dismissed H-1B Case: Accounting

U.S. Citizenship 
and Immigration 
Services 
In Re: 16969833 
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: JUN. 25, 2021 
The Petitioner , an eight-employee medical clinic , seeks to temporarily employ the Beneficiary as an 
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 Vermont Service Center Director denied the petition , concluding that the Petitioner did not 
establish that the proffered position is a specialty occupation and that the Petitioner had specialty 
occupation work available for the Beneficiary to perform . The Petitioner subsequently timely filed a 
Form I-290B, Notice of Appeal or Motion , and indicated it would submit a brief and/or evidence to 
the Administrative Appeals Office (AAO) within 30 days of filing the appeal. Thereafter , we 
summarily dismissed the appeal as the record did not include a brief or additional evidence identifying 
any erroneous conclusion of law or statement of fact in the unfavorable decision. 
The matter is now before us on a combined motion to reopen and reconsider. In its motion, the 
Petitioner submits evidence that it timely mailed an appeal packet to the AAO and resubmits the appeal 
packet for review . We will dismiss the motions . 
I. LEGAL FRAMEWORK 
A. Motion 
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 
1 Immigration and Nationality Act (the Act)§ 10l(a)(l5)(H)(i)(b) , 8 U.S.C. § 110l (a)(l5)(H)(i)(b) . 
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). 
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. 2 Lastly, 
8 C.F.R. § 214.2(h)(4)(i)(A)(l) states that an H-IB 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. 
§ 2 l 4.2(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. 3 
By regulation, the Director is charged with determining whether the petition involves a specialty 
occupation as defined in section 214(i)(l) of the Act. 4 The Director may request additional evidence 
in the course of making this determination. 5 
2 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 COip. v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in a specific specialty" as 
"one that relates directly to the duties and responsibilities of a particular position"). 
3 See 8 C.F.R. § 214.2(h)(4)(iii)(A). 
4 See 8 C.F.R. § 214.2(h)(4)(i)(B)(2). 
5 See 8 C.F.R. § 103.2(b)(8). 
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II. ANALYSIS 
A. Motion to Reopen 
The Petitioner submits new evidence supported by documentary evidence 6 and as we discuss below 
we have considered the Petitioner's brief that was lost in the mail. 7 Upon review of the initial appeal 
packet, however, the record does not demonstrate eligibility at the time of filing. Specifically, the 
Petitioner has not established that the proffered position is a specialty occupation. Accordingly, we 
will dismiss the motion to reopen. 
We conclude the Petitioner has not adequately established the services the Beneficiary will perform, 
which precludes a determination of whether the proffered position qualifies as a specialty occupation 
under sections 10l(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). Specifically, we are unable to determine the substantive nature of the 
work that the Beneficiary will perform, which precludes a finding that the proffered position satisfies 
any criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A). 
6 See 8 C.F.R. § I 03.5(a)(2). The record on motion includes copies of a mailing label with the correct address mailed 
within the timeframe to mail the brief and/or evidence, a tracking number which shows the appeal packet was delivered to 
an incorrect address, and the Petitioner's request to the USPS to search for the lost mail and the USPS' response to the 
request. 
7 The Petitioner also submits a position evaluation prepared by.__ _________ _, [Professor B-], ._I ___ _, 
University J I as part of the appeal packet. However, the Director specifically asked for evidence 
establishing how the position qualified as a specialty occupation and provided examples of potential evidence, including 
opinions, that might establish the position as a specialty occupation. The Petitioner, however, did not provide any opinions or 
position evaluations in response to the RFEs. Thus, the Petitioner was put on notice of required evidence and given a 
reasonable opportunity to provide it for the record before the visa petition was adjudicated. The Petitioner submits this 
evidence for the first time on appeal. However, we will not consider this evidence for any purpose. See Matter of Soriano, 
19 I&N Dec. 764, 766 (BIA 1988); see also Matter ofObaigbena, 19 I&N Dec. 533,537 (BIA 1988). The appeal will be 
adjudicated based on the record of proceedings before the Director. 
