dismissed H-1B Case: Medicine

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U.S. Department of Homeland Security 
20 Massachusetts Avenue, NM', Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
FILE: EAC 04 014 5 1309 Office: VERMONT SERVICE CENTER Date: ax 8 4 2005 
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 
EAC 04 014 51309 
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 primary care medical practice that seeks to employ the beneficiary as a medical assistant. 
The petitioner endeavors to classify the beneficiary as a nonimrnigrant 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. 
§ 1 lol(a)(l5)(H)(i)(b). 
The director denied the petition because the proffered position is not a specialty occupation. Oin appeal, 
counsel submits a letter. 
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. 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 documentatioin; (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. 
EAC 04 0 14 5 1309 
Page 3 
The petitioner is seeking the beneficiary's services as a medical assistant. Evidence of the beneficiary's 
duties includes: the 1-129 petition; the petitioner's June 2, 2003 letter of support; and the petitioner's 
response to the director's request for evidence. According to the letter of support, the beneficiary would 
perfom duties that entail: triaging; recording medical histories; obtaining vital signs; administering EKGs 
and pulse oximetry testing; performing phlebotomy and other duties as assigned. According to the response 
to the director's request for evidence (RFE), the beneficiary's title would be physician assistant, rather than 
medical assistant, and her salary would increase from the $9.60 per hour indicated on the Form 1-12!) and the 
original labor condition application (LCA) to $24.00 per hour. The duties, however, remained the same. The 
petitioner indicated that a qualified candidate for the job would possess a bachelor's degree in a medical- 
related field or its equivalent. 
The record reflects that the petitioner initially submitted a certified LCA with the position title of medical 
assistant and a salary of $9.60 per hour. In response to the RFE, the petitioner submitted a new certified LCA 
with the position title of physician assistant with a salary of $24.00 per hour. 
There is a significant change in title and salary between the initial petition and the response to the director's 
request for evidence. CIS regulations affirmatively require a petitioner to establish eligibility for the benefit it 
is seeking at the time the petition is filed. See 8 C.F.R. 5 103.2(b)(12). Eligibility must be established at the 
time of filing; a visa petition may not be approved at a future date after the petitioner or beneficiary becomes 
eligible under a new set of facts. Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). A 
petitioner may not make material changes to a petition in an effort to make a deficient petition confonm to CIS 
requirements. See Matter of Zzummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998). Therefore, the petition 
will be adjudicated based on the information that was initially before the director. 
The director found that the proffered position was not a specialty occupation. 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 that the credentials evaluation provided in response to the director's request for 
evidence established that the beneficiary had the equivalent to a bachelor's degree with a specialty of 
physician assistant. Counsel also states that the petitioner submitted an explanation regarding why it required 
the services of a "skilled assistant rather than an ordinary aide[,]" and that the petitioner's speciali:r,ation in 
internal medicine is much more complex than a general medical practice. Counsel asserts that the director did 
not address the issue of the beneficiary's application for extension of her B-2 visitor status. 
Upon review of the record, the petitioner has established none of the four criteria outlined in 13 C.F.R. 
5 214.2(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. 5 214.2 (h)(4)(iii)(A)(l) and (2): a baccalaureate clr 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. 
EAC 04 014 51309 
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Factors often considered by CIS when determining these criteria include: whether the Department of Labor's 
Occupational Outlook Handbook (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 
fim or individuals in the industry attest that such fums "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. Sava, 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. A review of the Medical Assistant job description in the Handbook confinns the accuracy 
of the director's assessment that the job duties submitted with the initial petition parallel the responsibilities of a 
Medical Assistant. No evidence in the Handbook indicates that a baccalaureate or higher degree, or its 
equivalent, is required for a medical assistant job. 
The petitioner did not submit any information regarding parallel positions in the petitioner's industry. 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. There is no evidence that 
an internal medicine practitioner would require a more highly educated or qualified individual in the proffered 
position than a general or family medicine practitioner. Going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Sofsici, 
22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 1 90 (Reg. 
Comm. 1972)). 
The AAO now turns to the criterion at 8 C.F.R. 3 214.2(h)(4)(iii)(A)(3) - the employer normally requires a 
degree or its equivalent for the position. There is no evidence in the record regarding the petitioner's past hiring 
practices. The petitioner has not met its burden of proof in this regard. 
Finally, the AAO turns to the criterion at 8 C.F.R. 3 214.2(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. 
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. The duties do no appear to be more complex than those of medical assistants as 
described in the Handbook. 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. 
Regarding the beneficiary's request for an extension of her visitor status, despite counsel's argument, that matter 
is not before the AAO. 8 C.F.R. $214.1(~)(5). 
EAC 04 014 5 1309 
Page 5 
Beyond the decision of the director, while the director determined that she would accept the credentials evaluation 
submitted by the petitioner, the AAO finds that the petitioner has not established that the beneficiary would be 
qualified to perform the duties of a specialty occupation that required a bachelor's degree in physician assisting. 
The beneficiary does not hold a baccalaureate degree from an accredited U.S. college or university in any 
field of study. The credential evaluation does not specifically state that the beneficiary's foreign degree was 
determined to be equivalent to a baccalaureate degree from a U.S. college or university in any field of study. 
Therefore, the petitioner must demonstrate that the beneficiary meets the criterion at 8 C.F.R. 
5 2 14.2(h)(4)(iii)(C)(4). 
