dismissed H-1B Case: Dentistry

PUBLIC COpy
. identifyingdata deletedto
preventclearlyunwarr~nted
invasionof personalprivacy
U.S. Department of Homeland Security
20 Mass. Ave., NW., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
FILE:, WAC 0106655052 Office: CALIFORNIA SERVICE CENTER Date: OCT 29 Z007
INRE: Petitioner:
Beneficiary:
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(H)(i)(b) of the Immigration
and Nationality Act, 8 U.S.C. § 1101(a)(15)(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, Chief
Administrative Appeals Office
www.uscis.gov
WAC 01 066 55052
Page 2
DISCUSSION: The Director , California Service Center , denied the nonimmigrant visa petition. 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, with four employees and $500,000 in gross annual income. It seeks to employ
the beneficiary as a dental specialist. Accordingly, the , petitioner endeavors to classify the beneficiary as a
nonimmigrant pursuant to section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (the Act) , 8 U.S.C.
§ 1101(a)(15)(H)(i)(b). The director denied the petition determining that the pet itioner had not established the
proffered position as a specialty occupation.
The record of proceeding before the AAO contains: (1) the Form 1-129 filed December 15,2000 with supporting
documentation; (2) the director's . March 27, 2001 request for further evidence (RFE); (3) counsel for the
petitioner's May 9 , 200hesponse to the director's RFE; (4) the director's September 12, 2001 denial letter ; and (5)
the Form 1-290B, with counsel's brief.' TheAAO reviewed the record in its entirety before issuing its decision.
The issue before the AAO is whether the proffered position qualifies as a specialty occupation. To meets its
burden of proof in this regard, the petitioner must first establish that the job it is offering to the beneficiary meets
the following statutory and regulatory requirements.
Section 214(i)(l) of the Act , 8 U.S.c. § 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.
The term "specialty occupation" is further defined at 8 C.F.R. § 214.2(h)(4)(ii) as:
An 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 atta inment 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.
1 The record also includes evidence that Citizenship and Immigration Services (CIS) erroneously rejected the
Form 1-290B as untimely filed and subsequent motions to reopen and reconsider the decision as ' well as the
director's decisions . On June 19 , 2006, the director notified the petitioner and counsel that the appeal from the
September 12, 2001 decision was being forwarded -to 'the AAO for consideration . Neither the petitioner nor
counsel has submitted further documentation in regard to the appeal. Thus, the AAO considers the record
complete and now considers the initially filed appeal .
WAC 01 066 55052
.Page 3
Pursuant to 8 C.F.R. § 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 posit ions 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 above criteria to mean not just any
baccalaureate or higher degree , but one in a specific specialty that is directly related to the proffered position.
The petitioner seeks the beneficiary's services as adental specialist. Evidence of the beneficiary's duties includes
the petitioner's December 5, 2000 letter submitted in support of the petition . The petitioner stated:
My dental clinic is in need of a Dental Specialist who possesses the necessary skill and
knowledge required to administer and direct the activities of the dental practice in accordance
with accepted national standards, administrative policies and OSHA compliance guidelines. [The
beneficiary] will administer a dental program in the clinic and direct activities in accordance with
accepted national standards and administrative policies. [The beneficiary] will confer with
clinical staff to formulate policies and recommend procedural changes. He will confer with the
personnel regarding policies and recommend procedural changes to increase daily production.
[The beneficiary] will as needed, hire additional staff, fire and evaluate their work. [The
beneficiary] will oversee the billing of patients and insurance companies. He will coordinate with
the various dental laboratories that we utilize to assure that orders are submitted and received in a
timely manner. [The beneficiary] will set up a system to be used by the dental office and lab that
will assure a smooth flow of work and improve efficiency.
In a May 9, 2001 response to the director's RFE, counsel for the petitioner repeated a portion of the above
description and asserted that as the beneficiary would be performing these duties in a dental office, the beneficiary
qualified as a health services manager. Counsel noted -that the Department of Labor's Occupational Outlook
Handbook (Handbook) reported that a master's degree in health services administration, long-term care
administration, health sciences, public health , public administration, or business administration is the standard
credential for most generalist positions in the health services field but that a bachelor's degree is adequate for
some entry level positions in smaller facilities. Counsel acknowledged that some of the beneficiary's duties could
be learned without a baccalaureate degree but contended that the formulating of dental policies, standards , and
WAC 01 066 55052
Page 4
procedures required an individual with an education in dentistry. Counsel averred that the duties and
responsibilities of the proffered position are more complex and specialized than those of other health services
managers.
