dismissed H-1B Case: Orthodontics

identifyingdatadeletedto
preventclearlyunwarranted
invasionof personalprivacy
PUBLIC COpy
U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washin gton, DC 20529
u.s.Citizenship
and Immigration
Services
OCT 172007
FILE: EAC 06 172 54235 Office: VERMONT SERVICE CENTER Date:
INRE: Petitioner:
Benefic iary:
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(H)(i)(b) of the
Immigrat ion and Nationality Act, 8 U.S.c. § 1101(a)(l5)(H)(i )(b)
ON BEHALF OF PETITION ER:
SELF-REPRESENTED
INSTRUCTIONS:
This is the decision o f 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
Administrati ve Appeals Office
EAC 06 172 54235
Page 2
DISCUSSION: The director of the Vermont Service Center 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 orthodontics office with five employees. It seeks to hire the beneficiary as a dental
assistant. The petitioner endeavors to employ the beneficiary in the nonimmigrant classification as a worker
in a specialty occupation pursuant to section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act
(the Act), 8 U.S.c. § 1101(a)(15)(H)(i)(b).
The director denied the petition on June 23, 2006, concluding that the petitioner failed to establish that the
proposed position qualifies for classification as a specialty occupation.
The record of proceeding before the AAO contains: (1) Form 1-129 and supporting documentation;
(2) the director's request for evidence; (3) the petitioner's response to the director's request for evidence;
(4) the director's denial letter; and (5) Form 1-290B with supporting documentation. The AAO reviewed
the record in its entirety before reaching its decision.
The issue before the AAO is whether the petitioner's proffered position qualifies as a specialty
occupation. To meet its burden of proof in this regard, the petitioner must establish that the job it is
offering to the beneficiary meets the following statutory and regulatory requirements.
Section 214(i)(1) of the Immigration and Nationality Act (the Act), 8 U.S.c. § 1184(i)(1) 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. § 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. § 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;
EAC 06 172 54235
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. Cf Defensor v.
Meissner, 201 F. 3d 384 (5 th 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 dental assistant. On the Form 1-129,
the proposed duties for the position are "assist dentist, set up patients."
The director determined that the petitioner had submitted insufficient evidence to process the petition and
requested that the petitioner submit additional information and documentation in support of the petition.
In response to the director's request for evidence, the petitioner submitted a letter dated June 12, 2006. In
its letter, the petitioner stated that the proposed position is for head orthodontic assistant. The petitioner
stated that the beneficiary's "impeccable training and experience are very highly sought after quality in
our field because she had true formal education, and not like the 10 week special weekend course that
some orthodontic assistants go through." The petitioner further explained that the beneficiary is qualified
for the position since she is fluent in both English and Korean. The petitioner described the
responsibilities for the proposed position as follows:
As I mentioned earlier, I want [the beneficiary] to be the head of assistants who will be in
charge of training other assistants. Leader needs to be more knowledgeable not only in
orthodontics but many other aspects of life. With [the beneficiary's] bachelor's degree I
believe she can fill that spot and be able to obtain other assistants' respect quickly.
EAC 06 172 54235
Page 4
About 30% of her time will be allocated to train other assistants and develop training
system.
For 10% of her time, I am excited to utilize [the beneficiary's] Korean language art skill
to go through all of the office forms and literature in Korean to enhance and make
corrections if necessary. I also want to develop more patient educational material in
Korean with her help.
The director denied the petition on June 23, 2006, concluding that the proffered position is not a specialty
occupation.
On appeal, the petitioner asserts that the beneficiary will be the "lead" assistant and will manage other
assistants, which requires an individual with a bachelors' degree. The petitioner further explained that
normally he hires dental assistants with high school or an associate's degree but requires the lead assistant
to have obtained a bachelor's degree.
Upon review of the record, the petitioner has established none of the four criteria outlined in
8 C.F.R. § 2l4.2(h)(4)(iii)(A). Therefore, the AAO finds that the proffered position is not a specialty
occupation.
In determining whether a proposed position qualifies as a specialty occupation, CIS looks beyond the title
of the position and determines, from a review of the duties of the position and any supporting evidence,
whether the position actually requires the theoretical and practical application of a body of highly
specialized knowledge, and the attainment of a baccalaureate degree in a specific specialty, as the
minimum for entry into the occupation as required by the Act. The AAO routinely consults the
Department of Labor's Occupational Outlook Handbook (the Handbook) for its information about the
duties and educational requirements of particular occupations. In reviewing the 2006-2007 edition of the
Handbook, the AAO finds that the duties and responsibilities of the proposed position are encompassed
within the Handbook's entry of (1) dental assistants and (2) office and administrative support workers,
supervisors and managers, as discussed below.
