 1, 1986; 19 SDR 32, effective September 6, 1992; 26 SDR 37, effective September 20, 1999; 37 SDR 131, effective January 6, 2011; 42 SDR 19, effective August 17, 2015.
20:43:04:07. Mobile office or unit -- Authority to operate. Authorization to operate a mobile dental office or unit shall be secured from the Board of Dentistry.
20:43:04:08. Transferred to §§ 20:43:09:01 and 20:43:09:03.
20:43:04:09. Transferred to § 20:43:09:11.
20:43:04:10. Transferred to § 20:43:09:01.
20:43:04:11. Transferred to § 20:43:09:04.
20:43:04:12. Transferred to § 20:43:09:05.
Source: SL 1975, ch 16, § 1; 6 SDR 87, effective March 2, 1980; 9 SDR 49, effective October 25, 1982; 12 SDR 151, 12 SDR 155, effective July 1, 1986; 43 SDR 16, effective August 15, 2016.
Source: SL 1975, ch 16, § 1; repealed, 6 SDR 87, effective March 2, 1980.
20:43:05:06. Change in place of business.Repealed.
20:43:06:04 Change in ownership or management.
20:43:06:05 Renewal of certificate of registration.
(6) Any other information required by the board to ensure compliance with SDCL chapter 47-12 and this chapter.
The board shall have the authority to hold any proceeding necessary for the processing of any application.
Source: SL 1975, ch 16, § 1; 6 SDR 87, effective March 2, 1980; 12 SDR 151, 12 SDR 155, effective July 1, 1986; 26 SDR 37, effective September 20, 1999; 44 SDR 101, effective December 18, 2017.
General Authority: SDCL 36-6A-14(20), 47-12-3, 47-12-8.
Law Implemented: SDCL 36-6A-14(9)(19), 47-12-8.
20:43:06:02. Procedure after application. Repealed.
Source: SL 1975, ch 16, § 1; 6 SDR 87, effective March 2, 1980; 12 SDR 151, 12 SDR 155, effective July 1, 1986; 44 SDR 101, effective December 18, 2017.
20:43:06:03. Applicant required to pay expenses for special meeting. Repealed.
20:43:06:04. Change in ownership or management. Prior to any change in ownership or management of an entity registered under SDCL chapter 47-12, including any proposed admission, removal, or change of a director, manager, member, partner, or shareholder, the entity shall provide notice of the proposed action to the board, at least thirty days prior to the action, on a form prescribed by the board. In its notice, the entity shall provide the board with the name, license or registration number and status, and address of any proposed director, manager, member, partner, or shareholder, if applicable, and a description of the proposed change in ownership. Any change in ownership under this section, other than removal of a director, manager, member, partner, or shareholder, must be approved by the board for the entity to maintain its certificate of registration under SDCL chapter 47-12. The board shall have the authority to request additional information or to hold any other proceeding necessary for the evaluation and approval of any change in ownership.
General Authority: SDCL 36-6A-14(20), 47-12-1, 47-12-3, 47-12-8.
Law Implemented: SDCL 36-6A-14(19), 47-12-8.
20:43:06:05. Renewal of certificate of registration. Each registered corporation shall submit, on or before July 1 of each year, an application for renewal of its certificate of registration. The application shall be accompanied by the required renewal fee of $25.
Source: SL 1975, ch 16, § 1; 6 SDR 87, effective March 2, 1980; 12 SDR 151, 12 SDR 155, effective July 1, 1986; 38 SDR 172, effective April 25, 2012; 44 SDR 101, effective December 18, 2017.
General Authority: SDCL 36-6A-14(20), 47-12-12.
Law Implemented: SDCL 36-6A-14(9)(19), 47-12-12.
20:43:07:06 Approval of programs -- Application.
20:43:07:08 Examination and proficiency evaluation.
20:43:07:09 Fee for certificate of registration -- Renewal.
20:43:07:10 Continuing education requirements -- Dental radiographers.
20:43:07:12 Prohibited use of radiation.
20:43:07:13 General safety provisions to protect persons from radiation exposures.
20:43:07:14 Requirements of x-ray film processing and darkroom.
(4) "Student," a person enrolled in or participating in an approved program or course of study.
Source: 11 SDR 73, effective November 27, 1984; 12 SDR 151, 12 SDR 155, effective July 1, 1986.
General Authority: SDCL 36-6A-14, 36-6A-21.
Law Implemented: SDCL 36-6A-14, 36-6A-21.
20:43:07:02. Minimum eligibility requirements. The minimum requirements for a dental radiographer are graduation from high school or its equivalent and attainment of eighteen years of age.
Source: 11 SDR 73, effective November 27, 1984; 12 SDR 151, 12 SDR 155, effective July 1, 1986; 19 SDR 32, effective September 6, 1992.
(6) Familiarization with federal and state regulations pertaining to services offered.
Source: 11 SDR 73, effective November 27, 1984; 12 SDR 151, 12 SDR 155, effective July 1, 1986; 26 SDR 37, effective September 20, 1999.
20:43:07:04. Exemptions to training requirements.Repealed.
Source: 11 SDR 73, effective November 27, 1984; 12 SDR 151, 12 SDR 155, effective July 1, 1986; repealed, 26 SDR 37, effective September 20, 1999.
20:43:07:05. Qualification by endorsement. A person who has a current certificate in dental radiography issued by another state, jurisdiction, agency, or recognized professional registry may, upon presentation of the certificate to the board, be considered to meet the requirements of §20:43:07:08 provided that the board finds that the standards and procedures for qualification in the state, jurisdiction, agency, or recognized professional registry which issued the certificate are equivalent to the standards in this chapter.
