dismissed H-1B Case: Dentistry

U.S. Department of Homeland Security 
20 Mass Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
b, 
FILE: WAC 04 240 50767 Office: CALIFORNIA SERVICE CENTER Date: JAN 0 6 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101 (a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 9 1 lOl(a)(lS)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
' WAC 04 240 50767 
Page 2 
DISCUSSION: The director of the service center denied the nonimmigrant visa petition and the matter is now 
before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. The petition will be 
denied. 
The petitioner is a dental laboratory that seeks to employ the beneficiary as a dental laboratory technical 
manager and to classify the beneficiary as a nonimmigrant worker in a specialty occupation pursuant to section 
1 Ol(a)(l S)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 8 1 101 (a)(lS)(H)(i)(b). 
The director denied the petition because the proffered position is not a specialty occupation. On appeal, 
counsel submits a brief and additional evidence. 
Section 214(i)(l) of the Act, 8 U.S.C. 8 1184(i)(l), defines the term "specialty occupation" as an occupation 
that requires: 
(A) theoretical and practical application of a body of highly specialized knowledge, and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) 
as a minimum for entry into the occupation in the United States. 
Pursuant to 8 C.F.R. 214.2@)(4)(iii)(A), to qualify as a specialty occupation, the position must meet one of the 
following criteria: 
(I) A baccalaureate or higher degree or its equivalent is normally the minimum requirement 
for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among similar 
organizations or, in the alternative, an employer may show that its particular position is 
so complex or unique that it can be performed only by an individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
(4) The nature of the specific duties is so specialized and complex that knowledge required 
to perform the duties is usually associated with the attainment of a baccalaureate or 
higher degree. 
Citizenship and Immigration Services (CIS) interprets the term "degree" in the criteria at 8 C.F.R. 
$ 214.2(h)(4)(iii)(A) to mean not just any baccalaureate or higher degree, but one in a specific specialty that is 
directly related to the proposed position. 
The record of proceeding before the AAO contains: (1) Form 1-129 and supporting documentation; (2) the 
director's request for additional evidence; (3) the petitioner's response to the director's request; (4) the 
director's denial letter; and (5) Form I-290B and supporting documentation. The AAO reviewed the record in 
its entirety before issuing its decision. 
The petitioner is seeking the beneficiary's services as a dental laboratory technical manager. Evidence of the 
beneficiary's duties includes: the Form 1-129; the attachments accompanying the Form 1-129; the company 
' WAC 04 240 50767 
Page 3 
support letter; and the petitioner's response to the director's request for evidence. According to this evidence, 
the beneficiary would perform duties that entail: 
1. Directing the performance of the petitioner's lab tests to prescribed standards to maintain 
quality control for all ceramic dental prostheses and to determine conformity to dental 
prescriptions and manufacturing specifications. 
2. Testing, adjustment, trouble-shooting and calibration of lab equipment, e.g., ceramic pressing 
equipment, and CADICAM programs and specialized articulators, used in the fabrication of 
metal-less dental prostheses, including equipment utilized to fabricate porcelain veneers, full 
mouth reconstructions and full balance occlusions. 
3. Performing physical tests on dental prostheses and samples of materials to control quality 
results during the fabrication process, testing in-process and finished prostheses to verify 
conformity to manufacturing requirements and recommendations, and recording detailed 
results of all tests and quality control procedures. 
4. Interviewing all job applicants for dental ceramist positions, making hiring, promotion, salary 
and termination recommendations for all dental ceramists and laboratory quality control staff 
members, and conducting periodic job performance reviews and evaluations of the positions. 
5. Providing technical assistance and professional support to dentists and other licensed health 
care professionals to analyze the conditions of the mouth, gums, and teeth and make 
recommendations for appropriate all-ceramic prostheses and components based upon a 
knowledge of the latest fabrication procedures, materials, and casting systems. 
6. Directing research into new and updated technologies and procedures for all-ceramic 
manufacturing technologies and making recommendations for the purchase of new equipment 
and the replacement of obsolete equipment and manufacturing systems in the ceramics 
laboratory. 
The director concluded that the position was that of a dental technician with supervisory or managerial 
responsibilities and that the occupation of dental technician is not a specialty occupation. The director further 
concluded that even though the position entails supervisory or managerial duties, this does not make the 
position a specialty occupation. 
On appeal, counsel states that the proposed position is more analogous to that of a medical laboratory 
technologist. Referring to an opinion letter from - counsel contends that the proposed 
pos~tion IS a specialty occupation. 
Upon review of the record, the petitioner has established none of the four criteria outlined in 8 C.F.R. 
2 14.2(h)(4)(iii)(A). Therefore, the proposed position is not a specialty occupation. 
To determine whether a position qualifies as a specialty occupation, CIS looks beyond the title of the position 
and determines, fi-om a review of the duties of the position and any supporting evidence, whether the position 
actually requires the theoretical and practical application of highly specialized knowledge and the attainment 
of a bachelor's degree in a specific field of study as the minimum for entry into the occupation. 
' WAC 04 240 50767 
Page 4 
The AAO routinely consults the Department of Labor's Occupational Outlook Handbook for its information 
about the duties and educational requirements of particular occupations. The AAO does not concur with 
counsel that the proposed position is more like a medical laboratory technologist and less like a technician-turned 
manager. A review of the dental lab technician job description in the Handbook, confirms the director's 
assessment that the job duties parallel those responsibilities of a technician with supervisory or managerial 
responsibilities. Counsel asserts that the proposed position is different than that of a technician-turned 
manager but does not provide any documentary evidence to substantiate this. Without documentary evidence 
to support the claim, the assertions of counsel will not satisfy the petitioner's burden of proof. The 
unsupported assertions of counsel do not constitute evidence. See Matter of Obaigbena, 19 I&N Dec. 533, 
534 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 
503,506 (BIA 1980). 
