dismissed H-1B Case: Accounting

(b)(6)
DATE: JUL 1 3 2015 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland St,curity 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION RECEIPT#: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(H)(15)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § 110l(a)(15)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
Enclosed is the non-precedent decision of the Administrative Appeals Office (AAO) for your case. 
If you believe we incorrectly decided your case, you may file a motion requesting us to reconsider our 
decision and/or reopen the proceeding. The requirements for motions are located at 8 C.F.R. § 103.5. 
Motions must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this 
decision. The Form I-290B web page (www.uscis.gov/i-290b) contains the latest information on fee, filing 
location, and other requirements. Please do not mail any motions directly to the AAO. 
( ~;,~en erg 
~ dmini,trative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Vermont Service Center, denied the nonimmigrant visa petition. The 
matter is now before the Administrative Appeals Office on appeal. The appeal will be dismissed. 
I. PROCEDURALBACKGROUND 
On the Petition for a Nonimmigrant Worker (Form I-129), the petitioner describes itself as a 
0-employee "Condom manufacture, distribute, market, sell" business established in In order 
to employ the beneficiary in a position it designates as an "Accountant Executive/' the petitioner 
seeks to classify her as a nonimmigrant worker in a specialty occupation pursuant to section 
101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1101(a)(15)(H)(i)(b). 
The Director denied the petition, determining that the evidence of record did not establish that the 
proffered position qualifies for classification as a specialty occupation. On appeal, the petitioner 
asserts that the Director's basis for denial of the petition was erroneous and contends that it has 
satisfied all evidentiary requirements. 
The entire record of proceeding includes: (1) the petitioner's Form I-129 and supporting 
documentation; (2) the service center's RFE; (3) the petitioner's response to the RFE; (4) the 
Director's denial letter; and (5) the Notice of Appeal or Motion (Form I-290B), a brief, and 
additional documentation. We reviewed the record in its entirety before issuing our decision.1 
Upon review of the entire record of proceeding, we find that the evidence of record does not overcome 
the Director's grounds for denying this petition. Accordingly, the appeal will be dismissed, and the 
petition will be denied. 
II. THE PROFFERED POSITION 
The petitioner identified the proffered position as an "Accountant Executive" on the Form I-129, 
and attested on the required Labor Condition Application (LCA) that the occupational classification 
for the position is "Accountant and Auditors," SOC (ONET/OES) Code 13-2011, at a Level I 
(entry) wage. 
In the petitioner's letter submitted in support of the petition, dated March 24, 2014, the petitioner's 
owner stated that he has "decided to employ [the beneficiary] as Accountant Executive through one 
1 
We conduct appellate review on a de novo basis. See Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. 2004). 
Also, in light of the petitioner's references to the requirement that U.S. Citizenship and Immigration Services 
(USCIS) apply the "preponderance of the evidence" standard, we affirm that, in the exercise of our appellate 
review in this matter, as in all matters that come within our purview, we follow the preponderance of the 
evidence standard as specified in the controlling precedent decision, Matter of Chawathe, 25 I&N Dec. 369, 
375-376 (AAO 2010). 
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of [his] exclusively owned business entit[ies], [the petitioner]." The petitioner stated that the 
beneficiary will be the petitioner's full-time employee and that she "will have two layers of job 
duties as Accountant Executive." The petitioner explained that the "first layer of duties is primarily 
dedicated to accountant responsibilities to [the petitioner], and the second layer of duties, which will 
be contracted between [the petitioner's owner] and the [petitioner] is to provide accounting services 
to [the owner] as an individual." The petitioner also stated that "the attainment of a Bachelor's 
degree in Accounting is the minimum requirement for this position and would be required by [the 
petitioner] in analogous positions." 
In a response to the RFE, the petitioner listed the job duties and percentages of time allocated to 
those duties as follows: 
• Prepare, examine, or analyze accounting records, financial statements, or other 
financial reports to assess accuracy, completeness, and conformance to reporting 
and procedural standards; 15% 
• Advise to the leader of the company of finances of the company; 5% 
• Setting up and implementing recordkeeping and accounting systems; 10% 
• Establishing and maintaining tables of accounts and assign entries to proper 
accounts; [no percentage allocated] 
• Providing internal and external auditing services for the company; 10% 
• Preparing and filing taxes with Federal, State and local government authority; 
10% 
Duties for the Individual Owner among other things: 
• Prepare financial statements or other financial reports for financing or refinancing 
purposes; 15% 
• Prepare and file taxes with Federal, State and local government authorities; 10% 
• Provide internal and external auditing services; 10% 
• Prepare monthly balance sheet reconciliations[.] 10% 
The petitioner added , in response to the RFE, that the beneficiary would also spend 5 percent of her 
time "Working with at the end of year regarding the overall accounting status of the 
company" on behalf of the petitioner. 2 
III. SPECIALTY OCCUPATION 
A. Legal Framework 
To meet its burden of proof, the petitioner must establish that the employment it is offering to the 
beneficiary meets the fol1owing statutory and regulatory requirements. 
2 The petitioner's owner states that 
from 2008 to 2011, he paid an employee of 
_ an accounting firm, worked for him and his ex-wife, and that 
to also provide accounting services to the petitioner. 