(3) It meets the requirements in § 20:43:07:03.
Application for approval of a program of learning shall be made to the board.
20:43:07:07. Application for registration. Each person desiring to engage in dental radiography except a licensed dentist or dental hygienist shall apply for registration to the board prior to engaging in dental radiography. The application shall be made on a form furnished by the board and shall be filled out completely. The application shall contain a statement that the requirements of this chapter of rules have been read and understood by the applicant and shall document the training, experience, and education that qualify the applicant to engage in dental radiography.
Source: 11 SDR 73, effective November 27, 1984; 12 SDR 151, 12 SDR 155, effective July 1, 1986; 18 SDR 132, effective February 17, 1992.
General Authority: SDCL 36-6A-14, 36-6A-50.
20:43:07:08. Examination and proficiency evaluation. An applicant for registration as a dental radiographer must pass a written examination administered by the board or the Dental Assisting National Board or any substantially similar test approved by the board.
An applicant must complete the hands-on film placement and exposure as specified in § 20:43:07:03(1).
Source: 11 SDR 73, effective November 27, 1984; 12 SDR 151, 12 SDR 155, effective July 1, 1986; 18 SDR 132, effective February 17, 1992; 26 SDR 37, effective September 20, 1999.
20:43:07:09. Fee for certificate of registration -- Renewal. When an applicant successfully passes the examination, the board shall issue a certificate of registration upon payment of a fee of $40 for initial registration. By July 1 of each year a dental radiographer shall submit a renewal fee of $20. The registrant shall display the registration in the office.
Source: 11 SDR 73, effective November 27, 1984; 12 SDR 151, 12 SDR 155, effective July 1, 1986; 38 SDR 172, effective April 25, 2012.
General Authority: SDCL 36-6A-14(6), 36-6A-50(10) and (16).
Law Implemented: SDCL 36-6A-14(6), 36-6A-50(10) and (16).
20:43:07:10. Continuing education requirements -- Dental radiographers. A dental radiographer shall complete at least five hours of board approved continuing education in dental radiography in each five-year licensure cycle. One hour of continuing education may be earned for each hour of attendance at a board approved continuing education course. The board's continuing education guidelines shall be reviewed annually.
Source: 26 SDR 37, effective September 20, 1999; 32 SDR 188, effective May 15, 2006; 45 SDR 35, effective September 19, 2018.
General Authority: SDCL 36-6A-14(1)(7), 36-6A-55.
20:43:07:11. License registration. An annual license granted by the Department of Health is required to house dental radiographic machines in a dental office. The location, number, and type of machine shall be reported on forms supplied by the Department of Health. The licensee shall notify the Department of Health in writing within 30 days after any change in the location or other information about radiography machines, devices, or other radiation sources.
Source: 26 SDR 37, effective September 20, 1999.
(4) The target to skin distance shall be at seven inches and the machine may not have a pointed cone.
(3) The patient's record shall contain the type of radiographic examination, date the examination was performed, and the identity of the machine operator.
20:43:07:14. Requirements of x-ray film processing and darkroom. A dental office using radiographic x-ray machines shall have available suitable equipment for handling and processing radiographic film in accordance with the manufacturer's directions.
(3) "Certificate of competency," a certificate attesting that a dental assistant is qualified to perform expanded functions by successfully completing a registered dental assistant examination as described in § 20:43:08:06.
Source: 19 SDR 32, effective September 6, 1992; 42 SDR 19, effective August 17, 2015.
General Authority: SDCL 36-6A-14, 36-6A-26.
Law Implemented: SDCL 36-6A-14, 36-6A-41.
20:43:08:02. Dental assistant -- Requirements. The minimal requirements for a dental assistant are graduation from high school or its equivalent and attainment of eighteen years of age.
Source: 19 SDR 32, effective September 6, 1992.
(3) Hold a certificate of competency from the board.
Law Implemented: SDCL 36-6A-41, 36-6A-42.
20:43:08:04. Qualifications by endorsement. A person who has a current certificate to perform expanded functions issued by another state, jurisdiction, agency, or recognized professional registry may, upon presentation of the certificate to the board be considered to meet the requirements of § 20:43:08:03 if the board finds that the standards and procedures for qualification in the state, jurisdiction, agency, or recognized professional registry which issued the certificate are equivalent to the standards of this chapter.
Law Implemented: SDCL 36-6A-14, 36-6A-41, 36-6A-42.
(2) It is conducted by individuals who are qualified by special education, training, and experience to conduct the program of learning in expanded functions.
Application for approval of programs of learning shall be made to the board.
20:43:08:06. Certificate of competency -- Examination. An applicant for a certificate of competency must pass a written examination on expanded functions administered by the board or the dental assisting national board or any substantially similar test. The applicant must also present to the board written documentation from a South Dakota dentist attesting to the clinical proficiency of the applicant who has performed expanded functions under personal supervision of the dentist for at least 180 days. The passing grade for the examination is 75.
General Authority: SDCL 36-6A-14, 36-6A-41.
Law Implemented: SDCL 36-6A-14, 36-6A-42.
20:43:08:07. Exemption to training requirements.Repealed.
Source: 19 SDR 32, effective September 6, 1992; repealed, 26 SDR 37, effective September 20, 1999.
20:43:08:08. Application for registration. Each person desiring to engage in performing expanded functions, except a licensed dentist or dental hygienist, shall apply for registration to the board before engaging in such expanded functions. The application shall be made on a form furnished by the board and shall be filled out completely. The application shall contain a statement that the requirements of this chapter has been read and understood by the applicant and shall document the training, experience, and education that qualify the applicant to engage in performing expanded functions.
