dismissed H-1B Case: Dentistry

•
PUBLICCOpY
identifyingdata deletedto
preventclearly unwarranted
invasionofpersonalprivacy
U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
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FILE: WAC 05 223 50946 Office: CALIFORNIA SERVICE CENTER Date: SEP 1 4 ZOO7
IN RE: 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)(l5)(H)(i)(b)
ON BEHALF OF PETITIONER:
INSTRUCTIONS:
This is the decision ofthe 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 05 223 50946
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 five employees and $840,000 in gross annual income. It seeks to extend the
employment of the beneficiary as a dental specialist/researcher. 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 position involved
the practice of dentistry and the petitioner had not provided evidence that the beneficiary is licensed to practice
dentistry in the State of California.
The record of proceeding before the AAO contains: (1) the Form 1-129 filed August 9, 2005 with supporting
documentation; (2) the director's November 2, 2005 request for further evidence (RFE); (3) counsel for the
petitioner's January 23, 2006 response to the director's RFE; (4) the director's March 15, 2006 denial letter; and
(5) the Form 1-290B, with counsel's brief and supporting documentation. The AAO 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 and if it is a
specialty occupation whether the individual in the position must possess a license. 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)(1) of the Act, 8 U.S.C. § 1184(i)(1), 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. § 2l4.2(h)(4)(ii) as:
An occupation which requires theoretical and practical application ofa 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.
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:
WAC 05 223 50946
Page 3
(l) 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 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 a dental specialist/researcher. Evidence of the beneficiary's
duties includes the petitioner's September 23, 2002 letter submitted in support of a previously approved petition
and the petitioner's July 20, 2005 letter appended to the instant petition. In the September 23, 2002 letter, the
petitioner indicated the individual in the proffered position would: "support our company's expansion program by
establishing operational systems and procedures which will help improve the efficiency of our service." The
petitioner added that the beneficiary would "administer and direct the activities of the dental office in accordance
with accepted national standards, administrative polices and OSHA compliance guidelines;" would "conduct the
necessary research to determine the cause and/or effect of the disease that the patient is exhibiting or prepare a
complete analysis of the patients' infection or disorder;" would "confer with the staff to formulate policies and
recommend procedural changes to increase daily production;" would "work with the dentist and analyze the
medical significance of infection or disease, providing a prognosis and advise on treatment based upon her
research;" would "utilize medical journals, textbooks and medical research materials to analyze and evaluate the
patients' conditions, particularly regarding AIDS and treatment of gingival diseases;" and would hire additional
staff, fire, and evaluate their work. The petitioner further indicated that the beneficiary would "oversee the billing
of patients and insurance companies," would "coordinate with the various laboratories that [it] utilize[s], to assure
that orders are submitted and received in a timely manner to improve efficiency."
In the July 20, 2005 letter appended to the instant petition, the petitioner indicated the beneficiary would divide
her time between the following duties:
[The beneficiary] will be in charge of all non-clinical job duties and will continue to ensure that
the dental practice runs smoothly. She will continue to administer a dental program and
formulate dental policies, standards[,] and procedural changes.
Discuss with the Dentist the patients' dental records prior to starting treatment of a patient.
Conduct patient screening procedures; such as assessment of oral health conditions, review of the
health history, oral cancer screening, head and neck inspection, dental charting and taking blood
pressure and pulse.
WAC 05 223 50946
Page 4
Study x-rays and discuss with the dentist the case and appropriate treatment to be followed.
Oversee the conventional procedures such as root canal filling.
Supervise surgical procedures such as apicoectomies and retortills [sic].
Assist the Dentist in taking and developing radiographs (x-rays).
Make impressions of patient's teeth for study casts (models of teeth used by dentists to evaluate
patient treatment needs).
Order items like Crowns, Bridges, Dentures, both complete and partial with the Dental
Laboratory Technicians. She will then follow up on the fabrication of these prosthetics and make
sure that these are received on time, and on receipt, make sure that the prosthetics made matches
the order.
Coordinate the placement of orthodontic appliances.
Oversee the preparation and fitting of ortho [sic] bands.
Instruct the patients in the proper care and use of appliances.
Coordinate the selection of head gear, arch wires, elastics, ligatures, mouth mirrors, probes,
forceps, brushes and scalpels.
