dismissed H-1B Case: Accounting

identi&ing data deleted M 
prevent clearly unwarranted 
invasion of pemd pivw 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
FILE: WAC 03 023 5 12 13 Office: CALIFORNIA SERVICE CENTER Date: AUG 2 9 2006 
IN RE: 
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. $ 1 lOl(a)(lS)(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, Chief 
Administrative Appeals Office 
WAC 03 023 51213 
Page 2 
DISCUSSION: The director of the California 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 is a company engaged in the construction, development, ownership and management of 
commercial real estate, with 13 employees and $3 13,401 in gross annual income. It seeks to employ the 
beneficiary as an accountant pursuant to section lOl(a)(lS)(H)(i)(b) of the Immigration and Nationality Act 
(the Act), 8 U.S.C. 9 1 lOl(a)(lS)(H)(i)(b). The director denied the petition based on his determination that 
the record failed to establish the proffered position as a specialty occupation. 
The record of proceeding before the AAO contains: (1) Form 1-129 and supporting documentation; (2) the 
director's request for evidence; (3) counsel's response to the director's request; (4) the director's denial letter; 
and (5) Form I-290B, with counsel's brief, and new and previously submitted evidence. The AAO reviewed 
the record in its entirety before reaching its decision. 
The issue before the AAO is whether the proffered position qualifies as a specialty occupation. To meet its 
burden of proof in this regard, the petitioner must establish that the job it is offering to the beneficiary meets 
the following statutory and regulatory requirements. 
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. 
The term "specialty occupation" is further defined at 8 C.F.R. 9 214.2(h)(4)(ii) as: 
An occupation which requires theoretical 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. 3 214.2(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 
WAC 03 023 51213 
Page 3 
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 above criteria to mean not just 
any baccalaureate or higher degree, but one in a specific specialty that is directly related to the proffered 
position. 
To determine whether a particular job qualifies as a specialty occupation, CIS does not simply rely on a 
position's title. The specific duties of the proffered 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. CJ: Defensor v. Meissner, 201 
F. 3d 384 (5th Cir. 2000). The critical element is not the title of the 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. 
The petitioner seeks the beneficiary's services as an accountant. Evidence of the beneficiary's duties 
includes: the Form 1-129; the petitioner's October 15, 2002 letter in support of the petition; and the July 17, 
2003 and August 5, 2003 responses submitted by the petitioner and counsel respectively in response to the 
director's request for evidence. As stated by the petitioner at the time of filing and in response to the 
director's request for evidence, the duties of the proffered position would require the beneficiary to: 
Prepare cash flow projections, including the amount of cash expenditures and how 
these expenses will be applied; and prepare budgetary projections, requiring an 
analysis of income, expenses and capital expenditures and the preparation of sales, 
costing and administrative budgeting, and the analysis of standard and variable costs; 
Analyze and prepare financial statements, and advise the petitioner of their financial 
implications, including an explanation of variances between the statements and 
budgeted projections and the potential tax consequences, and provide 
recommendations as to how to rectify the discrepancies; prepare profit and loss 
statements and balance sheets; 
Establish and modify a computerized accounting software system to meet the 
petitioner's specific needs; 
Carry out depreciation and amortization calculations associated with the fixed assets 
component to financial statements and tax schedules and returns; 
Research and explain new federal and state tax policies and their consequences, using 
new tax cuts for the petitioner's benefit; 
WAC 03 023 51213 
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Assist in IRSIstate tax audits, negotiating and settling any tax liabilities, and 
documenting and explaining the negotiation and settlement of pastfpresent liability 
accounts; 
Conduct audits of the petitioner's annual, quarterly and periodic financial statements 
and determine whether the statements are fairly stated in accordance with generally 
accepted accounting principles; 
Conduct a compliance audit of the petitioner's loans, adherence to tax law, and 
contractual agreements to determine whether requirements have been met; 
Conduct an operational audit to determine whether the petitioner's business activities 
are functioning efficiently, effectively, economically and optimally; 
Establish a system of quality control to ensure that the work being performed by the 
petitioner meets applicable professional standards, regulatory requirements and 
general standards of quality; that a particular client or potential client is financially 
viable; and to ensure that the petitioner's daily operations are free of conflicts of 
interest, and that management does not misrepresent facts or subordinate proper 
judgment to other employees; and 
Investigate any suspected fraudulent operations within the company and establish a 
guideline of prohibitive activities. 
