sustained H-1B Case: Medical Research

identifyingdata deletedto
prevent clearly unwarranted
invasionof personalprivacy
PUBLiC coPt
U.S. Department of Homeland Security
20 Mass Ave., N.W., Rm. 3000
Washington, DC 20529
u.S. Citizenship
and Immigration
Services
FILE: EAC 06 033 52069 Office: VERMONT SERVICE CENTER Date: SEP 13 2007
INRE: Petitioner:
Beneficiary:
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l5)(H)(i)(b) of the
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(l5)(H)(i)(b)
ON BEHALF OF PETITIONER:
SELF-REPRESENTED
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
www.uscis.gov
EAC 06 033 52069
Page 2
DISCUSSION: The service center director denied the nonimmigrant visa petition and the matter is now before
the Administrative Appeals Office (AAO) on appeal. The appeal will be sustained. The petition will be approved.
The petitioner is a medical school and research facility that seeks to employ the beneficiary as a research
technician. The petitioner endeavors to classify the beneficiary as a nonimmigrant worker in a specialty
occupation pursuant to § 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 because the petitioner had not demonstrated that the beneficiary is qualified to
perform a specialty occupation. On appeal, the petitioner submits a copy of the beneficiary's college diploma
and a translation.
Section 214(i)(2) of the Act, 8 U.S.C. § 1184(i)(2), states that an alien applying for classification as an H-IB
nonimmigrant worker must possess full state licensure to practice in the occupation, if such licensure is
required to practice in the occupation, and completion of the degree in the specialty that the occupation
requires. If the alien does not possess the required degree, the petitioner must demonstrate that the alien has
experience in the specialty equivalent to the completion of such degree, and recognition of expertise in the
specialty through progressively responsible positions relating to the specialty.
Pursuant to 8 C.F.R. § 214.2(h)(4)(iii)(C), to qualify to perform services in a specialty occupation, an alien
must meet one of the following criteria:
(1) 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.
The record of proceeding before the AAO contains: (1) the 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) the Form 1-290B and supporting documentation. The AAO reviewed the
record in its entirety before issuing its decision.
EAC 06 033 52069
Page 3
The petitioner is seeking the beneficiary's services as a research technician. The petitioner indicated that the
beneficiary is a qualified candidate for the job because she possesses a foreign bachelor's degree in biology
and medical laboratory studies.
The director found that the beneficiary was not qualified for the proffered position because the petitioner did
not submit a copy of the beneficiary's diploma/HBO.
In this case, the proffered position is that of a research technician for the petitioning entity, which is a non­
profit medical school and research facility that was established in 1954, has 1,700 employees and 3,500
faculty members. A review of the Department of Labor's Occupational Outlook Handbook, 2006-07 edition,
under the category of Science Technicians, finds that although there are several ways to qualify for a job as a
science technician/biological technician, employers' preferences vary, and some science technicians hold a
bachelor's degree in chemistry, biology, or forensic science, or have taken several science and math courses at
4-year colleges. In this case, the beneficiary holds a foreign bachelor's degree in biology and medical
laboratory studies. An evaluator from the Netherlands Organization for International Cooperation in Higher
Education (Nuffic) concludes that the beneficiary's foreign degree is comparable to a bachelor's degree in
laboratory technology awarded by American colleges and universities.
The AAO notes that not all science technician/biological technician positions require a related bachelor's
degree, or the equivalent. In the context of the record of this particular proceeding, however, the cumulative
weight of the details that the petitioner presented about the proposed duties and the size and scope of its
business operations are decisive. It is sufficient to establish that the nature of the duties is so specialized and
complex that knowledge required to perform the duties is usually associated with the attainment of at least a
U.S bachelor's degree, or the equivalent, in chemistry, biology, forensic science, or a related specialty.
Therefore, the petitioner has satisfied the fourth criterion of 8 C.F.R. § 214.2(h)( 4)(iii)(A).
As the evidence of record also establishes that the beneficiary holds the equivalent of a U.S. bachelor's degree in
laboratory technology, which is a degree directly related to the pertinent specialty occupation, the beneficiary is
qualified to serve in that occupation as required by the regulation at 8 C.F.R. §§ 214.2(h)(4)(iii)(C) and (D). The
appeal will be sustained, and the petition will be approved.
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 sustained that burden. Accordingly, the appeal will be sustained and the
petition will be approved.
ORDER: The appeal is sustained, and the petition is approved.