dismissed EB-3 Case: Dentistry

' identifying data deleted to 
prevent clearly unwasranted 
invasion of pascsPl privacy 
US. Department of Homeland Security 
20 Mass Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
CALIFORNIA SERVICE CENTER 
WAC 05 169 51548 
PETITION: 
 Immigrant Petition for Alien Worker as a Skilled Worker or Professional Pursuant to Section 
203(b) (3) of the Immigration and Nationality Act, 8 U.S.C. $ 1153(b) (3) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
DISCUSSION: The preference visa petition was denied by the Director, California Service Center, and is now 
before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a dental office. It seeks to employ the beneficiary permanently in the United States as a dental 
assistant. As required by statute, a Form ETA 750, Application for Alien Employment Certification approved by 
the Department of Labor POL), accompanied the petition. The director concluded that the petitioner had failed 
to demonstrate that the beneficiary possessed the requisite qualifying work experience as of the visa priority date 
and denied the petition accordingly. 
On appeal, the petitioner, through counsel, asserts that his additional evidence of employment verification 
establishes that the beneficiary's work experience meets the requirements of the approved labor certification. 
Section 203(b)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. 4 1153(b)(3)(A)(i), provides 
for the granting of preference classification to qualified immigrants who are capable, at the time of petitioning for 
classification under this paragraph, of performing skilled labor (requiring at least two years training or 
experience), not of a temporary nature, for which qualified workers are not available in the United States. 
The regulation at 8 C.F.R. 5 204.5(1)(3) further provides: 
(ii) Other documentation- 
(A) General. 
 Any requirements of training or experience for skilled workers, 
professionals, or other workers must be supported by letters fiom trainers or employers 
giving the name, address, and title of the trainer or employer, and a description of the 
training received or the experience of the alien. 
(B) Skilled workers. 
 If the petition is for a skilled worker, the petition must be 
accompanied by evidence that the alien meets the educational, training or experience, 
and any other requirements of the individual labor certification, meets the requirements 
for Schedule A designation, or meets the requirements for the Labor Market Information 
Pilot Program occupation designation. The minimum requirements for this 
classification are at least two years of training or experience. 
The petitioner must demonstrate that a beneficiary has the necessary education and experience specified on the 
labor certification as of the priority date. The filing date or priority date of the petition is the initial receipt in the 
DOL's employment service system. See 8 C.F.R. 4 204.5(d); Matter of Wing's Tea House, 16 I&N 158 (Act. 
Reg. Comm. 1977). Here, the Form ETA 750 was accepted for processing on April 26,2001 .' The ETA 750B, 
signed by the beneficiary on April 24, 2001, indicates that she has worked for the petitioner from April 1994 to 
the present as a dental assistant. She also lists one other employer. From August 1990 to March 1993, the 
beneficiary claims that she worked as a dental assistant for "Health Services of Hidalgo" in Hidalgo, Mexico. 
I 
 If the petition is approved, the priority date is also used in conjunction with the Visa Bulletin issued by the 
Department of State to determine when a beneficiary can apply for adjustment of status or for an immigrant visa 
abroad. Thus, the importance of reviewing the bonafides of a job opportunity as of the priority date, including a 
prospective U.S. employer's ability to pay the proffered wage is clear. 
Item 14 of the ETA 750A describes the education, training and experience that an applicant for the certified 
position must have. In this matter, item 14 states that no formal education is required, but an applicant must have 
two years of work experience in the job offered as a dental assistant. The job duties described in item 13 include: 
Assist dentist during examination and treatment of patients: Prepare patient, sterilize 
and disinfect instruments, prepares materials and assists during dental procedures. 
Takes, records medical and dental histories. Takes x-rays. Records treatment 
information in patient records. Schedules appointments, completes insurance forms, 
prepares bills. Polish teeth using dental instruments. 
Relevant to the beneficiary's past qualifying work experience, the petitioner provided two letters. One is from the 
current owner of the petitioning business, who states in a letter, dated April 27, 
2005, that the beneficiary has been employed from "2003 to the .present as a dental assistant, on a full-time, 
permanent basis, earning $1 1.55 per hour. She is highly skilled in her profession and most valuable to our dental 
e petitioner also provided another letter on a letterhead of the 
igned by 
 the director of the health center, who states that the 
working in this center under my supervision as odontology assistant during the period of August 
2, 1990 to march 3 1, 1993." This letter/certification is dated March 8,2001 and the translation is dated November 
24,2004. 