In its discussion of the duties of dental assistants, the Handbook states the following:
Dental assistants perform a variety of patient care, office, and laboratory duties. They
work chairside as dentists examine and treat patients. They make patients as comfortable
as possible in the dental chair, prepare them for treatment, and obtain their dental records.
Assistants hand instruments and materials to dentists and keep patients' mouths dry and
clear by using suction or other devices. Assistants also sterilize and disinfect instruments
and equipment, prepare trays of instruments for dental procedures, and instruct patients
on postoperative and general oral health care.
Some dental assistants prepare materials for impressions and restorations, take dental x
rays, and process x-ray film as directed by a dentist. They also may remove sutures, apply
topical anesthetics to gums or cavity-preventive agents to teeth, remove excess cement
EAC 06 172 54235
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used in the filling process, and place rubber dams on the teeth to isolate them for
individual treatment.
Those with laboratory duties make casts of the teeth and mouth from impressions, clean
and polish removable appliances, and make temporary crowns. Dental assistants with
office duties schedule and confirm appointments, receive patients, keep treatment
records, send bills, receive payments, and order dental supplies and materials.
Dental assistants should not be confused with dental hygienists, who are licensed to
perform different clinical tasks. (See the statement on dental hygienists elsewhere in the
Handbook.)
The Handbook's discussion regarding the duties of office and administrative support workers, supervisors
and managers also relates to the proposed position, as follows:
All organizations need timely and effective office and administrative support to operate
efficiently. Office and administrative support supervisors and managers coordinate this
support. These workers are employed in virtually every sector of the economy, working
in positions as varied as teller supervisor, customer services manager, or shipping and. . .receIvmg supervIsor ....
After allocating work assignments and issuing deadlines, office and administrative
support supervisors and managers oversee the work to ensure that it is proceeding on
schedule and meeting established quality standards. This may involve reviewing each
person's work on a computer-s-as in the case of accounting clerks-t-or listening to how a
worker deals with customers-v-as in the case of customer services representatives. When
supervising long-term projects, the supervisor may meet regularly with staff members to
discuss their progress ....
Supervisors help train new employees in organization and office procedures. They may
teach new employees how to use the telephone system and operate office equipment.
Because most administrative support work is computerized, they also must teach new
employees to use the organization's computer system. When new office equipment or
updated computer software is introduced, supervisors train experienced employees to use
it efficiently or, if this is not possible, arrange for their employees to receive special
outside training.
Therefore, based on its reading of the Handbook, the AAO concludes that the proffered position, as
described by the petitioner in its letter of support and in response to the director's request for evidence,
combines the duties of dental assistant and office and administrative support workers, supervisors and
managers. While the majority of the position's duties appear to fall within the Handbook's description of
dental assistant, the AAO finds that certain duties - training of dental assistants and managing of the
assistants -- require the knowledge and/or skills more commonly associated with the occupation of office
and administrative support workers, supervisors and managers. Having made such a determination, the
EAC 06 172 54235
Page 6
AAO next turns to the Handbook to determine whether these occupations normally require applicants for
employment to have the minimum of a baccalaureate or higher degree, or its equivalent, in a specific
field.
The Handbook reports the educational requirements for the position of dental assistants as follows: "most
assistants learn their skills on the job, although an increasing number are trained in dental-assisting
programs offered by community and junior colleges, trade schools, technical institutes, or the Armed
Forces." Thus, a bachelors' degree is not normally required to fill the position of dental assistant.
With respect to the training required for the duties of office and administrative support workers,
supervisors and managers, the Handbook states, "most Firms fill office and administrative support
supervisory and managerial positions by promoting office or administrative support workers from within
their organizations. To become eligible for promotion to a supervisory position, administrative support
workers must prove they are capable of handling additional responsibilities." The Handbook indicates that
most of these positions are filled on the basis of experience and thus do not rise to this criterion's standard of
employers normally requiring at least a bachelor's degree or its equivalent in a specific specialty. As such,
office and administrative support workers, supervisors and managers do not qualify as a specialty occupation
under the first criterion.
In that the Handbook finds no baccalaureate or higher degree, or its equivalent, to be required for
employment in any of the occupations whose duties comprise the proffered position, the AAO concludes
that the proffered position does not qualify as a specialty occupation on the basis of a degree requirement
under the first criterion at 8 C.F.R. § 2l4.2(h)(4)(iii)(A).
