dismissed H-1B Case: Accounting

U.S. Citizenship 
and Immigration 
Services 
In Re: 17449922 
Motion on Administrative Appeals Office Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JUL. 12, 2021 
The Petitioner seeks to temporarily employ the Beneficiary as a staff accountant under the H-lB 
nonimmigrant classification for specialty occupations. 1 The H-lB 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 petition, concluding that the Petitioner did not 
establish that the proffered position is a specialty occupation . The Petitioner subsequently timely filed 
an appeal which we dismissed also concluding that the Petitioner had not established that the proffered 
position is a specialty occupation. 2 The matter is now before us on a combined motion to reopen and 
reconsider. We will dismiss the motions. 
I. LEGAL FRAMEWORK 
A. Motion Requirements 
To merit reopening or reconsideration, a petitioner must meet the formal filing requirements (such as, 
for instance, submission of a properly completed Form I-290B, Notice of Appeal or Motion, with the 
correct fee), and show proper cause for granting the motion. 8 C.F.R . § 103.5(a)(l). 
A motion to reopen is based on factual grounds and must (1) state the new facts to be provided in the 
reopened proceeding; and (2) be supported by affidavits or other documentary evidence. 8 C.F.R. 
§ 103.5(a)(2) . A motion to reconsider is based on legal grounds and must (1) state the reasons for 
reconsideration; (2) be supported by any pertinent precedent decisions to establish that the decision 
was based on an incorrect application oflaw or policy; and (3) establish that the decision was incorrect 
based on the evidence ofrecord at the time of the initial decision. 8 C.F.R. § 103.5(a)(3) . 
1 Immigration and Nationality Act (the Act) § 10 I (a)(l 5)(H)(i)(b ), 8 U.S.C. § 110 I (a)(l 5)(H)(i)(b ). 
2 The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. Section 291 of 
the Act; Matter ofChawathe , 25 I&N Dec. 369, 375 (AAO 2010). 
B. Specialty Occupation 
Section 10l(a)(l5)(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 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)(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. 3 Lastly, 
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 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 is a position that also satisfies at least one of the criteria at 8 C.F.R. 
§ 2 l 4.2(h)( 4)(iii)(A). The services the Beneficiary will perform in the position determine: (I) 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. 4 
II. ANALYSIS 
A. Motion to Reopen 
The Petitioner does not submit new evidence supported by documentary evidence on motion. 5 The 
Petitioner refers to attached organizational charts and evidence to provide information regarding the 
Beneficiary's position and the Petitioner's organizational hierarchy and operations. Upon review of 
the motion packet, however, it consists of a brief signed by the Petitioner's attorney, a letter signed by 
the Petitioner's chief operating officer, and a copy of the prior decision. It does not include the 
3 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 
baccalaureate or higher degree, but one in a specific specialty that is directly related to the proposed position. See Royal 
Siam Cmp. 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"). 
4 See 8 C.F.R. § 214.2(h)(4)(iii)(A). 
5 See 8 C.F.R. § 103.5(a)(2). 
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materials referenced by the Petitioner. As the record on motion does not include new, relevant 
evidence regarding the position, the Petitioner's organizational hierarchy, or other evidence 
establishing the proffered position is a specialty occupation, the Petitioner has not shown proper cause 
to reopen this matter. Accordingly, we will dismiss the motion to reopen. 
B. Motion to Reconsider 
The Petitioner has not submitted evidence or argument demonstrating that our prior dismissal was 
legally or factually incorrect based on the record at the time of filing. 6 
On motion, the Petitioner asserts that the evidence it submitted was not inconsistent and that it has 
provided sufficient evidence of the substantive nature of the proffered position and its operational 
structure. 7 The Petitioner contends that a conclusion that the evidence submitted was inconsistent is 
factually incorrect. It also claims that it has provided evidence of its business operations corroborated 
by its Quarterly Federal Tax Returns, a Service Retainer Agreement, photographs of its corporate 
office, and evidence from the Internet detailing its expertise, clients, and business operations and that 
a failure to consider this evidence is legal error. However, it is this information that was considered 
that raises questions regarding the Beneficiary's role within the company. For example, as noted in 
the prior decision, the Petitioner describes the accounting services that it provides to clients, as follows: 
Among the services offered by [the Petitioner's] boutique accountancy for startups are: 
Startup Bookkeeping; Part-Time CFO's; VC Due Diligence Preparation; Startup Tax 
Returns; Financial Modeling; R&D Credit Calculations; Venture Debt Expertise; 
Startup M&A Accounting (mergers and acquisitions); and 409A Valuations for 
Startups. 
