dismissed H-1B Case: Accounting

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rrn. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: SRC 04 076 51448 Office: TEXAS SERVICE CENTER Date: 2 2p>s 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 l(a)(l5)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 5 1 101 (a)(lS)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
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 I?. Wiemann, Director 
Administrative Appeals Office 
SK 04 076 5 1448 
Page 2 
DISCUSSION: The service center director denied the nonimmigant 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 used car dealer that 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 pwsuant to 
5 10 1 (a3(15)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S .C. $ 1 10 1 (a)( 1 S)(H)(i>(b). 
The director denied the petition because the proffered position is not a specialty occupation. On appeal, 
counsel submits a brief and additional evidence. 
Section 214(i)(l) of the Act, 8 U.S.C. 5 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: 
(0 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 8.IF.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 A40 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 January 12, 2004 letter in support of the petition; and the 
petitioner's response to the director's request for evidence. According to this evidence, the beneficiary would 
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perform duties that entail: preparing the transactional documentation and maintaining updated entries on 
purchases and sales for each vehicle; maintaining record of costs and making payments; and maintaining 
personnel payroll and financial records. The petitioner indicated that a qualified candidate for the job would 
possess a bachelor's degree in accounting or a related field. 
The director found that the proffered position was not a specialty occupation because the petitioner's 
operation was not sufficiently complex to warrant the services of an accountant. The director found further 
that the petitioner failed to establish any of the criteria found at 8 C.F.R. 5 214.2(h)(4)(iii)(A). 
On appeal, counsel states, in part, that the proffered position is that of an accountant, and 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 the proposed duties are typical duties of an accountant in any business where monetary 
transactions take place. Counsel submits a letter from a similar business whose director states that his 
business's H-1% petition for an accountant was approved. 
Upon review of the record, the petitioner has established none of the four criteria outlined in 8 C.F.R. 
5 214.2(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. 5 214.2(h)(4)(iii)(A)(l) 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 
(DO&) 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 fiom fms or individuals in the industry attest that such fms "ro~~tinely employ and recruit only 
degreed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1 15 1, P 165 (D. Mhn. 1999)(quoting Hird/Bkeker 
Grp. v. Sava, 7'12 F. Supp. 1095, 1102 (S.D.N.Y. 1989)). 
The MO routinely consults the Handbook for its information about the duties and educational requirements of 
particular occupations. The AA0 does not concur with counsel that the proffered position is that of a full-time 
accountant. The Handbook, 2004-2005 edition, reveals that specific job duties vary widely among the four major 
fields of accounting: public, management, government, and internal. 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. 
In this case, information on the petition reflects that the petitioner, which was established in 2003, is a used 
car dealer with two employees. Counsel states on appeal that the petitioner's last bank statement reflects 
approximately $60,000 in deposits and $49,00 in payments, which demonstrates how the services of an 
SRC 04 076 5 1448 
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accountant are needed to keep track of its financial transactions. Although counsel also relied on a case to state 
that the size of the petitioning entity is not relevant in determining whether a position qualifies as a specialty 
occupation, 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 accounting 
work of many clients. Consequently, the petitioner fails to establish that a baccalaureate or higher degree or its 
equivalent is the normal minimum requirement for entry illto 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 
colnglexity 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 he required for the proffered position. A review of the Handbook finds that the proposed 
duties are primarily the duties 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. 
Regarding parallel positions in the petitioner's industry, the petitioner submitted Internet job postings for 
accountants. There is no evidence, however, to show that the employers issuing those postings are similar to 
the petitioner, or that the advertised positions are parallel to the instant position. The advertisements are for 
accountants in industries including pharmaceuticals, travel, and manufacturing. The petitioner's industry, 
however, is not represented. Thus, the advertisements have no relevance. 
The record also contains a letter from the vice president of a truck business, who asserts that his business 
hired an accountant with a bachelor's degree in accounting. The writer, however, does not provide evidence 
in support of his assertions. Going on record without supporting docume~ltary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of SofJici, 22 I[&N Dec. 158, 165 
(Comrn. 1998) (citing Matter of Treasure Craft of California, 14 H&N Dec. 190 (Reg. Comm. 1972)). 
Counsel also notes that CIS approved another petition that had been previously filed on behaif of an 
accountant for a similar business. The director's decision does not indicate whether she reviewed the prior 
approval of the other nonimmigrant petition. If the previous nonimmigrant petition was approved based on the 
same unsupported assertions that are contained in the current record, the approval would constitute material 
and gross error on the part of the director. The AAO is not required to approve applications or petitions where 
eligibility has not been demonstrated, merely because of prior approvals that may have been erroneous. See, 
e.g. Matter ofChurch Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988). l[t would be absurd to 
suggest that CIS or any agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd v. 
Montgomery. 825 F.2d 1084, 1090 (6th Cir. 19871, cert. denied, 485 U.S. 1008 (1988). 
Furthermore, the AAO's 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 petition on 
behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service 
center. Louisiana Bhilharnzonic Orchestra v. INS, 22000 WL 282785 (E.D. La.), afp, 224 8.3d 1139 45th Cir. 
20011, cert. denied, 122 S.Ct. 51 (2001). 
SRC 04 076 5 1448 
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The record also does not include any evidence from 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. $ 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)o - the employer normally requires a 
degree or its equivalent for the position. As the record indicates that the proffered position is a new position, the 
petitioner, therefore, has not established the criteria set forth at 8 C.F.R. $ 2 14.2(1)(4)(iii)(A)(3). 
Finally, the AAO turns to the criterion at 8 8.F.R. 5 214.2(h)(4)(iii)(A)(49 - the nature ofthe specific duties is 
so specialized and complex that knowledge required to perfom 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 howledge associated with a baccalaureate or higher degree, or its equivalent, 
in a specific speciarty. Therefore, the evidence does not establish that the proffered position is a specialty 
occupation under 8 C.F.R. 5 214,2(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. 
OmIER: The appeal is dismissed. The petition is denied.