The petitioner indicates that the performance of the above duties requires a baccalaureate degree in 
accounting, business administration, finance, commerce or a related field. 
To make its determination whether the employment just described qualifies as a specialty occupation, the 
AAO turns to the criteria at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(I) and (2): a baccalaureate or higher degree or its 
equivalent is the normal minimum requirement for entry into the particular position; and 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 considered by the 
AAO when determining these criteria include: whether the Department of Labor's Occupational Outlook 
Handbook (Handbook), on which the AAO routinely relies for the educational requirements of particular 
occupations, reports 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. Sava, 7 12 F. Supp. 1095, 
1 102 (S.D.N.Y. 1989)). 
The petitioner has stated that the proffered position is that of an accountant and has offered a description of 
the position that lists duties typically performed by accountants. As discussed by the 2006-2007 edition of the 
Handbook, management accountants, the category of accounting most closely aligned to the duties described 
by the petitioner, are individuals who: 
[rlecord 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 
WAC 03 023 51213 
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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. [Handbook 
at 701. 
However, the similarity between the petitioner's description of the duties of the proffered position and those 
performed by management accountants does not establish the proffered position as a specialty occupation. 
The generalized duties outlined by the petitioner describe the type of work performed by accountants rather 
than the specific tasks that would be performed by the beneficiary in connection with the petitioner's real 
estate business. 
A petitioner cannot establish a proffered position as a specialty occupation by listing the duties of that 
employment in the same general terms as those used by the Handbook in discussing an occupational title. 
While this type of generalized description is necessary when defining the range of duties that may be 
performed within an occupation, it cannot be relied upon by a petitioner when discussing the duties attached 
to specific employment. In establishing a position as a specialty occupation, a petitioner must describe the 
specific duties or tasks to be performed by a beneficiary in relation to its particular business interests. 
The AAO, as previously discussed, requires information regarding the actual responsibilities of a proffered 
position to make its determination regarding the nature of that position and its degree requirements, if any. 
See Defensor v. Meissner, 201 F. 3d 384 (5th Cir. 2000). Without such information, the AAO is unable to 
determine the tasks to be performed by a beneficiary on a day-to-day basis and, therefore, whether a proffered 
position's duties are of sufficient complexity to require the minimum of a baccalaureate degree or its 
equivalent. As the record in the instant case fails to offer a meaningful description of the proffered position's 
responsibilities, the petitioner is unable to establish that the duties of the position are accounting duties that 
would require a level of accounting knowledge that is signified by at least a bachelor's degree or its 
equivalent in accounting. Accordingly, the petitioner has failed to establish the proffered position as a 
specialty occupation under the first criterion at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(I) - a baccalaureate or higher 
degree or its equivalent is normally the minimum requirement for entry into the particular position. 
The deficiencies in the evidence of record are not, however, limited to the petitioner's generalized description 
of the duties to be performed by the beneficiary. The petitioner has also failed to establish either that the 
growth of its business or the nature of its operations would require the services of a degreed accountant. 