General Authority: SDCL 36-6A-14, 36-6A-41, 36-6A-42.
20:43:08:09.01. Continuing education requirements -- Registered dental assistants. A registered dental assistant shall complete at least 60 hours of board approved continuing education in each five-year licensure cycle. One hour of continuing education may be earned for each hour of attendance at a board approved continuing education course.
Source: Transferred from § 20:43:03:07.02, 45 SDR 35, effective September 19, 2018.
20:43:08 :10. Delegation of duties -- Supervision. Subject to the dentist exercising full responsibility, a dental assistant may perform duties and procedures incidental to patient treatment while under the direct or indirect supervision of a licensed dentist or under personal supervision of a licensed dental hygienist. A registered dental assistant may perform expanded function procedures only under the direct supervision of a dentist.
Source: SL 1975, ch 16, § 1; 6 SDR 87, effective March 2, 1980; 12 SDR 151, 12 SDR 155, effective July 1, 1986; 14 SDR 118, effective March 24, 1988; transferred from § 20:43:04:05, 19 SDR 32, effective September 6, 1992; 42 SDR 19, effective August 17, 2015.
(7) Those procedures allocated by SDCL 36-6A-40 and by §§ 20:43:04:04 and 20:43:04:06 to dental hygienists with the exception of placement of sealants and coronal polishing following a prophylaxis by a dentist or dental hygienist.
Source: 6 SDR 87, effective March 2, 1980; 12 SDR 151, 12 SDR 155, effective July 1, 1986; transferred from § 20:43:04:05.01, 19 SDR 32, effective September 6, 1992; 32 SDR 188, effective May 15, 2006; 42 SDR 19, effective August 17, 2015; 42 SDR 83, effective December 3, 2015.
20:43:09:03 General anesthesia and deep sedation permit requirements.
20:43:09:04 Moderate sedation permit requirements.
20:43:09:04.01 Employing or contracting with licensed anesthesia provider that provides general anesthesia, deep sedation, or moderate sedation in dental office.
20:43:09:04.02 Utilizing licensed anesthesia provider for general anesthesia and deep sedation or moderate sedation in ambulatory surgery center or hospital.
20:43:09:05 Nitrous oxide inhalation analgesia permit requirements -- Dentists.
20:43:09:06 Nitrous oxide inhalation analgesia permit requirements -- Dental hygienists and registered dental assistants.
20:43:09:06.01 Local anesthesia permit requirements -- Dental hygienists.
20:43:09:08 Application for permits -- Renewal.
20:43:09:09 Reports of adverse conditions.
20:43:09:10 Permit requirements to monitor patients under general anesthesia, deep sedation, or moderate sedation.
20:43:09:10.01 Delegation of injection of medication.
20:43:09:13 Equipment -- Moderate sedation.
20:43:09:13.01 Equipment -- General anesthesia and deep sedation.
(8) "Accredited," a program accredited by the American Dental Association Commission on Dental Accreditation.
Source: 9 SDR 49, effective October 25, 1982; 12 SDR 151, 12 SDR 155, effective July 1, 1986; transferred from §§ 20:43:04:08 and 20:43:04:10, 19 SDR 32, effective September 6, 1992; 37 SDR 131, effective January 6, 2011.
20:43:09:02. Prohibitions. A dentist licensed in this state may not administer general anesthesia and deep sedation, moderate sedation, or nitrous oxide inhalation analgesia unless the dentist has obtained the permit required in § 20:43:09:03, 20:43:09:04, or 20:43:09:05.
Any dentist who advertises sedation using terms other than minimal sedation or nitrous oxide inhalation analgesic must have a general anesthesia and deep sedation or moderate sedation permit.
Source: 19 SDR 32, effective September 6, 1992; 37 SDR 131, effective January 6, 2011.
Law Implemented: SDCL 36-6A-14, 36-6A-16.
(e) Completion of an accredited residency in dental anesthesiology.
(4) Employs auxiliary personnel who hold a permit to monitor patients under general anesthesia, deep sedation, or moderate sedation. A dentist with a general anesthesia and deep sedation permit may not administer general anesthesia or deep sedation or monitor a patient without the presence and assistance of qualified auxiliary personnel.
A dentist shall apply the current standard of care to continuously monitor and evaluate the patient's blood pressure, pulse, respiratory function, and cardiac activity.
A general anesthesia and deep sedation permit precludes the need for a moderate sedation or a nitrous oxide inhalation analgesia permit.
Source: 9 SDR 49, effective October 25, 1982; 12 SDR 151, 12 SDR 155, effective July 1, 1986; transferred from § 20:43:04:08, 19 SDR 32, effective September 6, 1992; 26 SDR 37, effective September 20, 1999; 37 SDR 131, effective January 6, 2011; 42 SDR 83, effective December 3, 2015.
(4) Employs auxiliary personnel who hold a permit to monitor patients under general anesthesia, deep sedation, or moderate sedation. A dentist with a moderate sedation permit may not administer moderate sedation or monitor a patient without the presence and assistance of qualified auxiliary personnel.
A dentist using a parenteral route of administration must limit the use of pharmacological agents to those for which there are reversal agents.
A dentist providing moderate sedation to a child under 12 years of age must also document appropriate training in pediatric sedation techniques, according to the Guidelines for Monitoring and Management of Pediatric Patients During and After Sedation for Diagnostic and Therapeutic Procedures, and in pediatric resuscitation, including the recognition and management of pediatric airway and respiratory problems and must sign an affidavit certifying that the dentist understands the requirements of the Guidelines for Monitoring and Management of Pediatric Patients During and After Sedation for Diagnostic and Therapeutic Procedures.