As these services range from bookkeeping services to startup tax returns, to performing duties of a 
part-time CFO, etc. we turned to the description of proposed duties for clarity regarding the 
Petitioner's particular position and how it fits within these wide-ranging business services. However, 
the initial core duties were not sufficiently described to demonstrate whether the duties were 
accounting tasks or bookkeeping tasks. For example, "[a]ssisting with reconciling bank and credit 
card accounts monthly by applying mathematical models and financial accounting principles" and 
"[p ]reparing financial reports for review by collecting, analyzing and summarizing account 
information and trends as requested" are duties that could fall within the parameters of the Department 
of Labor's (DOL) Occupational Information Network's (O*NET) summary reports on either 
"Bookkeeping, Accounting, and Auditing Clerks," standard occupational classification (SOC) code 
43-3031 8 or "Accountants and Auditors" SOC code 13-2011. The duties are so broadly described 
6 See 8 C.F.R. § 103.5(a)(3). 
7 The Petitioner again refers to attached organizational charts and evidence to address the concerns raised in the prior 
decision regarding the substantive nature of the proffered position and the Petitioner's organizational hierarchy and 
operations. However, the referenced attachments are not in the motion record. 
8 The O*NET summary report for this occupation indicates that bookkeepers are responsible for checking figures, postings, 
and documents for correct entry and mathematical accuracy, reconciling and reporting discrepancies, recording and 
summarizing numerical and financial data to compile and keep financial records, using journals and ledgers or computers, 
preparing and processing payroll information, and performing financial calculations. See O*NET summary report for 
"Bookkeeping, Accounting, and Auditing Clerks," SOC code 43-3031, at https://www.onetonline.org/link/summary/43-
3031.00 (last visited Jul. 12, 2021 ). 
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neither the application of knowledge needed to perform the position nor the occupation and wage level 
required could be ascertained. 
Additionally, as discussed in the prior decision, several of the duties appear to correspond more closely 
to a bookkeeping position, e.g. duties such as: "[p ]rocessing journal entries to G/L under the 
supervision of Associate Accountants/Controllers," "[ c ]oding all transactions by name and account"; 
"[s]upporting the Associate Accountants/Controllers with managing accounts receivables and account 
payables"; "[ a ]ssisting with ensuring compliance with federal, state, and local legal requirements by 
maintaining compliance documentation for each client"; "[ w ]orking with respective team monthly to 
close books for each client"; and "[ m ]aintaining records of vendor relations and statuses." 9 As the 
Petitioner designated the proffered position as falling within the parameters of the "Accountants and 
Auditors" occupation, these duties appear inconsistent with that designation. 
In response to the Director's request for evidence (RFE), the Petitioner provided a revised position 
description for its staff accountant, omitting language indicative of a junior or support position. 10 This 
is a significant change in what appears to be the Beneficiary's level of responsibility which creates 
further inconsistency in the record regarding the Beneficiary's role and level ofresponsibility within 
the business. We also note that the Petitioner added a duty indicating that the Petitioner's staff 
accountant would "[ s ]tay informed and current with bookkeeping, tax filing, HR standards, and other 
related government regulations." Like other duties in the record, this description appears to 
correspond more closely to that of a "Bookkeeping, Accounting, and Auditing Clerks" occupation, 
not an "Accounting and Auditors" occupation. We note here that 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. 11 Upon review of the totality 
of the descriptions, 12 the duties are not described with sufficient detail to ascertain the application of 
knowledge needed to perform the position, the role and level of responsibility the Beneficiary will 
provide within the organization, the occupation, or the wage level required. 