At the time of filing, counsel asserted that the petitioner's recent growth and expansion had created a backlog 
in its ability to provide up-to-date financial information and that once this backlog had been reduced, the 
beneficiary's service would no longer be needed. Although the AAO does not find the petitioner to have 
made this same assertion, it has, nevertheless, reviewed the record for evidence of the effects of the 
petitioner's expansion on its finances, as well as its financial structure and operations. The record, however, 
contains no documentation that supports counsel's claims regarding the petitioner's backlogged financial 
reporting or the growth of its business. The copies of the 2001 and 2002 federal tax returns submitted by the 
petitioner in connection with Safco Capital Corporation - which report gross incomes of $313,401 and 
$371,205 - are insufficient proof of business growth. The copies of the petitioner's DE-6 quarterly wage 
reports for 2003 do not report an expansion in the petitioner's workforce beyond the 13 employees claimed at 
WAC 03 023 51213 
Page 6 
the time of filing. Further, of the 24 management properties listed by the petitioner in response to the 
director's request for evidence, only three were acquired since 1999. Accordingly, the AAO will discount 
counsel's assertions regarding the growth of the petitioner's business. Without documentary evidence to 
support the claim, the assertions of counsel will not satisfy the petitioner's burden of proof. The 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 AAO notes that the petitioner's involvement in a range of real estate activities has the potential to create 
a complex financial environment for the beneficiary. It has, therefore, also reviewed the record for evidence 
of the day-to-day financial activities needed to support the petitioner's real estate business, particularly those 
related to its development of real estate ventures, the joint operation of the two business entities owned by the 
petitioner - Safco Capital Corporation and Complete Building Services, Inc. - and its management of more 
than 20 commercial properties. However, beyond the submission of the copies of its 2001 and 2002 federal 
tax returns for Safco Capital Corporation and a 2002 return for Complete Building Services, Inc., the 
petitioner has provided no other information regarding the nature and extent of its financial operations. 
In that the record contains no evidence to demonstrate the nature or scope of its financial operations beyond 
establishing its gross revenues, the petitioner has failed to demonstrate that its financial operations are of 
sufficient complexity or breadth to establish that the beneficiary would be employed in a position requiring a 
degreed management accountant. 
The two expert opinions submitted by the petitioner at the time of filing - a December 6,2000 letter from the 
president of a California job placement firm and a December 4, 2000 letter from the head of a California 
accounting firm head - are also insufficient to establish that the duties of the proffered position would 
normally impose a degree requirement on the beneficiary. Both letters indicate that the writers find that an in- 
house accountant, like the proffered position, carries out a wide variety of tasks including budgetary 
projections, cash flow projections, inventory control analysis, balance sheet preparation and analysis, profit 
and loss projections, inventory control analysis, balance sheet preparation and analysis, profit and loss 
statements and review, as well as financial statement preparation and analysis, internal control measures, and 
advising companies regarding a wide range of tax-related issues. The president of the placement firm states 
that a bachelor's degree in accounting, business administration, commerce, management, finance or any other 
business-oriented curriculum will meet the basic theoretical requirement to begin work in an accounting 
position. The head of the California accounting firm indicates that it is his experience that in-house 
accountants generally hold baccalaureate degrees, with concentrations in accounting, business administration, 
commerce, management and finance. 
The AAO does not find the opinion provided by the president of the job placement agency to offer a direct 
opinion as to whether a degree is required for employment as an accountant. Instead, she opines on the 
academic fields that would prepare an individual to work as an accountant. The AAO does, however, note the 
opinion provided by the accounting firm head and acknowledges his expertise in the field of accounting. His 
opinion as to the education required to perform accounting duties is, however, insufficient to establish U.S. 
employers' hiring practices when filling entry-level accounting positions. 
WAC 03 023 51213 
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The 2006-2007 edition of the Handbook reports that not all accounting employment is performed by degreed 
accountants. Its discussion of the occupation of accountants 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. [Handbook at 721. 
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 Accountant0 /Accredited Business AdvisorQ (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 on the ACAT Comprehensive Examination." Up to two of the 
required years of work experience may be satisfied through college credit. 1 
Accordingly, the opinion of the head of the California accounting firm does not establish the proffered 
position as a specialty occupation under the first criterion. In that his opinion does not cite any industry 
surveys, trade publications, or other industry data in support of his conclusions, it does not carry the authority 
of the Handbook, which offers an overview of national hiring practices, draws on personal interviews with 
individuals employed in the occupation or from websites, published training materials and interviews with the 
organizations granting degrees, certification or licenses in the field, to reach its conclusions regarding the U.S. 
