dismissed H-1B Case: Accounting

U.S. Department of Homeland Security 
20 Mass Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
PETITION: Petition for a Nonimrnigrant Worker Pursuant to Section 101 (a)(l S)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 9 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. Wiemann, Director 
Administrative Appeals Office 
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DISCUSSION: The director of the service center denied the nonirnrnigrant visa petition and the matter is now 
before the Administrative Appeals Office (MO) on appeal. The appeal will be dismissed. The petition will be 
denied. 
The petitioner is a sporting goods company. It seeks to employ the beneficiary as a part-time accountant. The 
petitioner, therefore, endeavors to classifi the beneficiary as a nonirnrnigrant 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. 
§ 1 10 1 (a)( 15)(H)(i)(b). 
The director denied the petition on the ground that the proffered position is not a specialty occupation. On 
appeal, counsel submits a brief. 
Section 214(i)(l) of the Act, 8 U.S.C. $ 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. 214.2@)(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. 
$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 proffered position. 
The record of proceeding before the MO 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 
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director's denial letter; and (5) Form I-290B and supporting documentation. The MO reviewed the record in 
its entirety before issuing its decision. 
The petitioner is seeking the beneficiary's services as a part-time accountant. Evidence of the beneficiary's 
duties includes: the Form 1-129; the attachments accompanying the Form 1-129; the petitioner's support letter; 
and the petitioner's response to the director's request for evidence. According to this evidence, the 
beneficiary would perform duties that entail preparing, analyzing, and verifying quarterly and yearly tax 
returns; performing audits; preparing payroll statements and deductions, monthly expense reports, and 
financial statements; preparing the general ledger, monthly and yearly financial reports; monitoring 
information systems; compiling and analyzing financial information to prepare entries into accounts; detailing 
assets, liabilities, and capital; providing tax planning advice; reviewing finances and current taxes and 
devising a long-range tax plan and recommending ways to reduce taxes; advising and recommending tax 
strategies and the advantages and disadvantages of business transactions; devising a financial system for a 
systematic and smooth inventory procedure; preparing balance sheets, profit and loss statements, checks, 
payroll, and tax remittances to summarize the petitioner's current and projected financial position; modifying 
and coordinating implementation of accounting and accounting control procedures; monitoring budgeting, 
performance evaluation, and cost and asset management; preparing letter correspondence with clients 
regarding transactions, financing, and billing statements; analyzing transactions and preparing billing 
statements; and setting up a computerized accounting system that will retain all of the information necessary 
to prepare the quarterly and yearly tax information, payroll statements and deductions, monthly profit and loss 
reports, and financial statements. 
The director stated that some of the proposed duties reflect those of an accountant as that occupation is 
described in the Department of Labor's (DOL) Occupational Outlook Handbook (the Handbook). The 
director stated that sole reliance on duties resembling those of an accountant as described in the Handbook 
and the Dictionay of Occupational Titles (DOT) is misplaced. According to the director, the nature and 
complexity of the proposed duties combined with the nature of the petitioning entity are factors that are 
considered when determining whether a position qualifies as a specialty occupation. According to the 
director, the petitioner does not have the organizational complexity to require the services of an accountant: it 
has no accounting division, department, team, staff, or bookkeeping, accounting, or auditing clerks to 
maintain accounting records. The director found inconsistencies in the evidence as the proposed position is 
titled "accountant," but many of the proposed duties are basic bookkeeping and accounting duties, which are 
not performed by accountants. The director stated that since the petitioner did not employ bookkeeping, 
accounting, or auditing clerks (positions which are not specialty occupations), the beneficiary would perform 
these duties. The director stated that performing some incidental specialty occupation duties such as financial 
analysis, planning, budgeting, and cost accounting does not establish that the proposed position is a specialty 
occupation. The Handbook reveals, the director stated, that the petitioner does not operate the kind of 
business requiring an accountant's services on a part or full-time basis for a significant length of time. The 
director found that the record did not establish that the proposed duties include complex or advanced 
accounting or required sophisticated accounting techniques. The director stated that the evidence did not 
show that the job offered could not be performed by an experienced person whose educational training fell 
short of a baccalaureate degree. 