Pursuant to 8 C.F.R. 5 214.2(h)(4)(iii)(D), equating the beneficiary's credentials to a United States 
baccalaureate or higher degree shall be determined by one or more of the following: 
(I) An evaluation from an official who has authority to grant college-level credit for training 
and/or experience in the specialty at an accredited college or university which has a prograrn 
for granting such credit based on an individual's training and/or work experience; 
(2) The results of recognized college-level equivalency examinations or special credit program:;, 
such as the College Level Examination Program (CLEP), or Program on Noncollegiate 
Sponsored Instruction (PONSI); 
(3) An evaluation of education by a reliable credentials evaluation service which specializes in 
evaluating foreign educational credentials; 
(4) Evidence of certification or registration from a nationally-recognized professional association 
or society for the specialty that is known to grant certification or registration to persons in the 
occupational specialty who have achieved a certain level of competence in the specialty; 
(5) A determination by the Service that the equivalent of the degree required by the specialty 
occupation has been acquired through a combination of education, specialized training, 
andlor work experience in areas related to the specialty and that the alien has achieved 
recognition of expertise in the specialty occupation as a result of such training and 
experience. 
The petitioner submitted an evaluation from AUAP Credential Evaluation Services, a company that 
specializes in evaluating academic credentials. The evaluator concluded that the beneficiary possesses the 
equivalent of a bachelor's degree with a major in physician assistant from an accredited U.S. college or 
university. However, the evaluation is based upon the beneficiary's education and work experience. A 
credentials evaluation service may not evaluate an alien's work experience or training; it can only evaluate 
educational credentials. See 8 C.F.R. 5 214.2(h)(4)(iii)(D)(3). Despite the evaluator's statement that he 
satisfies the regulatory requirement of an official who has authority to grant university credit for experience, 
there is no evidence in the record to establish that he is an "official who has authority to grant coll.ege-level 
credit for training and/or experience in the specialty at an accredited college or university whi.ch has a 
EAC04014 51309 
Page 6 
program for granting such credit based on an individual's training and/or work experience." 8 C.F.R. 
$ 214.2(h)(4)(iii)(D)(l). In addition, there is no evidence in the record regarding the beneficiary's enrollment 
as a research fellow at the Graduate School of Human Life Science at Osaka City University. The AAO 
would accept that portion of the evaluation that analyzes the equivalency of the beneficiary':; foreign 
undergraduate education, although the evaluator does not address that education without also addressing her 
work experience. With respect to that portion of the evaluation analyzing the beneficiary's work experience, 
the evaluation carries no weight in these proceedings. CIS uses an evaluation by a credentials evaluation 
organization of a person's foreign education as an advisory opinion only. Where an evaluation is in any way 
questionable, it may be discounted or given less weight. Matter of Sea, Inc., 19 I&N Dec. 817 (Cornm. 
1988). 
When CIS determines an alien's qualifications pursuant to 8 C.F.R. 5 214.2(h)(4)(iii)(D)(5), three years of 
specialized training and/or work experience must be demonstrated for each year of college-level tralining the 
alien lacks. It must be clearly demonstrated that the alien's training and/or work experience inc!luded the 
theoretical and practical application of specialized knowledge required by the specialty occupation; that the 
alien's experience was gained while working with peers, supervisors, or subordinates who have a degree or its 
equivalent in the specialty occupation; and that the alien has recognition of expertise in the specialty 
evidenced by at least one type of documentation such as: 
(i) Recognition of expertise in the specialty occupation by at least two recognized authoritie:~ 
1 
in the same specialty occupation ; 
(ii) Membership in a recognized foreign or United States association or society in the 
specialty occupation; 
(iii) Published material by or about the alien in professional publications, trade journals, 
books, or major newspapers; 
(iv) Licensure or registration to practice the specialty occupation in a foreign country; or 
(v) Achievements which a recognized authority has determined to be significant 
contributions to the field of the specialty occupation. 
In addition to the evaluation from the credentials evaluation service, the record also contains a cerl:ificate of 
work experience from an employer. 
The AAO now turns to the beneficiary's prior work experience, and whether it included the theoretical and 
practical application of specialized knowledge required by the specialty. The letter provided from the 
1 Recognized authority means a person or organization with expertise in a particular field, special skills or 
knowledge in that field, and the expertise to render the type of opinion requested. A recognized authority's 
opinion must state: (1) the writer's qualifications as an expert; (2) the writer's experience giving such 
opinions, citing specific instances where past opinions have been accepted as authoritative and by whom; (3) 
how the conclusions were reached; and (4) the basis for the conclusions supported by copies or citations of 
any research material used. 8 C.F.R. 5 214.2(h)(4)(ii). 
EAC 04 014 5 1309 
Page 7 
beneficiary's employer only indicates the beneficiary's general duties, but does not include her daily activities 
or level of responsibility. The evidence does not reference the beneficiary's level of responsibility, or 
establish that the beneficiary's experience was gained while working with peers, supervisors, or subordinates 
who have a degree or its equivalent in the specialty occupation. Thus, the AAO cannot conclude: that the 
beneficiary's past work experience included the theoretical and practical application of a body of highly 
specialized knowledge. 
Finally, there is insufficient evidence that the beneficiary has recognition of expertise, as required by the 
regulations. The petitioner, therefore, did not establish that the beneficiary possesses the equivallent of a 
bachelor's degree, or that she is qualified to perform the duties of a specialty occupation. For this additional 
reason, the petition may not be approved. 
The burden of proof in these proceedings 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. The petition is denied.