We note for the Petitioner's infmmation that even if considering the opinion, the opinion is insufficient to establish that 
the Petitioner's particular position is a specialty occupation. For example, Professor 8- repeats a portion of the overview 
of the occupation provided by the Petitioner and contends that the duties require at least a bachelor's degree in business 
administration, accounting, or a related field. However, a requirement of a bachelor's degree in business administration is 
inadequate to establish that a position qualifies as a specialty occupation. A petitioner must demonstrate that the proffered 
position requires a precise and specific course of study that relates directly and closely to the position in question. Since 
there must be a close con-elation between the required specialized studies and the position, the requirement of a degree 
with a generalized title, such as business administration, without further specification, does not establish the position as a 
specialty occupation. C( Matter ofMichael Hertz Assocs., 19 I&N Dec. 558, 560 (Comm'r 1988). Professor B- does not 
indicate that the business degree must include a specific concentration. Such a broad base of knowledge to perfmm the 
duties of the proffered position conflicts with the statutory and regulatory definitions of specialty occupation. Additionally, 
Professor B- appears to confuse the ability of a person with a business or accounting degree to perform the duties of the 
proffered position with a degree requirement in order to perform the duties. While Professor B- may draw inferences that 
basic business or accounting courses may be beneficial in performing certain duties of the position, we disagree with any 
inference that such a degree is required in order to perform the duties of the proffered position. Put simply, stating that a 
person with a bachelor's degree in business or accounting could perform the duties of the proffered position is not the same 
as stating that such a degree is required to perform those duties. The opinion does not assist in establishing that the duties, 
as generically described, comprise the duties of a specialty occupation requiring a bachelor's degree in a specific specialty, 
or its equivalent. 
3 
The Petitioner initially provided a broad overview of the Beneficiary's duties, stating that the 
Beneficiary will be responsible for "maintaining the financial records of the medical offices," will 
ensure compliance with federal, state, and local laws in accounting and healthcare management, and 
"will keep track of the books, manage billing from all the locations and calculate and prepare and 
assist outside accountants for filing taxes; prepare quarterly and annual financial statement for 
ownership and management .... " This position description raises questions regarding the 
Beneficiary's actual role within the Petitioner's business. This limited overview does not establish 
that the Beneficiary will be the individual performing accounting tasks, rather than providing 
bookkeeping, administrative, and clerical services to the Petitioner. It appears that the Beneficiary 
will primarily be responsible for preserving financial records and for gathering information for third 
party accountants. We note, for example, that the Petitioner's tax returns are prepared by an outside 
accounting firm and are not prepared in-house. As the Petitioner does not provide a percentage 
breakdown of the various generally described duties, we cannot conclude that it is the Beneficiary 
performing specialty occupation duties rather than performing the necessary administrative and 
clerical tasks to support and assist the Petitioner's outside accountant(s). 8 
Similarly, the Petitioner's bullet-point list of duties for the Beneficiary does not describe duties within 
the context of the Petitioner's medical offices. The generic description includes insufficiently detailed 
tasks that might or might not require a bachelor's degree in a specific specialty, or its equivalent. For 
example, the Petitioner indicates that the Beneficiary will"[ m ]aintain and balance subsidiary accounts 
by verifying, allocating, posting, reconciling transactions; resolving discrepancies; general ledger by 
transferring subsidiary accounts; preparing a trial balance; reconciling entries," "[p ]roduce[] payroll 
by initiating computer processing; printing checks, verifying finished product," "[ s ]ecure[] financial 
information by completing database backups," "[ e ]xamine statements to ensure accuracy," and 
"inspect account books and accounting systems to keep up to date." It is not possible to determine 
that these are the duties of an accountant, rather than the duties of a bookkeeper, payroll clerk, or other 
administrative employee. 9 The tasks are not comprehensively described and thus we cannot conclude 
that they require a bachelor's degree in a specific specialty, or its equivalent. 
Likewise, listing generic tasks, such as "[p ]repare and record asset, liability, revenue, and expenses 
entries by compiling and analyzing account information from all the locations," "[b ]udget and cash 
flow forecasting," and [ s ]ummarize financial status by collecting information; preparing balance sheet, 
8 The Petitioner indicates that the Beneficiary prepares its quaiierly and annual financial statements and provides statements 
as a sample of the Beneficiary's work product. However, as noted the Petitioner does not indicate which duties are the 
Beneficiary's primary duties or allocate the amount of time the Beneficiary spends preparing the statements. Moreover. 
the Petitioner does not describe the Beneficiary's actual tasks in relation to its business to produce the financial statements. 
