dismissed H-1B Case: Accounting

U.S. Citizenship 
and Immigration 
Services 
MATTER OF H-A-B-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 8, 2015 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a day spa, seeks to employ the Beneficiary as an accountant and classify her as a 
nonimmigrant worker in a specialty occupation. See Immigration and Nationality Act (the Act) § 
101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). The Director, California Service Center, 
denied the petition. The matter is now before us on appeal. The appeal will be dismissed. 
The Director denied the petition, finding that the evidence of record did not establish that the 
proffered position qualifies as a specialty occupation. On appeal, the Petitioner asserts that the 
Director's basis for denial was erroneous and contends that it satisfied all evidentiary requirements. 
For reasons that will be discussed below, we agree with the Director that the Petitioner has not 
established eligibility for the benefit sought. 1 
I. SPECIALITY OCCUPATION 
The primary issue is whether the Petitioner has provided sufficient evidence to establish that it will 
employ the Beneficiary in a specialty occupation. 
A. Legal Framework 
For an H-lB petition to be granted, the Petitioner must provide sufficient evidence to establish that it 
will employ the Beneficiary in a specialty occupation position. To meet its burden of proof in this 
regard, the Petitioner must establish that the employment it is offering to the beneficiary meets the 
applicable statutory and regulatory requirements of a specialty occupation. 
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 
1 We conduct appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). 
Matter of H-A-B-, Inc. 
(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. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) states, in pertinentpart, the following: 
Specialty occupation means an occupation which [ (1)] requires theoretical and 
practical application of a body of highly specialized knowledge in fields of human 
endeavor including, but not limited to, architecture, engineering, mathematics, 
physical sciences, social sciences, medicine and health, education, business 
specialties, accounting, law, theology, and the arts, and which [(2)] requires the 
attainment of a bachelor's degree or higher in a 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(h)(4)(iii)(A), to qualify as a specialty occupation, a proposed 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. 
As a threshold issue, it is noted that 8 C.F.R. § 214.2(h)(4)(iii)(A) must logically be read together 
with section 214(i)(1) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). In other words, this regulatory 
language must be construed in harmony with the thrust of the related provisions and with the statute 
as a whole. SeeK Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (holding that construction 
of language which takes into account the design of the statute as a whole is preferred); see also COlT 
Independence Joint Venture v. Federal Sav. and Loan Ins. Corp., 489 U.S. 561 (1989); Matter qfW­
F-, 21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 C.F.R. § 214.2(h)(4)(iii)(A) 
should logically be read as being necessary but not necessarily sufficient to meet the statutory and 
regulatory definition of specialty occupation. To otherwise interpret this section as stating the 
necessary and sufficient conditions for meeting the definition of specialty occupation would result in 
particular positions meeting a condition under 8 C.F.R. § 214.2(h)( 4)(iii)(A) but not the statutory or 
regulatory definition. See Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). To avoid this 
result, 8 C.F.R. § 214.2(h)(4)(iii)(A) must therefore be read as providing supplemental criteria that 
2 
(b)(6)
Matter of H-A-B-, Inc. 
must be met in accordance with, and not as alternatives to, the statutory and regulatory definitions of 
specialty occupation. 
As such and consonant with section 214(i)(l) of the Act and the regulation at 8 C.F .R. 
§ 214.2(h)( 4)(ii), U.S. Citizenship and Immigration Services (USCIS) consistently 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. See 
Royal Siam Corp. v. Chertojj ; 484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in 
a specific specialty" as "one that relates directly to the duties and responsibilities of a particular 
position"). Applying this standard, USCIS regularly approves H-lB petitions for qualified 
beneficiaries who are to be employed as engineers, computer scientists, certified public accountants, 
college professors, and other such occupations. These professions, for which petitioners have 
regularly been able to establish a minimum entry requirement in the United States of a baccalaureate 
or higher degree in a specific specialty, or its equivalent, directly related to the duties and 
responsibilities of the particular position, fairly represent the types of specialty occupations that 
Congress contemplated when it created the H-lB visa category. 