The director issued a request for additional evidence on June 14,2005. Relevant to the beneficiary's employment 
verification he requested copies of the beneficiary's Wage and Tax Statements 0.1'-2s) issued by the petitioner for 
the years 1994 to 2004, as well as copies of the petitioner's state quarterly wage reports (DE-6), and a current 
letter from the petitioner on its letterhead verifying the beneficiary's duties, job title, dates of 
employment/experience and number of hours worked each week. The director also requested a similar 
employment verification letter from the beneficiary's other employer listed on the ETA Form 750, as well as all 
previous W-2 forms, pay stubs, and/or wageltax statements frorn,previous employers. The director requested 
letters, contracts and pay statements that would verify the beneficiary's claimed employment. 
In response, the petitioner, through counsel resubmitted a copy of the HiIdago Servicios de Salud de Hidalgo 
letter previously supplied. Counsel states in his transmittal letter that there are no pay stubs or W-2s available 
from this employer. The petitioner also provided three separate letters, all dated August 25, 2005, from Dr. 
Abadi. The first letter states that the beneficiary "is working for this office as a dental assistant." The doctor 
describes her duties and concludes by stating that "she works 40 hours per week." The second letter states that 
the beneficiary "is highly skilled dental assistant known to us since April 1994." The doctor then vouches for her 
professionalism and briefly describes her duties as a dental assistant. The third letter states that the beneficiary 
"work for us as self employed independent contractor and received no W-2 Form. Regarding DE-6 I have my 
wife as employee who does not recived paycheck." 
The director denied the petition on October 17, 2005. The determined that the evidence submitted in support of 
the beneficiary's qualifying work experience from the petitioner was inadequate to establish her employment with 
the petitioner as a dental assistant. The director noted that that petitioner provided no financial verification that he 
has employed the beneficiary either in the past or presently as a dental assistant. He also concludes that the letter 
from Mexico failed to specify the beneficiary's duties and hours worked per week. 
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Page 4 
On appeal, counsel states that the sole reason for the denial was the insufficienc of the letter from Hidalgo 
Health Services in Mexico. He claims that he is enclosing a new letter fro& that confirms the duties 
performed and the hours worked by the beneficiary. Counsel also attaches an HQ memo (HQPRD 7016.2.8-P) 
relating to the processing of petitions affected by the American Competitiveness in the Twenty-First Century Act 
of 2000 (AC21) (Public Law 106-313). Counsel explains on appeal that the beneficiary's experience with the 
petitioner is not a basis to qualify for the position since the experience must occur prior to the petitioner's 
employment. He refers to the AC21 memo as supporting the notion that a beneficiary is not required to be 
employed by the petitioner prior to adjustment of status. 
We note that the AC21 provisions are not relevant here because the Immigrant Petition for Alien Worker (1-140) 
has not been approved. Moreover the issue of the commencement of a beneficiary's employment by a petitioner 
may also be subject to other DOL or non-immigrant regulations. Further, although DOL regulations require that a 
beneficiary's qualifying employment be obtained with an employer other than a petitioner, Citizenship and 
Immigration Services (CIS) regulations merely require that the relevant qualifying employment have accrued 
prior to the priority date. In this case that date is April 26, 2001. Because of inconsistencies appearing in the 
ETA 750B in which the beneficiary claims dates of employment as a "dental assistanty' with the petitioner back to 
1994 an reference in one letter with her employment as a dental assistant beginning only in 2003, 
and in another letter that the beneficiary has only been known to him since 1994, we do not find that her accrual 
of two years of full-time experience as a dental assistant as of the priority date, can be attributed to the purported 
employment wit-combined with the lack of any financial records verifying this employment. It is 
incumbent on the petitioner to resolve any inconsistencies in the record by independent objective evidence, and 
attempts to explain or reconcile such inconsistencies, absent compeient objective evidence pointing to where the 
truth, in fact, lies, will not suffice. See Matter of Ho, 19 I&N Dec. 582, 591-592 (BIA 1988). 
Regarding counsel's reference to a second letter from Hidalgo Health Services enclosed with the appeal, upon 
review of all of the materials submitted on appeal, we find no new letter from any employer. As the petitioner has 
failed to establish that the beneficiary obtained the requisite qualifying employment experience as a dental 
assistant as of the priority date, the petition may not be approved. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. 
The petitioner has not met that burden. 
The denial of this petition is without prejudice to the filing of a new petition by the petitioner accompanied by 
the appropriate supporting evidence and fee. 
ORDER: The appeal is dismissed.