Oversee complex fixed and removable restorative procedures including tooth preparation,
impressions and occlusal recordings, filling of full, overdenture, and partial dental fabrication.
Coordinate complex dental care involving periodontic and prosthodontic rehabilitation.
Supervise the set up of the armamentarium for oral, nitrous oxide analgesia, intramuscular, and
intravenous conscious sedation.
Oversee selection of the proper specimen container and notification of the laboratory.
Help the dentist in the in-patient care wherever necessary [and help with] out[-]patient follow up
care.
Analyze the treatment that is being offered and will design a treatment program to create and
maintain a favorable public image for the business as well as promote the dental practice's
services.
Collect, research, compile statistics on the patients and the effectiveness of the treatment.
Instruct patients on postoperative and on general oral health care and on good oral hygiene.
Help patients develop and maintain good oral health. She will also explain the relationship
between diet and oral health, inform patients how to select toothbrushes, and show patients how
to brush and floss their teeth.
Administer and direct the activities of the dental practice in accordance with accepted national
standards, administrative policies and OSHA compliance guidelines.
Oversee the dental assistants and dental hygienists employed by our dental office.
Create brochures explaining the benefits of cosmetic surgery.
Keep up to date on the latest medical research results and utilize the medical library to perform
the research necessary to evaluate any cases that are given to her.
Utilize medical journals and evaluate the patients' conditions, particularly regarding AIDS and
treatment of gingival diseases. The amount of time spen[t] on research will be determined by the
extent of the injuries or rarity of the diseases incurred for each case.
As needed, hire additional staff, fire and evaluate their work.
Oversee the billing of patients and insurance companies.
WAC 05 223 50946
PageS
Coordinate with the various laboratories that we utilize to assure that orders are submitted and
received in a timely manner to improve efficiency.
The petitioner also noted that the beneficiary did not provide any patient care activities since she is not a licensed
dentist in the State of California. The petitioner stated: "[t]he position requires a strong medical background in
order to understand not only the terminology, but also how to interpret and evaluate the dentist's diagnoses."
In response to the director's RFE, requesting information from the California licensing agencies that the position
described did not require a dental license, counsel for the petitioner provided his December 12, 2005 letters sent
to the Dental Board of California and to the Committee on Dental Auxiliaries of the California Department of
Affairs inquiring whether the duties of the proffered position constituted a position requiring a license. Counsel
also provided a response from the California Committee on Dental Auxiliaries. In a letter dated December 16,
2005, an executive officer of the Committee on Dental Auxiliaries noted that it was not possible to discern from
the wording of the proposed duties whether a particular duty required a license and that it was unclear whether the
author of the December 12, 2005 letter was inquiring if a particular duty is permissible for an unlicensed dental
assistant, a registered dental assistant, a registered dental assistant in extended functions, or a registered dental
hygienist. The executive officer of the Committee on Dental Auxiliaries provided a copy of the regulations
governing each of the referenced positions and noted that if the duty is not listed in the applicable regulation
governing the position, the auxiliary may not perform the duty.
Counsel indicated that because the California Dental Board and the California Committee on Dental Auxiliaries
did not make a finding in response to his inquiry, the firm conducted its own legal research. Counsel concluded
that the beneficiary is exempt from the licensing requirements of section 1625 of the California Business and
Professions Code, because the duties of the position do not involve the examination, diagnosis, or treatment of
diseases or injuries to human teeth. Counsel claimed that the dental researcher/specialist is not responsible for
diagnosis or patient care and all work is performed under the supervision of a licensed dentist, thus under 8 C.F.R.
§ 214.2(h)(4)(v)(C) as the beneficiary may perform the duties of the position under supervision, the
H classification may be granted.
Counsel also asserted that the dental researcher/specialist is not responsible for patient care because the job
consists of administrative duties and dental research performed under the supervision of a licensed dentist.
Counsel indicated that the beneficiary's duties resemble the duties of a health services manager as described in the
Department of Labor's Occupational Outlook Handbook (Handbook), that include maintaining patient records,
planning, organizing, coordinating, and supervising the delivery of health care.
