dismissed H-1B Case: Accounting

U.S. Citizenship 
and Immigration 
Services 
In Re: 10713543 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: SEPT. 21, 2020 
The Petitioner, a wholesale handbag company, seeks to employ the Beneficiary temporarily as an 
"accountant" under the H- lB nonimmigrant classification for specialty occupations. 1 The H-1B 
program allows a U.S. employer to temporarily employ a qualified foreign worker in a position that 
requires both: (a) the theoretical and practical application of a body of highly specialized knowledge; 
and (b) the attainment of a bachelor's or higher degree in the specific specialty ( or its equivalent) as a 
minimum prerequisite for entry into the position. 
The California Service Center Director denied the Form 1-129, Petition for a Nonimmigrant Worker, 
ultimately concluding that the record did not establish that the proffered position qualifies as a 
specialty occupation. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 2 
We review the questions in this matter de novo.3 Upon de nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-lB nonimmigrant as a foreign national "who is 
coming temporarily to the United States to perform services ... in a specialty occupation described in 
section 2 l 4(i)(l) ... " ( emphasis added). Section 214(i)(l) of the Act, 8 U.S.C. § 1 l 84(i)(l), defines the 
term "specialty occupation" as an occupation that requires "theoretical and practical application of a 
body of highly specialized know ledge, and 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 
regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates section 214(i)(l) of the Act, but adds a non­
exhaustive list of fields of endeavor. In addition, 8 C.F.R. § 214.2(h)(4)(iii)(A) provides that the 
proffered position must meet one of four criteria to qualify as a specialty occupation position. 4 Lastly, 
1 See Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. § l 101(a)(15)(H)(i)(b) . 
2 Section 291 of the Act; Matter of Chawathe , 25 I&N Dec. 369,375 (AAO 2010). 
3 See Matter of Christo 's Inc., 26 I&N Dec. 537,537 n.2 (AAO 2015). 
4 8 C.F.R. § 214.2(h)(4)(iii)(A) must be read with the statutory and regulatory definitions ofa specialty occupation under 
section 214(i)(l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii) . We construe the term "degree" to mean not just any 
baccalaureate or higher degree, but one in a specific specialty that is directly related to the proposed position. See Royal 
8 C.F.R. § 214.2(h)(4)(i)(A)(l) states that an H-lB classification may be granted to a foreign national 
who "will pe1:form services in a specialty occupation ... " ( emphasis added). 
By regulation, the Director is charged with determining whether the petition involves a specialty 
occupation as defined in section 214(i)(l) of the Act. 5 The Director may request additional evidence 
in the course of making this determination. 6 In addition, a petitioner must establish eligibility at the 
time of filing the petition and must continue to be eligible through adjudication. 7 
Accordingly, to determine whether the Beneficiary will be employed in a specialty occupation, we 
look to the record to ascertain the services the Beneficiary will perfmm and whether such services 
require the theoretical and practical application of a body of highly specialized knowledge attained 
through at least a bachelor's degree or higher in a specific specialty or its equivalent. Without 
sufficient evidence regarding the duties the Beneficiary will perform, we are unable to determine whether 
the Beneficiaiy will be perfmming services in a specialty occupation that meets the statutmy and 
regulatory definitions of a specialty occupation and a position that also satisfies at least one of the criteria 
at 8 C.F.R. § 214.2(h)(4)(iii)(A). 
II. ANALYSIS 
On the Fmm I-129, Petition for Nonimmigrant Worker, the Petitioner indicated that it had six 
employees. It confirmed this information in its initial letter of support, adding that it also had 8 
contractors, and provided an organization chart reflecting these numbers. The chart includes an 
accounting manager (listed as a contractor) and an accountant, the Beneficiary. 8 Six months later, in 
response to the Director's request for evidence (RFE), the Petitioner provided a different organization 
chart, stating that it "has 47 combined employees, which includes 19 foll-time employees and 28 part­
time employees." 9 The chart, in addition to one part-time bookkeeper and an unknown number of 
part-time warehouse assistants and sales executives, lists 26 individuals, including the Beneficiary. 
The Petitioner also provided a list of its current employees, their job title, degree, and major, which 
again lists 26 individuals, including the Beneficiary. The new information indicates that the 
accounting department doubled in size to four people - a controller/HR, an accounting manager, an 
accountant (the Beneficiary), and a part-time bookkeeper. Not only does the Petitioner fail to explain 
the claimed change in the number of employees, but also the discrepancy between the total claimed 
employees and the 26 total employees listed in the organization chart and list provided in response to 
the RFE. The Petitioner must resolve these inconsistencies with independent, objective evidence 
pointing to where the tmth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Unresolved 
material inconsistencies may lead us to reevaluate the reliability and sufficiency of other evidence 
submitted in support of the requested immigration benefit. Id. 
