dismissed H-1B Case: Medical Research

identiwg dars dew to 
p~event clearly unwanmted 
invasion of personal privacy 
U.S. Department of Homeland Security 
20 Massachusetts Avenue, NW, Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
PUBCIC COPY 
FILE: WAC 04 020 50194 Office: CALIFORNIA SERVICE CENTER Date: 
 APR 1 4 2006 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section lOl(a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 5 1 lOl(a)(lS)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
WAC 04 020 50194 
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 an organization that researches Chinese and Western medicine and seeks to employ the 
beneficiary as a research and development analyst. The petitioner endeavors to classify the beneficiary as a 
nonimmigrant worker in a specialty occupation pursuant to section lOl(a)(lS)(H)(i)(b) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 3 llOl(a)(lS)(H)(i)(b). The director denied the petition because the 
proffered position is not a specialty occupation. 
The record of proceeding before the AAO contains: (1) Form 1-129 and supporting documentation; (2) the 
director's requests for evidence; (3) counsel's responses to the director's requests for evidence; (3) the 
director's denial letter; and (4) Form I-290B, with the petitioner's letter, and other evidence. 
The issue before the AAO is whether the proffered position qualifies as a specialty occupation. To meet its 
burden of proof in this regard, a petitioner must establish that the job it is offering to the beneficiary meets the 
following statutory and regulatory requirements. 
Section 214(i)(l) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1184(i)(l) defines the term 
"specialty occupation" as one 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. 5 214.2(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 
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. 5 214.2(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 normally the minimum requirement for 
entry into the particular position; 
WAC 04 020 501 94 
Page 3 
(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. 
To determine whether a particular job qualifies as a specialty occupation, CIS does not simply 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. CJ: Defensor v. Meissner, 201 
F. 3d 384 (5" 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 states that it is seeking the beneficiary's services as a research and development analyst. 
Evidence of the beneficiary's duties includes the Form 1-129 and the petitioner's response to the director's 
request for evidence. 
The petitioner stated that the proffered position would require the beneficiary to: 
Compile, analyze, and interpret research data; 
Perform clinical research activities, including data collection, data entry, data verification, 
and data analysis; 
Conduct library research and contribute to the preparation and writing of research findings for 
publication of journal articles; 
Participate in the design of research studies; and 
Provide instruction in pharmacology, physiology and related subjects; 
To determine whether the duties just described are those of a specialty occupation, the AAO first considers 
the criteria at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(l) and (2): a baccalaureate or higher degree or its equivalent is 
the normal minimum requirement for entry into the particular position; and a degree requirement is common 
WAC 04 020 50194 
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to the industry in parallel positions among similar organizations or a particular position is so complex or 
unique that it can be performed only by an individual with a degree. Factors considered by the AAO when 
determining these criteria include: whether the Department of Labor's (DOL) Occupational Outlook 
Handbook (Handbook), on which the AAO routinely relies for the educational requirements of particular 
occupations, reports that the industry requires a degree; whether the industry's professional association has 
made a degree a minimum entry requirement; and whether letters or affidavits from firms or individuals in the 
industry attest that such firms "routinely employ and recruit only degreed individuals." See Shanti, Inc. v. 
Reno, 36 F. Supp. 2d 1151, 1165 (D.Minn. 1999) (quoting HirdIBlaker Corp. v. Suva, 712 F. Supp. 1095, 
1102 (S.D.N.Y. 1989)). 
The director found that the position was most similar to a scientific technician, a position which the 
Handbook indicates is not a specialty occupation. The AAO finds that the petitioner has generally described 
duties typically performed by medical scientists, which the Handbook indicates is normally a specialty 
occupation. However, the duties of the proffered position, as listed, are so generic that they provide no 
meaningful description of the tasks that the beneficiary would perform for the petitioner on a daily basis. In 
its response to the director's request for evidence, the petitioner expanded only slightly on the duties of the 
position, despite the director's request that the petitioner "[plrovide a more detailed description of the work 
done, including specific job duties." 
As previously noted, the AAO requires information regarding the specific duties of a proffered position, as 
well as the nature of the petitioning entity's business operations, to make its determination regarding the 
nature of that position and its degree requirements, if any. In the instant case, the record offers a description 
of the type of work performed within the occupation of medical scientists, rather than a description of the 
proffered position's duties as they relate to the petitioner's business. The AAO notes that there is no evidence 
in the record regarding any research the petitioner may perform. The brochure submitted in response to the 
director's request for evidence reflects the petitioner's acupuncture and herbology practice, but does not 
reference any research activities. 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)). 
Accordingly, the AAO finds that the petitioner has failed to establish the proffered position as a specialty 
occupation under the first criterion at 8 C.F.R. 3 214.2(h)(4)(iii)(A) - a baccalaureate or higher degree or its 
equivalent is normally the minimum requirement for entry into the particular position. See Defensor v. 