To detetmine whether a particular job qualifies as a specialty occupation , USCIS does not simply 
rely on a position's title. The specific duties of the proffered position, combined with the nature of 
the petitioning entity's business operations, are factors to be considered. USCIS must examine the 
ultimate employment of the Beneficiary , and determine whether the position qualifies as a specialty 
occupation . See generally Defensor v. Meissner , 201 F. 3d 384. The critical element is not the title 
of the position nor an employer's self-imposed standards, but whether the position actually requires 
the theoretical and practical application of a body of highly specialized knowledge, and the 
attainment of a baccalaureate or higher degree in the specific specialty as the minimum for entry into 
the occupation, as required by the Act. 
B. The Proffered Position 
In the Form I-129, the Petitioner described its business as a day spa,
2 
established in and 
employing 32 people. The Petitioner stated in its initial support letter that the Beneficiary will 
perform the following duties as an accountant, including : 
• Maintaining financial records; 
• Working with QuickBooks, Microsoft Access, Excel and Word; 
• Prepare bills, end of month statements, and payroll and monthly inventory ; 
• ·Contact clients and outside agencies; 
• Make journal entries and account balance adjustments; 
• Prepare quarterly and annual financial statements ; and 
2 In the Fonn l-129 , the Petition referred to its business as a day spa; however , the NAICS code provided in the Labor 
Condition Application is not a valid 2012 NAICS code. 
3 
Matter of H-A-B-, Inc. 
• Prepare and plan the budget, manage assets and investments, and recogmze and reduce 
exposure to risks. 
The Petitioner did not state its educational requirements for the position in its initial filing. The 
Petitioner submitted a Labor Condition Application (LCA) in support of the instant H-1B petition. 
The Petitioner indicated that the proffered position corresponds to the occupational category 
"Accountants and Auditors" with SOC (ONET/OES) code 13-2011, at a Level I (entry level) wage.3 
In response to the Director's request for evidence (RFE), the Petitioner provided a more detailed job 
description for the proffered position and broke down the percentage of duties as follows: 
• Maintaining the company's financial records (10% of the time); 
• Working with Quick Books, Microsoft Access, Excel and Word [as well as] develop, 
implement, modify, and document [a] record keeping and accounting system, making use of 
current technology (1 0% of the time); 
• Prepare invoices (5% ofthe time); 
• Prepare end of month statements (5% of the time); 
• Prepare monthly inventory (5% of the time); 
• Make journal entries [and] account balance adjustments (1 0% of the time); 
• Prepare quarterly and annual financial statements, balance sheets and statements of cash 
flow, bank reconciliation reports, [and] accounts payable and receivable (1 0% of the time); 
• Prepare and plan the company's budget, report to management regarding the finances of 
establishment, develop [and] maintain [as well as] analyze budgets; prepar[e] periodic reports 
compar[ing] budgeted costs to actual costs[;] analyze business operations as well as trends, 
costs, revenues, financial commitments, and obligations to project future revenues and 
expenses or to provide advice (5% of the time- duties shared with the President); 
• Manage assets and investments (5% of the time- duties shared with the President); 
3 The wage levels are defined in DOL's "Prevailing Wage Determination Policy Guidance." A Level I wage rate is 
described as follows: 
Level I (entry) wage rates are assigned to job offers for beginning level employees who have only a 
basic understanding of the occupation. These employees perform routine tasks that require limited, if 
any, exercise of judgment. The tasks provide experience and familiarization with the employer's 
methods, practices, and programs. The employees may perform higher level work for training and 
developmental purposes. These employees work under close supervision and receive specific 
instructions on required tasks and results expected. Their work is closely monitored and reviewed for 
accuracy. Statements that the job offer is for a research fellow, a worker in training, or an internship 
are indicators that a Levell wage should be considered. 
U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. 
Immigration Programs (rev. Nov. 2009), available at http://www.foreignlaborcert.doleta.gov/pdf/NPWHC 
Guidance_Revised_ll_2009.pdf. 
4 
Matter of H-A-B-, Inc. 
• Recognize and reduce exposure to risks (5% of the time- duties shared with the President); 
• Evaluating productivity (5% ofthe time); 
• Preparing employee evaluations from the productivity perspectives (5% of the time); 
• Preparing payroll (5% of the time -listed as a future responsibility); 
• Preparing and filing tax returns (5% ofthe time); 
• Monitoring compliance with tax regulations (5% of the time); and 
• Advising the company of tax advantages and disadvantages of certain business decisions ( 5% 
of the time). 
In response to the RFE, the Petitioner indicated that "a baccalaureate or higher degree or its 
equivalent is normally the minimum requirement for entry into the particular position. "4 On appeal, 
the Petitioner further supplemented the job description with additional details. 