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Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized 
knowledge, and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) states, in pertinent part, the following: 
Specialty occupation means an occupation which [(1)] 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 [(2)]' 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. § 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, a proposed position 
must meet one of the following criteria: 
(1) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
(4) The nature of the specific duties [is] so specialized and complex that knowledge 
required to perform the duties is usually associated with the attainment of a 
baccalaureate or higher degree. 
As a threshold issue, it is noted that 8 C.F.R. § 214.2(h)(4)(iii)(A) must logically be read together 
with section 214(i)(l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). In other words, this regulatory 
language must be construed in harmony with the thrust of the related provisions and with the statute 
as a whole. SeeK Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (holding that construction 
of language which takes into account the design of the statute as a whole is preferred); see also 
COlT Independence Joint Venture v. Federal Sav. and Loan Ins. Corp., 489 U.S. 561 (1989); 
Matter of W-F-, 21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 C.F.R. 
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§ 214.2(h)( 4)(iii)(A) should logically be read as being necessary but not necessarily sufficient to 
meet the statutory and regulatory definition of specialty occupation. To otherwise interpret this 
section as stating the necessary and sufficient conditions for meeting the definition of specialty 
occupation would result in particular positions meeting a condition under 8 C.F.R. 
§ 214.2(h)(4)(iii)(A) but not the statutory or regulatory definition. See Defensor v. Meissner, 
201 F.3d 384, 387 (5th Cir. 2000). To avoid this result, 8 C.F.R. § 214.2(h)( 4)(iii)(A) must 
therefore be read as providing supplemental criteria that must be met in accordance with, and not as 
alternatives to, the statutory and regulatory definitions of specialty occupation. 
As such and consonant with section 214(i)(l) of the Act and the regulation at 8 C.F.R. 
§ 214.2(h)( 4)(ii), U.S. Citizenship and Immigration Services (USCIS) consistently interprets the 
term "degree" in the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) to mean not just any baccalaureate or 
higher degree, but one in a specific specialty that is directly related to the proffered position. See 
Royal Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st eir. 2007) (describing "a degree requirement 
in a specific specialti' as "one that relates directly to the duties and responsibilities of a particular 
position"). Applying this standard, USCIS regularly approves H-lB petitions for qualified aliens 
who are to be employed as engineers, computer scientists, certified public accountants, college 
professors, and other such occupations. These professions, for which petitioners have regularly 
been able to establish a minimum entry requirement in the United States of a baccalaureate or 
higher degree in a specific specialty or its equivalent directly related to the duties and 
responsibilities of the particular position, fairly represent the types of specialty occupations that 
Congress contemplated when it created the H-lB visa category. 
To determine whether a particular job qualifies as a specialty occupation, users 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. users must examine the 
ultimate employment .of the alien, and determine whether the position qualifies as a specialty 
occupation. See generally,Defensor v. Meissner, 201 F. 3d 384. 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. 
B. Analysis 
Preliminarily, the petitioner's allocation of 45 percent of the beneficiary's duties to performing tasks 
associated with its individual owner may not be considered as part of this petition. A corporation is 
a separate and distinct legal entity from its owners or stockholders. See Matter of M, 8 I&N Dec. 
24, 50 (BIA 1958, AG 1958); Matter of Aphrodite Investments Limited, 17 I&N Dec. 530 (eomm'r 
1980); and Matter of Tessel, 17 I&N Dec. 631 (Act. Assoc. eomm'r 1980). Accordingly, if the 
(b)(6)
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beneficiary will perform duties, part-time, for an individual or entities other than the petitioner, 
those individuals or entities must file the appropriate petition on her behalt_3 
With respect to the proposed duties for the petitioner, the petitioner described the duties of the 
proffered position in terms of general and generic functions. The evidence of record does not 
describe any of the listed functions in sufficient detail to either establish the substantive nature and 
associated complexity or specialization of the petitioner's matters upon which the beneficiary would 
focus or the practical and theoretical level of accounting knowledge that the beneficiary would have 
to apply to those matters. For example, preparing, examining or analyzing accounting records to 
assess accuracy, completeness, and conformance to specific standards, setting up and implementing 
recordkeeping and accounting systems, and establishing· and maintaining tables of accounts and 
assigning entries to proper accounts present such a broad view of the proposed duties, that it is not 
possible to differentiate these duties from routine bookkeeping functions. 
The petitioner has not included sufficient detail regarding the beneficiary's actual day-to-day tasks 
associated with its general outline of duties to ascertain that its duties actually include tasks that 
entail accounting services at a level requiring the theoretical and practical application of at least a 
bachelor's degree level of knowledge in accounting. As the evidence of record lacks sufficient detail 
and evidence of the actual job duties the beneficiary will perform, the evidence of record fails to 
demonstrate that the proffered position more likely than not requires a bachelor's or higher degree in a 
specific specialty or its equivalent as a minimum for entry. See INA § 214(i)(l). As discussed in 
greater detail below, the evidence in this record of proceeding does not establish the educational 
attainment actually required to perform the proffered position; thus, the petitioner has not satisfied 
any criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A). 