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On appeal, counsel states that the proposed position parallels that of an accountant as that position is 
described in the Occupational Information Network (O*Net), the Dictionary of Occupational Titles (DOT), 
and the Handbook. Counsel asserts that it is proper for the petitioner to rely on the proposed duties to 
establish the proposed position as a specialty occupation. Counsel declares that there is no inconsistency in 
the evidence as all positions require a few administrative duties, and all of the proposed duties are those of an 
accountant even though some are performable by bookkeepers or accounting clerks. Counsel asserts that the 
director conceded that the proposed duties of financial analysis, planning, budgeting, and cost accounting are 
an accountant's duties; that all types of businesses employ accountants; and that payroll service firms employ 
accountants to handle payroll preparation. The director has no authority, counsel contends, to determine an 
employer's needs or scale or complexity. Counsel states that the proposed position is that of an accountant; it 
is not a corporate accountant. Counsel asserts that the petitioner is not required to demonstrate a need for the 
beneficiary for the entire three year H-1B period. Counsel states that the director erroneously interprets the 
Act and regulations by stating that the evidence must show that an experienced individual whose educational 
training falls short of a baccalaureate degree could not perform the proposed position. Counsel states that a 
person can become an attorney without a bachelor's degree, yet this does not make the profession of an 
attorney any less of a specialty occupation. CIS regulations, counsel states, show that a beneficiary need not 
possess a degree. Counsel states that the petitioner need not prove that it has previously hired an accountant. 
Counsel states that the director's decision is conclusory, and is not based on the Act or regulations. Counsel 
discusses his perception of CIS. 
Upon review of the record, the petitioner has established none of the four criteria outlined in 8 C.F.R. 
fj 214.2(h)(4)(iii)(A). Therefore, the proffered position is not a specialty occupation. 
The AAO first considers the criteria at 8 C.F.R. $9 214.2(h)(4)(iii)(A)(I) and (2): a baccalaureate or higher 
degree or its equivalent is the normal minimum requirement for entry into the particular position; a degree 
requirement is common to the industry in parallel positions among similar organizations; or a particular 
position is so complex or unique that it can be performed only by an individual with a degree. Factors often 
considered by CIS when determining these criteria include: whether the Handbook reports that the industry 
requires a degree; whether the industry's professional association has made a degree a minimum entry 
requirement; and whether letters or affidavits from firms or individuals in the industry attest that such firms 
"routinely employ and recruit only degreed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 
(D.Minn. 1999)(quoting Hird/Blaker Corp. v. Sava, 7 12 F. Supp. 1095, 1 102 (S.D.N.Y. 1989)). 
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. 
On appeal, counsel states that the proposed position parallels that of an accountant as that position is 
described in the O*Net, the DOT, and the Handbook. Counsel's reference to and assertions about the 
relevance of information from O*Net and the DOT are not persuasive. Neither the DOT'S SVP rating nor a 
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Job Zone category indicates that a particular occupation requires the attainment of a baccalaureate or higher 
degree, or its equivalent, in a specific specialty as a minimum for entry into the occupation. An SVP rating 
and Job Zone category are meant to indicate only the total number of years of vocational preparation required 
for a particular position. Neither classification describes how those years are to be divided among training, 
formal education, and experience, nor specifies the particular type of degree, if any, that a position would 
require. The Handbook, however, provides a comprehensive description of the nature of a particular 
occupation and the education, training, and experience normally required to enter into and advance within the 
occupation. 
Counsel states that accountants maintain accounting records and that all of the proposed duties are those of an 
accountant even though some are performable by bookkeepers or accounting clerks. Counsel's statement is 
not supported by the Handbook. The Handbook which reports that specific job duties vary widely among the 
four major fields of accounting: public, management, government, and internal. Of these fields, the AAO 
finds that the closest category to the proposed position is the management accountant. The Handbook 
indicates: 
Management accountants-also called cost, managerial, industrial, corporate, or private 
accountants-record and analyze the financial information of the companies for which they 
work. Other responsibilities include budgeting, performance evaluation, cost management, 
and asset management. Usually, management accountants are part of executive teams 
involved in strategic planning or new-product development. They analyze and interpret the 
financial information that corporate executives need to make sound business decisions. They 
also prepare financial reports for nonmanagement groups, including stockholders, creditors, 
regulatory agencies, and tax authorities. Within accounting departments, they may work in 
various areas, including financial analysis, planning and budgeting, and cost accounting. 
Many of the duties described in the Handbook do not apply to the proposed position. According to the 
Handbook, accountants prepare financial reports for nonmanagement groups, including stockholders, 
creditors, regulatory agencies, and tax authorities, and usually, they are part of executive teams. The 
beneficiary is not part of a management team, and the petitioner does not describe the beneficiary as preparing 
financial reports for nonmanagement groups such as stockholders or creditors. Counsel states that the 
beneficiary's duty to prepare tax returns for the Internal Revenue Service (IRS) and the California Tax Board 
are "detailed financial reports for outside agencies." The Handbook reports, however, that a tax preparer that 
prepares tax returns for individuals or small businesses (such as the petitioner) but does not have the 
background or responsibilities of an accredited or certified public accountant does not require a bachelor's 
degree. In light of this significant dissimilarity between the proposed position and the Handbook's 
description of a management accountant, the scope and complexity of the beneficiary's duties and 
responsibilities are not those of an accountant. Consequently, a bachelor's degree in accounting or a related 
field - which the DOL states is required for a management accountant - would not be required for the 
proposed position. 