A dentist using moderate sedation must adhere to the standards of the Guidelines for the Use of Sedation and General Anesthesia by Dentists. A dentist intending to produce a given level of sedation must be able to rescue a patient whose level of sedation becomes deeper than initially intended. A dentist using moderate sedation must be proficient in airway management and advanced life support and capable of providing intravenous access. A dentist using moderate sedation shall apply the current standard of care to continuously monitor and evaluate the patient's blood pressure, pulse, respiratory function, and cardiac activity.
If moderate sedation results in a general anesthetic state, the requirements in § 20:43:09:03 for general anesthesia and deep sedation apply.
A moderate sedation permit precludes the need for a nitrous oxide inhalation analgesia permit.
Source: 9 SDR 49, effective October 25, 1982; 12 SDR 151, 12 SDR 155, effective July 1, 1986; transferred from § 20:43:04:11, 19 SDR 32, effective September 6, 1992; 37 SDR 131, effective January 6, 2011; 42 SDR 83, effective December 3, 2015.
References: "Guidelines for Teaching Pain Control and Sedation to Dentists and Dental Students," 2012 Edition, American Dental Association. Copies may be obtained from the American Dental Association at www.ada.org free of charge. "Guidelines for the use of Sedation and General Anesthesia by Dentists," 2012 Edition, American Dental Association. Copies may be obtained from the American Dental Association at www.ada.org free of charge. "Guidelines for Monitoring and Management of Pediatric Patients During and After Sedation for Diagnostic and Therapeutic Procedures: An Update," 2011 Edition, American Academy of Pediatrics. Copies may be obtained from the American Academy of Pediatrics at www.aapd.org free of charge.
(7) Ensure that the licensed anesthesia provider holds anesthesia privileges at a licensed ambulatory surgery center or licensed hospital.
Source: 37 SDR 131, effective January 6, 2011; 42 SDR 83, effective December 3, 2015.
20:43:09:04.02. Utilizing licensed anesthesia provider for general anesthesia and deep sedation or moderate sedation in ambulatory surgery center or hospital. No permit is required if a dentist utilizes the services of a licensed anesthesia provider for dental patients in an ambulatory surgery center or hospital.
Source: 37 SDR 131, effective January 6, 2011.
(4) Employs auxiliary personnel who are certified in administering basic life support by the American Heart Association for the Healthcare Provider, the American Red Cross for the Professional Rescuer, or an equivalent program approved by the board.
A dentist may administer nitrous oxide inhalation analgesia in combination with a single enteral drug to achieve a minimally depressed level of consciousness only if the maximum recommended dose of the enteral drug is not exceeded. Incremental dosing may be utilized. A dentist may not administer nitrous oxide inhalation analgesia used in combination with more than one enteral drug or by dosing a single enteral drug in excess of the maximum recommended dose unless the dentist holds the appropriate general anesthesia and deep sedation permit or moderate sedation permit.
Source: 9 SDR 49, effective October 25, 1982; 12 SDR 151, 12 SDR 155, effective July 1, 1986; transferred from § 20:43:04:12, 19 SDR 32, effective September 6, 1992; 37 SDR 131, effective January 6, 2011; 42 SDR 83, effective December 3, 2015.
Reference: "Guidelines for Teaching Pain Control and Sedation to Dentists and Dental Students," 2012 Edition, American Dental Association. Copies may be obtained from the American Dental Association at www.ada.org free of charge.
(b) Completed the course more than thirteen months prior to application, has legally administered nitrous oxide inhalation analgesia for a period of time during the three years preceding application, and provides written documentation from a dentist that has employed or supervised the applicant, attesting to the current clinical proficiency of the applicant to administer nitrous oxide inhalation analgesia.
Source: 19 SDR 32, effective September 6, 1992; 32 SDR 188, effective May 15, 2006; 37 SDR 131, effective January 6, 2011; 42 SDR 19, effective August 17, 2015; 42 SDR 83, effective December 3, 2015.
Law Implemented: SDCL 36-6A-14(1)(3)(7)(10)(13)(14)(22), 36-6A-40.
(b) Completed the course more than thirteen months prior to application, has legally administered local anesthesia for a period of time during the three years preceding application, and provides written documentation from a dentist that has employed or supervised the applicant, attesting to the current clinical proficiency of the applicant to administer local anesthesia.
20:43:09:06.02. Minimal sedation. A dentist may administer minimal sedation without a permit. A dentist administering minimal sedation must have appropriate access to oxygen and suction and emergency drugs and must meet the standards of the Guidelines for the Use of Sedation and General Anesthesia by Dentists. A dentist may not administer or prescribe for self-administration more than the maximum recommended dose of a single enteral drug for a patient at the same setting unless the dentist holds the appropriate general anesthesia and deep sedation permit or moderate sedation permit.
Reference: "Guidelines for the Use of Sedation and General Anesthesia by Dentists," 2012 Edition, American Dental Association. Copies may be obtained from the American Dental Association at www.ada.org free of charge.
20:43:09 :07. Noncompliance. A violation of any provision of this chapter may result in revocation or suspension of a permit or in other disciplinary measures.
Source: 19 SDR 32, effective September 6, 1992; 37 SDR 131, effective January 6, 2011; 42 SDR 83, effective December 3, 2015.
20:43:09 :08. Application for permits -- Renewal. The application for a permit to administer general anesthesia and deep sedation or moderate sedation must include a fee of $50. The application for a permit for a dentist, dental hygienist or registered dental assistant to administer nitrous oxide inhalation analgesia must include a fee of $40. The application for a permit for a dental hygienist to administer local anesthesia must include a fee of $40.
