THE

13 I. & N. Dec. 675

• Court: Board of Immigration Appeals
• Decided: July 1, 1971
• Docket: 2076
• Status: Published

Opinion

Interim Decision #2076

MATTER OF THE

In Visa Petition Proceedings

A-18500754

Decided by Regional Commissioner March 9, 1971 Since the qualification requisites relating to physicians as set out in 8 CFR 204.2(e) (2) may be applied to dentists, and since the passing by petitioner/beneficiary of the Science Achievement Examination for Den- tistry given by the American Dental Association is not equivalent to pass- ing the examination given by the Educational Council for Foreign Medical Graduates specified in 8 CFR 204.2(e) (2), petitioner/beneficiary, who re- ceived his dental education in Indonesia but did not obtain a full and unrestricted license to practice in that country, has failed to establish eli- gibility for preference classification under section 203(a) (3) of the Immi- gration and Nationality Act, as a dentist. ON BEHALF OF APPELLANT: Allen R. Jackson, Esquire 580 Washington Street San Francisco, California 94111

This case comes before the Regional Commissioner on appeal from the decision of the Acting District Director, San Francisco, who denied the petition on January 6, 1971 in that the appellant had failed to establish that he qualified as a member of the pro- fessions as a dentist and was, therefore, not eligible for classifi- cation under section 203(a) (3) of the Immigration and National- ity Act, as amended. The appellant is a 33-year-old single male, a native and citizen of Indonesia. He was last admitted to the United States as an "F" student on September 18, 1968 and granted extensions of stay in that status to March 29, 1970. At time of admission he was destined to Bay City College of Dental-Medical Assistants, San Francisco, where he took a dental technician's course in "Crown and Bridge" and was issued a certificate showing that he qualified as a crown and bridge lab technician. On February 12, 1969 he transferred to the College of Marin near San Francisco where he was enrolled in a pre-dental course. Evidence has been

675 iterim Decision #2076 resented that he is now enrolled in the special program at the niversity of Southern California as a third-year dental student. He filed a petition under section 203(a) (3) of the Act on July 7, 1970 as a member of the professions as a dentist to seek work such in California. The petition was denied by the District lirector on September 14, 1970 for lack of a Labor certification ursuant to section 212(a) (14) of the Act. On October 28, 1970 ie Department of Labor advised this Service that upon their re- )nsideration a Labor certification for the occupation of dentist ad been issued in behalf of the appellant on October 28, 1970. he Acting District Director on his own motion reopened the case nd again denied the petition on January 6, 1971 finding that the ppellant was not qualified as a member of the professions as a entist. The denial decision in pertinent part states: Petitioner has submitted evidence that he completed his studies at Trisakti Jniversity in Indonesia and passed the final examination of the Faculty of )entistry but did not take the state examination which is required to obtain he "Doctorgigi" (dentist) degree and license as a dentist. He has also sub- nitted evidence that he completed a crown and bridge lab technician's course .t Bay City College of Dental-Medical Assistants in San Francisco; passed he science achievement examination for dentistry given by the American )ental Association; and has been accepted in the University of Southern '.3alifornia School of Dentistry as a third-year student. He lists employment Ls a teaching assistant in the Faculty of Dentistry at Trisakti University 'roam 1964 to 1965 and as a crown and bridge lab technician from July 1969 o July 1970. Matter of Maher, 12 I. & N. Dec. 680, holds that a graduate of a foreign ,chool of dentistry who has obtained a full and unrestricted license to practice lentistry in the country of his education qualifies as a member of the pro- essions within the meaning of section 101 (a) (32) of the Immigration and qationality Act, as amended, and is eligible for preference status under sec- ion 203(a) (3) of the Act, as amended. Petitioner did not take the state xamination which is required to obtain his dentist degree and license in ndonesia and he has never been employed as a dentist in any other country. From the evidence submitted it cannot be found that he is a qualified member if the profession for which he is petitioning. Petition will accordingly be lenied. In the Matter of Maher, supra, reference is made to 8 CFR 204.2 (f) (2) (now 8 CFR 204.2 (e) (2) ) which relates to alien phy- sicians who, if they meet certain conditions, "shall be considered eligible for classification as a member of the professions" and goes on to state: "Although the above-cited excerpt from 8 CFR 204.2(f) (2) relates specifically to one of the criteria for deter- mining whether an alien physician may be classified as a member of the professions, we conclude that criterion may be applied with