Counsel contended that the dental research/specialist would continue to perform administrative duties and dental
research under the supervision of a licensed dentist, that the duties of the position do not require a license and
neither the California Dental Board nor the California Committee on Dental Auxiliaries had determined that the
duties ofthe position required a license. Counsel referenced an April 23,2004 interoffice memorandum issued by
William R. Yates, Associate Director for Operations (Yates memorandum) indicating: "In matters relating to an
extension of nonimmigrant petition validity involving the same parties (petitioner and beneficiary) and the same
underlying facts, a prior determination by an adjudicator that the alien is eligible for the particular nonimmigrant
WAC 05 223 50946
Page 6
classification sought should be given deference.") Counsel noted that the petition involved the same parties and
the same underlying facts and that CIS had not noted any material change in circumstances and that no material
change had taken place.
On March 15, 2006, the director determined that the record did not contain adequate information to substantiate
counsel's assertion that a license was unnecessary for the beneficiary to perform the duties described. The
director determined that as the proffered position exerts considerable influence over the type and length of
treatment patients received, the proffered position is a specialty occupation. The director found that a dental
license was required to perform the duties of the proffered position and that the record did not contain evidence
that the beneficiary had a dental license in the State of California.
On appeal,counsel for the petitioner asserts that the duties of the position do not require a dental license because
the position does not require clinical diagnosis or patient care and all work is performed under the supervision of a
licensed dentist. Counsel contends that in both the initial petition and the instant extension petition, the petitioner
indicated that the applicant would not provide any patient care because she is not a licensed dentist in the State of
California; rather, that the job consists of administrative duties and clinical research performed under the
supervision of a licensed dentist. Counsel reiterates his prior contention that the position's duties resemble the
duties of a health service manager as described in the Handbook. Counsel asserts that if a license is required to
perform the duties described in this matter, then the occupations of dental assistant, medical assistant, and nursing
assistant, as well as a health services manager, could not be performed without a license. Counsel contends that
as long as the beneficiary "may assist the dentist in making a diagnosis of the patient's medical or dental
condition" and the final responsibility for diagnosis and treatment remains with the dentist, a license is not
required.
Counsel again references the Yates memorandum and avers that it is established CIS policy to give deference to a
prior determination of eligibility for a nonimmigrant classification unless there is a material error in regard to the
prior approval, a substantial change in circumstances, or new material infonnation that adversely affects the
petition or beneficiary's eligibility. Counsel asserts there has been no change in circumstances and that the
petitioner has submitted evidence that the duties of the petition do not require a license because they consist of
administrative duties and clinical research performed under the supervision of a licensed dentist.
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 detennine whether the position qualifies as a specialty occupation. Cf Defensor v.
) The memorandum noted that prior approved petitions should not be given deference when it had been
determined that a material error with regard to the previous petition had occurred, or a substantial change in
circumstances had taken place, or new material information adversely impacted the petitioner's or beneficiary's
eligibility.
2 In this matter, the Dental Board of California does not recognize the title of dental specialist. Counsel provided
a February 3, 2006 letter from the Dental Board in California in another matter before the AAO indicating that
there is no such title as dental researcher/specialist.
WAC 05 223 50946
Page 7
Meissner, 201 F. 3d 384 (5th 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 not that of a medical and 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. § 214.2(h)(4)(iii)(A)(1): 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 dental professions. This review has found
that the petitioner has not provided a meaningful description of many of the tasks associated with the proffered
position, that some of the tasks are lifted directly from the Handbook's report on dental assistants and dental
hygienists; and that some of the duties encompass duties associated with the duties of a dental laboratory
technician and administrative or office manager.
The AAO observes that the description of the proffered position's duties contained in the letter in support of the
initially approved petition included responsibilities of administering and directing the activities of the dental
office in accordance with accepted national standards, administrative policies and OSHA compliance guidelines
and conducting "the necessary research to determine the cause and/or effect of the disease that the patient is
exhibiting." 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." The AAO finds that preparing a complete analysis of the patient's infection or
disorder and "work[ing] with the dentist and analyz[ing] the medical significance of infection or disease,
providing a prognosis and advise [sic] on treatment based upon her research" suggest that the beneficiary would
be performing the duties of a dentist. The AAO notes that the Section 1625(d) of the California Business and
Professions Code indicates that making an examination of teeth with the intent to perform or cause to be
performed any operation on human teeth, alveolar process, gums, jaws, or associated structures, is the practice of
dentistry. Although the record in the initially approved petition suggested that the beneficiary would be
performing the duties of a dentist in the State of California, the duties as initially described are too broadly stated
to enable CIS to have made a definitive determination that the proffered job would or would not involve duties
that require a license in the State of California.