C. Analysis 
A baccalaureate or higher degree in a specific specialty, or its equivalent, is 
normally the minimum requirement for entry into the particular position 
We will now discuss the proffered position in relation to the criterion at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(l), which requires that a baccalaureate or higher degree in a specific specialty, 
or its equivalent, is normally the minimum requirement for entry into the particular position. 
We recognize the U.S. Department of Labor (DOL)'s Occupational Outlook Handbook (Handbook) 
as an authoritative source on the duties and educational requirements of the wide variety of 
occupations that it addresses. 5 The Petitioner asserts in the LCA that the proffered position falls 
under t4e occupational category "Accountants and Auditors." 6 
We reviewed the chapter of the Handbook on "Accountants and Auditors" including the sections 
regarding the typical duties and requirements. However, the Handbook does not indicate that at least 
a bachelor's degree in a specific specialty, or its equivalent is normally the minimum requirement for 
entry into this occupational category. The subsection of the Handbook entitled "How to Become an 
Accountant or Auditor" states the following: 
4 Although a general-purpose bachelor's degree may be a legitimate prerequisite for a particular position, requiring such 
a degree, without more, will not justify a finding that a particular position qualifies for classification as a specialty 
occupation. See Royal Siam Corp. v. Chertoff, 484 F.3d at 147. 
5 All references are to the 2014-2015 edition of the Handbook, which may be accessed at the Internet site 
http://www.bls.gov/OCO/. The excerpts of the Handbook regarding the duties and requirements of the referenced 
occupational category are hereby incorporated into the record of proceeding. 
6 The Director stated in the decision that the position described by the Petitioner reflects the duties of "Bookkeeping, 
Accounting, and Auditing Clerks." However, since the Petitioner filed the LCA that corresponds to the occupational 
category "Accountants and Auditors," we will assume arguendo that the proffered position is that of an accountant. 
5 
Matter of H-A-B-, Inc. 
Most accountants and auditors need at least a bachelor's degree in 
accounting or a related field. Certification within a specific field of accounting 
improves job prospects. For example, many accountants become Certified Public 
Accountants (CPAs). 
Education 
Most accountant and auditor positions require at least a bachelor's degree 
in accounting or a related field. Some employers prefer to hire applicants who 
have a master's degree, either in accounting or in business administration with a 
concentration in accounting. 
A few universities and colleges offer specialized programs, such as a 
bachelor's degree in internal auditing. In some cases, those with associate's 
degrees, as well as bookkeepers and accounting clerks who meet the education 
and experience requirements set by their employers, get junior accounting 
positions and advance to account positions by showing their accounting skills on 
the job. 
Many colleges help students gain practical experience through summer or 
part-time internships with public accounting or business firms. 
Licenses, Certifications, and Registrations 
Every accountant filing a report with the Securities and Exchange 
Commission (SEC) is required by law to be a Certified Public Accountant (CPA). 
Many other accountants choose to become a CPA to enhance their job prospects 
or to gain clients. Many employers will often pay the costs associated with the 
CPA exam .... 
U.S. Department of Labor (DOL), Bureau of Labor Statistics, Occupational Outlook Handbook, 
2014-15 ed., Accountants and Auditors, available on the Internet at 
http://www. bls. gov I ooh/business-and- financial/ accountants-and-auditors .htm (last viewed October 6, 
2015). 
The Handbook reports that certification may be advantageous or even required for some accountant 
positions. However, we note that there is no indication that the Petitioner requires the Beneficiary to 
have obtained the designation CPA, Certified Management Accountant (CMA) or any other 
professional designation to serve in the proffered position. 
The Handbook does not indicate that at least a bachelor's degree in a specific specialty, or its 
equivalent, is normally the minimum requirement for entry into this occupation. Rather, the 
occupation accommodates other paths for entry, including less than a bachelor's degree in a specific 
specialty. The Handbook's narrative states that some graduates from junior colleges or business or 
correspondence schools obtain junior accounting positions and advance to accountant positions by 
showing their accounting skills on the job. Accordingly, individuals who have less than a bachelor's 
(., 
Matter of H-A-B-, Inc. 
degree in a specific specialty, or its equivalent, can obtain junior accounting positions and advance 
to accountant positions. Furthermore, the Handbook reports that bookkeepers and accounting clerks 
meeting education and experience requirements set by their employers can also advance to 
accountant positions by demonstrating their accounting skills on the job. The Handbook does not 
indicate that this education and experience must be the equivalent to at least a bachelor's degree in a 
specific specialty. Thus, the Handbook does not support the claim that the occupational category of 
accountants is one for which normally the minimum requirement for entry is a baccalaureate degree 
(or higher) in a specific specialty, or its equivalent. 
