dismissed H-1B Case: Medical Technology

U.S. Department of Homel:ind Security 
20 Massachusetts Ave. NW, Rrn. A3042 
Washington, DC 20529 
I." " 'I"qq.,,x. tt + 
. .p62~i~?<5$ 
1. .- ,, :edv%tp+~ U.S. Citizenship and Immigration 
i. 
, ", I, .A- t 
FILE: WAC 03 084 55203 Office: CALIFORNIA SERVICE CENTER Date: "jc: (; 4 ,r[,i 
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 1 101(a)(l 5)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All materials 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 03 084 55203 
Page 2 
DISCUSSION: The service center director denied the nonimmigrant visa petition. The matter is now on 
appeal before the Administrative Appeals Office (AAO). The appeal will be dismissed. The petition will be 
denied. 
The petitioner is a home health services business. It seeks to employ the beneficiary as a medical 
technologist and to classify her as a nonimrnigrant worker in a specialty occupation pursuant to section 
IOl(a)(l5)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1101(a)(15)(H)(i)(b). 
The director denied the petition on the ground that the proffered position does not qualify as a specialty 
occupation. 
Section 214(i)(l) of the Act, 8 U.S.C. 5 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. 
Pursuant to 8 C.F.R. 5 214.2(h)(4)(iii)(A), to qualify as a specialty occupation the position must meet one 
of the following criteria: 
(1) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
(4) The nature of the specific duties 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 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. 
The record of proceeding before the AAO contains (1) Form 1-129 and supporting documentation; (2) the 
director's request for evidence (RFE); (3) the petitioner's response to the RFE; (4) the notice of decision; 
and (5) Form I-290B, an appeal brief, and copies of previously submitted materials. The AAO reviewed 
the record in its entirety before issuing its decision. 
WAC 03 084 55203 
Page 3 
On Form 1-129 and an accompanying letter the petitioner described itself as a home health services 
business that provides medical and non-medical care to individuals of varying ages and health conditions 
in private homes as well as convalescent and retirement homes. The petitioner states that it was 
established in 1997, had gross revenues of approximately $265,000 in 2001, and had 30 employees at the 
time the petition was filed in early 2003. The petitioner proposes to hire the beneficiary as medical 
technologist to "perform supervisory and administrative functions over the operations of one of two 
laboratories that will be established by the company." The duties of the position were described in the 
petitioner's initial letter as follows: 
perform quality control on the tests conducted at the laboratory, reagents, materials, 
control organisms, and equipment; check the test report before issuing the same to the 
requesting physicians; purchase reagents and supplies for the laboratory; prepare manual 
for standard operating procedures to be followed in the laboratory. 
In response to the RFE the petitioner provided a more detailed description of the proffered positio~~. In 
addition to the duties previously described, the petitioner indicated that the beneficiary would perfonn the 
following tasks: 
Examine by using the microscope blood, tissue, and other body substances; make cultures 
of body fluid and tissue samples to determine the presence of bacteria, fungi, parasites, or 
other microorganisms; analyze samples for chemical content or reaction and determine 
blood glucose and cholesterol levels; type and cross match blood samples for 
transfusions; evaluate test results, develop and modify procedures, and establish and 
monitor programs to ensure their accuracy; perform quality control on the tests conducted 
at the laboratory, reagents, materials, control organisms, and equipment; check the test 
report before issuing the same to the requesting physicians; purchase reagents and 
supplies for the laboratory; prepare manual for standard operating procedures to be 
followed in the laboratory. 
The petitioner states that the beneficiary would be functioning under the direct supervision of a licensed 
medical technologist. According to the petitioner the position requires a bachelor's degree in medical 
technology. The beneficiary has a bachelor of science in medical technology from Saint Louis University 
in Baguio, the Philippines, granted in June 1984. 
The director determined that the duties of the proffered position reflected those of a medical or cliriical 
laboratory technician, as described in the Department of Labor (D0L)'s Occupational Outlook Handbook 
(Handbook). The director concluded that a baccalaureate level of training is not a normal, industry-wide 
minimum requirement for entry into the occupation based on information in the Handbook stating that 
even though a bachelor's degree with a major in medical technology or a life science was usually required 
for an entry-level position as a medical or clinical laboratory technologist, it was also possible to quallify 
for such a position with a combination of education, on-the-job, and specialized training. The evidence of 
record did not establish that the petitioner normally requires applicants for the position to have a 
baccalaureate or higher degree in the field, the director continued, or that the duties of the position could 
not be performed by an experienced individual with a sub-baccalaureate level of education. The director 
determined that the proffered position did not qualify as a specialty occupation under any of the criteria 
enumerated at 8 C.F.R. 5 214.2(h)(4)(iii)(A). 