The remaining portion of the petitioner's general description in the initial petition is also too general to enable an
adequate appraisal of the actual duties the beneficiary would perform and whether or not those duties would
require a license to perform them in the State of California. If the previous approval of the proffered position as a
specialty occupation and the beneficiary's eligibility to perform the duties of the position without a license was
based solely on the description provided, such approval would be in violation of paragraph (h) of 8 C.F.R. § 214.2
and would constitute material error on the part of the director. Moreover, the AAO finds the information from the
California Committee on Dental Auxiliaries in its December 16, 2005 letter is new material that adversely impacts
on the beneficiary's eligibility to perform the duties of a specialty occupation.
WAC 05 223 50946
Page 8
The AAO also observes that prior approvals do not preclude CIS from denying an extension of the original visa
based on a reassessment of the petitioner's qualifications or the beneficiary's eligibility. See Texas A&M Univ. v.
Upchurch, 99 Fed. Appx. 556, 2004 WL 1240482 (5th Cir. 2004). Further, each nonimmigrant petition is a
separate proceeding with a separate record. See 8 C.F.R. § 103.8(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. § l03.2(b)(16)(ii).
As determined above, if the previous approval was based on the description provided, CIS would have materially
erred in approving the previously filed petition. CIS is not required to approve applications or petitions where
eligibility has not been demonstrated, merely because of prior approvals that may have been erroneous. See, e.g.,
Matter ofChurch Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988). It would be absurd to suggest
that CIS or any agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomery,
825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988).
Turning to the description of the proffered position as the petitioner expanded upon the duties in the instant
petition, the AAO finds that many of the listed duties do not provide a clear understanding of the task(s) the
beneficiary will be performing. For example, "[c]oordinat[ing] complex dental care involving periodontic and
prosthodontic rehabilitation" is not sufficiently clear to discern whether the performance of this duty involves the
work of a dentist, a dentist auxiliary, or a dentist auxiliary that requires licensure or registration in the State of
California. Likewise, the petitioner's description of a duty that requires the beneficiary to oversee a task does not
provide sufficient information to determine if the beneficiary will be performing the duties of a licensed dentist
who oversees dental auxiliaries or if oversight is something of a different nature altogether. In yet other portions
of the description, the AAO cannot discern whether the beneficiary's discussion of the patients' dental records,
discussion of x-rays and appropriate treatment, and designing a treatment program to create a favorable public
image are tasks requiring the services of a dentist or of a dental assistant as the duties are ill-defined and lack
clarity of purpose.
The AAO notes again, that evaluating a patient's condition and treatment and analyzing infection or disease and
advising on treatment resemble the duties of a dentist and that if the proffered position includes diagnosing or
providing treatment, or planning, placing, condensing, carving, or removing permanent restorations, or other
surgical or cutting procedures on hard or soft tissue, the individual performing these tasks must be licensed as a
dentist in the State of California. The AAO acknowledges the petitioner's emphasis that the beneficiary's tasks of
evaluating a patient's condition and offering prognosis will be based on her medical research and that the record
does not reflect that the petitioner requires licensure in the position or that it is seeking a licensed dentist;
however, as the record is not sufficiently clear regarding the actual duties of the proffered position as it relates to
these tasks, the AAO is unable to eliminate the possibility that the beneficiary will actually perform some of the
duties of a dentist, thus requiring the beneficiary to have a license to practice dentistry in the State of California.
The petitioner has provided some detail in the extensive list of duties of the proffered position that identifies a
specific task. A review of the Handbook shows that the identifiable tasks are related to the occupations of dental
assistant, dental hygienist, and administrative/office manager.
In pertinent part, the Handbook states the following regarding dental assistants:
WAC 05 223 50946
Page 9
Dental assistants perform a variety of patient care, office, and laboratory duties. They work
chairside as dentists examine and treat patients. They make patients as comfortable as possible in
the dental chair, prepare them for treatment, and obtain their dental records. Assistants hand
instruments and materials to dentists.... Assistants also sterilize and disinfect instruments and
equipment, prepare trays of instruments for dental procedures, and instruct patients on
postoperative and general oral health care.
Some dental assistants prepare materials for impressions and restorations, take dental x rays, and
process x-ray film as directed by a dentist. They also may remove sutures, apply topical
anesthetics to gums or cavity-preventive agents to teeth, remove excess cement used in the filling
process, and place rubber dams on the teeth to isolate them for individual treatment.