In response to the RFE, the Petitioner submitted an O*NET OnLine Summary Report for the 
occupational category "Accountants." The Petitioner noted that accountants have the SVP range of 
7.0 to 8.0 and are assigned a Job Zone Four rating. However, an SVP rating of7.0 indicates that the 
occupation requires "[ o ]ver 2 years up to and including 4 years of' training. Moreover, a Job Zone 
Four rating indicates that "most," but not all, occupations "require a four-year bachelor's degree." It 
does not, however, indicate that four-year bachelor's degrees required by Job Zone Four occupations 
must be in a specific specialty directly related to the occupation. 
Thus, the Handbook and O*NET do not support the claim that the occupational category of 
accountants is one for which normally the minimum requirement for entry is a baccalaureate degree 
(or higher) in a specific specialty, or its equivalent. Even if it did (which it does not), the record 
lacks sufficient evidence to support a finding that a bachelor's degree in a specific specialty, or its 
equivalent is normally the minimum requirement for entry into the particular position. 
The fact that a person may be employed in a position designated by a petitioner as that of an 
accountant and may apply some accounting principles in the course of his or her job is not in itself 
sufficient to establish the position as one that qualifies as a specialty occupation. In the instant case, 
the Petitioner has not established that the proffered position falls under an occupational category for 
which the Handbook, or other authoritative source, indicates that normally the minimum requirement 
for entry is at least a bachelor's degree in a specific specialty, or its equivalent. Thus, the Petitioner 
has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l). 
The requirement of a baccalaureate or higher degree in a specific specialty, 
or its equivalent, is common to the industry in parallel 
positions among similar organizations 
Next, we will review the record regarding the first of the two alternative prongs of 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A)(2). This prong alternatively calls for a petitioner to establish that a requirement 
of a bachelor's or higher degree in a specific specialty, or its equivalent, is common for positions 
that are identifiable as being (1) in the Petitioner's industry, (2) parallel to the proffered position, and 
also (3) located in organizations that are similar to the Petitioner. 
In determining whether there is such a common degree requirement, factors often considered by 
USCIS 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 
Matter of H-A-B-, Inc. 
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, 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989)). 
As previously discussed, the Petitioner has not established that its proffered position is one for which 
the Handbook (or other independent, authoritative source) ·reports a standard industry-wide 
requirement for at least a bachelor's degree in a specific specialty, or its equivalent. Thus, we 
incorporate by reference the previous discussion on the matter. 
There are no submissions from the industry's professional association indicating that it has made a 
degree a minimum entry requirement and no submission of letters or affidavits from firms or 
individuals that attest that such firms routinely employ only individuals with a degree in a specific 
specialty. 
For the Petitioner to establish that an organization in its industry is similar to it, it must demonstrate 
that the Petitioner and the organization share the same general characteristics. Without such 
evidence, documentation submitted by a petitioner is generally outside the scope of consideration for 
this criterion, which encompasses only organizations that are similar to the Petitioner. When 
determining whether the Petitioner and the organization share the same general characteristics, such 
factors may include information regarding the nature or type of organization, and, when pertinent, 
the particular scope of operations, as well as the level of revenue and staffing (to list just a few 
elements that may be considered). Notably, it is not sufficient for the Petitioner to claim that an 
organization is similar and in the same industry without providing a legitimate basis for such an 
assertion. 
In response to the Director's RFE, the Petitioner stated that the Beneficiary's previously approved 
H-lB petitions by other employers "prove that requiring a bachelor's degree is common in parallel 
positions" since the approvals are "for the same beneficiary, in the same position, listing the same 
job duties." While the Petitioner submitted copies of the approval notices, the Petitioner did not 
submit copies of the petitions and the related documentation. Without information regarding the 
employers, the job duties, and the requirements for the position, we are unable to determine that the 
degree requirement is common to the industry in parallel positions among similar organizations. 
We further note that a prior approval does not compel the approval of a subsequent petition or 
relieve the Petitioner of its burden to provide sufficient documentation to establish current eligibility 
for the benefit sought. 55 Fed. Reg. 2606, 2612 (Jan. 26, 1990). A prior approval also does not 
preclude USCIS from denying an extension of an original visa petition based on a reassessment of 
eligibility for the benefit sought. See Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 556, 2004 WL 
1240482 (5th Cir. 2004). Furthermore, our authority over the service centers is comparable to the 
relationship between a court of appeals and a district court. Even if a service center director had 
approved the nonimmigrant petitions on behalf of the Beneficiary, we would not be bound to follow 
the contradictory decision of a service center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 
282785 (E.D. La.), aff'd, 248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001). 
8 
Matter of H-A-B-, Inc. 
The Petitioner asserts that "due to the nature of the profession[,] the employer's area of activity is 
irrelevant; as every business, regardless of its specialty, requires the services of an accountant." 
However, as discussed, to determine whether a particular job qualifies as a specialty occupation, 
users does not simply rely on a position's title. The specific duties of the proffered position, 
combined with the nature of the petitioning entity's business operations, are factors to be considered. 
users must examine the ultimate employment of the Beneficiary, and determine whether the 
position qualifies as a specialty occupation. See generally Defensor v. Meissner, 201 F. 3d 384. The 
critical element is not the title of the position nor an employer's self-imposed standards, but whether 
the position actually requires the theoretical and practical application of a body of highly specialized 
knowledge, and the attainment of a baccalaureate or higher degree in the specific specialty as the 
minimum for entry into the occupation, as required by the Act. The Petitioner did not substantiate 
its assertion with evidence. Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 
r&N Dec. 158, 165 (eomm'r 1998) (citing Matter ofTreasure Craft ofCal?fornia, 14 I&N Dec. 190 
(Reg'l. eomm'r 1972)). 
Therefore, the Petitioner has not established that a requirement of a bachelor's or higher degree in a 
specific specialty, or its equivalent, is common to the Petitioner's industry in positions that are (1) in 
the Petitioner's industry, (2) parallel to the proffered position, and also (3) located in organizations 
that are similar to the Petitioner. For the reasons discussed above, the Petitioner has not satisfied the 
first alternative prong of 8 e.F.R. § 214.2(h)( 4)(iii)(A)(2). 
The particular position is so complex or unique that it can be performed only by 
an individual with a baccalaureate or higher degree in a 
spec?fic specialty, or its equivalent 
We will next consider the second alternative prong of 8 e.F.R. § 214.2(h)(4)(iii)(A)(2), which is 
satisfied if the Petitioner shows that its particular position is so complex or unique that it can be 
performed only by an individual with at least a bachelor's degree in a specific specialty, or its 
equivalent. 
In support of its assertion that the proffered pos1t10n qualifies as a specialty occupation, the 
Petitioner submitted various documents related to its business operations including financial 
documents and transaction reports. We reviewed the record in its entirety and find that while the 
documents provide some insight regarding the Petitioner's business operations, the Petitioner has not 
explained how the documents establish that its particular position is so complex or unique that it can 
only be performed by an individual with a baccalaureate or higher degree in a specific specialty, or 
its equivalent. 
Specifically, the Petitioner has not demonstrated how the duties that collectively constitute the 
proffered position require the theoretical and practical application of a body of highly specialized 
knowledge such that a bachelor's or higher degree in a specific specialty, or its equivalent, is 
required to perform them. For instance, the Petitioner did not submit information relevant to a 
detailed course of study leading to a specialty degree and did not establish how such a curriculum is 
9 
Matter of H-A-B-, Inc. 
necessary to perform the duties of the proffered position. While a few related courses may be 
beneficial, or even required, in performing certain duties of the proffered position, the Petitioner has 
not demonstrated how an established curriculum of such courses leading to a baccalaureate or higher 
degree in a specific specialty, or its equivalent, is required to perform the duties of the particular 
position here. 
This is further evidenced by the LCA submitted by the Petitioner in support of the instant petition. 
The LCA indicates a wage level at a Level I (entry) wage, which is the lowest of four assignable 
wage levels. Without further evidence, the record of proceeding does not indicate that the proffered 
position is complex or unique as such a position falling under this occupational category would 
likely be classified at a higher-level, such as a Level III (experienced) or Level IV (fully competent) 
position, requiring a significantly higher prevailing wage.7 For example, a Level IV (fully 
competent) position is designated by DOL for employees who "use advanced skills and diversified 
knowledge to solve unusual and complex problems." 8 The evidence of record does not establish that 
this position is significantly different from other positions in the occupational category such that it 
refutes the Handbook's information that a bachelor's degree in a specific specialty or its equivalent 
is not required for the proffered position. 
The Petitioner claims that the Beneficiary is well qualified for the position.9 However, the test to 
establish a position as a specialty occupation is not the education or experience of a proposed 
beneficiary, but whether the position itself requires at least a bachelor's degree in a specific 
specialty, or its equivalent. The Petitioner did not establish that its particular position is so complex 
or unique that it can only be performed by an individual with at least a bachelor's degree in a 
specific specialty, or its equivalent. Therefore, the Petitioner has not satisfied the second alternative 
prong of8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
7 The issue here is that the Petitioner's designation of this position as a Level I, entry-level position undermines its claim 
that the position is particularly complex, specialized, or unique compared to other positions within the same 
occupation. Nevertheless, it is important to note that a Level I wage-designation does not preclude a proffered position 
from classification as a specialty occupation. In certain occupations (doctors or lawyers, for example), an entry-level 
position would still require a minimum of a bachelor's degree in a specific specialty, or its equivalent, for 
entry. Similarly, however, a Level IV wage-designation would not reflect that an occupation qualifies as a specialty 
occupation if that higher-level position does not have an entry requirement of at least a bachelor's degree in a specific 
specialty or its equivalent. That is, a position's wage level designation may be a consideration but is not a substitute for 
a determination of whether a proffered position meets the requirements of section 214(i)( I) of the Act. 
8 For additional information regarding wage levels as defined by DOL, see U.S. Dep't of Labor, Emp't & Training 
Admin., Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available 
at http://www.flcdatacenter.com/download/NPWHC _Guidance_ Revised _II_ 2009.pdf 
9 The Petitioner stated in the record of proceeding that most of its employees and some of its clients are Polish, and the 
Beneficiary's ability to speak in a foreign language is an additional asset. However, in accordance with the guidance 
provided by DOL, a language requirement other than English generally is considered a special skill for all occupations, 
with the exception of "Foreign Language Teachers and Instructors," "Interpreters," and "Caption Writers." !d. In the 
instant case, the Petitioner designated the proffered position under the occupational category "Accountants and Auditors" 
at a Level I (the lowest of four assignable wage levels). Therefore, it has not been established that the foreign language 
requirement was reflected in the wage-level for the proffered position. 
10 
Matter of H-A-B-, Inc. 
The employer normally requires a baccalaureate or higher degree in a 
specific specialty, or its equivalent, for the position 
The third criterion of 8 e.F.R. § 214.2(h)(4)(iii)(A) entails an employer demonstrating that it 
normally requires a bachelor's degree in a specific specialty, or its equivalent, for the position. To 
this end, we review the Petitioner's past recruiting and hiring practices, as well as information 
regarding employees who previously held the position, and any other documentation submitted by a 
Petitioner in support of this criterion of the regulations. 
To merit approval of the petition under this criterion, the record must establish that a petitioner's 
imposition of a degree requirement is not merely a matter of preference for high-caliber candidates 
but is necessitated by performance requirements of the position. While a petitioner may assert that a 
proffered position requires a specific degree, that statement alone without corroborating evidence 
cannot establish the position as a specialty occupation. Were users limited solely to reviewing a 
petitioner's claimed self-imposed requirements, then any individual with a bachelor's degree could 
be brought to the United States to perform any occupation as long as the Petitioner artificially 
created a token degree requirement, whereby all individuals employed in a particular position 
possessed a baccalaureate or higher degree in the specific specialty, or its equivalent. See Defensor 
v. Meissner, 201 F.3d at 388. In other words, if a petitioner's stated degree requirement is only 
designed to artificially meet the standards for an H-1B visa and/or to underemploy an individual in a 
position for which he or she is overqualified and if the proffered position does not in fact require 
such a specialty degree or its equivalent, to perform its duties, the occupation would not meet the 
statutory or regulatory definition of a specialty occupation. See § 214(i)(l) of the Act; 8 C.F .R. 
§ 214.2(h)( 4)(ii) (defining the term "specialty occupation"). 
To satisfy this criterion, the evidence of record must show that the specific performance 
requirements of the position generated the recruiting and hiring history. users must examine the 
actual employment requirements, and, on the basis of that examination, determine whether the 
position qualifies as a specialty occupation. See generally Defensor v. Meissner, 201 F. 3d 384. In 
this pursuit, the critical element is not the title of the position, nor the fact that an employer has 
routinely insisted on certain educational standards, but whether performance of the position actually 
requires the theoretical and practical application of a body of highly specialized knowledge, and the 
attainment of a baccalaureate or higher degree in the specific specialty as the minimum for entry into 
the occupation as required by the Act. 
In the Form I-129, the Petitioner indicated that it has 32 employees and that it was established in 
1990 (approximately 24 years prior to submitting the instant H-1B petition). The Petitioner stated 
that prior to hiring the Beneficiary, it used the services of an accounting company. However, no 
documentation was provided to establish that the duties of the proffered position are sufficiently 
similar to the duties performed by the accounting company, nor was evidence submitted that the 
personnel from the accounting company had at least a bachelor's degree in a specific specialty. 
Therefore, the past use of accounting services does not establish that the Petitioner normally requires 
a degree in a specific specialty or its equivalent for the proffered position. 
1 1 
Matter ofH-A-B-, Inc. 
In response to the RFE, the Petitioner claimed that the fact that the Beneficiary has been working for 
the Petitioner since filing the instant petition meets this criterion. While a first-time hiring for a 
position is certainly not a basis for precluding a position from recognition as a specialty occupation, 
it is unclear how an employer that has never recruited and hired for the position would be able to 
satisfy the criterion at 8 C.F.R. § 214.2(h)( 4)(iii)(A)(3), which requires a demonstration that it 
normally requires at least a bachelor's degree in a specific specialty or its equivalent for the position. 
As the record of proceeding does not demonstrate that the Petitioner normally requires at least a 
bachelor's degree in a specific specialty or its equivalent for the proffered position, it does not 
satisfy 8 C.F.R. § 214.2(h)(4)(iii)(A)(3). 
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 in a specific specialty, or its equivalent 
The fourth criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A) requires a petitioner to 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 in a specific specialty, or 
its equivalent. 
Upon review of the record of the proceeding, we note that the Petitioner has not provided sufficient 
evidence to satisfy this criterion of the regulations. In the instant case, relative specialization and 
complexity have not been sufficiently developed by the Petitioner as an aspect of the proffered 
position. That is, the proposed duties have not been described with sufficient specificity to establish 
that they are more specialized and complex than positions that are not usually associated with at least 
a bachelor's degree in a specific specialty, or its equivalent. 
We further incorporate our earlier discussion and analysis regarding the duties of the proffered 
position, and the designation of the proffered position in the LCA as a Level I position (the lowest of 
four assignable wage-levels) relative to others within the occupational category. Without more, the 
position is one not likely distinguishable by relatively specialized and complex duties. That is, 
without further evidence, the Petitioner has not demonstrated that its proffered position is one with 
specialized and complex duties as such a position falling under this occupational category would 
likely be classified at a higher-level, such as a Level III (experienced) or Level IV (fully competent) 
position, requiring a substantially higher prevailing wage. 10 
Although the Petitioner asserts that the nature of the specific duties is specialized and complex, the 
record lacks sufficient evidence to support this claim. We, therefore, conclude that the Petitioner did 
not satisfy the criterion at 8 C.F.R. § 214.2(h)( 4)(iii)(A)( 4). 
10 
As previously discussed, a Level IV (fully competent) position is designated by DOL for employees who "use 
advanced skills and diversified knowledge to solve unusual and complex problems" and requires a significantly higher 
wage. 
12 
Matter of H-A-B-, Inc. 
For the reasons related in the preceding discussion, the Petitioner has not established that it has 
satisfied any of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) and, therefore, it cannot be found that 
the proffered position qualifies as a specialty occupation. 
II. CONCLUSION AND ORDER 
In visa petition proceedings, it is the Petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met.
11 
ORDER: The appeal is dismissed. 
Cite as Matter ofH-A-B-, Inc., ID# 14010 (AAO Oct. 8, 2018) 
11 Since the identified bases for denial are dispositive of the Petitioner's appeal, we will not address other grounds of 
ineligibility we observe in the record of proceeding. 
13