dismissed H-1B Case: Accounting

identifyingdatadeletedto
preventc!~1.TIV Lt::lW¥arnmted
invasionof~privacy
f'UBUCCOPY
u.s.Department of Homeland Security
, 20 Massachusetts Avenue NW, Room 3000
Washington, DC 20529
U.S.Citizenship
and Immigration
Services
FILE: , EAC 04 20251776 Office: VERMONT SERVICE CENTER Date: DEC 2 7 '200s
IN RE: Petitioner:
Beneficiary:
PETITION: .Petition for a Nonimmigrant Worker 'Pursuant to Section 101(a)(15)(H)(i)(b) of the
Iriunigration and ,Nationality Act, 8 U.S".C. § 1101(a)(l5)(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.
i~;/a/7~.' ../t£ ,Robert P. Wiemann, Chie
. Administrative Appeals lice .
ww~.uscis.gov
EAC 04 202 51776
Page 2.
DISCUSSION: The director ofthe service centeidenied the nonimmigrant visa petition and the matter is
now before the Administrative Appeals Office (AAO) onappeal. The appeal will be dismissed. The petition
will be denied. . . .
The petitioner, a company with five employee~, owns and operates a liquor store. It seeks to employ the
beneficiary as an accountant. The petitioner, therefore, endeavors to extend the beneficiary's nonirrimigrant
classification as a worker ina specialty occupation pursuant to section 101(a)(15)(H)(i)(b) of the'
Immigration and Nationality Act (the Act), 8U.S.C.§ 110i(a)(15)(H)(i)(b).
The director denied the petition on the basis of his determination that the petitioner had failedto establish that
the proposed position qualifies for classification as a specialty occupation under the criteria set forth at
8 C.F.R. § 2142(h)(4)(iii)(A). On appeal, counsel contends that the director erred in denying the petition, and
that the proposed position qualifies for classification as a specialty occupation.
The record of proceeding beforethe AAO contains (1) the 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; anq.(5) the Form 1-290B and supporting documentation. The AAO reviewed the
record in its entirety before issuing its decision.
Section 2l4(i)(1) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1184(i)(1), defines the term
"specialty occupation" as an occupation that requiresrj
(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.
, .
The term "specialty occupation" is further defined at8 C.F.R. § 2l4:2(h)(4)(ii) as: : ,
, ,
, , . .
[A]n occupation 'which requires theoretic~l 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,
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, the position must meet one of
the following criteria: .',
(1)
(2)
A baccalaureate or higher degree ,or its. equivalent. is normally the minimum .
,requirement for entry into the particularposition; ,
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 uriique that it can be performed only by an individual with
a degree;
.",,'
EAC 04 202 51776
Page 3
(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 proposed position.
To determine whether a particular position qualifies asa specialty occupation, CIS does not simply rely
, on the position's title. The specific duties of the proposed position, combined with the nature of the
petitioning entity's business operations, are factors to be considered. CIS must examine the ultimate
employment of the alien and determine whether the position qualifies as a specialty occupation;
" Cf Defensor v. Meissner, 201 F. 3d. 384 (5 th Cir. 2000). The critical element is not the title of the
proposed 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. '
As noted previously, the petitioner, owns and operates a liquor store. It was established in 1996 and has
five employees, and stated gross annual income of$5 million. It proposes to employ the beneficiary as an
accountant. According to its June 22, 2004 letter of support, the duties of the proposed position would
include examining financial statements for completeness, internal accuracy, and conformance with uniform
accounting classifications; documenting daily business transactions; preparing financial information detailing
assets, liabilities, balance sheets, profit and loss statements, and similar reports to summarize the company's
fmancial position; conductihg audits to ensure the accuracy of financial 'data; managing inventory; preparing
'payroll and accounts payable and receivable; and coordinating the implementation of accounting and
accounting control procedures. The petitioner noted that the beneficiary is currently in H-1B status, and
emphasized that he would be performing "many of the exact SaIJ1e" duties for the petitioner that he, had
performed for his previous H-1B employer.' '
The director denied the petition, finding that' the petitioner had satisfied none of the criteria set forth at
8 C.F.R. § 214.2(h)(4)(iii)(A), and therefore had not established that the proposed position qualifies for
classification as a specialty ?ccupation.
