dismissed H-1B Case: Medical Diagnostics

Identlfging data debted to 
prevent dearly umammted 
invdon of perma1 privacy 
U.S. Department of Homeland Security 
20 Mass. Ave. N.W., Rm. A11042 
Washington, DC 20529 
U.S. Citizenship 
and 1rnmigratio.n 
PUBLIC COPY 
,".---* *F",\ 
FILE: WAC 04 103 50265 Office: CALIFORNIA SERVICE CENTER Date: 
NT 0 4 2@5 
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. 3 1 lOl(a)(lS)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Thls is the declslon 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 04 103 50265 
Page 2 
DISCUSSION: The director of the service center denied the nonirnmigrant 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 medical diagnostics laboratory. In order to employ the beneficiary in a position which it 
entitles Medical Records Administrator, the petitioner filed this petition to classify the position as an H-1B 
nonirnrnigrant worker in a specialty occupation, pursuant to section 101 (a)( 1 5)(H)(i)(b) of the Immigration and 
Nationality Act, 8 U.S.C. § 1 101 (a)(l 5)(H)(i)(b). 
The director determined that the proffered position is that of a medical records technician as described in the 
Department of Labor's Occupational Outlook Handbook (Handbook), which Citizenship and Information 
Services (CIS) recognizes as an authoritative source on the duties and educational requirements of a wide variety 
of occupations. The director denied the petition on the basis that the petitioner had failed to establish that the 
proffered position meets the definition of a specialty occupation set forth in the regulation at 8 C.F.R. 
3 2 14.2(h)(4)(iii)(A). 
The director's decision to deny the petition was correct. The AAO bases its decision upon its consideration of 
the entire record of proceeding before it, which includes: (I) the petitioner's Form 1-129 and the supporting 
documentation filed with it; (2) the director's denial letter; and (3) the Form I-290B, and counsel's brief in the 
form of an eight-page statement that is attached to the Form I-290B. 
Section 101 (a)(lS)(H)(i)(b) of the Act, 8 U.S.C. 5 1 101 (a)(l 5)(H)(i)(b), provides a nonimmigrant 
classification for 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. 8 1184 (i)(l), defines the term "specialty occupation" as an ~c~cupation 
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. 
Thus, it is clear that Congress intended this visa classification only for aliens who are to be employed in an 
occupation that requires the theoretical and practical application of a body of highly specialized knowledge 
that is conveyed by at least a baccalaureate or higher degree in a specific specialty. 
Consonant with section 214(i)(l) of the Act, the regulation at 8 C.F.R. 5 214.2(h)(4)(ii) states that a specialty 
occupation means an occupation: 
which [l] 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 
WAC 04 103 50265 
Page 3 
specialties, accounting, law, theology, and the arts, and which [2] requires the attainment oj"a 
bachelor's degree or higher in a specijic specialty, or its equivalent, as a minimum for entry in to 
the occupation in the United States. (Italics added.) 
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: 
(I) A baccalaureate or higher degree or its equivalent is nonnally the minimum requirement 
for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among similiu 
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 alr 
higher degree. 
Citizenship and Immigration Services (CIS) has consistently interpreted the term "degree" in the criteria at 
8 C.F.R. 5 214.2(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. Applying this standard, CIS regularly approves 
H-1B petitions for qualified aliens who are to be employed as engineers, computer scientists, certified public 
accountants, college professors, and other such professions. These occupations all require a baccalaureate 
degree in the specific specialty as a minimum for entry into the occupation and fairly represent the types of 
professions that Congress contemplated when it created the H-1B visa category. 
According to the Form 1-129, the petitioner has five employees. The brochure submitted into the record 
includes the following information. The petitioner is a full-service pathology laboratory that was founded in 
2001 in order to provide physicians with laboratory results and consultation in surgical pathology, 
cytopathology, and forensic pathology. In 2003, the laboratory expanded its clinical pathology testing 
programs to include comprehensive clinical chemistry, hematology, urinalysis, drug screening, in-house 
immunohistochemistry, special stains, and tissue processing. The petitioner "has the capability of serving a 
wide range of physicians with a wide range of available tests and rapid turn-around times," and the 
petitioner's pathology staff are "readily available for quick consultation with client physicians through the 
laboratory client services." 
In its February 23, 2004 letter of support that was filed with the Fonn 1-129 (Petition for Nonimigrant 
Worker), the petitioner presents the following duties in support of its assertion that the proffered position is 
"highly technical in nature as they involve knowledge in medical information that only persorls with 
baccalaureate degrees in medically allied courses can perform": 
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The tasks include planning. developing, and administering health information standards of 
accrediting and regulating agencies and requirements of our medical diagnostics and 
laboratory systems. 
Also, [the beneficiary] will be tasked to develop and implement policies and procedures for 
documenting, storing, and retrieving information and for processing medico-legal documenl:~, 
insurance data, and correspondence requests, in conformance with federal, state, and local 
statutes. 
In addition, it would also be his duty to: supervise staff, either directly or through 
subordinates, in the preparation and analysis of medical documents; participate in the 
development and design of computer software for [a] computerized diagnostics and 
laboratory information system; coordinate medical care evaluation with medical staff and 
develop criteria and methods for such evaluation; develop in-service educational materials 
and conduct instructional programs for laboratory and diagnostic and diagnostics personnel; 
and analyze data for reimbursement, facility planning, quality of procedures, risk 
management, utilization management, and research. 
On appeal, counsel submits a brief that contends that the evidence of record establishes that the proffered 
position is that of a medical records administrator - not a medical records technician - and that the. position 
qualifies as a specialty occupation under criteria I and 4 of 8 C.F.R. 9 214.2(h)(4)(iii)(A). As discussed below, 
counsel is incorrect. 