That being said and with the understanding that we are incorporating these comments and findings 
as part of our analysis of each of the criterion at 8 C.F.R. § 214.2(h)(4)(iii), we shall now separately 
address each of those criteria. 
A baccalaureate or higher degree in a specific specialty, or its equivalent, is 
normally the minimum requirement for entry into the particular position 
We will first address the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l). This criterion requires that a 
baccalaureate or higher degree in a specific specialty, or its equivalent, is normally the minimum 
requirement for entry into the particular position. We recognize the Department of Labor's (DOL) 
Occupational Outlook Handbook (Handbook) as an authoritative source on the duties and educational 
requirements of the wide variety of occupations that it addresses.4 
3 The petitioner's owner noted that he will contract with the petitioner for the beneficiary's services; however, 
the record does not include evidence of this agreement. 
4 
All of the references are to the 2014-2015 edition of the Handbook, which may be accessed at the Internet 
site http://www.bls.gov/OCO/. The excerpts of the Handbook regarding the duties and requirements of the 
referenced occupational category are hereby incorporated into the record of proceeding. 
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The petitioner asserts that the duties it describes are those of an accountant and thus more complex 
than the duties of a bookkeeper, even though a bookkeepinf occupation involves a wide range of 
tasks, including maintaining an entire organization's books. In this matter, the petitioner has not 
identified anyone who would perform the routine bookkeeping functions of its business. In 
response to the Director's RFE, the petitioner stated that it employed independent contractors to 
perform "sales, marketing, logistics, website maintenance, etc." Moreover, the petitioner submitted 
its organizational chart identifying a project manager and in-house accountant reporting directly to 
the petitioner's chief executive officer/owner and individuals employed as independent contractors 
in manufacturing, logistics, sales, art, information technology, marketing, web and application 
development, and product development departments. 6 The record also included affidavits from five 
individuals attesting that they had worked for the petitioner as independent contractors in sales, in 
manufacturing, as a project manager, and as a consultant. Neither the organizational chart nor other 
evidence in the record demonstrates that the petitioner employs or contracts with anyone to perform 
the routine bookkeeping functions of its organization. This brings into question how much of the 
beneficiary's time can actually be devoted to accounting duties above those usually performed by a 
junior accountant or a bookkeeping, auditing, or accounting clerk. Doubt cast on any aspect of the 
petitioner's proof may, of course, lead to a reevaluation of the reliability and sufficiency of the 
remaining evidence offered in support of the visa petition. Matter of Ho, 19 I&N Dec. 582, 591 
(BIA 1988). 
Even though the record is materially deficient regarding the beneficiary's actual duties, we have 
reviewed the information in the Handbook regarding the occupational category "Accountants and 
Auditors," including the section entitled "How to Become an Accountant or Auditor," which 
describes the following preparation for the occupation, in pertinent part: 
Most accountants and auditors need at least a bachelor's degree in accounting or a 
related field. Certification within a specific field of accounting improves job 
prospects. For example, many accountants become Certified Public Accountants 
(CPAs). 
Education 
Most accountant and auditor positions require at least a bachelor's degree in 
accounting or a related field. Some employers prefer to hire applicants who have a 
5 
The Handbook reports that most bookkeeping, accounting, and auditing clerks need a high school diploma. 
In other words, a bachelor's degree in a specific specialty is not required for bookkeeping, accounting and 
auditing clerk positions. See U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 
2014-2015 ed., "Bookkeeping, Accounting and Auditing Clerks," http://www.bls.gov/ooh/office-and­
administrative-support/bookkeeping-accounting-and-auditing-clerks.htm#tab-4 (June 17, 2015). 
6 
The petitioner's organizational chart shows the individual in the position of "in-house" accountant as having 
the same last name as the beneficiary. It appears from the petitioner's references to the beneficiary 
throughout the record, that the in-house accountant depicted on the organizational chart is the proposed 
beneficiary. 
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NON-PRECEDENT DECISION 
master's degree, either in accounting or in business administration with a 
concentration in accounting. 
A few universities and colleges offer specialized programs, such as a bachelor's 
degree in internal auditing. In some cases, those with associate's degrees, as well as 
bookkeepers and accounting clerks who meet the education and experience 
requirements set by their employers, get junior accounting positions and advance to 
accountant positions by showing their accounting skills on the job. 
Many colleges help students gain practical experience through summer or part-time 
internships with public accounting or business firms. 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2014-15 ed., 
"Accountants and Auditors," http://www .bls.gov /ooh/business-and- financial/accountants-and­
auditors.htm#tab-4 (last visited July 8, 2015). 
The Handbook only states that "[m]ost accountant and auditor positions require at least a bachelor's 
degree in accounting or a related field." The Handbook does not state that such a degree is a normal 
minimum entry requirement for all accountant and auditor positions. In addition, as set out above, 
the Handbook indicates that some without a bachelor's degree or even a postsecondary degree may 
"advance to accountant positions by demonstrating their accounting skills on the job." 
When reviewing the Handbook, it also must be noted that the petitioner designated the proffered 
position as a Level I (entry level) position on the LCA. The wage levels are defined in DOL's 
"Prevailing Wage Determination Policy Guidance." A Level I wage rate is described as follows: 
Level I (entry) wage rates are assigned to job offers for beginning level employees 
who have only a basic understanding of the occupation. These employees perform 
routine tasks that require limited, if any, exercise of judgment. The tasks provide 
experience and familiarization with the employer's methods, practices, and programs. 