In.his denial, the director stated the following:
Although the duties of the position deal with accounting procedures, they also appear to be
[those] of a bookkeeper/administrative secretary. This service is not persuaded that the job
duties described are so complex or unique that they would require the attainment of a
bachelor's degree in a specific field of study.
O~ appeal, the petitioner contends that the director erred in denying the petition, and that the proposed
position in fact qualifies for classification as a specialty occupation under' the criteria' set forth at
I The beneficiary's previous H-1B approval was valid june 4, 2003 through May 12, 2006. His 2004
federal income tax returns list the beneficiary's occupation as "cashier." ,
EAC 04 202 51776
Page 4.
8 C.F.R. § 214.2(h)(4)(iii)(A). The petitioner ~oted that in addition to its retail business, it also offers
check cashing, bill collection, and money transfer services, and that it needs an accountant to keep abreast
of the latest computer technology in order to increase the efficiency of its financial operations.
In determining whether a proposed position qualifies as a specialty occupation, CIS looks beyond the title
of the position. It 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 body of highly
specialized knowledge, and the minimum of a baccalaureate degree in a specific specialty for entry into
the occupation, as required by the Act. The AAO routinely consults the Department of Labor's
Occupational Outlook Handbook (the Handbook) for its information about the duties and educational
requirements of particular occupations. The AAO agrees with the director's finding that the proposed
position does not qualify for.classificationas a specialtyoccupation:
The petitioner has stated that its proposed position is that of an accountant. To determine whether the
duties of the proposed position support the petitioner's characterization of its employment, the AAO turns
to the 2006-2007 edition of the Handbook for its discussion of management accountants, the category of
accounting most closely aligned to the duties described by the petitioner. As stated by the Handbook,
management accountants:
[r]ecord and analyze the financial information of the companies for which they work. .
Among their other responsibilities are budgeting, performance evaluation, cost
management, .and asset management . . . .' They analyze and interpret the financial
information that corporate executives need in order to make sound business decisions.
They also prepare. financial reports for other groups, including stockholders, creditors,
regulatory agencies, and tax authorities. Within accounting departments, management
accountants may work in various areas, including financial analysis, planning and
budgeting, and cost accounting. .
The AAo finds the above discussion somewhat reflective of the petitioner's description of the duties of
the proposed position and agrees that the petitioner's employment would require the beneficiary to have
an understanding of basic accounting principles. However, not all accounting employment is performed
by degreed accountants. Therefore, the performance of duties requiring accounting knowledge does not
establish that the proposed position would impose a degree requirement on the beneficiary. Thus, the
question is not whether the proposed position requires a knowledge of accounting principles, which it
does, but rather whether .it is one that normally requires the level of accounting knowledge that is
signified by at least a bachelor's degree, or its equivalent, in.accounting.
. . .
The Handbook's discussion of the occupation ofaccountants clearly indicates that accounting positions
may be filled by individuals holding associate degrees or certificates, or who have acquired their
accounting expertise through experience: .
Capable accountants and auditors may advance' rapidly; those having inadequate'
academic preparation may be assigned routine jobs and find promotion difficult. Many
graduates of junior colleges or business or correspondence schools, as. well as
bookkeepers and accounting clerks who meet the education and experience requirements
set by their employers, 'can obtain junior accounting positions and advance to positions
with more responsibilities by demonstrating their accounting skills on the job.
EAC 04 202 51776
PageS
' It also notes in its description of the work perfomied bybookkeeping, accounting and auditing clerks that: ,-' ' . . _ . .