WAC 03 084 55203 
Page 4 
On appeal counsel asserts that the director mixed up the separate occupational categories of medical 
technologists and medical technicians, as described in the Handbook, mistakenly identified the proffered 
position as that of a medical technician, and misinterpreted the information in the Handbook about the 
educational requirements for medical technologists. Counsel reiterates the petitioner's contention that the 
proffered position is that of a medical technologist and asserts that the information in the Handbook 
confirms that a bachelor's degree in the field is the minimum requirement for entry into such a position. 
Furthermore, counsel maintains that the evidence of record demonstrates that the petitioner normally 
requires applicants for the position to have a baccalaureate degree in the field, and that the duties and 
responsibilities of the position are so specialized and complex that the knowledge required to perform 
them is usually associated with a bachelor's degree in medical technology. Counsel cites a decision of 
the Board of Immigration Appeals ruling that a medical technologist is a professional position. 
In determining whether a position meets the statutory and regulatory criteria of a specialty occupation, 
CIS routinely consults the Department of Labor (D0L)'s Occupational Outlook Handbook (Handbook) 
as an authoritative source of information about the duties and educational requirements of particular 
occupations. Factors typically considered are whether the Handbook indicates a degree is required by the 
industry; 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 
115 1, 1165 (D.Minn. 1999) (quoting HiraYBlaker Corp. v. Sava, 712 F.Supp. 1095, 1102 (S.D.N.Y. 
1989)). CIS also analyzes the specific duties and complexity of the position at issue, with the 
Handbook's occupational descriptions as a reference, as well as the petitioner's past hiring practices for 
the position. See Shanti, Inc. v. Reno, id., at 1165-66. 
Medical technologists and medical technicians (also called clinical laboratory technologists and 
technicians) are two sub-categories of the Handbook's occupational category entitled clinical 1abor;atory 
technologists and technicians. As described in the Handbook, 2004-05 edition, at 313: 
Clinical laboratory personnel examine and analyze body fluids, tissues, and cells. They 
look for bacteria, parasites, and other microorganisms; analyze the chemical content of 
fluids; match blood for transfusions; and test for drug levels in the blood to show how a 
patient is responding to treatment. These technologies also prepare specimens for 
examination, count cells, and look for abnormal cells. They use automated equipment 
and instruments capable of performing a number of tests simultaneously, as well as 
microscopes, cell counters, and other sophisticated laboratory equipment. Then they 
analyze the results and relay them to physicians . . . . 
Clinical laboratory technologists . . . perform complex chemical, biological, 
hematological, immunologic, microscopic, and bacteriological tests. Technologists 
microscopically examine blood, tissue, and other body substances. They make cultures 
of body fluid and tissue samples, to determine the presence of bacteria, fungi, parasites, 
or other microorganisms. Clinical laboratory technologists analyze samples for chemical 
content or a chemical reaction and determine blood glucose and cholesterol levels. They 
also type and cross match blood samples for transfusions. 
WAC 03 084 55203 
Page 5 
Clinical laboratory technologists evaluate test results, develop and modify procedures, 
and establish and monitor programs, to ensure the accuracy of tests. Some clinical 
laboratory technologists supervise clinical laboratory technicians . . . . 
Clinical laboratory technicians perform less complex tests and laboratory procedures 
than technologists perform. Technicians may prepare specimens and operate automated 
analyzers, for example, or they may perform manual tests in accordance with detailed 
instructions . . . . They usually work under the supervision of medical and clinical 
laboratory technologists or laboratory managers. 
In determining the nature of a particular position, and whether it qualifies as a specialty occupation, the 
duties that will actually be performed are dispositive, not the title of the position. The petitioner must 
show that the duties of the position require a specialty degree. The critical issue is not the employer's 
self-imposed standard, 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 a minimum for entry into the occupation. Cf. Defensor v. Meissner, 201 F.3tl 384, 
387-88 (5th Cir. 2000). 