The AAO first turns to the criteria at 8 C.F.R. 214.2(h)(4)(iii)(A)(I) - a bachelor's or higher degree or its 
equivalent is normally the minimum requirement for entry into the particular position. To determine whether 
or not this criterion has been established, the AAO turns to the Handbook's discussion of the educational 
requirements for dental lab technicians. No evidence in the Handbook indicates that a bachelor's or higher 
degree, or its equivalent, is required for a job as a dental lab technician or a related supervisory or managerial job. 
The Handbook does not indicate that employers normally impose a specific degree requirement on dental lab 
technician job applicants. Instead, it appears that individuals with proven dental lab skills may be hired solely 
on the basis of training or experience. The Handbook also indicates that, in large labs, dental lab technicians 
may become managers and teach in such areas as product development, marketing, and sales. As a result, the 
proposed position does not qualify as a specialty occupation under 8 C.F.R. tj 214.2(h)(4)(iii)(A)(I). 
The AAO turns next to the first alternative prong of the second criterion at 8 C.F.R. tj 214.2(h)(4)(iii)(A) - 
that a specific degree requirement is common to the industry in parallel positions among similar 
organizations. The six job announcements from Monster.com provided by the petitioner do not support 
counsel's contention that the dental lab industry requires that managers of their lab technicians hold bachelor's 
degrees in dentistry or management. First, four of the announcements were not for jobs in the medical or dental 
industries, but in a variety of unrelated industries including the banking industry, the microelectronics industry, 
and the food processing industry. The two announcements for jobs in the medical field were not for businesses 
related to dentistry - a blood testing lab and a comprehensive medical lab. Second, while the announcements for 
some of the technologist positions reflected that they might be specialty occupations, they do not support 
counsel's assertion that the petitioner is proffering a technologist position. None of these announcements support 
the contention that dental labs, similar in size and scope to the petitioner's, require a bachelor's degree in 
dentistry or management for their dental lab manager positions. Therefore, the proposed position does not 
qualify as a specialty occupation under the first alternative prong at 8 C.F.R. §214.2(h)(4)(iii)(A)(2). 
The AAO now turns to the third criterion at 8 C.F.R. 9 214.2(h)(4)(iii)(A) - the employer normally requires at 
least a bachelor's degree or its equivalent, in a specific field of study, for the position. To determine whether a 
petitioner has established this criterion, the AAO generally reviews the petitioner's past employment 
practices, including the histories of those employees who previously held the position, as well as their names, 
dates of employment, and copies of their diplomas. In the instant case, the petitioner has submitted no 
evidence to establish its normal hiring practices for the proposed position. In the absence of an employment 
history for the proposed position, the petitioner failed to establish that the position qualifies as a specialty 
occupation under the criterion at 8 C.F.R. !j 214.2(h)(4)(iii)(A)(3). 
' WAC 04 240 50767 
Page 5 
Finally, the AAO turns to the criteria related to the complexity, uniqueness, or specialized nature of the 
proposed position - the second alternative prong of the second criterion and the fourth criterion. Counsel 
asserts that the "extremely sophisticated die casting equipment" that the petitioner uses was not previously 
used in dental labs and, as a result, the simple promotion of a dental technician, who does not hold a degree in 
dentistry or management, is not acceptable for the proposed position. Counsel further asserts that the 
proposed position is distinguishable from dental technician or supervisory dental technician positions because 
the proposed position will require the beneficiary to provide technical support and assistance to dental 
professionals to analyze the condition of the mouth and the need for particular prostheses and components. 
These duties appear no different than those of a dental lab technician with supervisory or managerial 
responsibilities. The Handbook indicates that dental lab technicians routinely learn dental materials science, 
oral anatomy, and fabrication procedures in classroom instruction leading to a two-year degree in dental 
laboratory technology. Becoming a fully trained technician through on-the-job training requires an average of 
3 to 4 years, but it may take a few years more to become an accomplished technician. 
The opinion letter from does not support counsel's assertions. contends that the 
proposed position and the nature of its duties is unique and so complex that an individual with a bachelor's degree 
in dental laboratory science is needed in order to p&-form these duties. He does not, however, provide sufficient 
detail and analysis to establish this complexity. In his letter, does not explain how the proposed duties 
are distinguishable from the duties of other dental technicians with supervisory or managerial responsibilities. 
Nor does he explain why these duties are so complex that they can only be performed by a person with a 
bachelor's degree in dental laboratory science as opposed to a person who obtained the knowledge from practical 
experience, on-the-job training, or an associate's degree as indicated in the Handbook. The AAO may, in its 
discretion, use as advisory opinion statements submitted as expert testimony. However, where an opinion is 
not in accord with other information or is in any way questionable, the AAO is not required to accept or may 
give less weight to that evidence. Matter of Caron International, 19 I&N Dec. 791 (Comm. 1988). Dr. 
Yanase's letter is not sufficiently specific to establish the referenced criteria at 8 C.F.R. 
$ 2 14.2(h)(4)(iii)(A)(2) and 8 C.F.R. $ 2 14.2(h)(4)(iii)(A)(4). 
As always, the burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 
U.S.C. $ 136 1. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed. The petition is denied.