As the descriptions did not assist in establishing the Beneficiary's actual role within the context of the 
Petitioner's business operations, and whether the Beneficiary would perform accounting, 
bookkeeping, or administrative duties for the Petitioner's clients we searched for information within 
9 See O*NET summary report for "Bookkeeping, Accounting, and Auditing Clerks," SOC code 43-3031, at 
https://www.onetonline.org/link/summary/43-303 l .OO (last visited Jul. 12, 2021 ). 
10 The purpose of the request for evidence is to elicit further information that clarifies whether eligibility for the benefit 
sought has been established, as of the time the petition is filed. See 8 C.F.R. §§ 103.2(b )( 1 ), 103.2(b )(8), 103.2(b )(12). 
Here the Petitioner omitted language indicating that the Beneficiary would be subject to supervision from Associate 
Accountants/Controllers and would only assist with reconciling bank and credit card accounts. Changing the position 
from what appears to be a support role to a position that encompasses bookkeeping tasks, or with more detail - accounting 
duties, does not clarify the role and level ofresponsibility of the particular position when the petition was filed. 
11 See Matter of Michelin Tire Corp., 17 I&N Dec. 248,249 (Reg'l Comm'r 1978). 
12 The Petitioner also provided another position description allocating the Beneficiary's time amongst four broad 
categories, within which included some of the initially described duties as well as the Beneficiary's coursework which 
would be beneficial in performing the duties. This description also fails to provide sufficient detail to understand the 
Beneficiary's role within the Petitioner's business when the petition was filed. 
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the record showing the roles of the Petitioner's claimed 34 employees. 13 As discussed in our prior 
decision, the record did not include evidence of the Petitioner's organizational hierarchy. On motion, 
the Petitioner indicates that it has approximately 71 staff members (3 7 employees and 34 
contractors 14). It also refers to its website which identifies its employees. We reviewed the website 
on July 12, 2021 and note, in pertinent part, that the website identifies 44 employees in total which 
include 15 senior accountants and 2 staff accountants, as well as the managerial and executive staff. 15 
The Petitioner does not identify any bookkeepers or other employees who would perform what would 
appear to be one of the Petitioner's core services, providing bookkeeping services to startups. Though 
we have reviewed the information in the record regarding the Petitioner's business operations, and the 
Petitioner's website, the Petitioner has not provided evidence that it has employees who perform the 
necessary tasks consistent with its claim that it provides such a wide range of services for its startup 
clients. 16 Thus, not only are the descriptions of duties ambiguous and inconsistent, the record lacks 
evidence demonstrating how the Petitioner would use the Beneficiary or its other employees to 
perform the necessary functions for its clients' companies. 
Further, in our review of the record, we notice an additional inconsistency. The Petitioner in its job 
summary for the position, in addition to noting the financial duties and the administrative duties of the 
position, also identifies the skills and prerequisites for the position. The Petitioner states "Bachelor's 
Degree required. Concentration in Accounting or Finance preferred." Thus, it appears that a 
bachelor's degree in any field is the minimum requirement to perform the duties of the position, as 
preference for a specific field is not synonymous with a requirement for that field. This is inconsistent 
with the Petitioner's initial statement that the knowledge needed to perform the position was acquired 
through at least a bachelor's level program in accounting, finance, or a closely related field. The 
inconsistency regarding the Petitioner's minimum requirements for the position adds to the uncertainty 
regarding the nature of the proffered position. 
On motion, the Petitioner characterizes our decision as "cherry pick[ing] immaterial and minor 
portions of the record, and find[ing] inconsistencies where none exist." However, we must review the 
totality of the record to understand what duties the Beneficiary will be required to perform, whether 
the duties as described are supported by information regarding the Petitioner's business operations, 
and whether the duties correspond to the occupation and wage level designated on the certified LCA. 
