sustained EB-2 Case: Dentistry

identifying Szta dzltted to 
prevent clearly cwarranted 
U.S. Department of Homeland Securie 
U.S. Citizenship and Immigration Services 
Office of Administrative Appeals MS 2090 
Washington, DC 20529-2090 
invasion of persor~~l privacy 
 U. S. Citizenship 
and Immigration 
PUBLIC copy 
LIN 06 230 50621 
PETITION: 
 Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 
Degree or an Alien of Exceptional Ability Pursuant to Section 203(b)(2) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 153(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any fixther inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 5 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
da s of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 4 103.5(a)(l)(i). 
L-&JAL 
&hn F. ~rissh, Acting Chief 
Administrative Appeals Office 
. Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant 
visa petition, which is now before the Administrative Appeals Office (AAO) on appeal. The appeal 
will be sustained; the petition will be approved. 
The petitioner is a dental services provider. It seeks to employ the beneficiary permanently in the 
United States as a dentist pursuant to section 203(b)(2) of the Immigration and Nationality Act (the 
Act), 8 U.S.C. 8 1 153@)(2). In pertinent part, section 203(b)(2) of the Act provides immigrant 
classification to aliens of exceptional ability and members of the professions holding advanced degrees 
or their equivalent and whose services are sought by an employer in the United States. As required by 
statute, a Form ETA 750 Application for Alien Employment Certification approved by the 
Department of Labor (DOL), accompanied the petition. The director determined that the job offered 
did not require a member of the professions holding an advanced degree. 
On appeal, counsel inquires as to why a notice of intent to deny was not issued prior to the denial. 
The regulation at 8 C.F.R. § 103.2@)(8) provides that the director may deny a petition based on 
evidence of ineligibility. In this matter, the director determined that the beneficiary was statutorily 
ineligible since the job offered was not an advanced degree professional position. Significantly, the 
plain language of the regulation at 8 C.F.R. § 204.5(k)(4) provides the director with the authority to 
evaluate whether the job itself requires a member of the professions holding an advanced degree. 
Nevertheless, while the director's decision is understandable given the poor wording of the alien 
employment certification, the director failed to consider all of the job requirements, including that of 
a license fi-om the Dental Board of California. 
Section 203(b) of the Act states in pertinent part that: 
(2) Aliens Who Are Members of the Professions Holding Advanced Degrees or Aliens of 
Exceptional Ability. -- 
(A) In General. -- Visas shall be made available . . . to qualified immigrants who are 
members of the professions holding advanced degrees or their equivalent or who 
because of their exceptional ability in the sciences, arts, or business, will substantially 
benefit prospectively the national economy, cultural or educational interests, or welfare 
of the United States, and whose services in the sciences, arts, professions, or business 
are sought by an employer in the United States. 
The regulation at 8 C.F.R. 8 204.5(k)(4) provides the following: 
(i) General. 
 Every petition under thts classification must be accompanied by an 
individual labor certification fi-om the Department of Labor, by an application for 
Schedule A designation (if applicable), or by documentation to establish that the alien 
qualifies for one of the shortage occupations in the Department of Labor's Labor Market 
Information Pilot Program. To apply for Schedule A designation or to establish that the 
alien's occupation is within the Labor Market Information Program, a fully executed 
uncertified Form ETA-750 in duplicate must accompany the petition. The job offer 
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portion of the individual labor certification, Schedule A application, or Pilot Program 
application must demonstrate that the job requires a professional holding an 
advanced degree or the equivalent or an alien of exceptional ability. 
(Bold emphasis added.) 
The key to determining the job qualifications is found on Form ETA-750 Part A. This section of the 
application for alien labor certification, "Offer of Employment," describes the terms and conditions 
of the job offered. It is important that the ETA-750 be read as a whole. The instructions for the 
Form ETA 750A, item 14, provide: 
Minimum Education, Training, and Experience Required to Perform the Job 
Duties. Do not duplicate the time requirements. For example, time required in 
training should not also be listed in education or experience. Indicate whether months 
or years are required. Do not include restrictive requirements which are not actual 
business necessities for performance on the job and which would limit consideration 
of otherwise qualified U.S. workers. 
Regarding the minimum level of education and experience required for the proffered position in this 
matter, Part A of the labor certification reflects the following requirements: 
Block 14: 
Education: "Bachelor or foreign equ*" 
Major Field of Study: Dentistry 
Experience: 
 0 years in job offered or related occupation. 
Block 15: 
 Valid license to practice dentistry issued by the California State 
Board of Dental Examiners. 
U.S. Citizenship and Immigration Services (USCIS) may not ignore a term of the labor certification, 
nor may it impose additional requirements. See Matter of Silver Dragon Chinese Restaurant, 19 
I&N Dec. 401, 406 (Cornm. 1986). See also, Madany, 696 F.2d at 1008; K.R.K. Irvine, Inc., 699 
F.2d at 1006; Stewart Inpa-Red Commissary of Massachusetts, Inc. v. Coomey, 661 F.2d 1 (1st Cir. 
1981). USCIS must examine "the language of the labor certification job requirements" in order to 
determine what the job requires. See generally Madany, 696 F.2d at 1015. The only rational 
manner by which USCIS can be expected to interpret the meaning of terms used to describe the 
requirements of a job in a labor certification is to "examine the certified job offer exactly as it is 
completed by the prospective employer." Rosedale Linden Park Company v. Smith, 595 F. Supp. 
829, 833 (D.D.C. 1984) (emphasis added). USCIS's interpretation of the job's requirements, as 
stated on the labor certification must involve "reading and applying the plain language of the [alien 
employment certification application form]." Id. at 834 (emphasis added). USCIS cannot and 
should not reasonably be expected to look beyond the plain language of the labor certification that 
, ' Page 4 
DOL has formally issued or otherwise attempt to divine the employer's intentions through some sort 
of reverse engineering of the labor certification. 
On appeal, counsel asserts that the foreign degree of a Bachelor of Dentistry or Bachelor of Dental 
Science is an advanced degree in dentistry, as recognized by the Dental Board of California and, in 
prior cases, USCIS. Counsel submits several evaluations all equating the beneficiary's degree to a 
U.S. DDS degree and Federal Register materials listing dentists as requiring a first professional 
degree. 
The petitioner did not indicate that it required a U.S. DDS degree or its foreign equivalent, which the 
beneficiary has, but specified that the minimum was a Bachelor of Dentistry or its foreign 
equivalent. Were the educational requirements the only relevant information, we would concur with 
the director. The petitioner, however, included an asterisk after the educational requirement and 
expanded on its requirements in Box 15, where it stated the job required a valid license to practice 
dentistry issued by the California State Board of Dental Examiners (actually known as the Dental 
Board of California). 
Thus, if the Dental Board of California requires a U.S. DDS degree or its foreign equivalent then, by 
extension, the petitioner is also requiring such a degree. According to information posted at 
www.cda.ordpopup/Ii~ternational Dental Graduates (accessed March 7, 2007 and incorporated into 
the record of proceedings), the Dental Board of California normally requires a U.S. DDS degree but 
temporarily offered a pathway to licensure for graduates of foreign dental schools who pass a 
restorative technique (RT) exam without additional education. 
While the alien employment certification would have been more persuasive if the petitioner had 
expressly required a U.S. DDS degree or its foreign equivalent, the inclusion of the requirement for a 
license from the Dental Board of California reveals that such education was ultimately required, 
albeit indirectly. 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of the 
Act, 8 U.S.C. 9 136 1. The petitioner has sustained that burden. 
ORDER: 
 The decision of the director is withdrawn. The appeal is sustained and the petition is 
approved.