dismissed H-1B Case: Accounting

U.S. Citizenship 
and Immigration 
Services 
In Re: 17234360 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-1B) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: MAY 24, 2021 
The Petitioner, a third party logistics and warehousing company, seeks to temporarily employ the 
Beneficiary as a "staff accountant" under the H-1B 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 Director of the California Service Center denied the petition, concluding that the record did not 
establish that the proffered position qualifies as a specialty occupation. The matter is now before us 
on appeal. 
The Petitioner bears the burden of proof to demonstrate el igibi I ity 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 nonirnmigrant as a foreign national "who is 
coming temporarily to the United States to perform services ... in a specialty occupation described 
in section 214(i)(l) .. . "(emphasis added). Section 214(i)(l) of the Act, 8 U.S.C. § l 184(i)(l), defines 
the term "specialty occupation" 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 in the United States." The 
regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates section 214(i)(I) 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 Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b) 
2 Section 291 of the Act ; Matter of Chawathe, 25 l&N Dec. 369, 375 (AAO 2010). 
3 See Matter of Christo 's Inc., 26 l&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 of a 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 
8 C.F.R. § 214.2(h)(4)(i)(A)(1) states that an H-1B classification may be granted to a foreign national 
who "will perform services in a specialty occupation ... "(emphasis added). 
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 perform 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 Beneficiary will be employed in an occupation that meets the statutory 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). The services the Beneficiary will perform in the position determine: 
(1) the normal minimum educational requirement for entry into the particular position, which is the 
focus of criterion 1; (2) industry positions which are parallel to the proffered position and thus 
appropriate for review for a common degree requirement, under the first alternate prong of criterion 
2; (3) the level of complexity or uniqueness of the proffered position, which is the focus of the second 
alternate prong of criterion 2; (4) the factual justification for a petitioner normally requiring a degree 
or its equivalent, when that is an issue under criterion 3; and (5) the degree of specialization and 
complexity of the specific duties, which is the focus of criterion 4. 8 C.F.R. § 214.2(h)(4)(iii)(A). 
By regulation, the Director is charged with determining whether the petition involves a specialty 
occupation as defined in section 214(i)(1) of the Act. 8 C.F.R. § 214.2(h)(4)(i)(B)(2). The Director 
may request additional evidence in the course of making this determination. 8 C.F.R. § 103.2(b)(8). 
In addition, a petitioner must establish eligibility at the time of filing the petition and must continue to 
be eligible through adjudication. 8 C.F.R. § 103.2(b)(1). 
II. ANALYSIS 
Upon review of the record in its totality, we conclude that the Petitioner has not established that the 
proffered position qualifies as a specialty occupation. The record does not sufficiently establish the 
substantive nature of the proffered position, which precludes us from determining that the proffered 
position qualifies as a specialty occupation under sections 101(a)(15)(H)(i)(b), 214(i)(1) of the Act; 
8 C.F.R. § 214.2(h)(4)(i)(A)(1), 8 C.F.R. § 214.2(h)(4)(ii) and (iii)(A). 5 Specifically, the record: (1) 
does not describe the position's duties with sufficient and consistent detail; (2) does not establish that 
the job duties require an educational background, or its equivalent, commensurate with a specialty 
occupation; and (3) contains material inconsistencies.6 
baccalaureate or higher degree, but one in a specific specialty that is directly related to the proposed position. See Royal 
Siam Corp. 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 The Petitioner submitted documentation to support the H-lB petition, including evidence regarding the proffered position 
and its business operations. Although we may not discuss every document submitted, we have reviewed and considered 
each one. 
6 Because the identified basis for denial is dispositive of the Petitioner's appeal, we decline to reach and hereby reserve 
the Petitioner's appellate arguments regarding the position's qualification as a specialty occupation. See INS v. 
Bagamasbad, 429 U.S. 24, 25 (1976) (stating that "courts and agencies are not required to make findings on issues the 
decision of which is unnecessary to the results they reach"); see also Matter of L-A-C-, 26 l&N Dec. 516, 526 n.7 (BIA 
2015) (declining to reach alternative issues on appeal where an applicant is otherwise ineligible). 
2 
A. The Proffered Position 
On the labor condition application (LCA) submitted in support of the H-lB petition, the Petitioner 
designated the proffered position under the occupational category "Accountants and Auditors," 
corresponding to the Standard Occupational Classification code 13-2011.7 In its initial filing, the 
Petitioner provided a nine bullet list of duties with the approximate percentages of time spent on each 
duty. These duties contained general and vague statements that did not explain the complexity or 
specialized nature of the work. One example is the duty to "[h]andle account receivable affairs: 
inform customers to pay off freights, ensure each transaction amount, close transactions once done." 