The board may issue a temporary permit to an applicant that has met the applicable requirements of this chapter, but before all processing and any applicable inspection have been completed. The duration of this temporary permit shall be determined by the board, but may not exceed one year. The temporary permit of an applicant who fails an inspection is automatically suspended. Upon suspension, the applicant may request another inspection.
A general anesthesia and deep sedation permit or moderate sedation permit must be renewed annually. The annual fee for a general anesthesia and deep sedation permit or a moderate sedation permit is $50. A re-evaluation of the credentials and facility of the permit holder may be conducted for permit renewal. Any person renewing a general anesthesia and deep sedation permit or moderate sedation permit must be able to demonstrate continued competency as required by the board.
A nitrous oxide inhalation analgesia permit, local anesthesia permit, and permit to monitor patients under general anesthesia, deep sedation, or moderate sedation must be renewed annually. The annual fee for a nitrous oxide inhalation analgesia permit for a dentist is $40. The annual fee for a nitrous oxide inhalation analgesia permit for a dental hygienist is $20. The annual fee for a nitrous oxide inhalation analgesia permit for a registered dental assistant is $20. The annual fee for a permit to administer local anesthesia for a dental hygienist is $20. There is no annual fee for a permit to monitor patients under general anesthesia, deep sedation, or moderate sedation.
Failure to properly renew a general anesthesia and deep sedation permit, moderate sedation permit, nitrous oxide inhalation analgesia permit, local anesthesia permit, or a permit to monitor patients under general anesthesia, deep sedation, or moderate sedation constitutes an automatic suspension of the permit.
Source: 19 SDR 32, effective September 6, 1992; 37 SDR 131, effective January 6, 2011; 38 SDR 172, effective April 25, 2012; 42 SDR 19, effective August 17, 2015; 42 SDR 83, effective December 3, 2015.
20:43:09:09. Reports of adverse conditions. All dentists must notify the board within 72 hours after any death or any incident which results in temporary or permanent physical or mental injury requiring medical treatment of the patient during, or as a result of, general anesthesia and deep sedation, moderate sedation, or nitrous oxide inhalation analgesia. A complete written report of the incident must be submitted to the board within 30 days. The report shall be submitted on a form provided by the board.
Failure to comply with reporting requirements constitutes an automatic suspension of the permit to administer general anesthesia and deep sedation, moderate sedation, or nitrous oxide inhalation analgesia.
(b) Completed the course more than thirteen months prior to application, has legally monitored patients receiving analgesic or anesthetic agents for a period of time during the two years preceding application, and provides written documentation from a dentist that has employed or supervised the applicant, attesting to the current clinical proficiency of the applicant to monitor patients under general anesthesia, deep sedation, or moderate sedation.
Source: 19 SDR 32, effective September 6, 1992; 37 SDR 131, effective January 6, 2011; 42 SDR 19, effective August 17, 2015; 42 SDR 83, effective December 3, 2015.
(6) The supervising dentist authorizes the procedure by verbal command, clearly articulating the specific medication and the amount of the medication to be administered and the dental hygienist, registered dental assistant, or dental assistant repeats the verbal command back to the supervising dentist before injecting medication through an intravenous site.
Source: 42 SDR 83, effective December 3, 2015.
(4) Adjusting an electronic device to provide medications, such as an infusion pump, to a setting directed by the supervising dentist.
20:43:09 :11. Inspection of facilities. The board may at any time require an on-site inspection of the facility, equipment, and personnel to determine if the requirements of this chapter are being met. The dentist is responsible for all costs associated with an inspection. The on-site inspection should be performed by two board approved inspectors. However, if utilizing two board approved inspectors presents a hardship, the board may allow the inspection to be performed by one board approved inspector.
Each dentist who applies for a general anesthesia and deep sedation or moderate sedation permit must have an on-site inspection conducted at the primary office within twelve months of application or prior to expiration of the temporary permit, whichever is earlier. The board may require inspection of a dentist's satellite office at any time. If the dentist does not have a primary office located in South Dakota, the on-site inspection may be conducted at a satellite office located in South Dakota.
Following the initial inspection, each dentist must have an on-site inspection conducted at the primary office at least once in each five year licensure cycle. If the dentist does not have a primary office located in South Dakota the dentist may submit, subject to board approval, a report from a successful inspection conducted at the primary office located in a different state. An on-site inspection of the satellite office may also be required by the board.
Failing an on-site inspection constitutes an automatic suspension of the permit and may subject the dentist to disciplinary proceedings.
Source: 9 SDR 49, effective October 25, 1982; 12 SDR 151, 12 SDR 155, effective July 1, 1986; transferred from § 20:43:04:09, 19 SDR 32, effective September 6, 1992; 37 SDR 131, effective January 6, 2011; 42 SDR 83, effective December 3, 2015.
(6) Simulated emergencies in the surgical areas of the dental office with participation by members of the staff that are trained to handle emergencies. Emergencies shall be listed on the board approved inspection form.
(h) A board approved emergency cart that must be available and readily accessible and includes the necessary and appropriate drugs and equipment to resuscitate a non-breathing and unconscious patient and provide continuous support while the patient is transported to a medical facility. There must be documentation that all emergency equipment and drugs are checked and maintained on a prudent and regularly scheduled basis.
Source: 37 SDR 131, effective January 6, 2011; 41 SDR 108, effective January 6, 2015.
Source: 41 SDR 108, effective January 6, 2015.