On September 12, 2001, the director denied the petition determining that the duties of the proffered position .
corresponded to the duties of a health services manager but that the Handbook did not report that a baccalaureate
degree in a specialized area was necessary for employment as a health serv ices manager and that "[s]ome learn
'from experience." The director concluded that baccalaureate training is not a normal requirement for entry into
the occupation, that the petitioner had not submitted information that it normally required applicants for the
position to possess baccalaureate or higher level degrees, and that the proposed duties and level of responsibility
do not indicate complexity or authority which is beyond that normally encountered in the occupational field..
On appeal, counsel for the petitioner points out that the Handbook considers that the occupation of a health
services manager normally requires a baccalaureate or higher degree as the minimum requirement for entry into
the position . Counsel avers that the proffered position of dental specialist is unique and that formulat ing dental
policies, standards , and procedures requires someone with an education in dentistry . Counsel contends that the
petitioner has demonstrated the complexity of the position and has established that the specific duties require
specialized and complex knowledge usually associated with the attainment of a baccalaureate degree or its
equivalent as a minimum. Counsel submits an appro val notice for another individual employed by another
petitioner and asserts that as this individual was approved for H-1B classification in the occupation of dental
specialist, CIS should also approve the proposed position in this matter.
Counsel's assertions are not persuasive. To determine whether a particular job qualifies as a specialty occupation ,
CIS does not rely on a position's title. The specific duties of the proffered position, combined with the nature of
the petitioning entity's business operations , are factors to be considered. CIS must examine the ultimate
employment of the alien , and determine whether the position qualifies as a specialty occupation. Cf Defensor v.
Meissner, 201 F. 3d 384 (5 th Cir. 2000). The critical element is not the title of the position nor an employer's
self-imposed standards, 'but whether the position actually requires the theoretical and practical application of a
body of highly specialized knowledge, and the attainment of .a baccalaureate or higher degree in the specific
specialty as the minimum for entry into the occupation, as required by the Act. The petitioner's description of the
proffered position is too general to be considered a health services manager.
To make its determination whether the employment just described qualifies as a specialty occupation, the AAO
turns first to the criterion at 8 C.F.R. § 2l4.2(h)(4)(iii)(A)(l): whether a baccalaureate or higher degree or its
equivalent is the normal minimum requirement for entry into the particular position. In reaching its own"
conclusion regarding the degree requirements of the proffered position, the AAO has relied upon the Handbook ,
comparing the position's duties against those described for a range of professions. This review has found that the
. petitioner has not provided a meaningful description of the proffered position but rather has restated some of the
duties outlined in the Handbook's report on health services managers and administrative or office managers.
In the Handbook's section on the occupation of medical and health services managers, the AAO takesnote of the
following discussion:
WAC 0106655052
Page 5
Healthcare is a business and, like every other business, it needs good management to keep it
running smoothly. Medical and health services managers, also referred to as health care
executives or' heath care administrators, plan, direct, coordinate, and supervise the delivery of
health care. Medical and health services managers include specialists and generalists. Specialists
are in charge of specific clinical departments or services, while generalists manage or help to
manage an entire facility or system.
The structure and financing of health care are changing rapidly. Future medical and health
services managers must be prepared to deal with evolving integrated health care delivery systems,
technological innovations, an increasingly complex regulatory environment, restructuring of work
and an increased focus on preventive care. They will be called on to improve efficiency in health
care facilities and the quality of health care provided. Increasingly, medical and health services
managers will work in organizations in which they must optimize efficiency of a variety of
related services - for example those ranging from inpatient care to outpatient followup care.