This description does not explain what tasks are involved in closing transactions or how the 
Beneficiary ensures the transaction amount. Nor can we determine from the description how the work 
is complex or specialized. Moreover, the Petitioner did not offer insight or detail as to why informing 
customers of payments would require any education at all to perform, let alone a bachelor's degree in 
a specific specialty, or its equivalent. 
The Director issued a request for evidence (RFE) which informed the Petitioner that the duties 
appeared to be those of a bookkeeper listed under SOC code 43-3031, corresponding to "Bookkeeping, 
Accounting, and Auditing Clerks," an occupation that can be performed with only some postsecondary 
education. We note that duties such as balancing books, preparing profit and loss statements, 
performing accounts receivable tasks, and compiling budget and revenue documents are all 
bookkeeping duties featured on the Petitioner's list, as are preparing checks, invoices, purchase orders, 
and handing payments. In its RFE response, the Petitioner provided an updated list of duties that 
contained additional detail but also asserted new duties for the proffered position. The Petitioner 
expanded the Beneficiary's duties, adding items such as: "[r]esponsible for all daily operations of 
accounting department and statement of financial performance statistics ... [a]ssist to manage all 
aspects of the general ledger including AP/AR, taxation, intercompany transactions and expense 
reporting." The Petitioner also provided " [p ]artner with the Vice President to enhance the analyses 
and processes for pricing and structuring contracts, as well as analyzing the profitability of specific 
products, services and customers" and "[c]compute company taxes, prepare tax returns, and ensur[e] 
compliance with tax payments/reporting ... with the support of the CPA." Here, the initial description 
appears to have the Beneficiary performing significant clerical work, while the second iteration has 
the Beneficiary overseeing more of the work and performing more complex tasks. In addition, the 
second iteration appears to have overlap with a "Budget Analyst" position corresponding to SOC code 
13-2031.8 
Several of the new duties use generic terms that appear in identical or nearly identical form to duties 
listed in O*NET. For instance, the proffered position's duty to " [p]repare, examine, or analyze 
accounting records, financial statements, or other financial reports to assess accuracy, completeness, 
and conformance to reporting and procedural standards" appears to be pulled verbatim from O*NET. 
Using O*NET duties may be sufficient to describe the range of work performed, but the level of detail 
7 For more information , visit the Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, 
"Accountants and Auditors, " https://www .bls.gov/ooh/business-and-financial/accountants-and-auditors.htm and DOL 's 
Occupational Information Network (O*NET) summary report for "Accountants and Auditors" 
https://www.onetonline.org/link/summary/13-2011.00 (last visited May 24, 2021). 
8 We also note that the RFE response mentions the Handbook 's section on how to become a Market Research Analyst. 
This reference further confuses the substantive nature of the position. 
3 
is insufficient to establish eligibility. O*NET descriptions do not substitute for an explanation of how 
the duty functions within the Petitioner's business. 
The purpose of the RFE is to elicit further information that clarifies whether eligibility for the benefit 
sought has been established. 8 C.F.R. § 103.2(b)(8). When responding to an RFE, the Petitioner 
cannot offer a new position to the Beneficiary, or materially change a position's title, its level of 
authority within the organizational hierarchy, its associated job responsibilities, or the requirements of 
the position. The Petitioner must establish that the position offered to the Beneficiary when the 
petition was filed merits classification for the benefit sought. See Matter of Michelin Tire Corp., 17 
I&N Dec. 248, 249 (Reg'l Comm'r 1978). If significant changes are made to the initial request for 
approval, the Petitioner must file a new petition rather than seek approval of a petition that is not 
supported by the facts in the record. The information provided by the Petitioner in its RFE response 
did not clarify or provide more specificity to the original duties of the position, but rather added new 
responsibilities and duties to the job description. 
On appeal, the Petitioner provides a chart identifying how each of the new duties fits within the 
originally articulated nine bullet list of duties. Here the Petitioner simply locates the new duties in a 
table next to the preexisting nine duties. However, simply filling in a table does not explain how the 
new duties actually relate to or comprise more detailed aspects of the preexisting duty. To illustrate, 
the new duty of analyzing the profitability of products does not appear to relate to the originally stated 
duty of summarizing the company's current financial status. Though the profitability of products may 
impact financial status, the duties are distinct and may differ in the skill or knowledge required. 
