LEE

Interim Decision #2876




                                  MATTER OF LEE
                          In Visa Petition Proceedings

                                   A CHI N 20149
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             Decided by Regional Commissioner May 8, 1981

(1) To qualify for nonimmigrant classification as a temporary worker of distinguished
  merit and ability within the meaning of section 101(a)(15)(HXD of the Immigration and
  Nationality Act, 8 U.S.C. 1101(a)(15)(H)(i), a beneficiary must be a member of a profession offered a temporary position performing services which require professional
  skills.
(2) A beneficiary who is a dentist, offered a position practicing dentistry for an hidefinite period of time with nu opeciiied termination date has not been offered a temporary
  position and . does not qualify for nonimmigrant classification as a temporary worker
  of distinguished merit and ability within the meaning of section 101(a)(15)(11)(9 of the
  Act, 8 U.S.C. 1101(a)(15)(11)(1).
ON BLIIALF OF PETITIONER: William Newell Siebert, Esquire
                         111 E. Wacker Drive, Suite 515
                         Chicago, Illinois 60601



   This matter is before me on appeal from the District Director's decision dated March 11, 1981, denying the petition to classify the beneficiary as a temporary worker of distinguished merit and ability (H-1)
under section 101(a)(15)(H)(i) of the Immigration and Nationality Act,
as amended, 8 U.S.C. 1101(a)(15)(H)(i). The appeal will be dismissed.
   The petitioner is a partner in a professional association of dentists.
The beneficiary is a 34 year old native and citizen of Hong Kong who
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last entered the United States on September 2, 1975, as a nonimmigrant
student. He earned a Doctor of Dental Surgery degree from the Loyola
University's Chicago College of Dental Surgery on May 27, 197R
Thereafter, he was granted two periods of authorized practical training
to June 30, 1979. The petitioner has offered the beneficiary a 40% share
in the net income of the partnership in exchange for his services as a
dentist. The petitioner indicated no specific ending date for this
arrangement. '11,e beneficiary has been working pursuant to these terms
since March 3, 1979. The visa petition to classify the beneficiary as a
nonimmigrant temporary worker on the basis of this position as a dentist in a partnership or professional association was filed on June 28,
1979.

                                            96
                                                  Interim Decision #2876

   Nonimmigrant classification as temporary worker of distinguished
merit and ability is granted where the beneficiary L4 a member of the
professions, the duties to be performed are of an exceptional nature
requiring a member of the professions, and the services are to be performed for a temporary period of time (Matter of General Atomic Company, 

 (Comm. 1980). Temporary means "that which is
to last for a limited time only, as distinguished from that which is
perpetual, or indefinite, in duration." Black's Law Dictionary (4th Ed.
1968).
   In the present case the beneficiary is a professional dentist whose
duties of providing dental care to low-income families require his exceptional abilities. However, the District Director found that his employment is contemplated for a period of indefinite duration, not fixed by
any set date in the future. On appeal, attorney for the petitioner did not
satisfactorily refute this conclusion. He indicated that the petitioner is
presently looking for an American dentist without success. The offer on
this application is extended only to the point of hiring an American to fill
the position. I note, however, that the beneficiary has occupied this
position for more than 2 years now; the petitioner appears to have no
prospects of filling this position; and the petitioner has not documented
his efforts to fill the position in support of his claimed intention to only
employ the beneficiary temporarily. Such circumstances are not indicative of temporary employment.
   I conclude that the petitioner has failed to establish that his intention
with respect to the employment of the beneficiary is merely for temporary employment. Following Matter of University of Oklahoma, 

 (BIA 1972), the petition was properly denied.
   ORDER The appeal is dismissed.




                                    WI