remanded H-1B Case: Dentistry

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clearly unwan?urka 
of personal prbacy 
U.S. Department of Homeland Security 
20 Mass Ave., N .W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
- 
iC 03 02 1 5 1 1 34 Office: CALIFORNIA SERVICE CENTER Date: ncT 3 7nn5 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 l(a)(l S)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U .S.C. 8 1 10 1 (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, Director 
Administrative Appeals Office 
WAC 03 021 51 134 
Page 2 
DISCUSSION: The director of the 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 The director's decision will be withdrawn. The 
petition will be remanded for the entry of a new decision. 
The petitioner is a dental office that seeks to employ the beneficiary as a dental specialist/researcher. The 
petitioner, therefore, endeavors to classify the beneficiary as a nonimmigrant worker in a specialty accupation 
pursuant to section lOl(a)(15)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
1 lOl(a)(lS)(H)(i)(b). The director denied the petition because the proffered position is not a specialty 
occupation. On appeal, counsel submits a brief. 
The record of proceeding before the AAO contains: (1) Form 1-129 and supporting documentation; (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. 
Section 214(i)(l) of the Act, 8 U.S.C. 3 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; 
(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 2 14.2(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. 
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The petitioner is seeking the beneficiary's services as a dental specialist/researcher. Evidence of the 
beneficiary's duties includes: the Form 1-129; the attachments accompanying the Form 1-129; the company 
support letter; and counsel's response to the director's request for evidence. According to this evidence, the 
beneficiary would perform duties that entail maintaining complete dental records for the ultimate approval of 
the dentist; keeping up-to-date on dental research results and utilizing dental library to perform the duties; 
coordinating dental care evaluation and developing criteria and methods for such evaluatiodreports; 
conferring with personnel regarding operational policies and recommending procedural changes; setting up a 
system of operations and activities to be implemented in the office and laboratory managing the clinic's 
affairs; analyzing the clinic's practices and procedures and conferring with the dentist to formulate policies 
and recommend procedural changes; performing dental research regarding new developments and devising 
methods to implement the findings of the research; hiring staff and evaluating the work of employees; 
overseeing billing; coordinating with dental laboratories to ensure orders are correct; assisting dentists with 
analysis of patient records; examining patient records to compose dental reports for the ultimate approval of 
clinic dentists; utilizing a medical background to provide a complete analysis of patients' oral and maxillo- 
facial conditions based on the dentist's findings, reports, medical history, and laboratory results; examining 
and measuring diagnostic aides as well as examining periapical x-rays for pathological conditions of teeth and 
surrounding tissue and recording these conditions for diagnosis and future treatment by the dentist; consulting 
with the dentist regarding dental treatment solutions as they relate to patients' conditions; maintaining 
complete dental reports and related documentation for each patient; coordinating dental care evaluations and 
developing criteria and methods for each evaluationlreport; and utilizing medical and dental journals, 
textbooks, and research materials to analyze and evaluate patients' records regarding AIDS and the Ireatment 
of gingival diseases. The petitioner stated that the beneficiary will not "provide any patient care and will not 
have any contact with patients." According to the petitioner, the position requires a strong dental background 
that is obtained by attending a dental school. Counsel stated that the position resembles the position of a 
health services manager. 
In response to the director's request for evidence, counsel indicated that the administrative duties relating to 
assurance and quality of work and compliance with the national standards will take about 30% of her time; 
the duties relating to analysis of patients' records and assisting the clinic's dentists to make proper 
determinations and diagnosis will occupy 40% of her time; and medical and dental research and the 
composition of reports based on such research will take 30% of her time. 
The director determined that the proffered position was not a specialty occupation. The director stated that 
the duties of the proposed position are that of a medical records and health information technician as that 
occupation is described in the Department of Labor's Occupational Outlook Handbook (the Handbook). The 
director stated that the Handbook reveals that this occupation does not require baccalaureate-level education. 
The director noted that the petitioner claimed that the proffered position resembles a health services manager. 
The director noted that the Handbook states, in pertinent part, "Medical and health services managers must be 
familiar with management principles and practices." The director determined that the evidence does not 
reflect that the beneficiary has the required education or experience that would qualify her to perform the 
duties of a health services manager. The director noted that the beneficiary has a degree in dental medicine 
and experience limited to basic direct patient care without progressive responsibilities. The director 
WAC 03 021 51 134 
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concluded that the proffered position was not a specialty occupation and that the beneficiary was not 
qualified. 
On appeal, counsel contends that the proposed position's duties resemble those of a health services manager 
as that occupation is described in the Handbook. The Handbook indicates, counsel notes, that a bachelor's 
degree is adequate for some entry-level positions as a health services manager, which requires at least a 
bachelor's degree in health services administration, health sciences, public health, or a related discipline for 
entry-level positions. The proposed position, counsel states, may require a degree in health sciences as 
opposed to business administration. Counsel discusses the beneficiary's duties as they relate to ensuring that 
the dental practice runs smoothly, and states that the beneficiary will administer a dental pro,gam and 
formulate dental policies, standards and procedural changes and that she will be responsible for increasing 
production, hiring, evaluating and firing staff members. Counsel notes that the beneficiary will oversee the 
billing of patients and insurance companies. Counsel asserts that the proffered position clearly requires the 
minimum of a baccalaureate degree. 
Upon review of the record, the petitioner has established that the proffered position is a specialty occupation 
under the first criterion at 8 C.F.R. 5 214.2(h)(4)(iii)(A): a baccalaureate or higher degree or its equivalent is 
the normal minimum requirement for entry into the particular position. 
In determining whether a 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 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 information about the 
duties and educational requirements of particular occupations. The AAO's 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 explains under section 1625 that a person practices dentistry when the person 
"performs, or offers to perform, an operation or diagnosis of any kind." 
These descriptions of a dentist are encompassed within the beneficiary's duty to provide a "complete analysis 
of patients' oral and maxillo-facial conditions based upon the dentist's findings, reports, medical history[,] 
and laboratory results"; "examine and measure diagnostic aides as well as examine periapical x-rays for 
pathological conditions of teeth and surrounding tissues" and "record these conditions for diagnosis and 
future treatment by the dentist"; and "[consult] with dentists regarding dental treatment solutions as they 
relate to patients' conditions." 
The Handbook states the following regarding the training of persons seeking employment as dentists: 
WAC 03 021 51134 
Page 5 
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 the petitioner's proffered position, which is that of a dentist, meets the requirements 
under the first criterion at 8 C.F.R. 5 214.2(h)(4)(iii)(A) - a baccalaureate or higher degree, or its equivalent, 
is normally the minimum requirement for entry into the particular position. Accordingly, the proffered 
position is a specialty occupation. 
The petition may not be approved however, as it does not appear that the beneficiary is qualified for the 
position, as the record does not reflect that she is licensed as a dentist. The petitioner's statement, that the 
beneficiary will not "provide any patient care and will not have any contact with patients," does not establish 
that the proposed position will not require licensure. As already discussed, the Handbook and the California 
Business and Professions Code reveal that some of the beneficiary's duties involve the practice of dentistry. 
No evidence contained in the record demonstrates that the beneficiary is qualified to perform the duties of the 
proposed position, dental specialist/researcher, which involves the practice of dentistry and therefore requires 
licensure. The director's decision will be withdrawn and the matter remanded for 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 for 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 remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. 
ORDER: The director's June 18, 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.