Moreover, the Petitioner has emphasized that it is a third-party logistics provider, meaning that it 
handles its customers' products but does not take ownership of the products nor is it involved in the 
sale of the products. As such, it is unclear what products the Beneficiary would analyze. 
The Petitioner also submits numerous screenshots of accounting systems and software which the 
Beneficiary purportedly uses in carrying out his duties. The Petitioner has not explained why the use 
of third-party software, such as Excel and QuickBooks, requires specialized knowledge nor has the 
Petitioner explained how the Beneficiary uses this software in a specialized way. Based upon the 
screenshots and the Petitioner's explanations, it appears that the proffered position requires data entry 
and the ability to run reports in the software systems. The Petitioner has not adequately explained 
how this work is specialized or why it requires a minimum of a bachelor's degree in a specific 
specialty, or its equivalent. 
Notably, the Petitioner states that the proffered position requires the accountant to customize the 
software using modules he develops in-house to adapt to the needs of the Petitioner's company. 
Customizing software appears outside the scope of typical accountant duties and such descriptions 
detract from our understanding of the position. Also outside the scope of typical accountant duties, 
we observe customer service related duties, such as relationship building. Such work does not appear 
to require any specialized knowledge to perform and as such, it cannot readily be determined why the 
proffered position requires a minimum of a bachelor's degree in a specific specialty, or its equivalent. 
On appeal, the position duties continue to feature many responsibilities performed by bookkeepers or 
audit/accounting clerks. While some duties may overlap and span both occupational categories, the 
Petitioner has not substantiated how the proffered position duties are more complex such that they 
4 
require knowledge beyond that of a bookkeeper or audit/accounting clerk. While we acknowledge the 
Petitioner's claims that it has hired an accounting assistant and a secretary to handle clerical tasks, we 
nevertheless note many administrative or clerical duties remain in the proffered position's duty 
descriptions. Without further explanation, duties such as helping to setup customer charges, exporting 
data to customers, creating invoices, and generating reports from third-party software appear to be 
non-qualifying work. In addition, several proffered position duties appear to overlap with those of the 
accounting assistant and secretary, further obfuscating the substantive nature of the position. The 
Petitioner has not explained how the accountant assistant's work researching and reconciling accounts 
or preparing and reviewing expense reports differs from the Beneficiary's work in these areas, nor has 
the Petitioner explained how the secretary's work on accounts receivable differs from the 
Beneficiary's AR/AP duties. While we acknowledge the Petitioner's claims that the position is not 
bookkeeping or clerical in nature, the Petitioner has not sufficiently substantiated its claims such that 
it adds to our understanding of the position. 
On the Form 1-129, which the Petitioner filed in February 2019, the Petitioner claimed it had twelve 
employees in the United States. It further provided an organizational chart with these twelve 
employees. In an August 2019 RFE response, the Petitioner referenced having 44 employees and 
submitted a corresponding organizational chart that included additional positions. While we 
acknowledge these additional employees could be located outside the United States and therefore not 
counted in the twelve U.S. employees, the Petitioner has not clarified why it again claims on appeal 
that as of 2020, it has just twelve employees. Here, the size of the petitioning company is relevant, as 
it may inform the complexity of the accounting and tax work required in the proffered position. These 
inconsistencies call into question the substantive nature of the proffered position. 
In both iterations of the organizational chart, the Beneficiary reports directly to the Vice President, yet 
in the Petitioner's duty descriptions, the Beneficiary appears also to report to a CPA.9 The Petitioner 
claims that the proffered position's duties involve "[c]comput[ing] company taxes, prepar[ing] tax 
returns, and ensuring compliance with tax payments/reporting or other tax requirements with the 
support of the CPA" and "preparing supporting documents for the external audit CPA." As a result, 
it is unclear how the Beneficiary's work fits within the overall company and what the rep01iing 
structure for the proffered position involves. The Petitioner submitted several years of its tax returns 
which indicate that the Petitioner utilizes the services of an external accounting firm called JC 
Accountancy. This evidence suggests a reduction in the magnitude and complexity of the 
Beneficiary's duties, as it appears the Beneficiary may occupy a supporting role rather than a primary 
role. The Beneficiary may be relieved of more complex tax and accounting duties, such as advising 
the Petitioner or ensuring legal/regulatory compliance, which might otherwise be expected in an 
accountant or auditor role. Instead, the Petitioner appears to outsource higher-level functions to an 
external accounting firm. Given a company size of only twelve employees along with outsourced 
accounting services, it is not apparent why the Petitioner requires the services of the Beneficiary, in 
addition to an accounting assistant and an accounting secretary. As the Petitioner has not fully 
explained its company structure or the role the proffered position occupies within the company, the 
substantive nature of the proffered position cannot be ascertained. 