* * *
Clinical managers have training or experience in a specific clinical area and, accordingly, have
more specific responsibilities than do generalists. For example, directors of physical therapy are
experienced physical therapists, and most health information and medical record administrators
have a bachelor's degree in health information or medical record administration. Clinical
managers establish and implement policies, objectives, and procedures for their departments;
evaluate personnel and work; develop reports and budgets; and coordinate activities with other
I
managers.
* * *
In.group medical practices, managers work closely with physicians. Whereas an office manager
.may handle business affairs in small medical groups, leaving policy decisions to the physicians
themselves, larger groups usually employ a full-time administrator to help formulate business
strategies and coordinateday-to-day business.
The Handbook notes that a small group of 10 to 15 physicians may employ one administrator to oversee
personnel matters, billing and collection, budgeting, planning, equipment outlays and patient flow, while a large
practice of 40 to 50 physicians might have a chief administrator and several assistants to handle each area.
The Handbook discusses the duties of administrative services managers as follows:
Administrative .services managers perform a broad range o~ duties in virtually every sector of the
economy. They coordinate and direct support services .... These workers manage the many
services that allow organizations to operate efficiently.
* * *
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Page 6
In small organizations, a single administrative services manager may oversee all support services
. . . . As the size of the firm increases , administrative services managers are more likely to
specialize 'in specific support activities . For example , some administrative services managers
work primarily as office managers .. ..
In this matter , the petitioner indicates that it needs an individual : (1) to hire additional staff, fire and evaluate their .
work; (2) to oversee the billing of patients and insurance companies ; (3) to coordinate with the various dental
laboratories regarding orders; and (4) who will set up a system to be used by the dental office and lab that will
assure it smooth flow of work and improve efficiency. These generally stated duties correspond to the
Handbook's report that administrative services manager oversee supportservices , coordinate and direct support
services, and manage the many services that allow organizations to operate efficiently. Although the duties are
performed in a dental office , the petitioner has not provided evidence that the daily duties the beneficiary will
perform are more complex, unique, or specialized than the routine duties of an office manager. Going on record
without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these
proceedings . . Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of
California, 14 I&N Dec . 190 (Reg. Comm. 1972)).
The petitioner's indication that the dental specialist in its office will administer and direct the activities of the
dental practice in accordance with accepted national standards and administrative policies corresponds generally
to the Handbook's indication that heath care administrators , plan, direct, coordinate , and supervise the deli very of
heath care. However , the petitioner does not provide detail or documentation disclosing the activities involved in
directing the petitioner's clinic activities. In addition, the petitioner does not discuss or otherwise explain why its
small office is comparable to the larger medical groups , groups that are discussed in the Handbook as the type of
office/clinic that would usually employ a full-time health services administrator. The AAO acknowledges the
Handbook's general statement that clinical managers ,.as discussed in the section on medical and health services
managers, establish and implement policies , objectives, and procedures for their departments. While the
petitioner indicates that the proffered position would require the beneficiary to confer with staff to formulate
policies and recommend procedural changes to increase daily production, the petitioner does not further describe
what those duties entail. The AAO does not find that the petitioner's general statements regarding the duties of
the proffered position and its paraphrase of a portion of the Handbook's discussion of the occupation, sufficient to
substantiate that the proffered position is that of a health services manager. . Reciting portions of the Handbook to
establish a position as a specialty occupation without providing the detail necessary to relate the duties to the
petitioner's particular business is insufficient to establish the position as a specialty occupation. Again, going on
record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in
these proceedings. Matter ofSoffici, 22 I&N Dec. at 165.
The AAO further observes that the description of the proffered position's duties that includes responsibilities of
. administering and directing the activities of the dental office in accordance with accepted national standards ,
administrative policies and OSHA compliance guidelines suggests that the beneficiary may be practicing dentistry
and thus would requ ire a license in the State of California . The California Business and Professions Code Section
1625 provides' that dentistry is the diagnosis or treatment of diseases and Section 1625(e) states that a person
practices dentistry within the meaning of this chapter who "manages or conducts as manager , proprietor,
conductor, lessor, or otherwise, a place where dental operations are performed ."Although the AAO finds that the
WAC 01 066 55052
Page 7
I
duties as described are too broadly stated to require a conclusion that the beneficiary is managing a place where
dental operations are performed in the context of Section 1625(e) of the California Business and Professions
Code, the AAO notes the possibility that the petitioner's expectations may require the beneficiary to obtain a
dental license.