20:43:09:14. Clinical guidelines. A dentist who provides any level of sedation must meet the standards of the Guidelines for the Use of Sedation and General Anesthesia by Dentists for thorough patient assessment, pre-operative preparation, recovery and discharge, and management of emergencies.
Reference: "Guidelines for the Use of Sedation and General Anesthesia by Dentists," 2007 Edition, American Dental Association. Copies may be obtained from the American Dental Association at www.ada.org free of charge.
(2) Received intravenous line training.
Source: 37 SDR 131, effective January 6, 2011; 42 SDR 19, effective August 17, 2015.
Law Implemented: SDCL 36-6A-40, 36-6A-41.
20:43:09:16. Anesthesia credentials committee. The anesthesia credentials committee is a peer review committee appointed by the board to assist the board in the administration of this chapter. The committee shall include at least one member of the board, up to five additional dentists that hold a general anesthesia and deep sedation or moderate sedation permit, and up to one additional dentist that does not hold a general anesthesia and deep sedation or moderate sedation permit. The board shall appoint the chair.
(4) Other duties as delegated by the board or board president.
(9) Through a program administered by the South Dakota Department of Corrections.
Source: 38 SDR 172, effective April 25, 2012.
General Authority: SDCL 36-6A-40.1, 36-6A-40.2.
Law Implemented: SDCL 36-6A-40.1, 36-6A-40.2.
(2) Completion of a minimum of 4,000 practice hours. A minimum of 2,000 of those hours must have been completed within three years preceding application.
Source: 38 SDR 172, effective April 25, 2012; 43 SDR 16, effective August 15, 2016.
(6) Verification of completion of a minimum of 2,000 practice hours within three years preceding application.
(5) The collaborative agreement must be maintained by the dentist and the dental hygienist in each location where collaborative supervision is provided and must be made available to the board upon request. The dentist and dental hygienist must review the agreement annually.
20:43:10:05. Reporting requirements. Each dental hygienist who has rendered services under collaborative supervision must complete a summary report and submit the information to the board at the completion of a program or, in the case of an ongoing program, annually.
20:43:10:06. Termination of agreement. If any provision of the collaborative agreement is violated, the registration may be suspended or revoked by the Board.


One issue of concern for many clients in the employment-based immigration process is the Priority Date. With the recent retrogression in the EB-1 category and now slow advancement of EB-1 and EB-2 China & India this year, obtaining an earlier Priority Date is more important than ever.
On April 4, 2018, the Administrative Appeals Office (AAO) sustained an appeal filed by Liu & Associates and approved the EB-1A I-140 petition that was originally denied by the United States Citizenship and Immigration Services (USCIS) Nebraska Service Center (NSC).
The EB-1A I-140 petition was originally filed with the USCIS in June 2017. The petitioner/beneficiary was a physics researcher seeking classification of immigrant worker as an alien of extraordinary ability under INA §203(b)(1)(A). To support the petition, the petitioner/beneficiary submitted documentary evidence showing that he met at least three criteria as required by 8 CFR §204.5(h)(3). The EB-1A I-140 petition was filed with Form I-907 Request for Premium Processing Service.
On August 28, 2017, U.S. Citizenship and Immigration Services (USCIS) announced that it would begin expanding the requirement of in-person interviews for certain immigration benefit applicants whose benefit, if granted, would allow them to permanently reside in the United States. Specifically, USCIS will start to phase in interviews beginning October 1, 2017 for applicants applying for employment-based adjustment of status (Form I-485) and for applicants applying for refugee/asylee relative petitions (Form I-730).
This policy is part of an incremental expansion of interviews to other benefit types beyond these categories, and is in compliance with the Trump Administration’s Executive Order 13780 “Protecting the Nation From Foreign Terrorist Entry Into the United States.” USCIS states that the purpose of this expansion is to improve the detection and prevention of fraud in an effort to enhance the integrity of the immigration system within the United States. These interviews will provide more robust screening and vetting procedures, allowing USCIS officers to more reliably verify the information provided with the application, gather additional relevant information, and ascertain the credibility of the applicant seeking permanent residency within the United States.
At Liu & Associates, PLLC, our attorneys not only like to keep up-to-date on the latest changes in immigration policy but also stay actively involved in the discussion and evolution of these policy changes. On January 27, 2017, Attorney Kellie Pai contributed to the American Immigration Lawyers Association (AILA) seminar focused on National Interest Waiver (NIW). This was a 90-minute “Late-Breaking Seminar” discussing how, after 18 years of relying on Matter of New York State Department of Transportation (NYSDOT), the Department of Homeland Security designated a new NIW case as precedent on December 27, 2016.
On December 27, 2016, the Department of Homeland Security designated as precedential the USCIS Administration Appeals Office’s (AAO) decision in Matter of Dhanasar, thereby vacating the previously used Matter of New York State Dep’t of Transp., 22 I&N Dec. 215 (AAO 1998) (NYSDOT), which had been in place for nearly two decades. Matter of Dhanasar provides a new analytical framework that the AAO hopes would apply more flexibility to circumstances of both petitioning employers and self-petitioning individuals.
U.S. Citizenship and Immigration Services (USCIS) has recently announced that they are increasing the fees for numerous immigration benefit requests, effective December 23, 2016. Applications and petitions postmarked or filed on or after December 23, 2016 must include these new fees or USCIS will reject the submission.