9 While it is possible that the Vice President serves as the CPA, the Petitioner refers to these roles separately in its duty 
descriptions. 
5 
We acknowledge the opinion letter froml I Pralessor of Accounting inl I 
University's School of Business and Economics. ls opinion largely repeats information 
already provided by the Petitioner, in addition to repeating duties listed in the Handbook and O*NET. 
The chart he provided attempts to establish how various areas of accounting study directly relate to 
the duties and responsibilities of the position. However, due to the Petitioner's insufficient and 
inconsistent duty descriptions, the substantive nature of the position has not been established and 
therefore this chart, which repeats these descriptions, does not assist in our understanding of the 
substantive nature of the position. Although he identifies where the knowledge to perform the duties 
could be obtained, he does not sufficiently explain why the knowledge is required to perform the duty. 
To add any value to this matter,I Is analysis must flesh out his fundamental presupposition 
that the position requires specialized knowledge before explaining where the knowledge could be 
obtained. We may, in our discretion, use opinion statements submitted by the Petitioner as advisory. 
Matter of Caron Int'l, Inc., 19 I&N Dec. 791, 795 (Comm'r 1988). However, where an opinion is not 
in accord with other information or is in any way questionable, we are not required to accept or may 
give less weight to that evidence. Id. Here, the opinion presented does not offer a cogent analysis of 
the duties and why the duties require a bachelor's degree in a specific specialty.10 
Overall, the Petitioner has provided vague and general duty descriptions which appear to overlap with 
other occupational categories, and do not readily feature complex, specialized, or unique work. 
Accordingly, we are unable to determine whether the Beneficiary will be employed (1) in an 
occupation that meets the statutory and regulatory definitions of a specialty occupation and (2) in a 
position that also satisfies at least one of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A). While we 
acknowledge the Petitioner's arguments of eligibility, lack of detail in the record, material changes to 
the duties, and unsubstantiated claims are foundational deficiencies that preclude a determination that 
the position qualifies as a specialty occupation. 
B. Additional Inconsistencies 
The record contains numerous inconsistencies that prevent us from ascertaining the substantive nature 
of the position. It is well established that a petitioner may not make material changes to a petition in 
an effort to make a deficient petition conform to USCIS requirements. See Matter of lzummi, 22 l&N 
Dec. 169, 176 (Assoc. Comm'r 1998). As explained, eligibility for the benefit sought must be assessed 
and weighed based on the facts as they existed at the time the instant petition was filed. In order for a 
petitioner to comply with 8 C.F.R. § 103.2(b)(l) and USCIS to perform its regulatory duties under 20 
C.F.R. § 655.705(b), a petitioner must file an amended or new petition, along with a new LCA certified 
by the U.S. Department of Labor (DOL), in order to capture any material changes in terms or 
conditions of employment or the beneficiary's eligibility. 11 
1. Minimum Qualifications 
10 We incorporate our discussion otl l's opinion into all parts of our decision. 
11 The Petitioner is required to submit a certified LCA to USCIS to demonstrate that it will pay the Beneficiary the higher 
of either the prevailing wage for the occupational classification in the "area of employment" or the actual wage paid by 
the employer to other employees with similar experience and qualifications who are performing the same services. Section 
212(n)(1) of the Act; 20 C.F.R. § 655.731(a). 
6 
The Petitioner provided no specific educational requirements in its initial filing. Instead, it referenced the 
petition's attachments as representing its minimum requirements and the industry standard. Without 
identifying the specific minimum qualifications, the Petitioner simply stated that the duties of the position 
"indicate the need for the specified educational background because without it, the duties of the position 
could not be performed." 
In one part of its RFE response, the Petitioner claimed that the proffered position duties could only be 
performed by graduates of "4 years college education" with a study in unidentified "related courses." In 
a separate letter within the RFE response, the Petitioner asserted that the proffered position required "a 
Bachelor's degree in accounting or finance, or above."12 
On appeal, the Petitioner claims that every third-party logistics employer requires a minimum of a 
bachelor's degree in accounting or a related field plus three to five years of experience. As the Petitioner 
has self-identified as a third-party logistics company, this would mean that the Petitioner also requires 
this level of experience. This conclusion is further supported by the chart the Petitioner provides on 
appeal which identifies a current or prior posting of the proffered position and summarizes it as requiring 
a "BS/BA in accounting or master's degree in the same field" along with "[t]hree years in accounting. 