Those with laboratory duties make casts of the teeth and mouth from impressions, clean and
polish removable appliances, and make temporary crowns. Dental assistants with office duties
schedule and confirm appointments, receive patients, keep treatment records, send bills, receive
payments, and order dental supplies and materials.
The following duties of the petitioner's description of the proffered position align most closely with that of a
dental assistant:
• Assist the dentist in taking and developing radiographs (x-rays).3
• Coordinate the placement of orthodontic appliances.
• Oversee the preparation and fitting of orthodontic bands.
• Instruct the patients in the proper care and use of appliances.
• Coordinate the selection of headgear, arch wires, elastics, ligatures, mouth mirrors, probes,
forceps, brushes, and scalpels.
• Set up of the armamentarium for oral, nitrous oxide analgesia, intramuscular, and intravenous
conscious sedation.
• Instruct patients on postoperative and on general oral health care and on good oral hygiene.
• Make impressions of patient's teeth for study casts (models of teeth used by dentists to
evaluate patient treatment needs).
The Handbook's discussion regarding the duties of dental hygienists also relates to the proffered position, as
follows:
Dental hygienists... teach patients how to practice good oral hygiene, and provide other
preventive dental care. Hygienists examine patients' teeth and gums, recording the presence of
diseases or abnormalities.... , They... take and develop dental x rays ....
3 The AAO observes that Article 5 Section 1085 of the California Business and Professions Code requires a
dental assistant who operates dental radiographic equipment for the purpose of oral radiography to comply with
the requirements of section 1656 of the Code. The record does not provide evidence that the beneficiary has so
complied.
WAC 05 223 50946
Page 10
Dental hygienists also help patients develop and maintain good oral health. For example, they
may explain the relationship between diet and oral health or inform patients how to select
toothbrushes and show them how to brush and floss their teeth.
Dental hygienists use... x-rays machines to take dental pictures, syringes with needles to
administer local anesthetics, models of teeth to explain oral hygiene.
The following duties 'of the petitioner's description of the proffered position align most closely with that of a
dental hygienist:
• Conduct patient screening procedures; such as assessment of oral health conditions, review of
the health history, oral cancer screening, head and neck inspection, dental charting and taking
blood pressure and pulse.
• Help patients develop and maintain good oral health, explain the relationship between diet and
oral health, inform patients how to select toothbrushes, and show patients how to brush and
floss their teeth.
The Handbook's discussion regarding the duties of administrative services managers also relates to the proffered
position, as follows:
Administrative services managers perform a broad range of 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.
* * *
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 ....
The petitioner's indication that the beneficiary will order items like crowns, bridges, and dentures, and follow up
on the fabrication of prosthetics, making sure that they are received on time, on receipt, and matches the order,
and overseeing the billing of patients and insurance companies are administrative functions.
Turning now to the occupation of medical and health services managers, the AAO takes note of the following
discussion:
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
heath care. Medical and health services managers include specialists and generalists. Specialists
WAC 05 223 50946
Page 11
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
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 coordinate day-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
AAO does not find the proffered position to be closely aligned to the employment just described. While the
petitioner indicates that the proffered position would require the beneficiary to ensure that the dental practice runs
smoothly and administer a dental program, formulate dental policies, standards, and procedural changes, the
petitioner does not further describe what those duties entai1.
4
The AAO also notes that the petitioner uses the
same terminology as the Handbook when indicating the beneficiary will help the dentist with in-patient care
4 Again, the AAO notes that California Business and Professions Code Section 1625(e) defines the practice of
dentistry to include any person who "[m]anages or conducts as manager, proprietor, conductor, lessor, or
otherwise, a place where dental operations are performed." The record does not reflect that the beneficiary is a
licensed dentist in the State of California or that the petitioner requires a license in dentistry. Thus, the petitioner
in this matter does not appear to be seeking a manager for the dental practice which would require licensure as a
dentist under California law.
WAC 05 223 50946
Page 12
wherever necessary and with out-patient follow up care and evaluate the work of personnel. The AAO, however,
does not find that the description of the duties of the proffered position provides sufficient detailed information to
substantiate that the proffered position is that of a health services manager. Reciting portions ofthe 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. 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».