Upon review of the description of duties provided,' theAAO finds that the petitioner has generally described
aspects of an administrative services manager and a health services manager without providing a description of
. the specific duties included in the proffered position that are directly related to the petitioner's business. The
record contains no more than general information about the occupation of an office manager and a health services
manager and no language or documentary evidence connecting the nonspecific duties of those occupations to the
petitioner's business. The description does not provide the specific requirements and expectations of this
petitioner who has four employees and a gross annual income of approximately $?OO,OOO dollars.
The AAO declines to accept a broad overview of an occupation as definitive of a particular position's daily duties .
The petitioner must provide some evidence of the daily tasks the petitioner requires from the proffered position .
To recite generalities , rather than specifics substantiated by the requirements of the particular petitioner , leads to
the absurd result of petitioners indiscriminately labeling and summarizing positions in an effort to obtain specialty
occupation classification. Each petitioner must detail its e xpectations of the proffered position and must provide
evidence of what the duties of the proffered position entail on a daily basis. Such descriptions must correspond to
the .needs of the petitioner and be substantiated by documentary evidence. To allow otherwise would require
acceptance of any petitioner's generic description to establish that its proffered position is a specialty occupation.
CIS, however, must rely on a detailed , comprehensive description demonstrating what the petitioner expects from
the beneficiary in relation to its business and what the proffered position actually requires , in order to analyze and
determine whether the duties of the position require a baccalaureate degree in a specialty.
The AAO does not find that the proffered position as described includes sufficient information to enable CIS to
determine that the position requires the theoretical and practical application of a body of highly specialized
knowledge attained by study at a bachelor's or higher degree level in a specific specialty. TheAAO concludes
that the evidence of record is insufficient to establish a baccalaureate or higher degree or its equivalent is
normally the minimum requirement for entry into the particular position. The petitioner has not established that
the proffered position qualifies as a specialty occupation on the basis of a degree requirement under the first
criterion at 8 C.F .R. § 214.2(h)(4)(iii)(A)(1).
The AAO now turns to a consideration of whether the petitioner , unable to establish its proffered position as a
specialty occupation under the first criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A), has qualified it under one of the
three remaining criteria .
The petitioner in this matter has not submitted job announcements or industry letters to establish that a degree
requirement is common to the industry in parallel positions among similar organizations. In addition, without a
. meaningful description of the job duties of a particular position , the record lacks the necessary information to
compare the position's duties to other degreed positions within similar organizations in its industry. The AAO
acknowledges counsel's assertion that the proffered position is complex and unique. However, without
documentary evidence to supp~rt the claim, the assertions of counsel will not satisfy the petitioner's burden of
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Page 8
proof. The unsupported assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec.
533,534 (BIA 1988) ; Matter ofLaureano, 191&1\1pee. 1 (BIA 1983); Matter ofRamirez-Sanche z, 17 I&N Dec .
503, 506 (BIA 1980). Moreover , the petitioner does not offer any detail, documentation , or discussion of specific
tasks that demonstrate the complexity of the position or distinguish the position from that of an office manager , an
occupation that often relies on experience rather than formal academic education . The petitioner has not satisfied
either prong of the criterion at 8 C.F .R. § 214 .2(h)(4)(iii)(A)(2) and, therefore, is unable to establish the proffered
position as a specialty occupation on the basis of an industry-wide degree requirement or to distinguish it from '
similar, but non-degreed employment based on its unique nature or complexity .
The petitioner has also failed to establish that it normally requires a degree or its equivalent for the position. The
AAO often reviews a petitioner's past employment practices to establish the criterion at 8 C.F .R.
§ 214.2(h)(4)(iii)(A)(3). In this matter, however, the record does not indicate that the petitioner previously
employed anyone in this position. Thus, the record is insufficient to establish this criterion. In addition , the AAO
finds that while a petitioner may believe that a proffered position requires a degree , that opinion cannot establish
the position as a specialty occupation . Were CIS limited solely to reviewing a petitioner's self-imposed
requirements , then any individual with a bachelor's degree could be brought to the United States to perform any ·
occupation as long as the employer required the individual to have a baccalaureate or higher degree. See
Defensor v. Meissner, 201 F. 3d at 384. The petitioner has not provided documentary evidence of other
employees in the proffered position who have attained a baccalaureate degree or its equi valent. Accordingly , the
petitioner has failed to establish the referenced criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(3) based on its normal
hiring practices.