Siam COip. v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in a specific specialty" as 
"one that relates directly to the duties and responsibilities of a particular position"). 
5 8 C.F.R. § 214.2(h)(4)(i)(B)(2). 
6 8 C.F.R. § 103.2(6)(8). 
7 8 C.F.R. § 103.2(6)(1). 
8 The Beneficiaiy was employed dUiing a period of post-completion optional practical training. 
9 This organization chart does not include any information as to whether any of the listed individuals are contractors. 
2 
We note that the size of an employer's business has or could have an impact on the claimed duties of 
a particular position. See EG Enterprises, Inc. dlb/a/ Mexican Wholesale Grocery v Department of 
Homeland Security, 467 F. Supp. 2d 728 (E.D. Mich. 2006). The size of a petitioner may be 
considered as a component of the nature of the petitioner's business, as the size impacts upon the 
actual duties of a particular position. In this matter, as a result of the above discrepancies and 
inconsistencies, we are unable to ascertain the actual number of employees, and whether the 
Petitioner's organization actually has the need for an individual to perform the claimed duties. 
Further, in order to establish that the position qualifies as a specialty occupation, the description must 
sufficiently describe the actual work the Beneficiary will perform, and the correlation between that 
work and the need for a particular level of knowledge in a specific specialty. See Defensor v. Meissner, 
201 F.3d 384,387 (5th Cir. 2000). 
In this matter, while the job description identifies some typical accounting duties, it also includes 
duties such as ( errors in original): 
• Conducts physical inventories and monitor cycle count program 
• Reconciles finished goods inventories. 
• Create customer list in OMS [Petitioner's] system, making invoices and receive payments, 
record accounts receivable. 
• Issue invoice order statement to customer, spot problems with customer payments, and remind 
pass due customer. 
• Arrange wire, cash flow. Pay bill in quick book, wire in online banking, approve from CEO 
and send the wire copy from bank and payment detail in quick book. check bank balance, 
update Quick Book, send incoming wire. 
• Input purchase order in OMS ([Petitioner's] system), create sale order, work with Sales team 
and Operation team to make sure the price, quantity and start ship date 
• Create monthly petty cash report, attach with all receipts, record in Quick Book. 
• Help Sales team to order price ticket for customer special order in FinelLine technology. 
• Interface with Sales and Operation team to resolve reconciling items or other items as 
necessaiy as they arise. 
We note there is no provision in the law for specialty occupations which permits the performance of 
non-qualifying duties. While we will view the perfmmance of duties that are incidental 10 to the 
10 The two definitions of "incidental" in Webster's New College Dictionary are "1. Occuning or apt to occur as an 
unpredictable or minor concomitant ... [and] 2. Of a minor, casual, or subordinate nature .... " Incidental. Webster's 
New College Dictionary (3rd ed. 2008). 
3 
primary functions of the proffered position as acceptable when they are unpredictable, intermittent, 
and of a minor nature, anything beyond that, e.g., predictable, recurring, and substantive job 
responsibilities, must be specialty occupation duties or the proffered position as a whole cannot be 
approved as a specialty occupation. The Petitioner has not established that any of the above duties 
require a bachelor's degree or higher in a specific specialty to perform them. In addition, it is unclear 
why these duties would fall to the Beneficiary rather than the part-time bookkeeper listed on the second 
organization chart, or if a company of its size, whether it is 14 total individuals as claimed in the initial 
petition or 4 7 employees as claimed in the RFE response or even the 26 individuals listed in the 
organization chart, can suppmi an accounting depaiiment of either two or four people. 
Further, a position may not qualify as a specialty occupation based solely on either a preference for 
certain qualifications for the position or the claimed requirements of a petitioner. See Defensor, 
201 F.3d at 387. Instead, the record must establish that the performance of the duties of the proffered 
position requires both the theoretical and practical application of a body of highly specialized 
knowledge and the attainment of a baccalaureate or higher degree in a specific specialty, or its 
equivalent, as the minimum for entry into the occupation. See section 214(i)(l) of the Act; 8 C.F.R. § 
214.2(h)(4)(ii) (defining the term "specialty occupation"). The Petitioner has not done so here. 
III. CONCLUSION 
Based on the foregoing, we cannot conclude that the proffered position qualifies as a specialty 
occupation, and we will dismiss the appeal. 
ORDER: The appeal is dismissed. 
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