dismissed H-1B Case: Physical Therapy

identifying& deleted to 
prevent clearly unwamu~ted 
invasion of personal privacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass Ave. N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: LIN 04 244 50294 Office: NEBRASKA SERVICE CENTER Date: JUL 1 2 2006 
IN RE: 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(l 5)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 9 1 101 (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. 
LIN 04 244 50294 
Page 2 
DISCUSSION: The Nebraska service center director denied the nonirnmigrant 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 medical diagnostic services provider, was established in 198 1, has 100 employers, and 
gross annual income of approximately $10 million. The petitioner employs 3 physical therapists, and 
seeks to employ the beneficiary as its physical therapy quality assurance specialist. The petitioner 
endeavors to classify the beneficiary as a nonimrnigrant worker in a specialty occupation pursuant to Section 
101 (a)(l S)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 3 1 10 1 (a)(l 5)(H)(i)(b). 
The director denied the petition based on his determination that the proffered position was not 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 (WE); (3) the petitioner's response to the WE, dated February 3, 
2005; (4) the director's denial letter; and (5) Form I-290B, with the petitioner's brief and new and 
additional evidence. The AAO reviewed the record in its entirety before issuing its decision. 
The petitioner is seeking the beneficiary's services as a physical therapy quality assurance specialist. The 
petitioner stated that it required a bachelor's degree. 
The director found that the proffered position was not a specialty occupation because the duties are not so 
specialized and complex as to require a bachelor's degree in a specific field of study. Citing to the 
Department of Labor's (DOL) Occupational Outlook Handbook (Handbook), 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 krther that the petitioner failed to establish any of the criteria 
found at 8 C.F.R. 8 214.2(h)(4)(iii)(A). 
The director found that the duties of the proffered position are a combination of "medical recordshealth 
information technician, "medical assistant," and "physical therapy assistant or aid," as described in the 
2004-2005 Handbook. 
Section 214(i)(l) of the Act, 8 U.S.C. 4 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. 3 214.2(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; 
LIN 04 244 50294 
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 hgher 
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 petitioner is seeking the beneficiary's services as a physical therapy quality assurance specialist. 
Evidence of the beneficiary's duties includes: the 1-129 petition; and the petitioner's letter in support of 
the petition. According to this evidence, the beneficiary would: 
Review frequency of physical therapy assignments to particular patients to ensure that they meet 
those ordered by primary and in-house physicians - 30% of time; 
Assist in administrative documentation as required for primary care physician and certified 
physical therapist - 30% of time; 
Review documentation of care ~rovided to client through various forms and auestionnaires 
u 
provided by 
 and primary care provider to ensure certified physical therapist is 
meeting all prescriptions and requirements on an on-going basis - 20% of time; and 
Review billing procedures for physical therapists and maintain necessary records, clinical notes, 
and conference notes to be incorporated into the patient's medical record - 20% of time. 
Upon review of the record, the AAO finds that proffered position is not a specialty occupation because, to 
the extent that they are described in the record, the duties which comprise it do not exceed those of a 
medical records and health information technician, which, as discussed below, is not a specialty 
occupation. 
The record lacks evidence that the actual substantive work of the position would elevate it above that of a 
medical records and health information technician. The petitioner presents no details of actual work to be 
performed under the generic duties that the record presents, such as, fi-om counsel's letter of August 30, 
2004: "providing advanced support and assistance to the physical therapist in providing physical therapy 
treatment and procedures," "assist[ing] in the development of treatment plans," "cany[ing] out routine 
finctions," and "modify[ing] treatments at the direction of the physical therapist." Counsel insisted, 
however, that, in compliance with Michigan law, no patient care would be involved; and the petitioner 
attested that, in compliance with Michigan law, the beneficiary would not provide "treatment planning, 
performance of tests and measurements, interpretation of referrals, instruction, consultative services and 
supervision of personnel." (See page 3 of the petitioner's letter of August 30, 2004). Consequently, the 
LIN 04 244 50294 
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evidence of record about the position and its duties is too vague for the AAO to make a reasonable 
determination that they exceed the occupational category of medical records and health information 
technician or that they satisfy any criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A). 
The AAO notes at the outset that the evidence of the beneficiary's license as a physical therapist in the 
State of Michigan, which appears to have been awarded after the instant petition was filed, is not relevant 
to the specialty occupation issue. The information that the petitioner provided in support of the petition at 
filing delineated the position as one not involving direct patient care or any activity that would require 
licensure as a physical therapist. On appeal, or at any other stage of adjudication of an H-1B petition, a 
petitioner may not materially expand the nature of the duties as initially described on the Form 1-129 and 
the supporting documents filed with form. The petitioner must establish that the position offered to the 
beneficiary when the petition was filed merits classification as a specialty occupation. Matter of Michelin 
Tire Corp., 17 I&N Dec. 248, 249 (Reg. Comm. 1978). A petitioner may not make material changes to a 
petition in an effort to make a deficient petition conform to CIS requirements. See Matter of lzummi, 22 
I&N Dec. 169, 176 (Assoc. Comm. 1998). To have significant changes to the content of a petition 
considered, a petitioner must file a new petition, with fee, that incorporates the changes. 
