remanded H-1B Case: Dentistry

U.S. Department of Homeland Security 
20 Mass. Ave. N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: WAC 02 21 1 53471 Office: CALIFORNIA SERVICE CENTER Date: ,! , . I 
PETITION: Petition for a Nonirnrnigrant Worker Pursuant to Section lOl(a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. $ 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. Wiernann, Director 
Administrative Appeals Office 
WAC 02 211 53471 
Page 2 
DISCUSSION: The director denied the nonirnrnigrant 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 The director's decision will be withdrawn and the matter 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 provider of dentistry services to adults and children that seeks to employ the 
beneficiary as a dental specialist. The petitioner, therefore, endeavors to classify the beneficiary as a 
nonimmigrant 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. 8 1 lOl(a)(lS)(H)(i)(b). 
The record of proceeding before the AAO contains (I) the Form 1-129 and supporting documentation; (2) the 
director's request for evidence (RFE); (3) the petitioner's RFE response and supporting documentation; 
(4) the director's denial letter; and (5) the Form I-290B and supporting documentation. The AAO reviewed 
the record in its entirety before issuing its decision. 
The director denied the petition on the basis that the petitioner had failed to prove that the proposed position 
qualifies for classification as a specialty occupation. 
Section 214(i)(l) of the Immigration and Nationality Act (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. 
The term "specialty occupation" is further defined at 8 C.F.R. 3 214.2(h)(4)(ii) as: 
[A]n 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; 
(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 02 21 1 53471 
Page 3 
(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 proposed position. 
Counsel's April 16, 2003 RFE response set forth a detailed description of the duties of the proposed position. 
According to this letter, the beneficiary will spend twenty percent of her time planning, organizing, and 
maintaining the petitioner's miscellaneous dental programs; fifteen percent of her time conferring with the 
dentist and staff formulating new policies, improving existing policies, and recommending procedural 
changes; fifteen percent of her time developing and implementing a system to be used by the dental office, 
clinic, and laboratory that will assure a smooth flow or work and improve efficiency; ten percent of her time 
formulating personnel hiring, promotion, and termination procedures, and coordinating the assigned tasks and 
work schedules of staff; ten percent of her time evaluating staff members' performances and ensuring that all 
safety measures are followed; ten percent of her time solving workers' procedural problems and 
demonstrating proper dental techniques; five percent of her time coordinating with various dental laboratories 
that the clinic utilizes to assure that all work orders are submitted and received correctly and timely; five 
percent of her time reviewing major professional dental journals for dental health issues and development 
particularly relevant to the dentists' practice, and providing the dentists with this latest information; five 
percent of her time researching literature to find and research suggestions of modes of treatment for possible 
diagnoses, eliciting detailed patients' histories, and discussing the patients' charts and records with the 
dentists; and five percent of her time supervising the billing of patients and insurance companies financially 
accountable for the services rendered. 
The petitioner noted in its April 18, 2002 letter of support that the beneficiary possesses a doctor of dental 
medicine degree and worked as a dentist in the Philippines for four years. On appeal, counsel asserts that the 
petitioner requires a person with a dental degree to perform the duties of the proposed position. Counsel 
states the following: 
[Wlithout the required degree, the [dlental [slpecialist will not be able to perform the 
majority of the job duties correctly, such as planning dental programs, demonstrating proper 
dental techniques, and reviewing and researching dental literature. It should be thusly 
deduced that the job itself, given its complex and dental-specific duties, is one that requires 
its worker to possess a dental degree, and is a position commonly needed by businesses in 
dental practice, such as that of the petitioner. 
Upon review of the record, the AAO finds that the petitioner has established that the proposed position is a 
specialty occupation under 8 C.F.R. 5 214.2(h)(4)(iii)(A)(I): that a baccalaureate or higher degree or its 
equivalent is the normal minimum requirement for entry into the position. 
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. 
WAC 02 211 53471 
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The AAO finds that many of the beneficiary's duties are performed by dentists, as that occupation is 
described in the Handbook, which is a resource that the AAO routinely consults for its information about 
the duties and educational requirements of particular occupations. This finding is also substantiated by 
the definition of a dentist under the California Business and Professions Code. The Handbook states that 
dentists diagnose, prevent, and treat problems with teeth or mouth tissue; the California Business and 
Professions Code Section 1625-1636.6, at section 1625, explains that a person practices dentistry when 
the person "performs, or offers to perform, an operation or diagnosis of any kind." That section also 
provides that a person practices dentistry who "manages or conducts as manager . . . a place where dental 
operations are performed." 
These descriptions of a dentist are encompassed within the beneficiary's duties to demonstrate proper 
dental techniques to staff members, review professional dental journals for dental health issues and 
development so as to provide the dentists with the latest infonnation, and to research literature to find and 
research treatment options for possible diagnoses for patients. The beneficiary will also be planning, 
organizing, and maintaining the petitioner's dental programs and formulating new policies for the dental 
office. 
The Handbook states the following with regard to the training of persons seeking employment as dentists: 
All 50 States and the District of Columbia require dentists to be licensed. To qualify for 
a license in most States, a candidate must graduate from one of the 55 dental schools 
accredited by the ADA's Commission on Dental Accreditation in 2002 and also must 
pass written and practical examinations . . . 
Dental schools require a minimum of 2 years college-level predental education, 
regardless of the major chosen. . . .most dental students have at least a bachelor's degree. 
Most dental schools award the degree of Doctor of Dental Surgery (DDS). The rest 
award an equivalent degree, Doctor of Dental Medicine (DMD). 
As a degree in dentistry is the standard educational requirement for anyone seeking employment as a 
dentist, the AAO concludes that the petitioner's proposed position, which is that of a dentist, meets the 
requirements under the fust criterion at 8 C.F.R. 5 214.2(h)(4)(iii)(A) - a baccalaureate degree, or its 
equivalent, is normally the minimum requirement for entry into the particular position. Accordingly, the 
proposed position is a specialty occupation. 
No evidence contained in the record of proceeding demonstrates that the beneficiary is qualified to 
perform the duties of the proposed position, dental specialist, which involves the practice of dentistry and 
therefore requires licensure. The practice of dentistry requires licensure, but the director did not address 
this issue. Therefore, the director's decision will be withdrawn and the matter remanded for the entry of a 
new decision. The director must afford the petitioner reasonable time to provide evidence pertinent to the 
issue of whether the beneficiary is qualified to perform the proposed position, which involves the practice 
of dentistry. The director shall then render a new decision based on the evidence of record as it relates to 
the regulatory requirements for eligibility. As always, the burden of proving eligibility for the benefit 
sought rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 3 1361. 
WAC 02 21 1 53471 
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ORDER: The director's January 15, 2004 decision is withdrawn. The petition is remanded to the 
director for entry of a new decision, which, if adverse to the petitioner, is to be certified to 
the AAO for review.