As discussed in our prior decision and again here, the Petitioner has not provided a framework or 
context for the Beneficiary's role and level of responsibility within its business enterprise. It is not 
that there are only a few inconsistencies in the record, rather it is that the totality of the record does 
not convey an understanding of the actual work the Beneficiary would perform within the context of 
the Petitioner's business. In addition to the inconsistencies and ambiguities in the record which 
13 The Petitioner claims 34 employees on the Form I-129, Petition for a Nonimmigrant Worker, when the petition was filed 
on April 3, 2019. 
14 Neither the record nor the Petitioner's website referred to on motion, includes evidence of the duties of the contractors, 
thus their role within the Petitioner's business operations cannot be determined. 
15 We note that some of the senior accountants are labeled with specific specialties. 
16 As referred to above, the Petitioner claims that it presented its Quarterly Federal Tax Returns, a Service Retainer 
Agreement, photographs of its corporate office, and evidence from the Internet detailing its expertise, clients, and business 
operations, which was not considered in establishing the substantive nature of the position. However, these documents do 
not provide the evidence required to establish the proffered position's role within the context of the Petitioner's overall 
business operations. That is, these documents do not include evidence regarding the particular position and do not detail 
the Petitioner's organizational hierarchy and assignment of employees to particular teams or divisions. 
5 
undermine the nature and level of responsibility of the proffered position, the record lacks sufficient 
substantive evidence to establish that more likely than not, the Beneficiary will perform specialty 
occupation level accounting duties, duties that require the theoretical and practical application of 
highly specialized knowledge and attainment of at least a bachelor's degree in a specific specialty or 
its equivalent. 
On motion, the Petitioner also claims that our rejection of the opinion prepared by._l _____ _. 
I I is legal error. The Petitioner's claim is unpersuasive. As we discussed in our prior 
decision, Professor B- did not discuss the proposed role within the context of the Petitioner's business 
operations. Nor does Professor B- offer analysis of duties that appear on their face to be duties more 
closely associated with the duties of a bookkeeping occupation and not that of a specialty occupation 
level accountant. As the Petitioner's business includes providing a wide range of business services 
from bookkeeping to startup tax returns, to accounting, these significant omissions undermine 
Professor B-'s opinion. It appears that Professor B- relies on the Petitioner's title for the position, 
without closely reviewing the duties of the position within the context and scope of the Petitioner's 
claimed services. Professor B- does not provide an adequate foundation for his conclusion that the 
proffered position "is clearly a specialty position, and requires the services of someone with advanced 
training through a bachelor's program in Accounting or closely related fields." The record simply 
does not include sufficient evidence to illustrate the scope and nature of the Beneficiary's role within 
the Petitioner's business enterprise and which establishes that she will be an employee providing 
specialty occupation level accounting services to the Petitioner's clients. 
We also reiterate that Professor B-'s discussion of the Beneficiary's coursework, although 
demonstrating that the Beneficiary would be prepared to perform the position, 17 does little to 
demonstrate how or why duties such as processing journal entries to G/L, coding transactions, 
maintaining records of vendor relations and statuses, for example, require an advanced degree in 
accounting in order to perform them. While Professor B- may draw inferences that accounting courses 
may be beneficial in performing certain duties of the position, without more, we disagree with any 
inference that such a degree is required in order to perform the duties of the proffered position. As 
we previously determined, the opinion does not assist in establishing that the proffered position is a 
specialty occupation requiring a bachelor's degree in a specific specialty, or its equivalent. 18 
On motion, the Petitioner complains that the Director decided the matter on the Petitioner's failure to 
establish that the position satisfies one of the four criteria at 8 C.F.R. § 2 l 4.2(h)( 4)(iii)(A) and that 
our decision did not discuss the four criteria. The Petitioner asserts that an RFE should have been 
issued so that it could comply with the requirements for an approval of the nonimmigrant petition. 
However, in our de novo review, we pointed out the insufficiency of the descriptions in describing a 
17 However, the test to establish a position as a specialty occupation is not the skill set or education of a proposed 
beneficiary, but whether the position itself qualifies as a specialty occupation. 