The AAO turns first to the criteria at 8 C.F.R. 9 214.2(h)(4)(iii)(A)(I) 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 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 1 15 1, 
1 165 (D.Minn. 1999)(quoting Hird/Blaker Cop. v. Sava, 712 F. Supp. 872, 1 102 (S.D.N.Y. 1989)). 
The proffered position is similar to that of a medical records and health information technician. The 2006- 
2007 electronic version of the Handbook, at htty://www.bls.gov/oco/ocosl03.htm, states that: 
Every time a patient receives health care, a record is maintained of the 
observations, medical or surgical interventions, and treatment outcomes. This 
record includes information that the patient provides concerning his or her 
symptoms and medical history, the results of examinations, reports of x rays and 
laboratory tests, diagnoses, and treatment plans. Medical records and health 
information technicians organize and evaluate these records for completeness and 
accuracy. 
Technicians assemble patients' health information. They make sure that patients' 
initial medical charts are complete, that all forms are completed and properly 
identified and signed, and that all necessary information is in the computer. They 
regularly communicate with physicians and other health care professionals to 
clarify diagnoses or to obtain additional information. 
LIN 04 244 50294 
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Some medical records and health information technicians specialize in coding 
patients7 medical information for insurance purposes. Technicians who specialize 
in coding are called health information coders, medical record coders, 
coder/abstractors, or coding specialists. These technicians assign a code to each 
diagnosis and procedure. They consult classification manuals and also rely on 
their knowledge of disease processes. Technicians then use computer software to 
assign the patient to one of several hundred "diagnosis-related groups," or DRGs. 
The DRG determines the amount for which the hospital will be reimbursed if the 
patient is covered by Medicare or other insurance programs using the DRG 
system. In addition to the DRG system, coders use other coding systems, such as 
those geared toward ambulatory settings or long-term care. 
Some technicians also use computer programs to tabulate and analyze data to 
improve patient care, control costs, provide documentation for use in legal 
actions, respond to surveys, or use in research studies. For example, cancer (or 
tumor) registrars maintain facility, regional, and national databases of cancer 
patients. Registrars review patient records and pathology reports, assign codes for 
the diagnosis and treatment of different cancers and selected benign tumors. . . . 
In its Handbook, 2006-2007 edition, the DOL states the following about the training and educational 
requirements for medical records and health information technician positions: 
Medical records and health information technicians entering the field usually 
have an associate degree from a community or junior college. In addition to 
general education, coursework includes medical terminology, anatomy and 
physiology, legal aspects of health information, coding and abstraction of data, 
statistics, database management, quality improvement methods, and computer 
science. Applicants can improve their chances of admission into a program by 
taking biology, chemistry, health, and computer science courses in high school. 
Hospitals sometimes advance promising health information clerks to jobs as 
medical records and health information technicians, although this practice may 
be less common in the future. Advancement usually requires 2 to 4 years of job 
experience and completion of a hospital's in-house training program. 
Most employers prefer to hire Registered Health Information Technicians 
(RHIT), who must pass a written examination offered by the American Health 
Information Management Association (AHIMA). To take the examination, a 
person must graduate from a 2-year associate degree program accredited by the 
Commission on Accreditation for Health Informatics and Information 
Management Education (CAHIIM). Technicians trained in non-CAHIIM- 
accredited programs or trained on the job are not eligible to take the 
examination. . . . 
To the extent of the evidence of record, the proffered position most closely resembles a medical records 
and health information technician. 
LIN 04 244 50294 
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The Handbook is clear that a degree or its equivalent is not the normal minimum requirement for entry 
into the occupation. As the Handbook does not indicate that a bachelor's degree or its equivalent is 
required as a minimum for entry into the occupation, the petitioner has not established the first criterion at 
8 C.F.R. 5 214.2(h)(4)(iii)(A). 
Counsel's reference to and assertions about the relevance of information from the Dictionary of 
Occupational Titles (DOT) are not persuasive. The DOT'S SVP rating does not indicate that a particular 
occupation requires the attainment of a baccalaureate or higher degree, or its equivalent, in a specific 
specialty as a minimum for entry into the occupation. An SVP rating is meant to indicate only the total 
number of years of vocational preparation required for a particular position. The classification does not 
describe how those years are to be divided among training, formal education, and experience, nor does it 
specify the particular type of degree, if any, that a position would require. 
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. 9 214.2(h)(4)(iii)(A)(l) - a baccalaureate or higher degree 
or its equivalent is normally the minimum requirement for entry into the particular position. 