Meissner, 201 F. 3d 384 (5" Cir. 2000). 
The AAO now turns to a consideration of whether the proffered position may qualify as a specialty 
occupation under either of the prongs of the second criterion at 8 C.F.R. 5 214.2(h)(4) - establish that a 
degree requirement is common to the industry in parallel positions among similar organizations, or that the 
proffered position is so complex or unique that it can be performed only by an individual with a degree. The 
petitioner did not submit any evidence regarding parallel positions in the petitioner's industry. The record also 
fails to establish that the position qualifies as a specialty occupation under the second prong at 8 C.F.R. 
3 214.2(h)(4)(iii)(A)(2) - the position is so complex or unique that it can be performed only by an individual 
with a degree. The AAO finds the petitioner to have provided no evidence that would support such a finding. 
WAC 04 020 50194 
Page 5 
Accordingly, it has not established its position as a specialty occupation under either prong of the second 
criterion. 
The AAO next considers the criteria at 8 C.F.R. 3 214.2(h)(4)(iii)(3) and (4): the employer normally requires 
a degree or its equivalent for the position; and the nature of the specific duties is so specialized and complex 
that the knowledge required to perform them is usually associated with the attainment of a baccalaureate or 
higher degree. 
To determine a petitioner's ability to meet the third criterion, the AAO normally reviews the petitioner's past 
employment practices, as well as the histories, including names and dates of employment, of those employees 
with degrees who previously held the position, and copies of those employees' diplomas. There is no 
evidence in the record regarding the petitioner's past hiring practices, and therefore, the petitioner has not 
established the position as a specialty occupation on this basis. 
The fourth criterion at 8 C.F.R. 5 214.2(h)(4)(iii)(A) requires that the petitioner establish that the nature of the 
specific duties of the position is so specialized and complex that the knowledge required to perform them is 
usually associated with the attainment of a baccalaureate or higher degree. As previously discussed, the 
petitioner's description of the duties of the proffered position is too generic to determine what specific tasks 
the beneficiary would perform on a daily basis. This generic description, which precluded satisfaction of the 
proffered position under the first criterion at 8 C.F.R. 5 214.2(h)(4)(iii)(A), also makes it impossible to assess 
whether the proffered position's duties meet the specialized and complex threshold of the fourth criterion. As 
the petitioner has provided no description of the specific tasks to be performed by the beneficiary, the record 
contains no evidence to establish the specialized and complex nature of those tasks. Therefore, the proffered 
position cannot be established as a specialty occupation under the requirements at 8 C.F.R. 
5 2 14.2(h)(4)(iii)(A){4). 
For the reasons related in the preceding discussion, the petitioner has failed to establish that the proffered 
position meets the requirements for a specialty occupation set forth at 8 C.F.R. 5 214.2(h)(4)(iii)(A). 
Accordingly, the AAO shall not disturb the director's denial of the petition. 
Beyond the decision of the director, the petitioner did not establish that the beneficiary is qualified to perform 
the duties of a specialty occupation. The beneficiary earned a foreign degree in medicine. 
Section 214(i)(2) of the Act, 8 U.S.C. 3 1184(i)(2), states that an alien applying for classification as an H-1B 
nonirnmigrant worker must possess full state licensure to practice in the occupation, if such licensure is 
required to practice in the occupation, and completion of the degree in the specialty that the occupation 
requires. If the alien does not possess the required degree, the petitioner must demonstrate that the alien has 
experience in the specialty equivalent to the completion of such degree, and recognition of expertise in the 
specialty through progressively responsible positions relating to the specialty. 
Pursuant to 8 C.F.R. 5 214.2(h)(4)(iii)(C), to qualify to perform services in a specialty occupation, an alien 
must meet one of the following criteria: 
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(1) 
 Hold a United States baccalaureate or higher degree required by the specialty 
occupation from an accredited college or university; 
(2) 
 Hold a foreign degree determined to be equivalent to a United States baccalaureate or 
higher degree required by the specialty occupation from an accredited college or 
university; 
(3) 
 Hold an unrestricted state license, registration or certification which authorizes him 
or her to fully practice the specialty occupation and be immediately engaged in that 
specialty in the state of intended employment; or 
(4) 
 Have education, specialized training, and/or progressively responsible experience 
that is equivalent to completion of a United States baccalaureate or higher degree in 
the specialty occupation, and have recognition of expertise in the specialty through 
progressively responsible positions directly related to the specialty. 
The beneficiary does not hold a baccalaureate degree from an accredited U.S. college or university in any 
field of study, and the petitioner submitted no evidence that the beneficiary's foreign degree has been 
determined to be equivalent to a baccalaureate degree from a U.S. college or university in any field of study. 
For this additional reason, the petition may not be approved. 
The burden of proof in this proceeding rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. 
The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.