Turning to the fourth criterion and whether the evidence submitted establishes that ~he 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 , the AAO finds that it does not. In assessing whether the petitioner
has met its burden with regard to the fourth criterion, the AAO has again reviewed the duties of the proffered
position to determine whether they reflect a higher degree of knowledge and skill than would normally be
required of someone trained as an office manager or administrative services manager. While the AAO finds that
the petitioner may rely on the beneficiary to a greater extent than normally expected, due' to the beneficiary's
foreign training as a dentist , the specific duties of the proffered position are not so specialized or complex that the
knowledge required to perform them is usually associated with the attainment of a baccalaureate or higher degree.
Having reviewed the duties of the proffered position as generally described , the AAO finds no evidence in the
record to show that the responsibilities of the proffered position require greater knowledge or skill than that
normally needed by an office or administrative services manager. The petitioner's reliance on the skill and
education of this particular beneficiary does not elevate the described duties to that of a specialty occupation. The
petitioner has not provided a definitive description of duties or other evidence that establishes that the position
includes duties that are so specialized or complex that the position requires an individual with a baccalaureate or
higher degree. The AAO concludes that the petitioner has 'failed to establish that its proffered position meets the
specialized and complex threshold of the fourth criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(4).
For reasons related in the preceding discussion , the petitioner has not established that the proffered position is a
specialty occupation. Accordingly, the AAO will not disturb the director's denial of the petition.
WAC 01 066 55052
Page 9
The AAO notes counsel's reference to a prior approvalfor H-lB classification for an individual in a position
labeled a dental specialist. However, each nonimmigrant petition is a separate proceeding with a separate record.
See 8 C.F.R. § l03.8(d) . When making a determination of statutory eligibility CIS' is limited to the information
contained in the record of proceeding. See 8 C.F.R. § 103.2(b)( l6)(ii). The petit ioner has not offered evidence to
establish that the facts of the instant petition are analogous to those in the unpublished decision. Furthermore ,
while 8 C.F.R. § 103.3(c) provides that AAO precedent decisions are binding on all CIS employees .in the
administration 'of the Act, unpublished decisions are not similarly binding . The AAO also finds that if the
approval in the separate matter was based on evidence similar to the evidence in this proceeding, CIS would have
materially erred in approving that petition.
The AAO observes further that the petitioner initially did not submit a Labor Condition Application (LCA).
Counsel specifically noted that a certified LCA was not being submitted with the petition as it had not been
~ertified and returned. In response to the director's RFE, the petitioner provided a copy of an LCA certified June
12, 2001, approximately six months after filing the petition. The regulation at 8 C .F.R. § 214 .2(h)(4)(i)(B)
requires that before filing a Form 1-129 petition on behalf of an H-IB worker , a petitioner must obtain a certified
LCA from the Department of Labor in the occupational specialty in which the H -IB worker will be employed.
The instructions that accompany the Form 1-129 also specify that an H-IB petitioner must document the filing of
a labor certification application with the Department of Labor when submitting the Form 1-129. The Form 1-129
filing requirements imposed by regulation require that the petitioner submit evidence of a certified LCA at the
time of filing. A petitioner must establish eligibility at the time of filing the nonimmigrant visa petition. A visa
petition may not be approved at a future date after the petitioner or beneficiary becomes eligible under a new set
of facts. Matter ofMichelin Tire Corp., 17 I&N Dec . 248 (Reg. Comm. 1978) . Thus when the petition was filed
the petitioner had also failed to comply with the filing requirements at 8 C.F.R. § 214.2(h)(4)(i)(B). For this
additional reason, the petition 'will be denied.
The petition will be denied and the appeal dismissed for the above stated reasons . As always, 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.
ORDER: The appeal is dismissed. The petition is denied.