dismissed H-1B Case: Dentistry

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
mdemde#rd@ 
an- 
PUBWC COPY 
U.S. Citizenship 
and Immigration 
FILE: WAC 04 003 50244 Office: CALIFORNIA SERVICE CENTER Date: f €8 2 1 
IN RE: 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(l S)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. $ 1 lOl(a)(lS)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
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 04 003 50244 
Page 2 
DISCUSSION: The service center director 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 office and seeks to employ the beneficiary as a dental technology consultant. The 
petitioner endeavors to classify the beneficiary as a nonimmigrant worker in a specialty occupation pursuant to 
section 101 (a)(lS)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1 101(a)(1 5)(H)(i)(b). 
The director denied the petition because the beneficiary is not qualified to perform the duties of the offered 
position. On appeal, the petitioner submits a brief stating that the director mischaracterized the position, and that 
the beneficiary is qualified to perform the duties of the position. 
The director found that the position is a dental hygienist, and that the beneficiary is not qualified to perform 
the duties of the position because the beneficiary is not licensed as a dental hygienist as required by the State 
of California. For reasons set forth below, the AAO finds also that the petitioner is not qualified to perform 
the duties of the position, which involve dentistry, and requires licensure. Thus, the petitioner has not 
overcome the decision of the director. An application or petition that fails to comply with the technical 
requirements of the law may be denied by the AAO even if the Service Center does not identify all of the 
grounds for denial in the initial decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 
1025, 1043 (E.D. Cal. 2001), afd. 345 F.3d 683 (9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 
(2d Cir. 1989)(noting that the AAO reviews appeals on a de novo basis). 
In order to discuss the licensing issue, the MO will first determine whether the position offered to the 
beneficiary qualifies as a specialty occupation. 
Section 10 l(a)(l 5)(H)(i)(b) of the Act, 8 U.S.C. 5 1 1 Ol(a)(l 5)(H)(i)(b), provides, in part, for the 
classification of qualified nonimmigrant aliens who are coming temporarily to the United States to perform 
services in a specialty occupation. 
Section 214(i)(l) of the Act, 8 U.S.C. 5 11 84(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. 
The term "specialty occupation" is further defined at 8 C.F.R. fj 214.2(h)(4)(ii) as: 
[A]n occupation which requires theoretical and practical application of a body of highly 
specialized knowledge in fields of human endeavor including, but not limited to, architecture, 
engineering, mathematics, physical sciences, social sciences, medicine and health, education, 
business specialties, accounting, law, theology, and the arts, and which requires the attainment of 
a bachelor's degree or higher in a specific specialty, or its equivalent, as a minimum for entry 
into the occupation in the United States. 
WAC 04 003 50244 
Page 3 
Pursuant to 8 C.F.R. 5 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, the position must meet one of 
the following criteria: 
(1) 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 are 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. 
3 214.2(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 proffered position. 
The record of proceedings before the AAO contains: (1) the 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) the Form I-290B with 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 technology consultant. 
 Evidence of the 
beneficiary's duties includes the Form 1-129 petition with attachment and the petitioner's response to the 
director's request for evidence. The duties initially submitted by the petitioner in its letter of September 30, 
2003 were closely related to those performed by dental hygienists. In response to the director's request for 
evidence, however, the petitioner clarified and expanded upon the duties to be performed by the beneficiary. 
Some of the additional duties listed were as follows: 
Examine and diagnose dental malocclusions and oral cavity anomalies; 
Diagnose teeth and jaw or other dental-facial abnormalities; 
Examine patients in order to assess abnormalities of jaw development, tooth position, and other 
dental-facial structures; 
Prepare diagnostic and treatment records; and 
Study diagnostic records such as medicalldental histories, plaster models of the teeth, photos of a 
patient's face and teeth, and X-rays in order to develop patient treatment plans. 
WAC 04 003 50244 
Page 4 
The petitioner requires a minimum of a bachelor's degree in dental technology or a related field for entry into 
the proffered position. 
The AAO routinely consults the Department of Labor's Occupational Outlook Handbook (Handbook) for 
information about the duties and educational requirements of particular occupations. Some of the duties of 
the proffered position are those normally performed by dentists. The Handbook notes that dentists diagnose, 
prevent, and treat teeth and tissue problems. As indicated in the petitioner's response to the director's request 
for evidence, the beneficiary would: examine and diagnose dental malocclusions and oral cavity anomalies; 
diagnose teeth and jaw or other dental-facial abnormalities; prepare diagnostic and treatment records; study 
diagnostic records such as medicalldental histories, plaster models of the teeth, photos of a patient's face and 
teeth, and X-rays in order to develop patient treatment plans; and examine patients in order to assess 
abnormalities of jaw development, tooth position, and other dental-facial structures. It is, therefore, 
concluded that the proffered position is a specialty occupation as the position requires the beneficiary to 
perform duties normally performed by licensed dentists. 
It is noted that 5 1625 - 1636.6 of the California Business and Professions Code explains under section 1625 
that a person practices dentistry in California when that person "performs, or offers to perform, an operation 
or diagnosis of any kind." The duties detailed by the petitioner clearly indicate that the beneficiary will make 
patient diagnoses, and recommend medical solutions for patients' conditions. The proffered position, does, 
therefore, encompass the practice of dentistry in the State of California which requires a license. The petition 
may not be approved, however, as the beneficiary is not qualified to perform the duties of the occupation. 
The beneficiary must satisfy governmental licensing requirements for dentists. As noted in the Handbook, all 
50 States and the District of Columbia require dentists to be licensed. In most states, candidates must 
graduate from a dental school accredited by the American Dental Association's Commission on Dental 
Accreditation, and pass written and practical examinations to qualify for a license. The beneficiary is not a 
graduate of an accredited dental school, nor is he licensed to practice dentistry. 
Section 214(i)(2) of the Act, 8 U.S.C. 5 1184(i)(2), states that an alien applying for classification as an H-1B 
nonimmigrant worker must possess: 
(A) full state licensure to practice in the occupation, if such licensure is required to 
practice in the occupation, 
(B) completion of the degree described in paragraph (l)(B) for the occupation, or 
(C) (i) experience in the specialty equivalent to the completion of such degree, and 
(ii) recognition of expertise in the specialty through progressively responsible 
positions relating to the specialty. 
As the petitioner has not established that the beneficiary is a licensed dentist as required by the State of California, 
the beneficiary is not qualified to perform the services of the specialty occupation. 
WAC 04 003 50244 
Page 5 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. fj 1361. 
The petitioner has failed to sustain that burden. 
ORDER: The appeal is dismissed. The petition is denied.