When a National Interest Waiver petition is erroneously denied by USCIS, the petitioner/beneficiary can appeal the denial to the Administrative Appeals Office (AAO) within 30 days of the denial date. The legal standards for a National Interest Waiver as set out in Matter of New York State Dept. of Transportation (NYDOT) are: (1) that the alien seeks employment in an area of substantial intrinsic merit; (2) that the proposed benefit will be national in scope; and (3) that the national interest would be adversely affected if a labor certification were required. Under the current procedure, USCIS will first treat the appeal as a motion to re-open and re-consider. Instead of forwarding the appeal to AAO, USCIS may re-open the denied case and approve it. If USCIS refuses to re-open the case, then it will forward the appeal to AAO, and AAO will make a decision to sustain or to dismiss the appeal. If the appeal is sustained, then the case will be approved. In recent years, we have been successful in representing NIW clients before AAO. Upon appeal, some erroneously denied NIW cases we filed were re-opened and approved by USCIS. A few appeals that were forwarded to AAO by USCIS were sustained and the cases were approved by AAO.
All other countries - the priority date is current.
This means that if your EB-2 I-140 petition has a priority date prior to the above specified dates, then you may file your I-485 application in October 2015. However, the applications will not be adjudicated until a visa number becomes available.
On May 19, 2015, attorneys from Liu & Associates attended the Open House at the Texas Service Center (“TSC”) in Dallas and toured the Service Center. Our attorneys regularly attend these events to maintain an open dialogue with TSC officials and keep abreast of procedural changes. The Open House provided an opportunity for our attorneys to inquire about issues regarding employment-based I-140 petitions and I-485 applications with representatives from the Business Premium Team and the Employment Adjustment Team.
UPDATE: On May 20, 2015, USCIS published information to assist eligible H-4 dependent spouses who want to apply for employment authorization under the Employment Authorization for Certain H-4 Dependent Spouses final rule.
This updated information is now available on the Employment Authorization for Certain H-4 Dependent Spouses Web page as well as the list of Frequently Asked Questions that USCIS has compiled since they announced the H-4 rule in February.
Recently, the Visa Bulletin for February 2015 was released by the U.S. Department of State, summarizing the availability of immigrant numbers during the month of February. As expected, there continues to be modest movement in most retrogressed employment-based categories. The Visa Bulletin also provided projections for visa availability and potential monthly movements of cut-off dates in the upcoming months for employment-based categories. Please note that numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.
Our attorneys just returned from the American Immigration Lawyers Association (AILA) Annual Conference and have good news to share with our clients. At the conference, officials from the Department of State Visa Office stated that they anticipate “significant movement” in the Visa Bulletin cut-off dates for the China employment-based second and third preference categories (EB-2 and EB-3) in the upcoming months. Visa Office representatives indicated two reasons for this optimistic outlook: 1) excessive levels of demand in both EB-2 and EB-3 categories have subsided, and 2) there are several hundred unused visas in the family-based preference categories. To ensure that all immigrant visa numbers available to China in this fiscal year are used, the Visa Office plans to rollover the unused visas allocated to the family-based preference categories and to make them available to the employment-based preference categories. This is a routine procedure that the Visa Office applies to ensure that visa numbers are not wasted before this current fiscal year ends in September.
We do caution that the above is only a prediction from the Visa Office. Experience has shown that numerous factors, such as unexpected surge in demand or faster I-485 processing by the USCIS, may arise that can affect anticipated movements in the Visa Bulletin. Our firm will continue to monitor the Visa Bulletin each month and will notify clients when their priority dates become current.
Recently, the United States Citizenship and Immigration Services (USCIS) announced a significant policy change for medical exams that affects immigrants who submitted their medical exam more than one year ago and have I-485 application still pending.
Starting June 1, 2014, USCIS will limit the validity period for all Forms I-693, Report of Medical Examination and Vaccination Record, to one year from the date of submission to USCIS. Applicants must also submit Form I-693 to USCIS within one year of the immigration medical examination. USCIS outlines in policy alert PA-2014-005 that this new medical exam policy applies to any Form I-693 supporting a benefit application that USCIS adjudicates on or after June 1, 2014.
USCIS announced this morning that it has received a sufficient number of cap-subject H-1B petitions to reach both the H-1B Regular and U.S. Masters Exemption caps for fiscal year 2015 (FY 2015). The filing period for FY 2015 began on April 1, 2014. Today (April 7, 2014) is the last day that USCIS will accept cap-subject H-1B petitions.
After it completes initial intake for all cap-subject H-1B petitions received April 1-7, USCIS will conduct the random computer-generated lottery to select visa petitions for receipting and adjudication. USCIS will first conduct a lottery for all petitions that qualify for the 20,000 U.S. Masters Exemption cap. Petitions that are not selected for the U.S. Masters Exemption cap will then go into the regular lottery for the 65,000 cap. We will notify clients as soon as USCIS announces a date for the random lottery.
H-1B is a visa program used by U.S. businesses to employ foreign workers in specialty occupations that require theoretical or practical application of a body of highly specialized knowledge and at least a bachelor’s degree (or its equivalent) in the field. Such specialty occupations include, but are not limited to, scientists, engineers, accountants, or computer programmers. H-1B gives foreign workers permission to work in the United States and a status that allows him or her to remain lawfully in the United States on a temporary basis. Generally, the maximum period that a foreign worker can be in the United States with H-1B is six (6) years, which is granted in increments of no more than three (3) years at a time.
Law and government are intertwined, and as many of our clients know, in the area of immigration the government often hinders more than helps. As attorneys at Liu & Associates, we are continually inspired by our clients and their unique stories as they pursue immigration. Despite the challenges of the U.S. immigration system, they make countless contributions to society and immeasurable sacrifices to be at the forefront of their fields—all while providing the very best for their families.