The employees may perform higher level work for training and developmental 
purposes. These employees work under close supervision and receive specific 
instructions on required tasks and results expected. Their work is closely monitored 
and reviewed for accuracy. Statements that the job offer is for a research fellow, a 
worker in training, or an internship are indicators that a Level I wage should be 
considered. 
See U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy 
Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://wv.rw.foreignlaborcert.doleta.gov/pdf/NPWHC _Guidance_ Revised _11_ 2009 .pdf. 
Thus, in designating the proffered position at a Level I wage, the petitioner has indicated that the 
proffered position is a comparatively low, entry-level position relative to others within the 
occupation. That is, in accordance with the relevant DOL explanatory information on wage levels, 
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this wage rate indicates that the beneficiary is only required to have a basic understanding of the 
occupation and carries expectations that the beneficiary perform routine tasks that require limited, if 
any, exercise of judgment; that she would be closely supervised; that her work would be closely 
monitored and reviewed for accuracy; and that she would receive specific instructions on required 
tasks and expected results. As noted above, according to DOL guidance, a statement that the job 
offer is for a research fellow, worker in training or an internship is indicative that a Level I wage 
should be considered. 
In certain instances, the Handbook is not determinative. When the Handbook does not support the 
proposition that a proffered position is one that meets the statutory and regulatory provisions of a 
specialty occupation, it is incumbent upon the petitioner to provide persuasive evidence that the 
proffered position more likely than not satisfies this or one of the other three criteria, 
notwithstanding the absence of the Handbook's support on the issue. In such case, it is the 
petitioner's responsibility to provide probative evidence (e.g., documentation from other objective, 
authoritative sources) that supports a finding that the particular position in question qualifies as a 
specialty occupation. Whenever more than one authoritative source exists, an adjudicator will 
consider and weigh all of the evidence presented to determine whether the particular position 
qualifies as a specialty occupation. 
We have reviewed the Occupational Information Network (O*NET) Summary Report for 13-
2011.01 - Accountants, submitted by the petitioner, which indicates this occupation is within an 
occupational category wherein most but not all of these occupations require a four-year bachelor's 
degree. Of greater significance for this discussion, the O*NET does not state that a bachelor's 
degree in any specific specialty is required, and does not, therefore, demonstrate that a position so 
designated is a specialty occupation as defined in section 214(i)(1) of the Act and 8 C.F.R. 
§ 214.2(h)( 4)(ii). Further, the Help Center's discussion confirms that Job Zone 4, the occupational 
category for an Accountant, does not indicate any requirements for particular majors or academic 
concentrations. See O*NET OnLine Help Center, at http://www.onetonline.org/help/online/zones, 
for a discussion of Job Zone 4. As such, even if the proffered position were determined to be 
primarily an accountant position, it cannot be concluded based on the Handbook or O*NET that the 
position qualifies as a specialty occupation normally requiring at least a bachelor's degree in 
accounting, or its equivalent. 
We have also reviewed the letter, dated July 17, 2014, prepared by Ph.D., 
submitted in response to the RFE. Dr. restates the list of duties provided by the petitioner. 
Dr. however, does not differentiate between duties performed for the petitioner and duties 
performed for the individual owner. Additionally, Dr. does not list the reference materials on 
which he relies as a basis for his conclusion. Rather, it appears that Dr. did not base his opinion 
on objective evidence, but instead relies on the general duties the petitioner ascribed to the position and 
the petitioner's owner's assets of $40 million from multiple business enterprises. Dr. opines that 
the duties listed show that the position encompassing those duties is "considered a professional 
position and would normally be filled by a graduate with a minimum of a Bachelor's Degree in 
Accounting, Business Administration, or a related area, or the equivalent." 
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Upon review of Dr. credentials we do not find that even when considered in the aggregate, 
that his credentials establish a sufficient basis to support his expertise with regard to the minimum 
education requirements for the performance of the particular position that is the subject of this 
petition. While Dr. claims expertise on the basis of his position as a professor and his 
research, he does not persuasively articulate- and his curriculum vitae does not show- that he has 
expertise or has been recognized as an authority in the areas on which he presented his opinion, that 
is, in the area of tbe minimum educational requirements for the particular proffered position or in 
the area of a position's qualification for H-lB specialty occupation recognition in accordance with 
the governing statutes and USCIS regulations. Going on record without 
supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter 
of Soffrci, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of California, 
14 I&N Dec. 190 (Reg. Comm. 1972)). 
Additionally, Dr. does not specify or discuss any relevant research, studies, surveys, or other 
authoritative publications as part of his review and or as a foundation for his opinion. Further, Dr. 
does not discuss the fact that the petitioner submitted an LCA certified for a wage-level that is 
only appropriate for a comparatively low, entry-level position relative to others within its 
occupation, which signifies that the beneficiary is only expected to possess a basic understanding of 
the occupation. 7 The omission of such an important factor diminishes the evidentiary value of his 
opinion. 