Demand for full-charge bookkeepers is expected to increase, - b e~~ u s e they are called
upon to do much of the work of accountants ; as well as perform a wider variety of
financial transact ions, from ,payroll to billing . Those with several years of accounting or
bookkeeper certification will have the,best job prospects . '
Further proof of the range of academic backgrounds "that ,may prepare an individual .for accounting
employment is provided by .the credentialing practices of the Accreditation Council for Accountancy and
Taxation (ACAT), an independent accrediting and monitoring organization affiliated with .the National
Society of Accountants. The ACAT does not require a degree in accounting or a related specialty to issue
a credential as an Accredited Business Accountant® /Accredited Business Advisor® (ABA). Eligibility
for the eight-hour comprehensive examination for the ABA credential requires only three years of
"verifiable experience in accounting, taxation, financial services, or other fields requiring a practical and
theoretical knowledge of the subject matter covered onthe ACAT Comprehensive Examination." Up to
two of the required years of work experience may be satisfied through college credit. 2
, To determine whether the accounting knowledge required by the proposed position rises above that which
may be acquired through experience or an associate 's degree in accounting ,' the AAO -turns to the record
for information regarding the 'nature of the petitioner 's business operations. In cases where a petitioner 's
business is relatively small, like that in the instant case, the AAO reviews the record for evidence that its
operations, are, nevertheless , of sufficient scope and/or complexity to indicate that it would employ the
beneficiary in an accounting position requiring a level of financial knowledge that rimy be obtained only
through a baccalaureate degree inaccounting orits equivalent. -
" ,
As noted previously, the petitioner is a five-employee company that owns and operates a liquor ,store. ,"
Though the size of the company does not, in and of itself, determine a company 's need for an accountant, its
income level and scale of operations have a direct and substantial bearing on the scope of the duties the
beneficiary would perform as an accountant. The responsibilities associated with a five-employee liquor
store differ considerably from the responsibilities associated with larger companies, as well as from the
responsibilities of performing accounting work for multiple clients. The record here does not support a
finding that the petitioner will employ the beneficiary in an accounting position 'requiring a level of
financial knowledge that 'may be obtained only 'through a baccalaureate degree in, accounting or its
equivalent. The petitioner has not demonstrated that its business, despite its relatively limited size, has , '
the complexity of financial operations to'require a degree in accounting . ' '
2 Information provided by the ACAT website ' (http://www.acatcredentials .org/inde x.htrnl) .. ' The
Handbook identifies the ACAT website as one of several " Sources of AdditionalInformation' <at the end
of its discussion of the occupation of accountants. : . ' ' I , . :.
3According to the 'website of Skyline College , a' community college located in San Mateo , California
(http i//www .skylinecol lege.net), an associate's degree in business or accounting would involve learning
the fundamentals about financial accounting .principles and concepts , balance sheets, incomestatements,
. cash flow statements ; the GAAP , forecasting , budgeting, cost accounting , break even analysis , developing
and operating a computerized accounting system. Thus', an associate's degree w'ould provide knowledge
about theGAAP and accounting techniques that serve the needs of management and ,facilitate
decision-making.
EAC 04 202 51776
Page 6 .
Moreover, the record fails to offer evidence of the specific financial requirements associated with the
petitioner's company, such as ' unique accounting systems or financial requirements that would add
complexity to the beneficiary 's duties. Neither does it indicate that the petitioner is currently required to
manage outstanding business loans or other debt, or to deal with complex financial agreements or other
issues that might complicate its financial situation. ' . .
Accordingly, the duties of the proposed position are riot established asthose ofa degreed accountant.
Moreover, fmancial clerks such as bookkeeping , accounting, arid auditing clerks, who are not normally
required to possess four-year degrees, normally perform several of the duties of the proposed position, .
such as. the preparation of payroll, balance sheets, and profit and loss statements. As a result, the
petitioner has not established the proposed position as 'a specialty occupation under the first criterion at
8 C.F.R. § 2142(h)(4)(A) - that a baccalaureate or higher , degree or its equivalent is normally the
minimum requirement for entry into the particular position.