No experience if the candidate has a master's degree in accounting or a related field that qualifies for the 
CPA exam." Synthesizing these two statements, it seems the position requires a minimum of a bachelor's 
degree in accounting with three years' experience or a master's degree in accounting that qualifies the 
candidate for the certified public accountant (CPA) exam. Unlike its RFE response, the Petitioner does 
not mention finance as a qualifying field. As discussed regarding the proffered position duties, the 
Petitioner has materially changed its minimum qualifications from vague and inarticulate statements with 
the initial filing, to one claim in its RFE response, to a new claim on appeal. Overall, the continuous 
alterations to the minimum qualifications for the position raise questions about the reliability of the 
Petitioner's assertions and call into question the substantive nature of the position.13 
2. Labor Condition Application 
As previously explained, the substantive nature of the position has not been established. The duty 
descriptions appear to overlap with other occupational categories, which suggests that the LCA may 
be inconsistent with the Petitioner's claims and the evidence in the record. Similarly, we reviewed the 
job postings submitted for our consideration of an industry standard. While the Petitioner contends 
that these positions are parallel to the proffered position, almost all advertised positions require 
significant experience beyond a bachelor's degree. The postings appear to advertise more senior roles 
than the proffered position, as evidenced by requirements for a bachelor's degree along with a range 
12 The Petitioner did not explain what "or above" means. The written information preceding the "or above" statement does not 
relate to minimum qualifications for the position. 
13 The substantive nature of the position is dispositive and must be ascertained prior to a determination on the Beneficiary's 
qualifications. We are required to follow long-standing legal standards and determine first, whether the proffered position 
qualifies for classification as a specialty occupation, and second, whether the Beneficiary was qualified for the position at 
the time the nonimmigrant visa petition was filed. Cf. Matter of Michael Hertz Assocs., 19 I&N Dec. 558, 560 (Comm'r 
1988) ("The facts of a beneficiary's background only come at issue after it is found that the position in which the petitioner 
intends to employ him falls within [a specialty occupation]."). However, we do observe that the Petitioner relies on the 
courses the Beneficiary took in his master's degree program as reasons he is qualified for the position, in addition to his 
experience in a prior accounting position. Moreover, the Petitioner relies on the Beneficiary's master's degree for a cap 
exemption. 
7 
of experience including three, four, five, and even eight years of additional experience. Some of the 
advertisements are for positions which additionally require candidates with a CPA license, significant 
Excel experience, or two years of Oracle experience, on top of the accounting experience already 
mentioned. Many positions are "senior," "supervisory" and "managerial" roles that have direct reports 
in their chain of command.14 If these are parallel positions as claimed, then the Petitioner has not 
resolved how payment of a Level I wage to the Beneficiary correlates to the experience the position 
requ i res.15 If alternatively, the positions are not parallel, but rather represent a different or more 
specialized position than the proffered position, then the postings have no relevance in establishing an 
industry standard for positions located within the occupational category. In either instance, these 
postings suggest that the LCA is inconsistent with the Petitioner's claims and the evidence within the 
record, furthering obfuscating the substantive nature of the position. 
3. Proffered Position Title 
We note that throughout the record the Petitioner refers to the proffered position as an "accountant." 
It is unclear whether the proffered position of "staff accountant" is the same or similar to the 
"accountant" position. The Petitioner has not acknowledged or explained the difference between the 
titles, and it is not apparent from the record whether these differently titled positions require the 
performance of the same or similar duties. At minimum, the variation in titles further confuses the 
substantive nature of the position. 
IV. CONCLUSION 
Upon review of the record in its totality, we conclude that the Petitioner has not sufficiently established 
the substantive nature of the proffered position, which precludes a determination of whether the 
proffered position qualifies as a specialty occupation under sections 101(a)(15)(H)(i)(b), 214(i)(l) of 
the Act; 8 C.F.R. § 214.2(h)(4)(i)(A)(l), 8 C.F.R. § 214.2(h)(4)(ii) and (iii)(A). 
The appeal will be dismissed for the above stated reasons. In visa petition proceedings, it is a 
petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 
8 U.S.C. § 1361. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
14 The Petitioner has stated that the Beneficiary does not have supervisory duties. 
15 The Petitioner classified the proffered position at a Level I wage. A wage determination starts with an entry-level wage 
{Level I) and progresses to a higher wage level (up to Level IV) after considering the experience, education, and skill 
requirements of the Petitioner's job opportunity. U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage 
Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://flcdatacenter.com/download/NPWHC_Guidance_Revised_11_2009.pdf. 
8