Finally, Dr. opines that a bachelor's degree in business administration is adequate to perform 
the duties listed for the position. However, a petitioner must demonstrate that thep_roffered 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 correlation between the required specialized studies and the 
position, the requirement of a degree with a generalized title, such as bw;iness administration, 
without further specification, does not establish the position as a specialty occupation. CJ Matter of 
Michael HertzAssociates, 19 I&N Dec. ,)58 (Comm'r 1988). USCIS has consistently-stated that, 
although a general~purpose bachelor's degree, such as. a degree in business administration, may be a 
legitimate prerequisite for a particular position, requiring such a degree, without more, will not 
justify a finding that a particular position qualifies for classification as a specialty occupation. See 
Royal Siam C01p. v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007). 
We may, in our discretion, use advisory opinion statements submitted as expert testimony. 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. Matter of Caron. International, 19 I&N 
Dec. 791 (Cornm'r 1988). Here, we find that Dr. opinion does not merit recognition or weight 
as an expert opinion, and. is not probative evidence towards satisfying this criteria (8 C.P.R. 
§ 214.2(h)(4)(iii)(A)(l)) or any criterion at 8 C.P.R. § 214.2(h)(4)(iii)(A). We incorporate our 
discussion of Dr. opinion on the proffered position into each of the criterion discussed below. 
The Prevailing Wage Determination Policy Guidance is available at 
http://www.foreignlaborcert.doleta.gov/ pdf/NPWHC _Guidance_ Revised _11_ 2009.pdf. 
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The Handbook does not support the claim that the occupational category of accountants is one for 
which normally the minimum requirement for entry is a baccalaureate degree (or higher) in a 
specific specialty, or its equivalent. Even if it did (which it does not), the record lacks sufficient 
evidence to support a finding that the particular position proffered here, an entry-level accountant 
position (as indicated on the LCA), would normally have such a minimum, specialty degree 
requirement or its equivalent. The duties and requirements of the position as described in the record 
of proceeding do not indicate that this particular position proffered by the petitioner is one for 
which a baccalaureate or higher degree in a specific specialty, or its equivalent, is normally the 
minimum requirement for entry. Thus, the petitioner has not satisfied the criterion at 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A)(l). 
The requirement of a baccalaureate or higher degree in a specific specialty, 
or its equivalent, is common to the industry in parallel 
positions among similar organizations 
Next, we will review the record of proceeding regarding the first of the two alternative prongs of 
8 C.P.R. § 214.2(h)(4)(iii)(A)(2). This prong alternatively calls for a petitioner to establish that a 
requirement of a bachelor's or higher degree in a specific specialty, or its equivalent, is common for 
positions that are identifiable as being (1) in the petitioner's industry, (2) parallel to the proffered 
position, and also (3) located in organizations that are similar to the petitioner. 
In determining whether there is such a common degree requirement, factors often considered by 
USCIS include: whether the Handbook reports that 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 1151, 1165 (D. Minn. 
1999) (quotingHird/Blaker Corp. v. Sava, 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989)). 
In the instant case, the petitioner has not established that the proffered position falls under an 
occupational category for which the Handbook, or other reliable and authoritative source, indicates 
that there is a standard, minimum entry requirement of at least a bachelor's degree in a specific 
specialty or its equivalent. Also, there are no submissions from professional associations in the 
petitioner's industry attesting that individuals employed in positions parallel to the proffered 
position are routinely required to have a minimum of a bachelor's degree in a specific specialty or 
its equivalent for entry into those positions. 
The petitioner submitted several advertisements from employers in the medical device industry to 
demonstrate that a degree in a specialty is common to that industry. As a preliminary matter, we 
note that the petitioner did not provide any independent evidence of how representative these job 
advertisements are of the particular advertising employers' recruiting history for the type of jobs 
advertised. Further, as they are only solicitations for hire, they are not evidence of the employers' 
actual hiring practices. Moreover, the petitioner does not submit probative evidence that it is in the 
medical device industry. For the petitioner to establish that the advertising organization is similar to 
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it, it must demonstrate that it shares the same general characteristics with the advertising 
organization. Without such evidence, documentation submitted by a petitioner is generally outside 
the scope of consideration for this criterion, which encompasses only organizations that are similar 
to the petitioner. When determining whether the petitioner and the advertising organization share 
the same general characteristics , such factors may include information regarding the nature or type 
of organization, and, when pertinent, the particular scope of operations, as well as the level of 
revenue and staffing (to list just a few elements that may be considered). It is not sufficient for the 
petitioner to claim that an organization is similar and in the same industry without providing a 
legitimate basis for such an assertion. 