The AAO now turns to a consideration of whether the evidence of record satisfies either of the alternative 
prongs of the second criterion at 8 C.F.R. 9 214.2(h)(4)(ii)(A)(2) - that is, whether it establishes 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. 
Regarding parallel positions in the petitioner's industry, the petitioner submitted 30 Internet job postings 
for various positions. One of the advertisements is for a physical therapy manager, 4 are for physical 
therapy clinical coordinators, one is for a physical therapy rehab services manager, 7 are for assistant 
director of physical therapy, three are for physical therapy supervisor, one is for a physical therapy 
advisor, one is for a physical therapy rehab coordinator, 2 are for quality management coordinators, one is 
for utilization review, three are for quality assurance improvement coordinator, one is for a clinical affairs 
associate, and the remaining 4 are for physical therapy assistant. 
As previously discussed the duties of the proffered position resemble a medical records and health 
information technician. It is also noted that several of the advertised positions require a licensed physical 
therapist. Further, the duties of the advertised positions are not specific enough to compare with the job 
duties of the proffered position. As already discussed, the Handbook does not report that the industry 
requires at least a bachelor's degree or its equivalent for the type of position established by the evidence. 
Also, there are no attestations from a professional association or from firms or individuals in the industry 
regarding an educational requirement common to the industry for positions such as the proffered here. 
Thus, the petitioner has not established that the degree requirement is common to the industry in parallel 
positions among similar organizations, as required by the first alternative criterion of 8 C.F.R. 
5 2 14.2(h)(4)(ii)(A)(2). 
Next, the petitioner has not satisfied the second alternative criterion of 8 C.F.R. 
 214.2(h)(4)(ii)(A)(2). 
As earlier discussed, the record's evidence about the proffered position and the duties comprising it do 
LIN 04 244 50294 
Page 7 
not establish the position as other than a medical records and health information technician. As indicated 
in the earlier discussion about the generalized and vague information about the position and its duties and 
the lack of information about what actual duty performance would require, neither counsel nor the 
petitioner have provided evidence to establish the position as so complex or unique that it can be 
performed only by a person with at least a baccalaureate degree in a specific specialty, as required by the 
second alternative criterion of 8 C.F.R. fj 214.2(h)(4)(ii)(A)(2). In response to the RFE, in addressing the 
first, second, and fourth criteria, counsel referred to occupational descriptions of the Occupational 
Information Network (O*NET), and the Handbook as related to the proffered position. However, 
counsel's views are not supported by the evidence of record. Therefore, the record also fails to establish 
that the position qualifies as a specialty occupation under the second prong of the second criterion at 8 
C.F.R. fj 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. 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 
(Cornm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Cornm. 1972)). 
Without documentary evidence to support the claim, the assertions of counsel will not satisfy the 
petitioner's burden of proof. The unsupported assertions of counsel do not constitute evidence. Matter of 
Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter oflaureano, 19 I&N Dec. 1 (BIA 1983); Matter 
of Ramirez-Sanchez, 17 I&N Dec. 503,506 (BIA 1980). 
The petitioner has, thus, not established any of the criteria set forth at 8 C.F.R. fj 214.2(h)(4)(iii)(A)(l) or 
(2). 
The AAO now turns to the criterion at 8 C.F.R. fj 214.2(h)(4)(iii)(A)(3) - the employer normally requires 
a degree or its equivalent for the position. To determine the 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. However, in the instant case, counsel has indicated that the 
proffered position is newly created. 
Accordingly, the petitioner is unable to provide evidence of its normal hiring practices with regard to the 
proffered position and has not established it as a specialty occupation on ths basis. 
The fourth criterion at 8 C.F.R. fj 214.2(h)(4)(iii)(A)(4) requires that a 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. The AAO here adopts 
its previous discussions regarding the record's evidence about the duties of the proffered position. As 
earlier discussed, the record lacks evidence of the substantive work that the beneficiary would perform 
beyond that of a medical records and health information technician. The record does not develop specific 
duties of the proffered position sufficiently to establish them as so specialized and complex that their 
performance would require knowledge usually associated with a bachelor's degree or higher in a specific 
specialty, as required by 8 C.F.R. fj 214.2(h)(4)(iii)(A)(4). The assertions by counsel and the petitioner 
that this criterion has been met are not supported by the evidence of record. Going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter of SofJici, (citing Matter of Treasure Craft of California). Without documentary 
evidence to support the claim, the assertions of counsel will not satisfy the petitioner's burden of proof. 
LIN 04 244 50294 
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The unsupported assertions of counsel do not constitute evidence. Matter of Ohaighena; Matter of 
Laureano; Matter of Ramirez-Sanchez. 
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. 9 214.2(h)(4)(iii)(A). 
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. 
§ 1 36 1. The petitioner has not sustained that burden. 
ORDER: 
 The appeal is dismissed. The petition is denied.