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Counsel contends that the proposed duties involve financial analysis, planning, budgeting, and cost 
accounting, which are an accountant's duties. Counsel also contends that the Act, regulations, and case law 
do not require that the proposed position involve complex or advanced accounting or sophisticated accounting 
techniques. Counsel asserts that nowhere in the Act, the regulations, and case law is it stated that reviewing, 
analyzing, and reporting financial records are the only duties that accountants perform. Referring to Young 
China Daily v. Chappell, 742 F.Supp. 552 (N.D. Cal. 1989), counsel states that in the case the court found 
that the size of an operation is irrelevant in determining whether an occupation is a specialty occupation. 
According to counsel, the Act and regulations do not state that the petitioner's nature, or whether it employs 
bookkeepers and accounting or auditing clerks, is irrelevant in determining whether the proposed position is a 
specialty occupation. 
The AAO finds counsel's statements unpersuasive in establishing that the proposed position qualifies as a 
specialty occupation. The Act is clear in that a position must have the theoretical and practical application of 
a body of highly specialized knowledge in order to qualify as a specialty occupation. The AAO finds that the 
level of income generated by the petitioner has a direct and substantial bearing on the scope, complexity, and 
depth of the proposed duties. Responsibility for income of $1,329,740, which the petitioner generated in 
2002, differs vastly from responsibility associated with a far larger income. While the evidence of record 
indicates that the proposed duties require some knowledge and application of accounting principles, in light of 
the income generated by the petitioner, the evidence does not establish that the proposed position would 
require knowledge in accounting that is at the baccalaureate-level. 
Counsel asserts that even if the Handbook reports that there are four major fields of accounting, there are 
minor fields of accounting that are not identified in the Handbook. The evidentiary record, however, contains 
no evidence about minor fields of accounting, and no evidence depicts the proposed duties as encompassed 
within a minor field of accounting. The assertions of counsel do not constitute evidence. Matter of 
Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 
1980). 
For the reasons discussed above, the evidence in the record is insufficient to satisfL the regulation at 8 C.F.R. 
9 214.2(h)(4)(iii)(A)(I): that a baccalaureate or higher degree or its equivalent is the normal minimum 
requirement for entry into the particular position. 
Counsel refers to the Handbook's information about accountants to establish the first alternative prong at 
8 C.F.R. tj 214.2(h)(4)(iii)(A)(2), which requires that the petitioner establish that a specific degree 
requirement is common to the industry in parallel positions among similar organizations. As discussed earlier 
in this decision, the proposed position differs from an accountant. The Handbook, therefore, fails to establish 
the second criterion at 8 C.F.R. 8 214.2(h)(4)(iii)(A). 
The second alternative prong at 8 C.F.R. 9 214.2(h)(4)(iii)(A)(Z) requires that the petitioner show that its 
particular position is so complex or unique that it can be performed only by an individual with a degree. As 
discussed earlier, the beneficiary's duties differ from those of an accountant as that occupation is delineated in 
the Handbook. While the evidence of record indicates that the proposed duties require some knowledge and 
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application of accounting principles, in the context of the income generated by the petitioner, the evidence 
does not establish that the proposed duties are so complex or unique as to require a baccalaureate degree in 
accounting or a related field. 
Counsel states that the petitioner normally requires a bachelor's degree for the proposed position. However, 
no evidence shows that the petitioner has a past practice of requiring a bachelor's degree for the proposed 
position. The assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 
(BIA 1988); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). Thus, the petitioner fails to 
establish the third criterion at 8 C.F.R. tj 2 14.2(h)(4)(iii)(A): that the petitioner normally requires a degree or its 
equivalent for the posihon. 
The fourth criterion at 8 C.F.R. tj 214.2(h)(4)(iii)(A) requires that the petitioner establish that the nature of the 
specific duties is so specialized and complex that the knowledge required to perform them is usually 
associated with the attainment of a baccalaureate or higher degree. The AAO has already conveyed that the 
proposed duties differ from those of an accountant, and although the evidence of record indicates that the 
proposed position requires some knowledge and application of accounting principles, the evidence does not 
establish duties that are so specialized and complex as to be usually associated with at least a bachelor's 
degree level of knowledge in accounting or a related field. Consequently, the petitioner fails to establish the 
fourth criterion at 8 C.F.R. tj 2 14.2(h)(4)(iii)(A). 
As related in the discussion above, the petitioner has failed to establish that the proffered position is a 
specialty occupation. Accordingly, the AAO shall not disturb the director's denial of the petition. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. tj 1361. 
The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed. The petition is denied.