The petitioner stated on the Form I-129 that it manufactures, distributes, markets, and sells 
condoms. It designated its business operations under the North American Industry Classification 
System (NAICS) code 424990. According to the U.S. Census Bureau, NAICS is used to classify 
business establishments according to type of economic activity and each establishment is classified 
to an industry according to the primary business activity taking place there. See 
http://www.census.gov /eos/www/naics/ (last visited July 8, 2015). The NAICS code specified by 
the petitioner is designated for "Other Miscellaneous Nondurable Goods Merchant Wholesalers," 
and is defined by the U.S. Department of Commerce, Census Bureau as an industry comprised of 
"establishments primarily engaged in the merchant wholesale distribution of nondurable goods 
(except printing and writing paper; stationery and office supplies; industrial and personal service 
paper; drugs and druggists' sundries; apparel, piece goods, and notions; grocery and related 
products; farm product raw materials; chemical and allied products; petroleum and petroleum 
products ; beer, wine, and distilled alcoholic beverages; farm supplies; books, periodicals and 
newspapers ; flower , nursery stock and florists' supplies; tobacco and tobacco products; and paint, 
varnishes, wallpaper, and supplies). 8 
U.S. Dep't of Commerce, U.S Census Bureau, 2012 NAICS Definition, 424990 - Other 
Miscellaneous nondurable 
Goods merchant Wholesalers, on the Internet at 
http://www.census.gov/cgi-bin/sssd/naics/naicsrch (last visited July 8, 2015). 
Accordingly, the businesses in the medical device industry do not appear to be similar to the 
petitioner, as these companies are not in the same industry the petitioner attested to and identified 
on the Form I-129. Additionally , the petitioner has not submitted probative evidence that 
these 
advertisers employ a similar number of people or contractors, or generate similar revenue. Further, 
a majority of the advertisements appear to be for more senior positions than the proffered position 
as they require between one and five years of experience in addition to the bachelor's degree. In this 
matter, the petitioner has characterized the proffered position as a Level I (entry) position on the 
LCA. DOL guidance states that Level I positions are appropriate for a worker-in-training or an 
8 Here we note that the 2012 NAICS code 326299, an industry comprised of establishments primarily 
engaged in manufacturing rubber products , including condom manufacturing, may have been a more 
appropriate industry designation . In any event, the petitioner has not identified itself or explained further 
why it should be considered a business within the medical device industry. 
(b)(6)
NON-PRECEDENT DECISION 
Page 13 
individual performing an internship.9 Thus, the proffered position is not parallel to pos1t10ns 
requiring experience as such a position would be designated at a higher wage level on the LCA. 
Further, several of the advertisements, either do not specifically require a bachelor's degree or they 
note that a degree in a specific discipline is preferred, not required. Preference is not synonymous 
with a requirement that the degree is in a specific specialty. Furthermore, upon review of the 
variety of duties required by each of the advertisements it is not possible to conclude that the 
advertised positions are parallel to the proffered position. 
The job advertisements submitted do not establish that similar organizations to the petitioner 
routinely employ individuals with degrees in a specific specialty, in parallel positions in the 
petitioner's industry. Further, it must be noted that even if all of the job postings indicated that a 
bachelor's degree in a specific specialty is common to the industry in parallel positions among 
similar organizations (which they do not), the petitioner does not demonstrate what statistically 
valid inferences, if any, can be drawn from the advertisements with regard to determining the 
common educational requirements for entry into parallel positions in similar organizations. 10 
As set out above, we do not find, based upon a complete review of the record of proceeding, that the 
petitioner has established that a requirement for at least a bachelor's degree in a specific specialty, or 
its equivalent, is (1) common to the petitioner's industry (2) in parallel positions (3) among 
organizations similar to the petitioner. Thus, for the reasons discussed above, the petitioner has not 
satisfied the first alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
The particular position is so complex or unique that it can beperformed only by 
an individual with a baccalaureate or higher degree in a 
specific specialty, or its equivalent 
We will next consider the second alternative prong of 8 C.P.R. § 214.2(h)(4)(iii)(A)(2), which is 
satisfied if the petitioner shows that its particular position is so complex or unique that it can be 
performed only by an individual with at least a bachelor's degree in a specific specialty, or its 
equivalent. 
In support of its assertion that the proffered position qualifies as· a .specialty occupation, the 
petitioner submitted various documents, including evidence regarding its business operations. For 
example, the petitioner submitted its corporate documents, its 2012 federal tax return, its balance 
9 For additional information regarding wage levels, see U.S. Dep't of Labor, Emp't & Training Admin., 
Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), 
available at http://www .foreignlaborcert.doleta.gov/pdf/NPWHC _Guidance_ Revised_ll_ 2009;pdf. 
10 See generally Earl Babbie, The Practice of Social Research 186-228 (1995). Moreover, given that there is 
no indication that the advertisements were randomly selected, the validity of any such inferences could not 
be accurately determined even if the sampling unit were sufficiently large. See id. at 195-196 (explaining 
that "[r]andom selection is the key to [the] process [of probability sampling]" and that "random selection 
oi:fers access to the body of probability theory, which provides the basis for estimates of population 
parameters and estimates of error"). 
(b)(6)
NON-PRECEDENT DECISION 
Page 14 
sheets, profit and loss details and expenses from 2008 to 2010, testimonials from the petitioner's 
owner's business associates, website articles, product brochures and brief synopses of its company's 
products. However, upon review of the record of proceeding, the evidence of record does not 
credibly demonstrate that the duties the beneficiary will be responsible for or perform on a day-to­
day basis constitute a position so complex or unique that it can only be performed by a person with 
at least a bachelor's degree in a specific specialty, or its equivalent. We reiterate that the petitioner 
provided a broad overview of the duties of the proffered position. 