Nor does the proposed position . qualify . as a specialty occupation under either prong . of
8 C.F.R. § 214.2(h)(4)(iii)(A)(2) .The first prong of this regulation requires a showing that a specific degree
requirement is common to the industry in parallel positions among similar organizations.
The AAO has reviewed the job postings submitted by counsel. Counsel, however, has failedto consider the
specific requirements at 8 C.F.R. § 214.2(h)(4)(iii)(A)(2)for-establishinga baccalaureate or higher degree as
an industry norm. To meet the burden of proof imposed by the regulatory language, a petitioner must
. establish that its degree requirement exists in parallel positionsamong similar organizations; ,
There is no information in the .record to demonstrate that the companies advertising are similar to the
petitioner in size, scope, or scale of operations. Again, simply going on record without supporting
documentary evidence is not sufficient for purposes ofmeeting the burden of proof in these proceedings.
Matter ofSoffici, 22 I&N Dec. 158, 165 (CornriJ..1998) (citing Matter ofTreasure Craft of California, 14
I&N Dec. 190 (Reg. Comm. i972». 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 pee . 533, 534 (BIA 1988); Matter ofLaureano, 19
I&NDec.l (BIA 1983); Matter ofRamirez-Sanchez , 171&NDec. 503, 506 (BIA 1980).
. , ' ' ,' .
'A s noted previously, the petitioner is a five-employee company that owns and operates a liquor store. '
According to,its job posting, Blackbaud provides software and related services to nonprofit organizations.
The unnamed entity 'advertising its vacancy through Monster .com directly is a Catholic church : No
information was submitted regarding the business .operations of either unnamed company advertising
, their vacancies through Creative Financial Staffing , or the unnamed company advertising its vacancy
. through Acsys , Inc. '
The AAO, therefore , has no basis to conclude that.any of the job postings submitted by counsel are from
organizations that may be considered "similar" to the petitioner.
Moreover, these three advertisements provide too little information regarding the duties of the positions to
allow theAAO to undertake ameaningful analysis as to whether the positions are in fact "parallel," to the
position proposed here. The fact that these positions share the same title as the petitioner 'sproposed
positiondoes not mean that they are in fact parallel positions. .
BAC 04 202 51776
Page 7
Accordingly, the proposed position does not qualify"for classification as a 'specialty occupation under the
first prong of 8 C.F.R. § 21.4.2(h)(4)(iii)(A)(2). .
-The second prong of this regulation requires that the petitioner prove that the duties of the proposed position
are "so 'complex Of unique that only an individual with a degree can perform them. .For reasons already set
forth in this decision" the nature of the duties of the 'proposed position as set forth in this petition does not
support such 'a finding. ' , ,
Therefore, counsel has not established that the proposed position qualifies for classification as a specialty
occupation under either prong of8 C.F.R. § 214.2(h)(4)(iii)(A)(2).. , ' .. . ; "
The proposed position does not qualify as a specialty occupation under 8 C.F.R. § 214.2(h)(4)(iii)(A)(3), '
which requires a showing that the petitioner normally requires a degree or its equivalent for the position. To
determine a petitioner 's ability to meet this criterion, the AAO normally reviews the petitioner's past
employment practices, as well as the histories, including names and dates of employment, of those employees
with degrees who previously held the position, and ,copies of those employees' diplomas .
However, the petitioner has stated that this ,is a newly-created position, which precludes approval under the
third criterion. Accordingly, the proposed position does ' not qualify for classification as a specialty
occupation under the criteria set forth at 8 C.F .R. § 2l4:.2(h)(4)(iii)(A)(3).
, The fourth criterion requires the petitioner to est~blish that the nature of the specific duties of its position
is so specialized and complex that the knowledge required to perform them is usually associated with the
" attainment of a baccalaureate or higher degree. To the extent that they are described , the proposed duties
do not indicate the specialization and complexity required by this criterion . As noted previously , the
.petitioner has not demonstrated a unique accounting system, established complex financial obligations or
agreements, or otherwise established that the complexity of its financial operations require a person with
a four-year degree in accounting. As a result, the record fails to establish that theproffered position meets
the specialized and complex threshold at 8 C.F.R. § 21~.2(h)(4)(iii)(A)(4).
