dismissed H-1B Case: Accounting

U.S. Department of Homeland Security 
20 Massachusetts Avenue, NW, Rrn. A3042 
Washington, DC 20529 
FILE: EAC 04 034 55171 Office: VERMONT SERVICE CENTER Date: 
c 
6x3' 2 4 2005 
IN RE: Petitioner: 
Beneficia 
PETJTION: Petition for a Nonimmigrant Worker Pursuant to Section lOl(a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 5 1 101(a)(lS)(H)(i)(b) 
ON BEHALF OF PETlTIONER: 
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 04 034 55171 
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 an assisted living facility for the elderly that seeks to employ the beneficiary as an 
accountant. The petitioner endeavors to classify the beneficiary as a nonimrnigrant 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 lOl(a>(15)(H)(i>(b). 
The director denied the petition because the petitioner did not establish that the proffered position is a 
specialty occupation. On appeal, counsel files a letter. 
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. 8 214.2(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 
EAC 04 034 55171 
Page 3 
director's denial letter; and (5) Form I- 90B and supporting documentation. The AAO reviewed the record in 
its entirety before issuing its decision. f 
The petitioner is seeking the Evidence of the beneficiary's duties 
includes: the Form 1-129; 1-129; the October 27, 2003 letter in 
support of the petition; and for evidence. According to this 
evidence, the beneficiary books; overseeing wage 
schedules and payments; client billing 
practices; effectuating all 
returns; maintaining 
regarding the 
The director found that the petitioner not establish that the proffered position was a specialty occupation. 
The director found further that the failed to establish any of the criteria found at 8 C.F.R. 
g 214.2(h)(4)(iii)(A). 
On appeal, counsel states that the d' ector's denial was primarily based on the size of the petitioner's 
'1 
\ 
operations. Counsel asserts that the pe 'tioner has grown rapidly and is in need of an accountant to monitor 
and enhance the company's finances. also states that CIS appioved a petition for a the petitioner's 
\ 
general manager, and that the to the director's request for evidence in that matter in the 
same manner as it responded 
The AAO concurs with director that a position as an accountant is generally a specialty 
occupation. The issue is whether the petitioner will employ the beneficiary in the 
specialty occupation. the petitioner has not established that it will employ the 
beneficiary in an accounting position. 
In its response to the director's request that it was on the edge of "expanding 
[its] services dramatically in the very expansion could not occur without 
hiring an accountant. The AAO notes its growth plan indicating that it 
was purchasing a 7.5 acre parcel of that would house 17 residents 
and five staff per facility, there is beyond the petitioner's 
brief statement. Going on record for purposes of 
meeting the burden of proof in 
(citing Matter of Treasure Craft 
The AAO also notes that the Part 5 of the Form 1-129, filed on November 19, 2003, indicated that the 
petitioner has four employees. The grow h plan, submitted in response to the %ectorfs request for evidence, 
indicated that at the time the petition as filed, the petitioner had four facilities in operation with six 
employees in the first three facilities. Th 1 fourth facility opened two months prior to the date the petition was 
EAC 04 034 55171 
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filed, and was at maximum capacity by approximately Feb~uary 2004. This facility employs an additional 
two nursing aides. The petitioner did not address this inconsistency on appeal, despite the director having 
raised the issue in her decision. It is incumbent upon the petitioner to resolve any inconsistencies in the 
record by independent objective evidence. Any attempt to explain or reconcile such inconsistencies will not 
suffice unless the petitioner submits competent objective evidence pointing to where the truth lies. Matter of 
Ho, 19 I&N Dec. 582,591-92 (BIA 1988). Doubt cast on any aspect of the petitioner's proof may, of course, 
lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the visa 
petition. Matter of Ho, 19 I&N Dec. 582,591 (BIA 1988). 
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. 8 214.2 (h)(4)(iii)(A)(l) and (2);. a baccalaureate or higher 
degree or its equivalent is the normal minimum requirement for entry into thegarticular 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 fm 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 HirdIBlaker Corp. v. Suva, 712 F. Supp. 1095,1102 (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 b~dy 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. 
The AAO routinely consults the Handbook for its information about the duties and educational requirements 
of particular occupations. Counsel states that the beneficiary's dutjes are those performed by an accountant. 
The Handbook discloses that the proffered position's duties do not rise to the level of an accountant. The 
Handbook 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. 
EAC 04 034 55 17 1 
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Many of the duties described in the Handbook do not 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, or regulatory agencies. 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. 
The Handbook further states: 
Accountants and auditors held about 1.1 million jobs in 2002. They worked throughout 
private industry and government, but 1 out of 5 wage and salary accountants worked for 
accounting, tax preparation, bookkeeping, and payroll services firms. Approximately 1 out of 
10 accountants or auditors were self-employed. 
Many accountants and auditors are unlicensed management accountants, internal auditors, or 
government accountants and auditors; however, a large number are licensed Certified Public 
Accountants. Most accountants and auditors work in urban areas, where public accounting 
fms and central or regional offices of businesses are concentrated. 
The record shows that the petitioner, an assisted living facility, employs from four to eight persons, and earns 
a gross annual income of $450,000. In addition, as noted above, the petitioner has not established the 
existence of the expansion, which it states necessitates the hiring of the beneficiary as an accountant. The 
record does not establish that the petitioner will employ the beneficiary as a full-time accountant. While 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 income of only $450,000 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 into the particular position. Accordingly, the 
petitioner has not established 8 C.F.R. § 214.2(h)(4)(iii)(A)(l). 
The second criterion requires the petitioner to establish that a specific degree requirement is common to the 
industry in parallel positions among similar organizations. The petitioner did not submit any evidence 
regarding parallel positions, nor has the petitioner established that the particular position is so complex or 
unique that it can be performed only by an individual with a degree. 8 C.F.R. 8 214.2(h)(4)(iii)(A)(2). 
Because the proffered position is newly created, the petitioner cannot establish that it normally requires a degree 
or its equivalent for the position. 8 C.F.R. 5 214.2(h)(4)(iii)(A)(3). 
The fourth criterion at 8 C.F.R. !j 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 the duties is usually 
EAC 04 034 55 171 
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associated with the attainment of a baccalaureate or higher degree. There is no evidence in the record that 
would show that the proffered position's duties rise to the level of an accountant. Consequently, the 
petitioner fails to establish 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 petitioner will employ the 
beneficiary in 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.