remanded H-1B Case: Dental Technology

U.S. Department of IIomeland Security 
20 Mass. Ave., N.W., Rrn. 3000 
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pmeat clearly unwand 
invasion ofpersod privacy 
PUBLIC COPY 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: WAC 04 800 61 888 Office: CALIFORNIA SERVICE CENTER Date: AUG 2 9 ZOO6 
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 10 l(a)(l S)(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, Chief 
Administrative Appeals Office 
WAC 04 800 61 888 
Page 2 
DISCUSSION: The director of the California Service Center denied the nonimmigrant visa petition and the 
matter is now before the Administrative Appeals Office (AAO) on appeal. The director's decision will be 
withdrawn and the matter remanded for entry of a new decision. 
The petitioner is a dental laboratory, with eight employees. It seeks to employ the beneficiary as a dental 
materials test engineer. The director denied the petition because he determined the petitioner had failed to 
establish its proffered position 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) counsel's response to the director's request; (4) the director's denial letter; 
and (4) Form 1-290B, with counsel's brief and additional 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)(l) of the Act, 8 U.S.C. 9 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. 
The term "specialty occupation" is further defined at 8 C.F.R. 8 2 14.2(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: 
(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 
WAC 04 800 61888 
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(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. CJ: Defensor v. Meissner, 201 
F. 3d 384 (5th 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 seeks the beneficiary's services as a dental materials test engineer. Evidence of the 
beneficiary's duties includes: the Form 1-129; the petitioner's September 29, 2004 letter in support of the 
Form 1-129; and counsel's January 26, 2005 response to the director's request for evidence. This evidence 
indicates that the duties of the proffered position would require the beneficiary to: 
Plan and develop testing processes for materials used in the creation of prosthetic 
teeth and other oral dental pedodontic implants and appliances, applying knowledge 
of dental laboratory materials, and engineering and testing methodologies; 
Conduct comprehensive engineering test activities with regard to the physical and 
chemical properties of the newly developed ceramic materials, including generational 
gypsum products and impression materials; 
Conduct comprehensive testing and analysis of physical, mechanical, and chemical 
properties of dental metals and alloys; 
Engage in testing the product utility in order to provide maximum function and 
exceptional esthetics to be consistent with the natural dentition of the patient; 
Ensure practical and cost-effective applicability of the new materials to the dental 
setting by creating dental pedodontic implants and appliances models; 
Develop standards for using the newly available dental materials and alloys, based on 
the result of the comprehensive tests and test models; and 
Monitor implementation of the standards by testing the finished products that are 
produced by the laboratory using the new materials. 
To make its determination whether the employment just described qualifies as a specialty occupation, the 
AAO turns to the criteria at 8 C.F.R. 5 214.2(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; and 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 considered by the 
AAO when determining these criteria include: whether the Department of Labor's (DOL) Occupational 
WAC 04 800 61 888 
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Outlook Handbook (Handbook), on which the AAO routinely relies for the educational requirements of 
particular occupations, reports 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 Corp. v. Suva, 71 2 F. Supp. 1095, 
I 102 (S.D.N.Y. 1989)). 
In his denial, the director found the above duties to most closely resemble those of dental laboratory 
technicians who "fill prescriptions from dentists for crowns, bridges, dentures , and other dental prosthetics."' 
The AAO does not agree. While the petitioner does indicate that the beneficiary would create dental implant 
and appliance models, these duties appear to be incidental to his materials testing responsibilities rather than 
to define his employment. 
The duties of the proffered position are also not those of a materials engineer, as asserted by counsel in his 
January 26, 2005 response to the director's request for evidence. While the beneficiary would be involved in 
the testing of dental materials, he would not be required to develop such materials, a characteristic of the work 
performed by materials engineers.2 Neither is the proffered position that of a materials scientist, employment 
that also deals with a wide range of products. Materials scientists, like materials engineers, develop new 
products and enhance existing ones. 3 
Upon consideration of the totality of the evidence, the testing duties described in the record do not neatly 
align with any occupational title addressed by the Handbook. Nor do they comprise a position that is 
identifiable with an industry-wide educational standard or, alternately, a position that is distinguishable, by its 
unique nature or greater complexity, from similar but non-degreed employment. Accordingly, the proffered 
position is not established as a specialty occupation under the first two criteria at 8 C.F.R. 
8 214.2(h)(4)(iii)(A). 
The AAO next considers the criteria at 8 C.F.R. $9 214.2(h)(4)(iii)(A)(3) and(4): the employer normally 
requires a degree or its equivalent for the position; and the nature of the specific duties is so specialized and 
complex that the knowledge required to perform them is usually associated with the attainment of a 
baccalaureate or higher degree. 
