dismissed H-1B Case: Accounting

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U.S. Department of Humeland Security
20 Mass Ave., ~T.W., Rm. 3000
Washington, DC 20529
U.S. Citizenship
and Immigration
Services
Petition for a onimmigrant (H)(i)(b) of the
Immigration and Nationality Act, 8 U.S.c. § I IOl(a)(l5)(H)(i)(b)
INRE:
PETITION:
Petitioner:
Beneficiary:
Date:
DEC O'J.2006
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 he made to that office.
Robert P. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
LIN 05 023 51120
Page 2
DISCUSSION: The director of the service center 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 manufactures, researches, develops, and sells contrast media injection systems. It seeks to
employ the beneficiary as an accountant. The petitioner, therefore, endeavors to classify the beneficiary as a
nonimmigrant worker in a specialty occupation pursuant to section 101(a)(l5)(H)(i)(b) of the Immigration and
Nationality Act (the Act), 8 U.S.C. § 1101(a)(l5)(H)(i)(b).
The director denied the petition on the ground that the proposed position is not a specialty occupation.
Counsel submitted a timely appeal.
Section 214(i)(l) of the Act, 8 U.S.C. § 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. § 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, the position must meet one of the
following criteria:
(1) 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.
LIN 0502351120
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The record of proceeding before the AAO contains: (1) Form 1-129 and supporting documentation; (2) the
director's request for evidence (RFE); (3) the petitioner's response to the RFE; (4) the director's denial letter;
and (5) Form I-290B. The AAO reviewed the record in its entirety before issuing its decision.
The petitioner is seeking the beneficiary's services as an accountant. The document in the record entitled
"Position Description," which is dated September 21, 2004, describes the position along with its educational
and experience requirements. The major responsibilities of the position are depicted as: processing and
entering vendor invoices including assigning GIL account codes; vouching vendor invoices with packing slips
and with system receiving transactions; dispatching non-inventory, PeopleSoft purchase orders ensuring that
proper signature approval has been obtained; preparing and recording monthly journal, entries to maintain
GIL; reconciling inventory from MAX to the GIL; recording all inventory transactions in the GIL;
maintaining the accounts receivable subledger for international customers and vendors; supporting general
ledger activities; seeking cost savings opportunities and performing 'process improvements for the tasks noted
above; and other projects as assigned.. The petitioner requires a "2-year degree" and desires a "4-year
accounting degree or higher," and requires 3-5 years experience in accounts payable and general ledgers,
The director stated that the proposed position fails to qualify as a specialty occupation in that the petitioner
requires only a 2-year degree for the position. The director found that the position, within the context of the
petitioner's organizational structure, resembles a bookkeeper or an accounting clerk as described in the
Department of Labor's (DOL) Occupational Outlook Handbook (the Handbook). According to the director,
the Handbook indicates that bookkeeping and accounting clerks do not require a bachelor's degree. The
director stated that the proposed duties do not reflect those of a management accountant as described in the
Handbook.
On appeal, counsel states that the proposed position is dissimilar from an accounting clerk and a bookkeeper.
Counsel states that whether a position is professional is unrelated to the size of the company, the salary
offered, or the prior history of maintaining the position. Counsel contends that the petitioner submitted
evidence of its size, annual sales, number of employees, and its international aspect and the need for an
accountant. Counsel contends that CIS approved similar petitions with the same educational requirements
and job description that were previously filed on behalf of the beneficiary by other petitioners. Counsel states
that deference should be given to an employer's view and that CIS should not rely simply on "standardized
government classification systems," as stated in Unico American Corp v. Watson, 1991 WL 11002594 (C.O.
Cal. Mar 19,1991). Counsel contends that according to Tapis International vs. INS, 94 F. Supp. 2 nd 172, a
position is professional if the position or the employer requires a degree or its equivalent in education and
experience. According to counsel, a position can qualify as a specialty occupation based on the complexity of
the duties alone. Counsel asserts that the court in Full Gospel Portland Church vs. Thornburgh, 730 F.Supp.
441 (D.D.C. Oct 17, 1988) stated that the vocations included in the term "professional" in our modem highly
industrialized society are constantly expanding. Counsel states that the director's denial is a departure from
prior precedent and CIS regulations.
Upon review of the record, the petitioner has established none of the four criteria at
8 C.F.R. § 214.2(h)(4)(iii)(A). Therefore, the proffered position is not a specialty occupation.
•
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As previously stated, section 214(i)(I) of the Act defines the term "specialty occupation n as an occupation that
requires theoretical and practical application of a body of highly specialized knowledge, and attainment of a
bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the
occupation. Here.jhe document in the record entitled "Position Description" reflects that the petitioner does
not require a baccalaureate degree in a specific specialty for the proposed position: it indicates that the
petitioner accepts a 2-year degree for the proposed position. Thus, the proposed position fails to qualify as a
specialty as required by section 214(i)(l) of the Act and 8 C.F.R. § 214.2(h)(4)(iii)(A) ofthe regulations.
On appeal, counsel states that Tapis International indicates that the "or its equivalent" language in section
214(i)(I) of the Act and in 8 C.F.R. § 214.2(h)(4)(iii)(A) of the regulations should be considered when
determining whether the proposed position qualifies as a specialty occupation. The AAO disagrees. In Tapis
International the plaintiff required for its position a bachelor's or higher degree in business administration as
well as specialized training or experience in the field of design. The Tapis International court stated:
"Plaintiff Tapis has submitted undisputed evidence that it requires a bachelor's degree from a limited number
of academic fields (marketing or business) in addition to specialized design experience." Tapis International
at 176. Unlike the plaintiff Tapis, the petitioner here does not require a baccalaureate degree for its
accountant position. It states that a "2-year degree" is required and that a "4-year accounting degree or
higher" is "[d]esired." It is noted that the Tapis International court stated that the "or its equivalent" language
applies where a specific degree is not available in a field, and that "the only possible way to achieve
something equivalent is by studying a related field or (fields) and then obtaining specialized experience."
Tapis International at 176. The instant position primarily involves accounting duties. Baccalaureate degrees
in accounting or related fields are widely available through U.S. universities. Thus, the "or its equivalent"
language would not apply here.
Given that the petitioner does not require a bachelor's degree in a specific specialty for the proposed position,
Unico American Corp. and Full Gospel Portland Church are not persuasive in establishing the proposed
position as a specialty occupation.
As the petitioner does not require a baccalaureate degree in a specific specialty for the proposed position, it fails
to establish any of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A).
As related in the discussion above, the petitioner has failed to establish that the proposed 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. § 1361.
The petitioner has not sustained that burden.
ORDER: The appeal is dismissed. The petition is denied,