676 Interim Decision #2076

equal validity to alien dentists." We will, therefore, apply the qualification standards as set forth in 8 CFR 204.2(e) (2) to the profession of dentistry. 8 CFR 204.2(e) (2) provides as follows : An alien physician shall be considered eligible for classification as a member of the professions if he establishes that he was graduated from a medical school in the United States or Canada, or that he was graduated from a foreign medical school and has successfully passed the examination given by the Educational Council for Foreign Medical Graduates, or that he was graduated from a foreign medical school and has obtained a full and un- restricted license to practice medicine in the country where he obtained his medical education. In any other case the District Director may consult the Educational Council for Foreign Medical Graduates or other organizations and experts in the medical field for the purpose of obtaining an advisory opinion of the alien's qualifications as a physician. It should be noted from the above that there are three possibili- ties for establishing eligibility for classification as a member of the professions as a physician which Matter of Maher, supra, in- dicates may be applied to the profession of dentistry— (1) being a graduate of a United States or Canadian medical school ; (2) being a graduate of a foreign medical school and having passed the Educational Council for Foreign Medical Graduates (ECFMG) examination ; or (3) being .a graduate of a foreign medical school and having a full and unrestricted license to practice in the country where he obtained his education. The appellant, not being a graduate of a United States or Ca- nadian school definitely does not fall into category (1). A letter dated August 18, 1969 by the Dean of the Faculty of Dentistry, Trisakti University, states : In order to obtain the "Doctorgigi" (dentist) degree, students of the Fac- ulty of Dentistry of the TRISAKTI UNIVERSITY have to pass a state examination in accordance with Decree Nr. 74, 1967 Directorate General of High Education, Minister of Education. Enclosed copies of transcripts and other information concerning examina- tions passed by Mr. The Bian Tjing as signed by former Dean of the Faculty of Dentistry of RES PUBLICA UNIVERSITY, Dr. Tjia Soen Lee, are found to be correct. Mr. The Bian Tjing has already passed the final examination of said Fac- ulty 'of Dentistry, however has not yet passed above mentioned State ex- amination. This letter indicates that while the appellant may be a gradu- ate he has not yet passed the necessary State examination so officially has no degree and does not have a "full and unrestricted license to practice" in Indonesia where he obtained his medical education. He, therefore, does not meet the requirements of cate- gory (3).

677 Interim Decision #2076 The remaining possibility is category (2), graduate from a for- eign medical school and passing the ECFMG examination. A let- ter dated June 25, 1970 from the Director, Special Student Program, University of Southern California, Los Angeles, states Dr. Bian The's credentials have been examined by the Admissions Office at the University of Southern California and have been found in order. This is a specific prerequisite for our Special Student Program. He must be a graduate from dental school and our Admission office found this to be true. We will honor the finding of the Director, Special Student Pro- gram, to the effect that the appellant is a graduate of a dental school. The final issue is to determine if the appellant has passed the ECFMG examination or its equivalent. The record shows that the appellant has passed the "Science Achievement Examination for Dentistry" given by the American Dental Association. Counsel's principal argument on appeal is that the passing of this examination is the equivalent of passing the ECFMG examination, and having passed such examination the appellant meets the requirements of category (2) of 8 CFR 204.2 (e) (2) and cites Matter of Maher, supra. Maher, however, was a graduate and had a full and unrestricted license to prac- :ice. In the case before us the appellant, while we will consider din to be a graduate, failed to take the required State examina- -

;ion and has not obtained a full and unrestricted license to prac- ice. In the case before us we must now determine if the passing )f the "Science Achievement Examination for Dentistry" is the !quivalent of passing the ECFMG examination. On February 26, 1971 the Executive Director of the ECFMG )y letter advised the Service that "The purpose of the ECFMG wogram is to determine whether graduates of foreign medical chools are qualified to start a graduate medical training program s intern or resident in approved United States hospital." (Em- thasis supplied.) A pamphlet entitled "Science Achievement Examination for )entistry," published by the Division of Educational Measure- ments, Council on Dental Education, American Dental Associa- ion, states: "The science achievement examination is intended to Irovide dental education programs with an evaluation of the ,asic science competency of the foreign dental graduate seeking dmission to either the undergraduate D.D.S. or D.M.D. degree rogram or some type of advanced dental education" and "There- ore, the Science Achievement Examination for Dentistry was eveloped to provide an accurate evaluation of the candidate's

678 Interim Decision #2076 knowledge in the basic sciences. This is one of the major criteria used to determine the proper level of placement for the prospec- tive degree candidate." From the above it is evident that the two programs, ECFMG examination and Science Achievement Examination for Den- tistry, do not serve the same purpose and that the passing of the Science Achievement examination cannot be equated with the purpose of the ECFMG examination as set forth in 8 CFR 204.2 (e) (2). The ECFMG examination determines if the foreign medical graduate is qualified to start a graduate medical training program as an intern or resident. The Science Achievement ex- amination is to evaluate the basic science competency of the for- eign dental graduate and to determine the level of placement in a dental school, undergraduate or graduate, where the alien will en- roll. In the present case the record shows that the appellant's level of placement was given as "3RD YR. (TENT)" and has been accepted as a third year student at the University of South- ern California Dental School. Considering all the factors discussed herein we find that the appellant cannot at this time be found to qualify as a member of the professions as a dentist under section 203 (a) (3) of the Act. Matter of Brantigan, 11 I. & N. Dec. 493, holds that the burden of proof to establish eligibility for a desired preference rests with the appellant. That burden has not been met. The appellant has failed to establish that he is eligible for the classification he seeks. The appeal will be dismissed. Denial of the petition, however, is without prejudice to the con- sideration of a new petition for sixth preference classification should the appellant obtain a definite offer of employment from a prospective employer in this country seeking his services and an appropriate certification be issued by the Department of Labor pursuant to section 212 (a) (14) of the Act, as amended. ORDER: It is ordered that the appeal be dismissed.