18 As stated in our prior decision, we are ultimately responsible for making the final determination regarding an individual's 
eligibility for the benefit sought; the submission of expert opinion letters is not presumptive evidence of eligibility. Matter 
of Caron Int'l, Inc., 19 I&N Dec. 791, 795 (Comm'r 1988); see also Matter ofV-K-, 24 I&N Dec. 500,502 n.2 (BIA 2008) 
("[E]xpert opinion testimony, while undoubtedly a form of evidence, does not purport to be evidence as to 'fact' but rather 
is admissible only if 'it will assist the trier of fact to understand the evidence or to determine a fact in issue.'"). The cursory 
discussion of duties and coursework, without cogent analysis of the duties and recognition of the range of services the 
Petitioner provides, falls short of establishing the proffered position is a specialty occupation. 
6 
specialty occupation under any of the four criteria, as well as the lack of clarity regarding the proffered 
position's role within the context of the Petitioner's business operations. As discussed, not only does 
the proffered position include duties that more closely correlate to a "Bookkeeping, Accounting, and 
Auditing Clerks" occupation, 19 the Petitioner also does not provide a consistent description of the 
proposed duties, but rather adds and omits duties ( or portions of duties) that impact the nature and 
level of responsibility of the position. As explained in the prior decision and reiterated here, without 
sufficient, consistent evidence regarding the duties the Beneficiary will perform, we are unable to 
determine that the Beneficiary will be employed in an occupation that meets the statutory and regulatory 
definitions of a specialty occupation and is a position that also satisfies at least one of the criteria at 
8 C.F.R. § 214.2(h)(4)(iii)(A). Without a more meaningful job description, especially in light of the 
discrepancies in the record, we are unable to ascertain the nature of the position, i.e. the actual work 
the Beneficiary would perform and thereby the level of education and knowledge necessary to perform 
the duties of the position. As we initially determined the record does not adequately communicate (1) 
the actual work that the Beneficiary would perform; (2) the complexity, uniqueness, or specialization 
of the tasks; and (3) the correlation between that work and a need for a particular level of education 
and knowledge. The record does not include evidence sufficient to conclude that the proffered position 
satisfies any of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), as well as the statutory and regulatory 
definitions. 
The Petitioner has not submitted probative argument demonstrating our decision was based on an 
incorrect application of law or policy and was incorrect based on the evidence of record at the time of 
the decision. Accordingly, the Petitioner has not shown proper cause for reconsideration and we will 
dismiss the motion to reconsider. 
III. CONCLUSION 
For the reasons discussed, the Petitioner has not shown proper cause for reopening or reconsidering 
this matter and has not otherwise established eligibility for the immigrant benefit sought. 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 motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
19 The Petitioner asserts that our use of the O*NET OnLine summary reports is contradictory when discussing O*NET's 
minimum requirements for various occupations. However, O*NET Online does not establish or refer to requirements for 
particular occupations, but rather assigns occupations a Job Zone rating. O*NET OnLine indicates that occupations which 
fall within a Job Zone "Three" rating are occupations for which "[m]ost ... require training in vocational schools, related 
on-the-job experience, or an associate's degree." A "Bookkeeping, Accounting, and Auditing Clerk" occupation falls 
within this Job Zone. See O*NET Online at https://www.onetonline.org/link/summary/43-3031.00 (last visited Jul. 12, 
2021). Thus, most Job Zone "Three" occupations do not require a bachelor's degree. A Job Zone "Four" occupation is 
an occupation for which "[m]ost ... require a four-year bachelor's degree, but some do not." O*NET Online although 
noting that most Job Zone "Four" occupations have a bachelor's degree, does not indicate that any four-year bachelor's 
degrees required by Job Zone "Four" occupations must be in a specific specialty directly related to the occupation. Thus, 
O*NET OnLine does not establish that a Job Zone "Four" occupation requires a bachelor's degree in a specific specialty, 
an essential requirement of the statutory and regulatory definitions for a specialty occupation. This interpretation is based 
on a plain reading of the O*NET's Job Zone ratings. 
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