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 
FILE: EAC 04 156 5341 8 Office: VERMONT SERVICE CENTER Date: APR 0 7 2006 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101 (a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 9 1 1 Ol(a)(l S)(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 
EAC 04 156 53418 
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 jewelry wholesaler that seeks to employ the beneficiary as a cost accountant. The petitioner 
endeavors to classify the beneficiary as a nonimmigrant worker in a specialty occupation pursuant to 
§ 1 Ol(a)(l5)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1 1 Ol(a)(lS)(H)(i)(b). 
The director denied the petition because the proffered position is not a specialty occupation. On appeal, the 
petitioner submits a letter and additional information including a copy of the Bachelor of Arts degree of its 
former accountant. 
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. $j 2 14.2(h)(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 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 cost accountant. Evidence of the beneficiary's duties 
includes: the 1-129 petition; the petitioner's April 22, 2004 letter in support of the petition; and the petitioner's 
EAC 04 156 53418 
Page 3 
response to the director's request for evidence. According to this evidence, the beneficiary would perform 
duties that entail: providing detailed information of costs associated with the design and manufacture of fine 
jewelry in China as related to the petitioner's U.S. sales; collecting and studying data to determine the 
business-related costs of the petitioner and its factories in China; analyzing foreign manufacturing costs as 
they relate to U.S. sales; and providing price and profitability reports to management. The petitioner indicated 
that a qualified candidate for the job would possess a bachelor's degree in accounting or an equivalent 
thereof. 
The director found that the proffered position was not a specialty occupation because the proposed duties are 
not so complex as to require a bachelor's degree. The director found further that the petitioner failed to 
establish any of the criteria found at 8 C.F.R. tj 214.2(h)(4)(iii)(A). 
On appeal, the petitioner's directorlmanager states, in part, that the petitioner needs a cost accountant who is 
fluent in English and Chinese. He provides a copy of the Bachelor of Arts degree of the petitioner's former 
accountant as evidence that a bachelor's degree is normally required for the proffered position. 
Upon review of the record, the petitioner has established none of the four criteria outlined in 
8 C.F.R. 4 214.2(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. tj 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 Department of Labor's 
Occupational Outlook Handbook (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 1 1 5 1, 1 1 65 (D. Minn. 1 999)(quoting Hird/Blaker Corp. v. Suva, 7 1 2 F. 
Supp. 1095, I 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 the petitioner 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 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. 
EAC 04 156 53418 
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In this case, information in the record reflects that the petitioner is a jewelry wholesaler with 13 employees 
and a gross annual income of $3,674,545. The record indicates that the proposed duties entail providing 
detailed financial reports to management. 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 Advisors03 (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 
attained by at least a bachelor's degree or the equivalent in accounting or any other specific specialty.4 It is 
also noted that 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. 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 
1 
 According to the website for Skyline College, a community college located in San Mateo, California, 
(www.sk~linecolle~e.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.htm) 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. 
EAC 04 156 53418 
Page 5 
accounting work of many clients. The petitioner's assertion on appeal that it needs a cost accountant is noted. 
Going on record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings. Matter of SofJlci, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter 
of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). Moreover, the petitioner also has not 
established that the required language skills of the proffered position are of such complexity that a 
baccalaureate degree in a specific specialty, as distinguished from familiarity with the English and Chinese 
languages or a less extensive education, is necessary for the successful completion of its duties. 
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 nonmanagement groups, including stockholders, creditors, 
regulatory agencies, and tax authorities, and usually, they are part of executive teams. The beneficiary will not be 
part of an executive team. Nor will the beneficiary 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)(l) 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. On appeal, the petitioner submits a copy of the Bachelor of Arts degree 
of its former accountant. As the correspondent transcripts were not included, however, it cannot be 
determined that the petitioner's former accountant's bachelor's degree was in an accounting-related field. 
Furthermore, even if the petitioner were to submit evidence that its former accountant held a bachelor's degree 
in an accounting-related field, CIS must examine the ultimate employment of the alien, and determine 
whether the position qualifies as a specialty occupation, regardless of the petitioner's past hiring practices. CJ: 
Defensor v. Meissner, 201 F. 3d 384 (sth Cir. 2000). The critical element is not the title of the position or 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 ~ct.~ In this regard, 
the petitioner fails to establish that the cost accountant position it is offering to the beneficiary requires the 
application of such a body of knowledge and the attainment of such a degree. 
The court in Defensor v. Meissner observed that the four criteria at 8 C.F.R. 5 214.2(h)(4)(iii)(A) present 
certain ambiguities when compared to the statutory definition, and "might also be read as merely an additional 
requirement that a position must meet, in addition to the statutory and regulatory definition." See id. at 387. 
EAC 04 156 53418 
Page 6 
Finally, the AAO turns to the criterion at 8 C.F.R. 9 214.2(h)(4)(iii)(A)(4) - the nature of the specific duties is 
so specialized and complex that knowledge required to perfonn the duties is usually associated with the 
attainment of a baccalaureate or higher degree. 
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. 9 214.2(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. 9 1361. 
The petitioner has not sustained that burden. 
ORDER: 
 The appeal is dismissed. The petition is denied.