The evidence does not demonstrate how the duties that collectively constitute the proffered position 
require the theoretical and practical application of a body of highly specialized knowledge such that 
a bachelor's or higher degree in a specific specialty, or its equivalent, is required to perform 
them. For instance, the petitioner did not submit information relevant to a detailed course of study 
leading to a specialty degree and did not establish how such a curriculum is necessary to perform 
the duties of the proffered position. While a few related courses may be beneficial, or even 
required, in performing certain duties of the proffered position, the petitioner has not demonstrated 
bow an established curriculum of such courses leading to a baccalaureate or higher degree in a 
specific specialty, or its equivalent, is required to perform the duties of the particular position here. 
We again have reviewed Dr. opinion and although Dr. opines that different courses 
required for a degree in accounting or business administration prepare an individual to perform the 
general duties the petitioner listed, he does not provide any meaningful analysis on how an 
accounting or business administration baccalaureate degree, are directly related to the duties and 
responsibiJities of the proffered position. That is, other than his conclusory statements, he does not 
discuss specific bachelor's level coursework and provide an analysis of how and why such 
coursework is directly related to particular duties and why such coursework is required to perform 
those duties. The extent of meaningful analysis involved in the formulation of the 
position-evaluation opinion, therefore, is questionable. Dr. does not sufficiently explain the 
empirical basis for his conclusory opinion. 
Other than stating that the proffered position is complex and unique and offering a comparison of 
the proffered position's duties to the duties listed in theHandbook for an accountant, the petitioner 
does not discuss what particular aspects of its company products or its business elevate the 
proffered position to one ·that is complex and unique.U The record here does not include evidence 
of the specific financial requirements associated specifically with the petitioner's manufacturing, 
marketing, and sale of condoms, including whether its business operations has unique financial 
requirements that would add complexity to the beneficiary's duties. Neither does the petitioner 
claim that it is currently required to deal with specific complex agreements and functions that might 
11 
We note here that the Handbook offers generalized descriptions of occupations and sets out a range of 
duties that may be performed within an occupation. Repeating or paraphrasing the duties in the Handbook 
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. Otherwise, the 
record lacks the substantive information allowing for an accurate analysis of the actual position. 
(b)(6)
NON-PRECEDENT DECISION 
Page 15 
complicate its financial situation. We here reiterate that the actual responsibilities of the proffered 
position must be considered and those responsibilities must be related to the nature of the 
petitionds ongoing business. 
Further, as was also noted above, the LCA submitted in support of the visa petition is approved for 
a wage Level I employee, an indication that the proffered position is an entry-level position for an 
employee who has only a basic understanding of the occupation. 12 This does not support the 
proposition that the proffered position is so complex or unique relative to other positions in the 
same occupation that it can only be performed by a person with a specific bachelor's degree. 13 
Upon review of the totality of the record, the record lacks sufficiently detailed information to 
distinguish the proffered position as unique from or more complex than positions that can be 
performed by persons without at least a bachelor's degree in a specific specialty, or its 
equivalent. As the evidence of record does not so demonstrate it cannot be concluded that the 
petitioner has satisfied the second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
The employer normally requires a baccalaureate or higher degree in a 
specific specialty, or its equivalent, for the position 
The third criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A) entails an employer demonstrating that it 
normally requires a bachelor's degree in a specific specialty, or its equivalent, for the position. To 
this end, users reviews the petitioner's past recruiting and hiring practices, information regarding 
employees who previously held the position, as well as any other documentation submitted by a 
petitioner in support of this criterion of the regulations. 
To merit approval of the petition under this criterion, the record must establish that a petitioner's 
imposition of a degree requirement is not merely a matter of preference for high-caliber candidates 
but is necessitated by performance requirements of the position. A petitioner's perfunctory 
declaration of a particular educational requirement will not mask the fact that the position is not a 
specialty occupation. Again, USCIS must examine the actual employment requirements, and, on 
12 
See U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, 
Nonagric. Immigration Programs (rev. Nov. 2009), available at http://www.foreignlaborcert.doleta.gov/pdf/ 
NPWH C _Guidance_ Revised _11_ 2009 .pdf. 
13 
The issue here is that the petitioner's designation of this position as a Level I, entry-level position 
undermines its claim that the position is particularly complex, specialized, or unique compared to other 
positions within the same occupation. Nevertheless, it is important to note that a Level I wage-designation 
does not preclude a proffered position from classification as a specialty occupation. In certain occupations 
(doctors or lawyers, for example), an entry-level position would still require a minimum of a bachelor's 
degree in a specific specialty, or its equivalent, for entry. Similarly, however, a Level IV wage-designation 
would not reflect that an occupation qualifies as a specialty occupation if that higher-level position does not 
have an entry requirement of at least a bachelor's degree in a specific specialty or its equivalent. That is, a 
position's wage level designation may be a consideration but is not a substitute for a determination of 
whether a proffered position meets the requirements of section 214(i)(l) of the Act. 
(b)(6)
NON-PRECEDENT DECISION 
Page 16 
the basis of that examination, determine whether the position qualifies as a specialty occupation. 