The AAO now turns to a consideration of whether the petitioner, unable to establish its proposed position
as a specialty occupation under the first criterion set forth at 8 C.F.R. § 2l4.2(h)(iii)(A), may qualify it
under one of the three remaining criteria: a degree requirement as the norm within the petitioner's
industry or the position is so complex or unique that it may be performed only by an individual with a
degree; the petitioner normally requires a degree or its equivalent for the position; or the duties of the
position are so specialized and complex that the knowledge required to perform them is usually associated
with a baccalaureate or higher degree.
The proposed position does not qualify as a specialty occupation under either prong of
8 C.F.R. § 2l4.2(h)(4)(iii)(A)(2).
The first prong of this regulation requires a showing that a specific degree requirement is common to the
industry in parallel positions among similar organizations. To meet the burden of proof imposed by the
regulatory language, a petitioner must establish that its degree requirement exists in positions that are parallel
to the proffered position and found in organizations similar to the petitioner. The petitioner did not provide
any evidence to support this prong. On appeal, the petitioner states, "most orthodontic assistants do not have
a bachelor's degree." As such, the petitioner has not demonstrated that its degree requirement exists in
parallel positions among similar organizations.
EAC 06 172 54235
Page 7
Accordingly, the proposed position does not qualify for classification as a specialty occupation under the
first prong of 8 C.F.R. § 214.2(h)( 4)(iii)(A)(2).
The AAO also concludes that the record does not establish that the proposed position is a specialty
occupation under the second prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), which requires a demonstration
that the position is so complex or unique that it can only be performed by an individual with a degree.
The AAO finds no evidence that would support such a finding, as the position proposed in the petition is
very similar to the positions of dental assistants and office and administrative support workers,
supervisors and managers described in the Handbook. The Handbook indicates that such positions
generally do not require at least a baccalaureate degree in a specific specialty; and the evidence of record does
not establish the proposed position as unique from or more complex than the general range of duties for such
positions. Although the petitioner asserts that it requires an employee with a bachelor's degree to fill the
position of lead assistant in order to "manage other assistants," the petitioner did not submit any
documentation corroborating this statement. 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 petitioner has not established its proposed position as a specialty
occupation under either prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2).
The proposed position does not qualify as a specialty occupation under 8 C.F.R. § 214.2(h)(4)(iii)(A)(3),
which requires a showing that the petitioner normally requires a degree or its equivalent for the position. To
determine a petitioner's ability to meet this 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. However, no such
evidence has been submitted to demonstrate that the proposed position qualifies under this criterion. On
appeal, the petitioner asserts that it normally employs dental assistants that do not have a bachelor's degree.
The petitioner states that it will require the lead assistant to have obtained a bachelors' degree. However, the
petitioner did not submit documentation to evidence that it exclusively recruits and employs only individuals
'with a bachelor's degree for the position of lead assistant. Accordingly, the proposed position does not
qualify as a specialty occupation under 8 C.F.R. § 214.2(h)(4)(iii)(A)(3).
Finally, the AAO turns to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(4), which requires a
demonstration that 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 of the proposed position do not appear so
specialized and complex as to require the highly specialized knowledge usually associated with a
baccalaureate or higher degree, or its equivalent, in a specific specialty. Again, there is no information in
the record to support a finding that the proposed position is more complex or unique than similar positions in
other, similar organizations. As the Handbook reveals, such organizations do not normally impose a
bachelor's degree requirement. The Handbook does not indicate any usual association between the type of
position here in question and at least a bachelor's degree in a specific specialty. Further, the evidence of
record does not demonstrate that specific duties to be performed by the beneficiary in the context of the
petitioner's business operations possess the requisite specialization and complexity. Therefore, the evidence
EAC 06 172 54235
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does not establish that the propo sed position IS a specialty occupation under
8 C.F.R. § 214.2(h)(4)(iii)(A)(4).
The proposed position does not qualify for classification as a specialty occupation under any of the four
criteria set forth at 8 C.F .R. §§ 214.2(h)(4)(iii)(A)(l), (2), (3), and (4), and the petition was properly
denied. The position in this petition is not a specialty occupation , so the beneficiary 's qualifications to
perform the duties of a specialty occupation are inconsequential. Accordingly , the AAO will 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.
§ 1361. The petitioner has not sustained that burden.
ORDER: The appeal is dismissed. The petition is denied.