Finally, the AAO notes that the beneficiary is currently in H-1B status. ' However, each .nonimmigrant
petition is a separate proceeding with a separate record. See 8 C.F.R. § 103.2(b )(16)(ii), If the previous
petition was approved based upon the same evidence contained in this record, its approval would
constitute error on the part ,of the director. The MO 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) . It
,would be absurd to suggest that CIS or any agency must treat acknowledgederrors as binding precedent.
Sussex Engg. Ltd. v. Montgomery , 825 F.2d 1084, 1090 (6th Cir. 1987) ; cert. denied, 485 U.S . 1008
(198'8): .
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 did approve a nonimmigrant petition
similar to the one at issue .here, the AAO would not 'be bound to follow the contradictory decision of a
service center: Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (B.D.-La.), aff'd, 248 F.3d
1139 (5th Cir.'2091) , cert. denied, 122 S.Ct. 51 "(2001 ). '
EAC 04 202 51776
.Page 8
Accordingly, the petitioner has failed to establish that the proposed position qualifies for classification as
a specialty occupation under any ofthe criteria set forth at 8 c.P.R.§§ 214.2(h)(4)(iii)(A)(l), (2), (3), and
(4), and the petition was properly denied. . . .
Beyond the decision of the director, the AAO finds.that the petition may not be approved for an additional
reason, as the record does not establish that the beneficiary qualifies to perform the duties of a specialty
occupation. Pursuant to 8 C.P.R.§ 214.2(h)(4)(iii)(C), to qualify to perform services in a specialty
.occupation, an alien must meet one of the following criteria:
.(1). . Hold a United States baccalaureate or higher degree required by the specialty
occupation from an accredited college or university; -.
. .
(2) Hold a foreign degree determined . to be equivalent to a. United States
baccalaureate or higher degree required by the specialty occupation from an
accred~ted college or university;
(3) Hold an unrestricted state license, registration or certification which authorizes
him or her to fully practice the specialty occupation and be immediately engaged
in that specialty in the state of intended employment; or
. . .
(4) Have education, specialized training, and/or progressively responsible experience
that is equivalent to completion of a United States baccalaureate or higher degree
in the specialty occupation, and have recognition of expertise in the specialty
. through progressively responsible 'positions directly related to the specialty.. '
. .
In making its determination as to whether the beneficiary qualifies to perform the duties of a specialty
occupation, the AAO turns to the criteria at 8 C.ER. § 214.2(h)(4)(iii)(C), as described above. The
beneficiary did not earn a degree from a United States institution of higher education; so he does not
qualify under the first criterion.' " '
Nor does .the beneficiary qualify under the second criterion, which requires a' demonstration that the
beneficiary's ,foreign degree has been determined to be equivalent to a United States baccalaureate 'or
higher degree required by the specialty occupation from an accredited college or university. According to
the evaluation submitted by Morningside Eva1uations'and Consulting, dated May 21, 2003, the
beneficiary's foreign education is not equivalent to a degree. Rather, it is equivalent to the completion of
academic studies that would eventually lead to a degree.' .
Th~ record d~es' not demonstrate, nor has the petitioner, contended, that the beneficiary holds an
unrestricted state license, registration or certification to practice the specialty occupation, so he does not
qualify under the third criterion.',. ".
The fourth criterion, set-forth at 8 C.P.R. § 214.2(h)(4)(iii)(C)(4), requires a showing that the
.beneficiary's education, specialized training; and/or progressively responsible experience is equivalent to
the completion of a United States baccalaureate or higher degree in the specialty occupation, and that the
beneficiary also has recognitionof that expertise in the specialty through progressively responsible
positions directly related to thespecialty. .
.Itis this fourth criterion under which the petitioner must classify the beneficiary's work experience.