Based on its reading of the Handbook, the AAO concludes that the proffered position, as described by the
petitioner combines the duties of several dental professions. While the majority of the position's duties are not
clearly defined and the AAO cannot discern whether the tasks are the tasks of a dentist, a dental auxiliary, or a
registered dental auxiliary, some tasks appear to fall within the Handbook's description of dental assistant, or a
dental hygienist or an office administrator. The record does not support the petitioner's assertion that the
proffered position is that of a medical and health and services manager.
Having concluded that the defined duties of the proffered position of dental specialist parallel those of dental
assistants, hygienists and administrative services managers, the AAO turns to the Handbook to determine whether
these occupations normally require applicants for employment to have the minimum of a baccalaureate or higher
degree, or its equivalent. Factors considered by the AAO when determining these criteria include whether the
Handbook, on which the AAO routinely relies for the educational requirements of particular occupations, reports
that the industry requires a degree.
The Handbook states the following regarding the educational requirements for dental assistants:
Most assistants learn their skills on the job, although an increasing number are trained in
dental-assisting programs offered by community and junior colleges, trade schools, technical
institutes, or the Armed Forces....
For dental hygienists, the requirements as discussed by the Handbook are:
Dental hygienists must be licensed by the State in which they practice. To qualify for licensure, a
candidate must graduate from an accredited dental hygiene school and pass both a written and
clinical examination....
In 2004, the Commission on Dental Accreditation accredited about 266 programs in dental
hygiene. Most dental hygiene programs grant an associate degree, although some also offer a
certificate, a bachelor's degree, or a master's degree. A minimum of an associate degree or
certificate in dental hygiene is required for practice in a private dental office. A bachelor's or
master's degree usually is required for research, teaching, or clinical practice in public or school
health programs.
The Handbook offers the following regarding the training of administrative services managers:
WAC 05 223 50946
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Educational requirements for these managers vary widely, depending on the size and complexity
of the organization. In small organizations, experience may be the only requirement needed to
enter a position as office manager.
In that the Handbook finds no baccalaureate or higher degree, or its equivalent, to be required for employment in
any of the occupations whose defined duties comprise the proffered position, the AAO concludes that the
proffered position does not qualify 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)(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, the AAO
observes that the December 16, 2005 letter from the Committee on Dental Auxiliaries finds the petitioner's
description too esoteric to determine whether the job duties described are for particular occupations. The
petitioner has not established that a degree requirement is common to the industry in parallel positions among
similar organizations. The petitioner also fails to establish that the proffered position is so complex or unique that
only an individual with a degree can perform the position. As discussed above, the defined duties of the proffered
position track the duties of a dental assistant, and possibly a dental hygienist, and office administrator, positions
that are commonly performed by non-degreed individuals. Further, without a meaningful description of the job
duties of a particular position, the petitioner has not established the position's duties as parallel to any degreed
positions within similar organizations in its industry or distinguished the position as more complex or unique than
similar, but non-degreed, employment, as required by alternate prongs of the second criterion. The petitioner has
not satisfied either prong of the criterion at 8 C.F.R. § 214.2(h)(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.
Although the petitioner employed the beneficiary, an individual with a foreign degree in dentistry, in an H-1B
classification prior to submitting this extension request, that employment cannot be used to establish that the
petitioner normally requires a degreed individual for the position of dental assistant. As determined above, the
approval of the initial petition based on the general description of the duties of the proffered position was in error.
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 equivalent.
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.
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Turning to the fourth criterion and whether the evidence submitted establishes that 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, 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 a dental assistant, dental hygienist or an 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 considered the defined duties of the proffered position, 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 dental assistants, dental hygienists, or administrative services managers.5 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 listed the duties of a dental assistant, a dental hygienist, and
an administrative services manager, to describe the tasks the beneficiary will perform in the proffered position.
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 ofthe fourth criterion at 8 C.F.R. § 2l4.2(hX4)(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.
The petition will be denied and the appeal dismissed for the above stated reason. 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.
5 The AAO notes once again that the general references in the proffered position indicating the beneficiary will
provide treatment, diagnosis, or oversight of various tasks, suggest that the position may be that of a dentist, a
specialty occupation that requires licensure in the State of California. As the record does not include evidence
that the beneficiary has obtained a dental license, the petition could not be approved on the basis of performance
of these duties as they appear to include the duties of a dentist and the beneficiary has not been licensed to
perform the occupation.