While the evidence of record does not demonstrate that the petitioner has a history of recruiting and hiring 
degreed individuals for the position, it does satisfy the requirements of the criterion at 8 C.F.R. 
tj 214.2(h)(4)(iii)(A)(4). The testing duties to be assigned to the beneficiary appear sufficiently specialized 
and complex that their performance would require knowledge usually associated with the attainment of a 
baccalaureate degree in materials science, medical technology or a related field. Therefore, the petitioner has 
established the proffered position as a specialty occupation and the AAO withdraws the director's finding to 
the contrary. 
1 Occupational Outlook Handbook, 2006-2007 Edition, page 6 19. 
Ibid., page 135. 
Ibid., page 162. 
WAC 04 800 61 888 
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The petition may not be approved, however, as the record does not establish that the beneficiary is qualified to 
perform the duties of a specialty occupation. 
To qualifL to perform the duties of a specialty occupation, the regulation at 8 C.F.R. 5 2 14.2(h)(4)(iii)(C) requires 
a beneficiary to: 
(I) Hold a United States baccalaureate or higher degree required by the specialty occupation 
from an accredited college or university; 
(2) Hold a foreign degree determined to be equivalent to a United States baccalaureate or 
higher degree required by the specialty occupation from an accredited college or 
university; 
(3) Hold an unrestricted state license, registration or certification which authorizes him or 
her to fully practice the specialty occupation and be immediately engaged in that 
specialty in the state of intended employment; or 
(4) Have education, specialized training, and/or progressively responsible experience that is 
equivalent to completion of a United States baccalaureate or higher degree in the 
specialty occupation, and have recognition of expertise in the specialty through 
progressively responsible positions directly related to the specialty. 
In the instant case, the petitioner has submitted documentation to establish that the beneficiary holds a foreign 
degree that is the equivalent of a U.S. baccalaureate or higher degree required by the proffered position, 
including his graduation certificates from the Shun-Osaka School of Dental Technology and The Osaka 
Ceramic Training Center in Japan, his transcripts from these institutions and an evaluation from the American 
Universities Admission Program (AUAP) Credential Evaluation Services in Sarasota, Florida. The evaluation 
finds the beneficiary to hold the equivalent of a bachelor of science degree in dental laboratory sciences. The 
record also contains letters certifying the beneficiary's employment in a series of dental laboratories, 
including the petitioner's, for much of the period from April 1999 to August 2004. 
The AAO will not, however, accept the AUAP evaluation as proof of the beneficiary's degree equivalency. It 
has learned that as of January 25, 2006, the AUAP is the defendant in a trademark infringement lawsuit 
brought by the American Association of Collegiate Registrars and Admissions Officers (AACRAO) that 
seeks to prevent the AUAP from representing itself as AACRAO-affiliated. In its suit, the AACRAO 
indicates that it has determined that AUAP evaluations are "factually incomplete, contain discrepancies, and 
are generally carelessly produced."4 The AAO also notes that a February 10, 2005 suit-related article 
published online by the University of Houston reports that none of the groups with which the AUAP indicates 
an affiliation on its website claim it as a member.5 In light of the concerns raised in the AACRAO lawsuit, 
4 See ~~~vw.credentialwatcl~.org/legal/auap/complaint. 
See www.ul1.edu/ednews/2006/insidehe/2.00602/200602 1 Odiplomamil I. 
WAC 04 800 61888 
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the AAO will not consider the AUAP evaluation. U.S. Citizenship and Immigration Services (CIS) uses an 
evaluation by a credentials evaluation service of a beneficiary's foreign education as an advisory opinion 
only. Where an evaluation is not in accord with previous equivalencies or is in any way questionable, it may 
be discounted or given less weight. Matter of Sea, Inc., 19 I&N Dec. 817 (Comm. 1988). 
Therefore, for reasons related in the preceding discussion, the AAO will withdraw the director's decision and 
remand the instant case to the director for a decision as to whether the beneficiary qualifies to perform the 
duties of a specialty occupation. The director may request such evidence as may be necessary to assist in 
reaching that determination. The director shall then issue a new decision based on the evidence of record, as 
it relates to the statutory and regulatory requirements for H-I B nonimmigrant visa eligibility. 
As always, the burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 
8 U.S.C. $ 1361. 
ORDER: The director's decision of February 4, 2005 is withdrawn. The petition is remanded to the 
director for entry of a new decision, which, if adverse to the petitioner, shall be certified to the 
AAO for review.