The petitioner has not satisfied the criterion of 8 C.F.R. 3 214.2(h)(4)(iii)(A)(I) by establishing that the 
proffered position is one for which the normal minimum entry requirement is at least a bachelor's degree, or 
the equivalent, in a specific specialty closely related to the position's duties. 
The petitioner has not satisfied the criterion of 8 C.F.R. $ 214.2(h)(4)(iii)(A)(l) by establishing that the 
proffered position is one for which the normal minimum entry requirement is at least a bachelor's degree, or 
the equivalent, in a specific specialty closely related to the position's duties. 
CIS recognizes the Department of Labor's (DOL's) Occupational Outlook Handbook (Handbook) as an 
authoritative source on the duties and educational requirements of a wide variety of occupations. The proposed 
duties are described in exclusively generalized and generic terms. Consequently, the MO is only able to 
reasonably conclude that some of the duties are generally encompassed by a combination of the administrative 
assistant and medical and recordshealth care information technician occupational categories as discussed at pages 
469-472 and 323-324, respectively, of the 2004-2005 edition of the Handbook. The Handbook indicates that 
neither of these occupational categories would normally require a bachelor's degree or higher in a specific 
specialty. 
No specific information is provided about the analysis and preparation that would be involved in the 
beneficiary's medical document preparation and analysis, or about the nature of the beneficiary's participation 
in the design and development of software for the petitioner. The petitioner does not describe the coiltent of 
WAC 04 103 50265 
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the medical care evaluation in which the beneficiary would engage, the educational material that the 
beneficiary would develop, or the instructional programs that he would provide. Likewise the petitioner 
provides no information about the data that the beneficiary would analyze for "reimbursement, facility 
planning, quality of procedures, risk management, utilization management and research." The petitioner 
employs 5 people in a medical diagnostics laboratory. Two of these persons, the medical director and 
co-director, appear to be pathologists. No information is presented about the other three employees, or the 
staff that the beneficiary will supervise "either directly or through subordinates," or with whom the 
beneficiary will coordinate medical care evaluation. From the petitioner's statements the AAO can 
reasonably deduce that the position will require some medical knowledge. However, there is no basis in the 
record for the AAO to conclude that the position would require more than the associate's degree level of 
medical knowledge that the Handbook reports as the usual entry-level educational requirement for medical 
records and health information technicians. 
As the evidence of record does not establish that the proffered position is one with a normal minimum entry 
requirement of a baccalaureate or higher degree, or the equivalent, in a specific specialty, the petitioner has 
not satisfied the criterion at 8 C.F.R. fj 214.2(h)(4)(iii)(A)(I). 
The evidence of record does not support counsel's second contention, namely, that the petitioner has satisfied 
the criterion of 8 C.F.R. tj 214.2(h)(4)(iii)(A)(4) by showing that the duties are so specialized and conlplex that 
their performance requires knowledge usually associated with at least a baccalaureate degree in zl specific 
specialty. Such complexity is not evident in the duties as described in the record, and the petitioner has presented 
no independent evidence on ths issue. 
The record does not substantiate counsel's assertions that the petitioner has satisfied 8 C.F.R. 
$8 214.2(h)(4)(iii)(A)(I) and (4). Going on record without supporting documentary evidence is not sufficient 
for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 
(Comm. 1998) (citing Matter of Treasure Cra$ of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
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. 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 also finds that the evidence of record does not satisfy any of the specialty occupation criteria not 
relied upon by counsel. 
The petitioner has not presented evidence that satisfies the first altemative prong of 8 C.F.R. 
$ 214.2(h)(4)(iii)(A)(2), which is for a position with a requirement for at least a bachelor's degree in a 
specific specialty that is common to the petitioner's industry in positions that are both (1) parallel to the 
proffered position and (2) located in organizations that are similar to the petitioner. The evidence of record 
does not establish that ths particular position is so complex or unique that it can be performed on1.y by an 
individual with a degree, so as to satisfy the second altemative criterion of 8 C.F.R. $ 214.2(h)(4)(iii)(A)(Z). 
The petitioner has not presented any evidence to establish that the proffered position qualifies as a specialty 
occupation in accordance with 8 C.F.R. tj 214.2(h)(4)(iii)(A)(3), that is, by virtue of an established history of the 
WAC 04 103 50265 
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petitioner's recruiting and requiring for this position only persons with at least a bachelor's degree in a specific 
specialty. 
In addition to the evidentiary deficiencies discussed above, the AAO also notes inconsistent material 
information in the record that casts doubt upon the accuracy of the petition. The petitioner's brochure and 
letter of support indicate that the petitioner is involved exclusively in laboratory testing and consultant service 
for physicians. Yet, the letter of support lists medical care evaluation among the duties, and the brief asserts 
that part of the specialty occupation rationale resides in a requirement that the beneficiary ensure proper 
treatment plans and the proper administration of medications (brief, at page 4). The record contains no 
explanation of how the laboratory would be involved in evaluating persons' medical care, planning their 
treatment, or administering medications. It is incumbent upon the petitioner to resolve any inconsistencies in 
the record by independent objective evidence, and attempts to explain or reconcile such inconsistencies, 
absent competent objective evidence pointing to where the truth, in fact, lies, will not suffice. See Matter of 
Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). The above noted material inconsistency is not resolved by any 
part of the record of proceeding. 
As the petitioner has failed to establish that the proffered position qualifies as a specialty occupation under any 
criterion of 8 C.F.R. 8 214.2(h)(4)(iii)(A), the director's decision shall not be disturbed. 
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 sustained that burden. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed. The petition is denied.