We cannot asce11ain from the brief descriptions provided whether the Beneficiary is primarily responsible for gathering 
basic information and inputting data into software programs to produce the financial statements, an administrative function, 
or is providing a service that necessarily requires the theoretical and practical application of a body of highly specialized 
knowledge and the attainment of a baccalaureate or higher degree in a specific specialty, or its equivalent, as the minimum 
for entry into the occupation. See section 214(i)(1) of the Act; 8 C.F.R. § 214.2(h)(4)(ii) ( defining the term "specialty 
occupation). 
9 For example, the Department of Labor's (DOL) Occupational Inf01mation Network (O*NET) indicates that bookkeepers 
are responsible for checking figures, postings, and documents for correct entry and mathematical accuracy, reconciling 
and rep01iing 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 summaiy report for "Bookkeeping, Accounting, and Auditing Clerks," SOC code 43-3031, at 
https://www.onetonline.org/link/summary/43-3031.00 (last visited Jun. 25, 2021). 
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profit and loss, and other statements" does not adequately convey the substantive work that the 
Beneficiary will perform. 10 A generalized description may be sufficient to define the range of duties 
that may be performed within an occupation, but such a description 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 and responsibilities to be performed 
by a beneficiary in relation to its particular business interests. In the instant matter, the Petitioner has 
offered no description of the duties of its proffered position beyond the generalized outline it provided 
at the time of filing. It has not detailed the actual work to be performed for this position rather than 
describing the occupation. It cannot, therefore, establish that the position meets any of the 
requirements for a specialty occupation set forth at 8 C.F.R. § 214.2(h)(4)(iii)(A). 
We also reviewed the Petitioner's responses to the two requests for evidence (RFE) issued by the 
Director. The Petitioner provided excerpts from articles and websites describing the field of 
accounting, and the principles and methodologies used by accountants. The Petitioner, however, did 
not sufficiently expand upon the Beneficiary's actual duties performed within its business. 11 The 
Petitioner also emphasizes the Beneficiary's academic qualifications to perform the duties of the 
position. 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. Thus, 
whether or not the Beneficiary in this case has completed a specialized course of study directly related to 
the proffered position is irrelevant to the issue of whether the proffered position qualifies as a specialty 
occupation, i.e., whether the duties of the proffered position require the theoretical and practical 
application of a body of highly specialized knowledge and the attainment of a bachelor's degree or higher 
in a specific specialty, or its equivalent. Section 214(i)(l) of the Act; 8 C.F.R. § 214.2(h)(4)(ii). 
As the record on motion does not include new, relevant evidence regarding the substantive nature of 
the position, 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 demonstrating that our prior summary dismissal was legally 
or factually incorrect based on the record at the time of filing. 12 We summarily dismissed the appeal 
because the record did not include a brief or evidence identifying any erroneous conclusion of law or 
10 These tasks are taken from generic descriptions of accounting duties found on various websites. See e.g. 
https://www.3blackdot.com/jobs/senior-accountant/. The Petitioner also lists other duties taken directly from the DOL's 
Occupational Outlook Handbook's (Handbook) report on "Accountants and Auditors" as duties of the proposed position. 
See https://www.bls.gov/ooh/business-and-financial/accountants-and-auditors.htm#tab-2 (last visited Jun. 25, 2021 ). 
Describing an occupation from the Handbook or another Internet source, is not sufficient to establish that the Beneficiary 
will be performing services in a specialty occupation. Cf Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 
1989), affd, 905 F.2d 41 (2d. Cir. 1990) (Specifics are an important indication of the nature of the Beneficiary's duties, 
otherwise meeting the requirements would simply be a matter of providing a job title or reiterating the regulation). 
11 Although the Petitioner also noted that the "Beneficiary will keep track of the books, communicate and coordinate with 
insurance billing company . . . on patient accounts, assist outside accountants for filing taxes, preparing quarterly and 
annual financial statements for ownership and management" the Petitioner did not explain how these tasks require a 
bachelor's degree in a specific specialty, or its equivalent. Nor did the Petitioner explain how communicating and 
coordinating with an insurance billing company is an accounting duty. 
