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: WAC 02 150 50153 Office: CALIFORNIA SERVICE CENTER Date: Ofl 1 4 m5 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(l 5)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 8 1 10 1 (a)(l 5)(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 02 150 50153 
Page 2 
DISCUSSION: The service center director denied the nonirnmigrant visa petition. The director granted a 
subsequent motion to reopen and reconsider, and affirmed his previous decision. The matter is now before the 
Administrative Appeals Ofice (AAO) on appeal. The appeal will be dismissed. The petition will be denied. 
The petitioner is a home health agency 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 pursuant to 
3 lOl(a)(lS)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1101(a)(l 5)(H)(i)(b). 
The director denied the petition because the proffered position is not a specialty occupation and the petitioner 
had not complied with the terms of the labor condition application. On appeal, counsel submits a brief and 
new evidence, including organizational charts listing the employees by name and job title, a description of job 
duties and educational level of the employees, and an explanation of past employment practices. 
The petitioner was put on notice of required evidence and given a reasonable opportunity to provide it for the 
record before the visa petition was adjudicated. In a letter, dated May 25, 2004, written in response to the 
director's March 8, 2004 request for evidence, the petitioner's former counsel states, in part: "[The 
petitioner's] past employment practices are irrelevant to this matter. . . . [The petitioner's] organizational chart 
is not required and is not relevant to H-IB matters. . . ." The petitioner failed to submit the requested evidence 
and now submits it on appeal. However, the AAO will not consider this evidence for any purpose. See Matter 
of Soriano, 19 I&N Dec. 764 (BIA 1988); Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988). The appeal 
will be adjudicated based on the record of proceeding before the director. 
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: 
(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. 
WAC 02 150 50153 
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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; (5) the petitioner's motion to reopen and reconsider; (6) the director's decision 
affirming the denial of the petition; and (7) 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 February 8, 2002 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 
perform duties that entail: preparing financial and accounting reports; auditing book and bank statements; 
performing evaluation, cost management, asset management, financial analysis, planning and budgeting, and 
cost accounting; compiling and analyzing financial information; developing methods for cost and asset 
management; preparing and reviewing all financial statements, journal entries, and performance evaluations; 
analyzing accounts receivable and accounts payable; and compiling profit-and-loss statements and tax-related 
documents. 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 petitioner had not 
submitted the requested documents concerning its past employment practices and an organizational chart, 
thereby failing to establish that a bona fide accountant position is available for the beneficiary. The director 
found further that the petitioner failed to establish any of the criteria found at 8 C.F.R. 3 214.2(h)(4)(iii)(A). 
On appeal, counsel states, in part, that the petitioner has satisfied two criteria of 8 C.F.R. 
3 214.2(h)(4)(iii)(A). Counsel states that a baccalaureate or higher degree or its equivalent is normally the 
minimum requirement for entry into an accountant position, and that the nature of the specific duties are so 
specialized and complex as to require a baccalaureate degree or higher. Accordingly, the AAO will address 
these two criteria only. 
Upon review of the record, the petitioner has established none of the four criteria outlined in 8 C.F.R. 
3 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): a baccalaureate or higher degree or its 
equivalent is the normal minimum requirement for entry into the particular position. 
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 15 1, 1 165 (D. Minn. 1999)(quoting Hird/Blaker Corp. v. Suva, 712 F. 
Supp. 1095, 1102 (S.D.N.Y. 1989)). 
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The AAO routinely consults the Handbook for its information about the duties and educational requirements 
of particular occupations. Although a review of the Handbook finds that an accountant position may qualify 
as a specialty occupation, the AAO does not concur with counsel that the proffered position is that of a full- 
time accountant. As correctly assessed by the director, the petitioner's organizational hierarchy and past 
hiring practices are unclear, as the requested documentation related to these issues was not submitted. 
Nevertheless, a review of the record indicates that the petitioner may already employ two accountants. As 
such, the exact nature of the proffered full-time position remains unclear. 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). 
The petitioner, therefore, has not established the criterion set forth at 8 C.F.R. 9 2 14.2(h)(4)(iii)(A)(I). 
The AAO now turns to the criterion at 8 C.F.R. 3 214.2(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. 
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. 8 214.2(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. Therefore, the petitioner has not overcome this portion of the director's objections. 
Pursuant to 8 C.F.R. 9 214.2(h)(4)(iii)(B), the petitioner shall submit the following with an H-1B petition 
involving a specialty occupation: 
1. A certification fi-om the Secretary of Labor that the petitioner has filed a labor condition 
application with the Secretary, 
2. A statement that it will comply with the terms of the labor condition application for the duration 
of the alien's authorized period of stay, 
3. Evidence that the alien qualifies to perform services in the specialty occupation. . . . 
The director also found that the petitioner had not complied with the terns of the labor condition application 
in regard to the beneficiary's salary. On appeal, counsel states, in part, that the petitioner intends to comply 
with the terms of the labor condition application and will make the necessary adjustment in the beneficiary's 
salary. He goes on to state that the discrepancy resulted when the beneficiary changed employers. Without 
documentary evidence to support this claim, however, 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). The petitioner, therefore, has not overcome this additional portion of the 
director's objections. Accordingly, the AAO shall not disturb the director's denial of the petition. 
WAC 02 150 50153 
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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.