EAC 04 202 51776
,Page 9
I,
I
Pursuant to 8 C.F :R. § 214.2(h)(4)(iii)(D), equating abeneficiary.s credentials to a Uriited States
baccalaureate or higher degree under this crterion is determined by one or more of the following:
1
:' (1)
'(2)
(3)
(4)
(5)
An evaluation from an official who has authority to grant college-level credit for
' training and/or experience jin the specialty at an accredited college or university
which has 'a program for granting such credit based on an Individual's .training
and/or work experience; I ' "" , ' , , , ,',, " .
, . ' I .
The results of recognized college-level equivalency examinations or special
credit programs, such asthe College Level Examination Program (CI;EP), or
Program on Noncollegiate Sponsored Instruction (PONSD; ,
. I ,, " .
, I
An evaluation of educati~n bya reliable credentials evaluatio~ service which'
specializesin evaluating foreign educational credentials; , " , .
,
Evidence of certificati6 ~ or registration from a ' nationally-recognized. "
professional association dr ' society for the specialty that is known to 'grant '
certification or registration to persons in the occupational specialty who 'have
achieved a certain level of competence in the specialty; .. . .' . . '! ' " ,
A detcrmmanon by the Se1-vice that the 'equivalent of the degree required :by the
specialty occupation has been acquired , through a combination of education,
specialized training, and/o r work experience in areas related to the specialty and
that the alien 'has achieved Irecognition of expertise in the specialty occuparion as 'I _ . .
aresult of such training and experience . " '. I
I
The beneficiary does not qualify under Ithe first criterion of8C.F.R. § 214.2(h)(4)(iii)(D). ' The
, Morningside evaluation referenced earlier in this decis'ion states that the beneficiary's foreign degree and
" , I
work experience .are equivalent to a bachelor 's degree in accounting from an accredited institution of
higher education in the United States. However, the Morningside evaluation is defective for two reasons. '. . ,.':. , ~ , . . ' , ' .
I
First, the Morningside evaluation 'is defe6tive because a credentials evaluation service may evaluate
I ' . : . .
educational credentials only. 8 C.F.R. § 214.2(h)(4)(iii)(D)(3). Further, there has been no showing that
the evaluator, JonatanJelen , has the authority to grant college-level credit fortraining and/or experience ,
: at an accredited college -or-university which has a program for granting such credit based on an
, , individual's training anQlor , work : experience , as required by the , regulation ' at
8 C:F;R. § 21~.2(li)(4)(iii)(D)(l).4 Therefo te, the beneficiary does:not qualify under the first criterion.
I.-
I
I ' "
4 Mr. Jelen states that be~ause bfthe positi bns he holds, he has the authority to grant college-level credit ,
for training and/or courses taken at other American or foreign institutions. However, the petitioner has
submitted no evidence to :document this assertion : Going on record without supporting documentary
evidence is not sufficient for purposes i of , meeting the burden of proof in these proceedings .
, Matter of Soffici, 22 I&N Dec. 158, 165 (COI@1~ 1998) (citing Matter of Treasure Craft of California;, ' .
14 I&N Dec. 190 (Reg. Comm. '1972» . "
, .
I
I
EAC 0420251776
Page 10
. I .
No evidence has been submitted to establish, nor has counsel contended, that the beneficiary satisfies
8 C.F.R. ·§ 214.2(h)(4)(iii)(D)(2), which requires that the beneficiary submit the results of recognized
. college-level. equivalency examinations or special credit . programs, such ' as the College Level
.. ' Examination Program (CLEP) , or Program on Noncollegiate Sponsored Instruction (PONS!).
Nor r does the '. beneficiary qualify under 'the thir d' criterion. As was the case under
8C.F,R. § ~14.2(h)(4)(iii)(C)(2), the beneficiary ' is unqualified under this criterion because the
Morningside evaluation did not find the beneficiary's foreign education equivalent to a degree. 'Rather, it '
found his education equivalent to completion of academic studies that would eventually lead to a degree .:
!
No evidence has 'been submitted to establish, nor has counsel contended, that the "beneficiary satisfies
8 C.F.R. § 214.2(h)(4)(iii)(D)(4), which requiresthatthebeneficiary submit evidence of certification or
registration from a nationally-recognized professional ' association or society for the specialty that is
..knowri to .grant certification or registration to persons in the occupational specialty who have achieved a
. certain level of competence in the specialty. . . .
The AAO next turns .to' the fifth criterion . ' When CIS determines an alien's qualifications pursuant to
8 C:F.R. § 214.2(h)(4)(iiij(D)(5), three years of specialized training 'and/or work experience must be
demonstrated for each year of college-level training the alien lacks. It must be clearly demonstrated that
the alien 's training and/or work experience included : the theoretical and practical application of
specialized knowledge required by the specialty occupation ; that the alien 's experience was gained while
working with peers, supervisors, or subordinates who have a degree or its equivalent in the specialty
occupation; and that the alien has recognition of expertise in the specialty evidenced .by at least one type
of documentation such as: \ . . ' . . ' . . . ' . .
.. (i)
(ii)
(iii) .
(iv)
(v)
Recognition of expertise in the specialty occupation by at least two recognized
authorities in the same specialty occupation'; . !
Membership in a recognized foreign or United States association or society in the
specialty occupation; .
Published '. material by or ' about the alien in professional publications, trade
joumals. ibooks, or major newspapers ;
Licensure or registration to practice the specialty occupation in a foreign country;
or
Achievem~nts which a recognized authority has determined to be significant
contributions to the field of the specialty occupation .
,5 . Recognized authority means aperson or organization ~ith expertise in a particular field, special skills
or knowledge inthat field, and the expertise to render the type of opinion requested. A recognized .
. authority 's opinion must state : (1) the writer 's qualifications as an expert ; (2) the writer's experience
giving such opinions, citing specific instances where past opinions have been accepted as authoritative
and by whom; (3) how the' conclusions were reached ; arid (4)the basis for the conclusions supported by '
copies or citations of any research material used ; 8. C.F.R. § 214.2(h)(4)(ii).
" ,
EAC 04 202 51776
Page 11
Thepetitioner's submission traces the beneficiary'swork experience from August 1997 through June
. 2004 (the petition was filed oriJune29, 2004). The AAO's next line of inquiry is therefore to determine
whether at least six years" of this work experience included the theoretical and practical application of
specialized knowledge required by the specialty, whether It was gained. while working with peers,
supervisors, or subordinates who held a bachelor's degree orits equivalent in the specialty, and whether
the ben.eficiary achieved recognition of expertise in accounting as evidenced by at least. one of the five
.types of documentation.delineated in sections (i), (ii), (iii), (iv), or (v) of8 C.F.R. § 214.2(h)(4)(iii)(D)(5).
However, the evidence .contained in the record does not establish that the beneficiary's previous work
experience included the theoretical and practical application of specialty knowledge required by
accouritants, that it was gained while working with peers, supervisors, or subordinates who held degrees,
or that he achieved recognition of expertise in accounting as described at section (v) of
8 C.F.R. § 214.2(h)(iv)(D)(5). .,
Accordingly, the beneficiary does not qualify . under any of the criteria set forth at
8 C.F.R. §§ 214.2(h)(4)(iii)(D)(l)(2)(3)(4), or (5), a11d therefore by extension does not qualify under
·8 C.F.R. § 214.2(h)(4)(iii)(C)(4);
Thus, the petitioner has not demonstrated that the beneficiary qualifies to perform the duties Ofa specialty
occupation. For this additional reason, the petition may not be approved. ,
".-.
The petitioner has failed to establish that the proposed position qualifies for classification as a specialty
occupation or that the beneficiary qualifies to perform the duties of a specialty occupation.. Accordingly;
the AAO will 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,
8U.S.C. § 1361. The petitioner has not sustained that burden.
ORDER: The appeal is dismissed. The petition is denied,
"
6 The AAo will recognize two years of university-level study in general coursework taken while the
beneficiary earned his degree in india. .