12 See 8 C.F.R. § 103.5(a)(3). 
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statement of fact in the unfavorable decision. Our decision was correct based on the evidence ofrecord 
at the time of the decision. Accordingly, the Petitioner has not shown proper cause for reconsideration 
and we will dismiss the motion to reconsider. 
C. Labor Condition Application 
Since the Director's identified basis for denial is dispositive, we need not address another ground of 
ineligibility we observe in the record of proceedings. Nevertheless, we will briefly note and 
summarize it here with the hope and intention that, if the Petitioner seeks again to employ the 
Beneficiary or another individual as an H-1 B employee in the proffered position, it will submit 
sufficient independent objective evidence to address and overcome this additional ground in any future 
filing. 
According to the filing requirements for applications and petitions found at 8 C.F .R. § 103 .2(b )(1 ), 
... [ a ]n applicant or petitioner must establish that he or she is eligible for the requested 
benefit at the time of filing the benefit request and must continue to be eligible through 
adjudication. Each benefit request must be properly completed and filed with all initial 
evidence required by applicable regulations and other USCIS instructions. Any 
evidence submitted in connection with a benefit request is incorporated into and 
considered part of the request. 
The regulations require that before filing a Form I-129, Petition for a Nonimmigrant Worker, a 
petitioner obtain a certified labor condition application (LCA) from the Department of Labor (DOL) 
in the occupational specialty in which the H-1 B worker will be employed. 13 Additionally, a petitioner 
submits the LCA to the DOL to demonstrate that it will pay an H-lB worker 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 duties, experience, and qualifications. 14 Further, the 
regulation at 20 C.F.R. § 655.705(b) requires that USCIS ensure that an H-lB petition is filed with a 
"DOL-certified LCA attached" that actually supports and corresponds with the petition on the 
petition's filing. 
Upon review of the record, and for the Petitioner's information, we note that the Petitioner has not 
filed an LCA pursuant to section 212(n)(l) of the Act; 20 C.F.R. § 655.73l(a), and has therefore not 
met the filing requirements at 8 C.F.R. § 103.2(b)(l). The Form I-129 was filed on February 21, 2019 
requesting new employment for the Beneficiary as the Petitioner's accountant. On the certified LCA 
submitted with the petition, the Petitioner designated the position as corresponding most closely to a 
Level II "Accountants and Auditors" occupation, standard occupational classification (SOC) code 
13-2011. 15 The Petitioner identifies the wage rate for this occupational classification and wage level 
as $71,885 in the New York, New York metropolitan area and indicates the source for this wage is 
from the Occupational Employment Statistics Program for the 2019 year. 
13 See 8 C.F.R. § 214.2(h)(4)(i)(B). 
14 See section 212(n)(l) of the Act, 8 U.S.C. § 1182(n)(l)(A); 20 C.F.R. § 655.731(a). 
15 The certified LCA is for a period of intended employment beginning 2/11/2019 and ending 2/11/2022. It is signed by 
the Petitioner on February 19, 2019. 
6 
We reviewed the Foreign Labor Certification Data Center Online Wage Library for the time period 
and metropolitan geographical area designated on the LCA to confirm the prevailing wage level for a 
level II accountant (SOC code 13-2011). The prevailing wage listed for this area and time period for 
this occupation is $79,934, 16 not $71,885. Thus, the record does not include consistent evidence 
demonstrating that the Petitioner will pay an H-1B worker 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 duties, experience, and qualifications. 17 Accordingly, the Petitioner has 
not provided a certified LCA that actually supports and corresponds to the position listed in the petition 
at the time of the petition's filing. The Petitioner has not met the filing requirements at 8 C.F.R. 
§ 103 .2(b )( 1) and the Petitioner must address this issue in any future filings. 
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. 
16 See Foreign Labor Certification Data Center Online Wage Library at 
https://www.flcdatacenter.com/OesQuickResults.aspx?code= 13-2011 &area=c:=:J.&year= l 9&source= 1. 
17 The record does not include evidence that the 8-person medical clinic employs or has employed other accountants. 
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