See generally Defensor v. Meissner, 201 F. 3d 384. In this pursuit, the critical element is not the 
title of the position, or the fact that an employer has routinely insisted on certain educational 
standards, but whether performance of 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. According to the Court in Defensor, "To interpret the regulations any other way would 
lead to an absurd result. II !d. at 388. If users were COnstrained to recognize a specialty OCCUpation 
merely because the petitioner has an established practice of demanding certain educational 
requirements for the proffered position - and without consideration of how a beneficiary is to be 
specifically employed - then any alien with a bachelor's degree in specific specialty could be 
brought into the United States to perform non-specialty occupations, so long as the employer 
required all such employees to have baccalaureate or higher degrees. See id. 
Upon review, the record is insufficient to establish that the petitioner in this matter employed an 
individual in a similar position. That is, the petitioner has intermittently employed accounting firms 
and an individual to perform accounting functions. However, the record does not support a claim 
that the work performed is similar to the proffered position. We reiterate that the petitioner 
provided a broad overview of the proffered position. Additionally, the petitioner's owner's 
description of the duties performed by and do not describe the 
duties performed individually or by a firm, except in the most general way. It is not possible to 
ascertain from the record that the beneficiary will perform the same or similar duties as the 
individuals previously used by the petitioner who performed a variety of bookkeeping and 
accounting functions. Accordingly, the record does not include sufficient probative evidence 
establishing that it previously employed an accountant who will perform the duties of the current 
proffered position. 
Upon review of the record, the petitioner has not submitted probative evidence to establish that it 
normally requires at least a bachelor's degree in a specific specialty, or its equivalent, for the 
proffered position. 14 Going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 
165 (Comm'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm'r 
1972)). 
As the record of proceeding does not demonstrate that the petitioner normally requires at least a 
bachelor's degree in a specific specialty or its equivalent for the proffered position, it does not 
satisfy 8 C.F.R. § 214.2(h)(4)(iii)(A)(3). 
14 Again, the critical element is not the title of the position, or even the fact that an employer has routinely 
insisted on certain educational standards. As noted above, the petitioner must still establish that the 
performance of 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. 
(b)(6)
Page 17 
NON-PRECEDENT DECISION 
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 in a specific specialty, or its equivalent 
Finally, the petitioner has not satisfied the fourth criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A), which is 
reserved for positions with specific duties so specialized and complex that their performance 
requires knowledge that is usually associated with the attainment of a baccalaureate or higher 
degree in a specific specialty or its equivalent. 
Again, relative specialization and complexity have not been sufficiently developed by the petitioner 
as an aspect of the proffered position. In other words, the proposed duties have not been described 
with sufficient specificity to show that they are more specialized and complex than a junior 
accounting position, a position that is not usually associated with at least a bachelor's degree in a 
specific specialty or its equivalent. We have reviewed the petitioner's 2012 IRS Form 1120S and 
the documents submitted to demonstrate the nature and scope of the petitioner's business. However, 
the record does not include probative evidence establishing that the petitioner's business and its 
financial transactions and functions require the performance of specialized and complex duties. 
Again, the petitioner's description of the beneficiary's proposed duties is broad and does not convey 
an understanding of what the beneficiary is expected to do for the petitioner on a daily basis. We 
again reviewed Dr. opinion and note that it does not appear that Dr. visited the 
petitioner business or otherwise understood, evaluated, and assessed the nature and scope of the 
petitioner's specific business in depth when preparing his opinion statement. 15 
We again note that the petitioner has designated the proffered position as a Level I position on the 
submitted LCA, indicating that it is an entry-level position for an employee who has only basic 
understanding of the occupation. 16 Such a classification is inconsistent with the petitioner's claim 
that the duties are specialized and complex. The record does not include sufficient consistent and 
probative evidence to establish that the position proffered here encompasses the performance of 
specialized and complex duties the nature of which requires knowledge usually associated with at 
least a bachelor's degree in a specific specialty. For the reasons discussed above, the evidence of 
record does not satisfy the fourth criterion at 8 C.P.R.§ 214.2(h)(4)(iii)(A). 
15 Dr. identified the petitioner as a business involved in medical device industry however, as discussed 
above, the record does not support this claim. Moreover, Dr. apparently believed that the beneficiary 
would be performing services only for the petitioner, as he did not address the petitioner's statements that a 
significant portion of the work to be performed would be performed on behalf of the petitioner's owner, 
individually. Accordingly, the probative value of Dr. opinion is diminished for this additional reason. 
16 
See U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, 
Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://www.foreignlaborcert.doleta.gov/pdf/NPWHC _Guidance_ Revised_ll_ 2009.pdf. 
(b)(6)
NON-PRECEDENT DECISION 
Page 18 
The evidence of record does not satisfy any of the criteria at 8 C.P.R. § 214.2(h)(4)(iii)(A) and, 
therefore, it cannot be found that the proffered position qualifies for classification as a specialty 
occupation. The appeal will be dismissed and the petition denied for this reason. 
IV. CONCLUSION 
As set forth above, we find that the evidence of record does not sufficiently establish that the 
proffered position qualifies for classification as a specialty occupation. Accordingly, the appeal will 
be dismissed and the petition denied. 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed .