dismissed H-1B Case: Medical Writing

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: WAC 03 113 50522 Office: CALIFORNIA SERVICE CENTER Date: SEp 0 2 2005 
IN RE: 
PETITION: Petition for a Nonirnmigrant 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, Director 
Administrative Appeals Office 
WAC 03 113 50522 
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 a home health provider that seeks to employ the beneficiary as a part-time medical 
writeriresearcher. The petitioner endeavors to classify the beneficiary as a nonimmigrant worker in a specialty 
occupation pursuant to 5 lOl(a)(l5)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1 lol(a)(l5>(H>(i)(b>. 
The director denied the petition because the proffered position is not a specialty occupation. On appeal, 
counsel submits a brief. 
Section 214(i)(l) of the Act, 8 U.S.C. 3 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: 
(I) 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 additional evidence; (3) the petitioner's response to the director's request; (4) the 
director's denial letter; and (5) Form I-290B and supporting documentation. The AAO reviewed the record in 
its entirety before issuing its decision. 
The petitioner is seeking the beneficiary's services as a part-time medical writer/researcher. Evidence of the 
beneficiary's duties includes: the 1-129 petition; the petitioner's February 12, 2003 letter in support of the 
WAC 03 113 50522 
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petition; and the petitioner's response to the director's request for evidence. According to this evidence, the 
beneficiary would perform duties that entail: providing complete analyses of patients' illnesses or injuries 
based upon the physician's reports, medical history, and laboratory results; writing reports to be submitted to 
Medi-Care, Medi-Cal, private insurance companies, and other physicians, for the collection of funds from the 
insurance company; and utilizing medical journals, textbooks, and medical materials for analyses and 
evaluations of the patients' condition. The petitioner indicated that a qualified candidate for the job would 
possess a doctor's degree in medicine or an equivalent thereof. 
The director found that the proffered position was not a specialty occupation because the job is primarily that 
of a medical records and health information technician. Citing to the Department of Labor's Occupational 
Outlook Handbook (Handbook), 2002-2003 edition, the director noted that the minimum requirement for 
entry into the position was not a baccalaureate degree or its equivalent in a specific specialty. The director 
found further that the petitioner failed to establish any of the criteria found at 8 C.F.R. 5 214.2(h)(4)(iii)(A). 
On appeal, counsel states, in part, that the proffered position is that of a medical writerlresearcher, and is not 
merely a medical records and health information technician. Counsel states further that the proposed duties, 
which entail preparing the home health certification and plan of care form for submission to insurance 
companies, Medi-Cal, or Medi-Care, are so complex as to require a doctorate degree in medicine. Counsel 
submits evidence of the educational backgrounds of the petitioner's medical writerlresearcher staff to 
demonstrate that it normally requires such a degree. Counsel also submits a letter from a similar home health 
services business as supporting documentation. 
Upon review of the record, the petitioner has established none of the four criteria outlined in 8 C.F.R. 
3 214.2(h)(4)(iii)(A). Therefore, the proffered position is not a specialty occupation. 
The AAO turns first to the criteria at 8 C.F.R. 3 214.2(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; a degree 
requirement is common 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 often considered by CIS when determining these criteria include: whether the Handbook 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 fm or individuals in the industry attest that such fm 
"routinely employ and recruit only degreed individuals." See Shanti, Znc. v. Reno, 36 F. Supp. 2d 115 1, 1165 (D. 
Minn. 1999)(quoting Hird/Blaker COT. v. Suva, 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989)). 
The AAO routinely consults the Handbook for its information about the duties and educational requirements of 
particular occupations. The AAO does not concur with counsel that the proffered position, which is entitled 
"medical writerlresearcher," is a specialty occupation. According to the Handbook, 2004-2005 edition, medical 
scientists work in research and development. Basic medical research provides the building blocks necessary to 
develop solutions to human health problems. Whatever the branch of science involved, and no matter what the 
setting for the research may be, it appears that the main focus of such researchers is on finding solutions to very 
specific problems, or answers to very specific questions. The solutions or answers they seek, however, have a 
broad application rather than an individual scope. The goals of medical researchers are not necessarily the same 
as those of medical or dental practitioners, who diagnose individuals and seek solutions for those particular 
patients. Likewise, the goals of science and medical writers also have a broad application rather than an individual 
WAC 03 113 50522 
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scope. They prepare formal documentation presenting detailed information on the physical or medical sciences. 
They also organize information for advertising or public-relations purposes or prepare written interpretations for 
general readership. 
In this case, the specific nature of and the scope of the proposed researcldmedical writing have not been defined. 
Going on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of 
proof in these proceedings. 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)). The proposed duties of the proffered position, which 
include analyzing and evaluating patients' illnesses or injuries, appear to be focused on individual diagnosis and 
care. This is not the type of research contemplated by the Handbook in reference to medical researcherlwriter 
positions. Furthermore, the proffered position is not that of a medical doctor, as the beneficiary would not be 
involved with direct patient care. 
Regarding parallel positions in the petitioner's industry, counsel submits a letter from the administrator of 
another home health business, who asserts, in part, that her business requires that its medical 
writerslresearchers hold a degree in medicine. The administrator, however, does not provide any evidence in 
support of her assertion. Going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 
(Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
The record also does not include any evidence from professional associations regarding an industry standard, 
or documentation to support the complexity or uniqueness of the proffered position. The petitioner, therefore, 
has not established the criteria set forth at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(l) or (2). 
The AAO now turns to the criterion at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(3) - the employer normally requires a 
degree or its equivalent for the position. On appeal, counsel submits a list of the petitioner's medical 
writerlresearcher staff and copies of their degrees to demonstrate that the petitioner normally requires such a 
degree. CIS must examine the ultimate employment of the alien, and determine whether the position qualifies 
as a specialty occupation, regardless of the petitioner's past hiring practices. Cf. Defensor v. Meissner, 201 F. 
3d 384 (5th Cir. 2000). The critical element is not the title of the position or 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 ~ct.' In this regard, the petitioner fails to 
establish that the medical writerlresearcher position it is offering to the beneficiary entails the theoretical and 
practical application of a body of highly specialized knowledge. 
Finally, the AAO turns to the criterion at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(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. 
1 The court in Defensor v. Meissner observed that the four criteria at 8 C.F.R. 5 214.2(h)(4)(iii)(A) present 
certain ambiguities when compared to the statutory definition, and "might also be read as merely an additional 
requirement that a position must meet, in addition to the statutory and regulatory definition." See id. at 387. 
WAC 03 113 50522 
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To the extent that they are depicted in the record, the duties do not appear so specialized and complex as to 
require the highly specialized knowledge associated with a baccalaureate or higher degree, or its equivalent, 
in a specific specialty. Therefore, the evidence does not establish that the proffered position is a specialty 
occupation under 8 C.F.R. 3 214.2(h)(4)(iii)(A)(4). 
As related in the discussion above, the petitioner has failed to establish that the proffered position is a 
specialty occupation. Accordingly, the AAO shall not disturb the director's denial of the petition. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 3 1361. 
The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed. The petition is denied.