The evidence of record does not establish that the duties of the proffered position are those of a medical 
technologist. Though the petitioner asserted at the time of filing that it intended to establish two 
laboratories, and that the beneficiary would be in charge of one of them, there is no documentation in the 
record showing that any laboratory has in fact been established. Thus, there is no evidence that the 
requisite workplace is in existence for the beneficiary to perform the complex tasks of a medical 
technologist. Simply going on record without supporting documentation does not satisfy the petitioner's 
burden of proof. See Matter of Sofici, 22 I&N Dec. 158, 165 (Cornrn. 1998) (citing Matter of Treasure 
Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). Furthermore, counsel stated in response to 
the RFE that the beneficiary would be directly supervised by a licensed medical technologist. Thus, it 
would appear that the petitioner already employs a medical technologist. The DOL Handbook indicates 
that medical technologists typically supervise medical technicians. Based on the evidence of record, the 
AAO determines that the proffered position is that of a medical technician. 
With respect to the educational requirements for medical technologists and technicians, the Han~lbook 
states the following: 
Medical and clinical laboratory technicians generally have either an associate degree 
from a community or junior college or a certificate from a hospital, a vocational or 
technical school, or one of the U.S. Armed Forces. A few technicians learn their skills on 
the job. 
Based on the foregoing information, the AAO determines that a baccalaureate degree in medical 
technology or a related field is not the normal minimum requirement for entry into a position as a medical 
technician. The Handbook indicates that most medical technicians have sub-baccalaureate academic 
credentials such as associate degrees or certificates from a variety of institutions, while some qualify 
based solely on work experience. Accordingly, medical technicians do not meet the first alternative 
criterion of a specialty occupation at 8 C.F.R. 5 214.2 (h)(4)(iii)(A)(I). 
WAC 03 084 55203 
Page 6 
As for the second alternative criterion of a specialty occupation, there is no evidence in the record that a 
degree requirement in a specific specialty is common to the petitioner's industry in parallel positions 
among similar organizations, as required for the proffered position to qualify as a specialty occupation 
under the first prong of 8 C.F.R. 5 214.2(h)(4)(iii)(A)(2). Nor does the record demonstrate that the 
proffered position is so complex or unique that it can only be performed by an individual with a specialty 
degree, as required for the position to qualify as a specialty occupation under the second prong of 
8 C.F.R. $ 2 14.2(h)(4)(iii)(A)(2). 
With regard to the third alternative criterion of a specialty occupation, at 8 C.F.R. 
5 2 14.2(h)(4)(iii)(A)(3), the record does not show that the petitioner normally requires a degree or its 
equivalent in a specific specialty for the proffered position. Though counsel points to various statements 
by the petitioner that a bachelor's degree in medical technology is required for the position, there is no 
documentation in the record demonstrating that the petitioner has previously hired a medical technologist 
and that such a degree was in fact required. Simply going on record without supporting documen~tation 
does not satisfy the petitioner's burden of proof. See Matter of Soffici. Thus, the proffered position does 
not qualify as a specialty occupation under 8 C.F.R. 5 214.2(h)(4)(iii)(A)(3). 
Lastly, the proffered position does not meet the fourth alternative criterion of a specialty occupation, at 
8 C.F.R. $ 214.2(h)(4)(iii)(A)(4), because the record does not establish that the duties of the position are 
so specialized and complex that they require a depth of knowledge usually associated with the attainment 
of a baccalaureate degree in a specific specialty. 
Counsel cites a Board of Immigration Appeals decision, Matter of Panganiban, 13 I&N Dec. 581 {(BIA 
1970), as establishing that a medical technologist is a professional position requiring a baccalaureate 
degree in medical technology or three years of academic study in that field plus one year of specialized 
training at a school of medical technology. The ruling in Matter of Panganiban was that a medical 
technologist with the requisite education qualifies as a professional under section 101(a)(32) of the Act. 
It did not involve the issue of whether medical technologists meet the requirements of a specialty 
occupation under section 214(i)(l) of the Act, 8 U.S.C. $ 11 84(i)(l). Moreover, the record in the instant 
petition does not establish that the proffered position is that of a medical technologist. Thus, the BIA 
decision from 1970 has no legal bearing on the AAO's disposition of the instant petition. 
For the reasons discussed above, the proffered position does not qualify as a specialty occupation under 
any of the criteria enumerated at 8 C.F.R. 5 2 14.2(h)(4)(iii)(A). The petitioner has not established that 
the beneficiary will be coming temporarily to the United States to perform services in a specialty 
occupation, as required under section 101(a)(l S)(H)(i)(b) of the Act, 8 U.S.C. 5 1 101 (a)(] S)(H)(i)(b). 
The petitioner bears the burden of proof in these proceedings. See section 291 of the Act, 8 U.S.C. 5 1.361. 
The petitioner has not sustained that burden. Accordingly, the AAO will not disturb the director's decision 
denying the petition. 
ORDER: The appeal is dismissed. The petition is denied.