employers' practices when hiring accountants. Simply going on the record is not sufficient to meet the burden 
of proof in these proceedings. Matter of SofJici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of 
Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
Finally, the AAO notes that, at the time of filing and in response to the director's request for evidence, 
counsel submitted material from the Department of Labor's Occupational Information Network (O*Net) 
regarding the occupation of accountant, which indicates that it requires a baccalaureate degree. However, the 
O*Net is not a persuasive source of information as to whether a job requires the attainment of a baccalaureate 
or higher degree (or its equivalent) in a specific specialty. Like the Dictionary of Occupational Titles that it 
replaced, the O*Net provides only general information regarding the tasks and work activities associated with 
a particular occupation, as well as the education, training, and experience required to perform the duties of 
that occupation. The education and training codes assigned to occupations by the O*Net do not indicate a 
degree requirement in a specific specialty, as required for classification as a specialty occupation. Therefore, 
Information provided at http:liwww.acatcredentials.orgiindex.html. The Handbook identifies the ACAT 
website as one of several "Sources of Additional Information" at the end of its discussion of the occupation of 
accountants. 
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the O*Net materials also fail to satisfy the requirements of the first criterion at 8 C.F.R. 
8 2 14.2(h)(4)(iii)(A)(I). 
To establish the proffered position as a specialty occupation under the second criterion at 8 C.F.R. 
tj 214.2(h)(4)(A), a petitioner must prove that a specific degree requirement is common to its industry in 
parallel positions among similar organizations or that the proffered position is so complex or unique that it 
can be performed only by an individual with a degree. In the instant case, the petitioner has submitted more 
than 40 Internet job announcements for accountants, each showing a degree requirement for the position 
advertised. Having reviewed the advertisements, the AAO finds none to satisfy the requirements of the 
criterion's first prong. 
The announcements do not describe organizations similar to the petitioner, a business that is involved in the 
construction, development, ownership and management of a variety of commercial real estate ventures. 
Although some of the listings are published by property management firms and others by real estate 
businesses, none indicate the businesses seeking job applicants have the petitioner's range of business 
interests. Neither do the announcements describe employment that might be considered parallel to the 
proffered position. They either fail to provide a specific description of the advertised position's duties or list 
duties that are unlike those that have been generally outlined by the petitioner. Accordingly, the Internet 
listings submitted by the petitioner do not establish that its degree requirement is the norm within its industry, 
in parallel positions among similar organizations, as required by the first prong. Moreover, the petitioner's 
failure to provide a specific and detailed description of the proffered position's duties precludes it from 
establishing the proffered position as parallel to any degreed positions within similar organizations in its 
industry. 
To qualify the proffered position as a specialty occupation under the second prong at 8 C.F.R. 
8 214.2(h)(4)(iii)(A)(2), a petitioner must demonstrate that the position is so complex or unique that it can be 
performed only by an individual with a degree. In the instant case, counsel on appeal contends that two 
additional expert opinions submitted by the petitioner in response to the director's request for evidence - a 
letter from an accounting professor at California State University, Northridge and a second statement from the 
same California accounting firm head who authored the letter submitted at the time of filing - establish that 
the position may only be performed by a degreed accountant. 
Both opinions indicate that the authors have reviewed the proffered position's accounting duties and find 
them to be those of a degreed accountant, requiring a baccalaureate degree in accounting, business 
administration, finance or a related field. However, the head of the accounting firm indicates that his opinion 
is based on his review of "the correspondence dated October 15, 2002 and July 17, 2003 by SPRING 
TOWERS LLC." As the instant case does not involve a Form 1-129 filed by Spring Towers LLC, the AAO 
does not find this opinion to be relevant to the issue of whether the proffered position is that of a degreed 
accountant. The AAO may, in its discretion, use as advisory opinions statements submitted as expert 
testimony. However, where an opinion is not in accord with other information or is in any way questionable, 
the AAO is not required to accept or may give less weight to that evidence. Matter of Caron International, 19 
I&N Dec. 791 (Comm. 1988). Accordingly, the AAO will consider only the opinion of the California State 
professor. 
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In her letter, the professor states that she is a Certified Public Accountant (CPA), has extensive accounting 
experience, and has worked with "hundreds of company Accountants representing both small and large 
firms." While the AAO acknowledges the professor's accounting expertise, it does not find her letter to 
establish that the proffered position's complexity or unique nature requires the beneficiary to hold the 
minimum of a baccalaureate degree in a directly-related field. 
The professor's opinion regarding the proffered position is based on the generalized outline of accounting 
duties provided in the petitioner's October 15, 2002 and July 17, 2003 letters. However, as previously 
discussed, the description of the position provided by the petitioner in both letters describes the occupation of 
accountant rather than the duties to be performed by the beneficiary for the petitioner's real estate business. 
Accordingly, the professor's conclusions regarding the proffered position are based on a list of 
responsibilities that do not offer a meaningful description of the beneficiary's duties. For this reason, her 
opinion is insufficient to establish a degree requirement for the proffered position. The AAO may, in its 
discretion, use as advisory opinions statements submitted as expert testimony. However, where an opinion is 
not in accord with other information or is in any way questionable, the AAO is not required to accept it or 
may give it less weight. Matter of Caron International, 19 I&N Dec. 791 (Comm. 1988). As the petitioner 
has failed to provide a listing of the duties to be performed by the beneficiary in relation to its business, it 
cannot distinguish the proffered position from similar but nondegreed employment. 
The AAO next considers the criteria at 8 C.F.R. $5 214.2(h)(4)(iii)(A)(3) and (4): the employer normally 
requires a degree or its equivalent for the position; and the nature of the specific duties 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 determine whether a proffered position may be established as a specialty occupation under the third 
criterion - the employer normally requires a degree or its equivalent for the position - the AAO usually 
reviews the petitioner's past employment practices, as well as the histories, including the names and dates of 
employment, of those employees with degrees who previously held the position, and copies of those 
employees' diplomas. In the instant case, the petitioner has submitted job announcements for the proffered 
position that indicate its degree requirement and that predate its filing of the Form 1-129. Counsel, in 
response to the director's request for evidence, contended that these announcements indicate the petitioner's 
need for a degreed accountant. However, while the petitioner's filing of a job announcement for the proffered 
position may prove its desire for a degreed accountant, it does not establish its normal hiring practices 
regarding the position. 
In the instant case, the petitioner has not indicated that it previously employed a degreed accountant. Neither 
has it submitted any evidence that would establish its hiring practices in relation to the proffered position or 
any similarly-situated position. The petitioner's organizational chart provided in response to the director's 
request for evidence identifies some of the petitioner's employees by name and title. Although the position of 
accountant is shown, the chart does not indicate that it has previously been filled. Accordingly, the record 
does not establish the proffered position as a specialty occupation under the third criterion at 8 C.F.R. 
$ 2 1 4.2(h)(4)(iii)(A)(3). 
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Page 10 
The fourth criterion requires a petitioner to establish that the nature of the specific duties of the proffered 
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. As proof that the proffered position's duties satisfy the 
criterion's specialized and complex threshold, counsel, on appeal, again references the expert opinions of the 
Northridge accounting professor and the head of the California accounting firm. Both individuals indicate 
that they have reviewed the duties of the proffered position and find them to require a degreed accountant. 
However, as previously discussed, the opinion of the accounting firm head states that the duties he has 
reviewed are those described in two letters provided by Spring Towers LLC, an organization that is not the 
petitioner in the instant case. Accordingly, his opinion will be discounted. The AAO may, in its discretion, 
use as advisory opinions statements submitted as expert testimony. However, where an opinion is not in 
accord with other information or is in any way questionable, CIS is not required to accept it or may give less 
weight to that evidence. Matter of Caron International, 19 I&N Dec. 791 (Comm. 1988). The opinion of the 
Northridge professor, as it is based solely on the petitioner's generalized description of the proffered position, 
also fails to establish the proffered position as a specialty occupation based on the specialized and complex 
nature of its duties. Without a meaningful description of the proffered position's duties, a petitioner cannot 
establish them as being of sufficient complexity and specialization to satisfy the requirements at 8 C.F.R. 
tj 2 14.2(h)(4)(iii)(A)(4). 
The AAO notes that the basis for its decision differs from that relied upon by the director. An application or 
petition that fails to comply with the technical requirements of the law may be denied by the AAO even if the 
Service Center does not identify all of the grounds for denial in the initial decision. See Spencer Enterprises, 
Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), aff'd 345 F.3d 683 (9th Cir. 2003); see 
also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews appeals on a de novo 
basis). 
For reasons related in the preceding discussion, the petitioner has failed to establish the proffered position as 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.