The commission of a crime while in the United States (or abroad) can have devastating immigration consequences for a noncitizen's future in this country. Not only can a criminal conviction make a foreign national inadmissible, which can prevent noncitizens from entering the United States or becoming a lawful permanent resident (i.e., receiving green card), but many criminal convictions also can render a noncitizen, including green card holders, removable/deportable if they are in the United States, causing them to be placed in removal/deportation proceedings.
For this reason, it is very important that a noncitizen who has been arrested hire experienced criminal defense and immigration attorneys to work together to achieve the best outcome for the criminal case and to avoid adverse effects on future immigration to the United States or current immigration status.
According to the United States Citizenship and Immigration Services (USCIS) Public Engagement Division, USCIS operations are continuing despite the Federal Government shutdown. The fee-for-service activities performed by USCIS are not affected by a lapse in annual appropriated funding; thus, USCIS operations are not hindered. As such, all USCIS offices worldwide remain open for interviews and appointments as scheduled. E-Verify is the only exception and is unavailable during the shutdown. For more information about how the shutdown is affecting E-Verify, please visit www.dhs.gov/e-verify. Otherwise, there is no need to be concerned about the continuing operations of USCIS. For our clients, this means that Form I-140 and I-130 petitions and Form I-485 and ancillary applications filed with USCIS should continue to be processed and adjudicated as normal.
In addition, the U.S. Department of State (DOS) will continue as many normal operations as possible. According to the American Immigration Lawyers Association, operating status and available funding for the DOS should be monitored continuously and closely, and planning for a lapse in appropriations should be continued.
Recently, the United States Citizenship and Immigration Services (USCIS) announced an enhanced effort to increase the number of foreign entrepreneurs in the United States in order to boost the economy and aid in alleviating the staggering unemployment rates. In this announcement, USCIS verified that the National Interest Waiver (NIW) program under the employment-based second preference (EB-2) category is available for such entrepreneurs.
The USCIS provides several avenues for foreign entrepreneurs to gain permanent resident status in the United States. One of these methods is as the beneficiary of the Employment-Based Second Preference (EB-2) category. According to section 203(b)(2) of the Immigration and Naturalization Act (INA), such a beneficiary must hold an advanced degree or have exceptional abilities and have a permanent job offer from a valid U.S. employer. It also requires that the employer file a labor certification application to demonstrate the existence of a shortage in qualified U.S. workers.
On July 12 and 13, attorneys from our firm attended a "Business Representatives Conference" with U.S. Citizenship and Immigration Services ("USCIS") officials at the Texas Service Center ("TSC") and toured the Dallas Lockbox Facility. The conference allowed our attorneys to discuss a range of issues related to employment-based I-140 petitions and I-485 applications with representatives from USCIS Service Center Operations ("SCOPS"), Nebraska Service Center ("NSC") and TSC.
On October 20, 2010, the Administrative Appeals Office (AAO) designated two decisions as precedent. This marked the first time in more than a decade that the AAO has issued a precedent decision. Matter of New York State Dept. of Transportation, 22 I&N Dec. 215 (Acting Assoc. Comm., Aug. 7, 1998) delineating the three-prong criteria for National Interest Waiver was the last precedent decision issued. These new precedent decisions follow U.S. Citizenship and Immigration Services Director Alejandro Mayorkas's goal expressed earlier this year to have the agency issue more precedent decisions as part of "USCIS's commitment to the clear and consistent application of immigration law."
Because the majority of the United States follow the common law, precedent decisions are extremely valuable in the legal community because they clarify statutory and regulatory laws and provide guidance to both the government and legal practitioners, allowing for greater predictability in the outcome of cases. Unless the decisions are reversed by a higher court, precedent decisions have the same force of law as codified statutes and regulations, and their holdings and legal reasoning are binding. This means that precedent decisions establish a rule that must be followed when deciding future cases, and legal practitioners can rely on and cite to the decision in the same manner that they would rely on and cite to a statute or regulation.
On August 24, 2010, the Administrative Appeals Office (AAO) sustained an appeal filed by Liu & Associates and approved the EB-1A I-140 petition that was originally denied by the USCIS Texas Service Center. Notably, this is the first sustained appeal that we are aware of where the AAO applied the two-step Kazarian analysis in making its decisions. We will address this in more detail below.
As background, the EB-1A I-140 petition was originally filed with USCIS in August 2009. The petitioner/beneficiary was a pharmacology researcher seeking classification of immigrant worker as an alien of extraordinary ability under INA §203(b)(1)(A). To support the petition, the petitioner/beneficiary submitted documentary evidence demonstrating that he met at least three criteria as required by 8 C.F.R. § 204.5(h)(3). The EB-1A I-140 petition was filed with Form I-907 Request for Premium Processing Service. The USCIS Texas Service Center Premium Processing Unit issued a Request for Evidence within 15 days of the filing, seeking additional information about all three criteria and referenced information not claimed nor mentioned in the original petition. It was clear that the USCIS had issued a boilerplate RFE and did not closely review the evidence submitted. (From our experience, such RFEs have been the trend for Premium Processing EB-1As). A timely response was submitted with additional evidence to support all three criteria: 1) participation as a judge of the work of others; 2) original contributions of major significance; and 3) authorship of scholarly publications.
The Eb-1A I-140 petition was originally filed with USCIS in November 2008. The petitioner/beneficiary was a materials scientist seeking classification of immigrant worker as an alien of extraordinary ability under INA §203(b)(1)(A). To support the petition, the petitioner/beneficiary submitted documentary evidence showing that he met at least three criteria as required by 8 CFR §204.5(h)(3).