dismissed H-1B Case: Accounting

identifying data deleted ta 
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PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: WAC 04 244 50716 Office: CALIFORNIA SERVICE CENTER Date: APR 1 1 2006 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101 (a)(l 5)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 5 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 
WAC 04 244 50716 
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 dismissed. The petition will be denied. 
The petitioner is a wholesaler of vegetarian foods. It seeks to employ the beneficiary as a full-time 
accountant. The petitioner endeavors to classify the beneficiary as a nonimmigrant worker in a specialty 
occupation pursuant to 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 because 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. 5 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, the position must meet one of 
the following criteria: 
(1) 
 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. 
fj 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 AAO 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 
director's denial letter; and (5) Form I-290B and supporting documentation. The AAO reviewed the record in 
its entirety before issuing its decision. 
The petitioner is seeking the beneficiary's services as a full-time accountant. Evidence of the beneficiary's 
duties includes: the 1-129 petition; the petitioner's July 27, 2004 letter in support of the petition; and the 
WAC 04 244 50716 
Page 3 
petitioner's response to the director's request for evidence. According to this evidence, the beneficiary would 
perform duties that entail: performing specialized professional accounting services; preparing corporate 
income, payroll, and other tax returns required by federal, state, and local governmental agencies; formulating 
aging reports by evaluating billings and collections; overseeing the book of accounts prepared and maintained 
by the petitioner's account executives and clerical staff; determining and tracking the operating capital and 
profits for review by executive management; preparing financial statements including balance sheets, profit 
and loss statements, cash flow statements, and financial notes; assisting with audits and reviews; and making 
recommendations to management regarding internal recordkeeping issues, data processing systems, 
budgeting, and financial/accounting control systems. The petitioner indicated that a qualified candidate for the 
job would possess a bachelor's degree in accounting. 
The director found that the proffered position was not a specialty occupation because the job is not an 
accountant position; it is a bookkeeper or an accounting/auditing clerk position. Citing to the Department of 
Labor's (DOL) Occupational Outlook Handbook (Handbook), 2004-2005 edition, the director noted that the 
minimum requirement for entry into the position was not a baccalaureate degree or its equivalent in a specific 
specialty. The director found further that the petitioner failed to establish any of the criteria found at 8 C.F.R. 
$ 2 14.2(h)(4)(iii)(A). 
On appeal, counsel states, in part, that the proffered position is that of an accountant. Counsel cites to a court 
decision to state that the petitioner's size bears no rational relationship to the need for a professional. Counsel 
states further that there is no basis in law or fact to support the director's denial. 
Upon review of the record, the petitioner has established none of the four criteria outlined in 8 C.F.R. 
$ 2 14.2(h)(4)(iii)(A). Therefore, the proffered position is not a specialty occupation. 
The AAO turns first to the criteria at 8 C.F.R. § 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 115 1, 1 165 (D. 
Minn. 1999)(quoting HirdIBlaker Corp. v. Suva, 712 F. Supp. 1095, 1 102 (S.D.N.Y. 1989)). 
The AAO routinely consults the Handbook for its information about the duties and educational requirements of 
particular occupations. The AAO does not concur with counsel that the proffered position is that of an accountant. 
The Handbook, 2006-2007 edition, reveals that specific job duties vary widely among the four major fields of 
accounting: public, management, government accounting, and internal auditing. The closest category to the 
proffered position is the management accountant. In the Handbook, 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, and cost 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 
WAC 04 244 50716 
Page 4 
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. 
In this case, information on the petition reflects that the petitioner is a wholesaler of vegetarian foods, with 
eight employees and a gross annual income of $4,200,000. The statement by the petitioner's CEO in his July 
27, 2004 letter that the proposed duties require specialized knowledge of GAAP is noted. As shown in the 
Handbook, bookkeeping, accounting, and auditing clerks produce financial statements and prepare reports 
and summaries for supervisors and managers, which would be used by them to make sound business 
decisions. Further, the Handbook reports that employers require most financial clerks to have at least a high 
school diploma, and for bookkeepers and accounting clerks, they often require an associate's degree in 
business or accounting.' The Handbook's subsection "Sources of Additional Information" refers the reader to 
the Internet site for the Accreditation Council for Accountancy and Taxation (ACAT), the professional 
organization that provides the credentials Accredited Business Accountant@/Accredited Business Advisors@ 
(ABA).~ That Internet site reveals that a degree in accounting or a related specialty is not required for ABA 
accreditation. Eligibility for the eight-hour comprehensive examination for the ABA credential requires three 
years of "verifiable experience in accounting, taxation, financial services, or other field requiring a practical 
and theoretical knowledge of the subject matter covered on the ACAT Comprehensive ~xamination."~ "Up to 
two" of the required years of work experience "may be satisfied through college credit." 
The evidence of record fails to convey that the beneficiary's specific performance of the record's list of 
generalized duties would require the theoretical and practical application of highly specialized knowledge 
4 
attained by at least a bachelor's degree or the equivalent in accounting or any other specific specialty. 
According to the website for Skyline College, a community college located in San Mateo, California, 
(www.skvlinecolleae.net), an associate's degree in business or accounting would involve learning the 
fundamentals about financial accounting principles and concepts, balance sheets, income statements, cash 
flow statements, the GAAP, forecasting, budgeting, cost accounting, break even analysis, developing and 
operating a computerized accounting system using tools such as QuickBooks, QuickBooks Pro, or Peachtree, 
an integrated commercial accounting software package that is used to review, differentiate, and interpret 
accounting concepts and data in a multitude of business situations. Thus, an associate's degree would provide 
knowledge about the GAAP and accounting techniques that serve the needs of management and facilitate 
decision-making. 
2 
 At its Internet site (http://www.nsacct.org/acat.asp), the National Society of Accountants describes ACAT as 
follows: 
The Accreditation Council for Accountancy and Taxation (ACAT) is an independent accrediting 
and monitoring organization affiliated with the National Society of Accountants. ACAT accredits 
professionals in independent practice who have demonstrated measurable knowledge of the 
principles, practices, and ethical standards of accounting, taxation, information technology and related 
financial services. 
3 
 The ACAT Internet site (http://www.acatcredentials.org/index.html) states that the examination tests 
"proficiency in financial accounting, reporting, statement preparation, taxation, business consulting services, 
business law, and ethics." 
These duties entail primarily the business or accounting associate degree-level activities listed on Skyline 
College website. 
WAC 04 244 507 16 
Page 5 
Counsel's assertion on appeal that the proffered position is that of an accountant is noted. However, going on 
record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof 
in these proceedings. Matter of SofSici, 22 I&N Dec. 158, 165 (Cornm. 1998) (citing Matter of Treasure Craft 
of California, 14 I&N Dec. 190 (Reg. Cornrn. 1972)). Without documentary evidence to support the claim, 
the assertions of counsel will not satisfy the petitioner's burden of proof. The unsupported assertions of 
counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of 
Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503,506 (BIA 1980). 
Further, the level of income generated by the petitioner has a direct and substantial bearing on the scope and 
depth of the beneficiary's proposed duties. The petitioner's 2003 federal income tax return reflects $2,854,320 in 
gross receipts or sales. Responsibility for the financial transactions described above differs vastly from 
responsibility associated with a far larger income or from a firm that is responsible for the accounting work of 
many clients. Counsel's assertion on appeal that the petitioner has met its burden of proof in establishing that the 
proffered position is that of an accountant is noted. Without documentary evidence to support the claim, the 
assertions of counsel will not satisfy the petitioner's burden of proof. The unsupported assertions of counsel 
do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of hureano, 19 
I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). Consequently, the 
petitioner fails to establish that a baccalaureate or higher degree or its equivalent is the normal minimum 
requirement for entry into the particular position. 
The duties described in the Handbook do not primarily apply to the proffered position. According to the 
Handbook, accountants prepare financial reports for nonrnanagement groups, including stockholders, creditors, 
regulatory agencies, and tax authorities, and usually, they are part of executive teams. Although the proposed 
duties indicate that the petitioner's employees include "account executives," the record contains no evidence of 
such executives or that the beneficiary will be part of an executive team. Nor does the record contain evidence 
that the beneficiary will prepare financial reports for nonmanagement groups such as stockholders, creditors, 
regulatory agencies, and tax authorities. Given this significant dissimilarity, the scope and complexity of the 
beneficiary's duties and responsibilities do not rise to the level 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 proffered position. A review of the Handbook finds that the proposed duties are primarily 
the duties of bookkeeping, accounting, auditing and financial clerks. No evidence in the Handbook indicates that 
a baccalaureate or higher degree, or its equivalent, is required for these positions. 
The record does not include any evidence regarding parallel positions in the petitioner's industry. The record 
also does not include any evidence from firms, individuals, or professional associations regarding an industry 
standard, or documentation to support the complexity or uniqueness of the proffered position. The petitioner, 
therefore, has not established the criteria set forth at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(I) or (2). 
The AAO now turns to the criterion at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(3) - the employer normally requires a 
degree or its equivalent for the position. As the record does not contain any evidence of the petitioner's past hiring 
practices, the petitioner has not met its burden of proof in this regard. The evidence of record does not establish 
thls criterion. 
Finally, the AAO turns to the criterion at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(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. 
WAC 04 244 507 16 
Page 6 
To the extent that they are depicted in the record, the duties do not appear so specialized and complex as to 
require the highly specialized knowledge associated with a baccalaureate or higher degree, or its equivalent, 
in a specific specialty. Therefore, the evidence does not establish that the proffered position is a specialty 
occupation under 8 C.F.R. $ 214.2(h)(4)(iii)(A)(4). 
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. 5 1361. 
The petitioner has not sustained that burden. 
ORDER: 
 The appeal is dismissed. The petition is denied