dismissed H-1B Case: Accounting

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
Identifying data delded to 
prevent clearly unwmed 
invasion of pawd pi* 
U. S. Citizenship 
and Immigration 
PUBLIC COPY 
FILE: WAC 04 800 44435 Office: CALIFORNIA SERVICE CENTER Date: J U N 1 2 2006 
PETITION: Petition for a Nonimrnigrant Worker Pursuant to Section 10 1 (a)(l 5)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 9 1 lOl(a)(lS)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that orignally decided your case. Any further inquiry must be made to that office. 
Robert P. Wiemann, Chief 
- Administrative Appeals Office 
WAC 04 800 44435 
Page 2 
DISCUSSION: The director of the California Service Center denied the nonirnrnigrant visa petition and the 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. The 
petition will be denied. 
The petitioner is a nursing staffing company, comprised of four limited liability companies, employing a total 
of 765 individuals, with a gross annual income of $8.2 million. It seeks to employ the beneficiary as an 
accountant/auditor pursuant to section lOl(a)(lS)(H)(i)(b) of the Immigration and Nationality Act (the Act), 
8 U.S.C. $ 1 lOl(a)(lS)(H)(i)(b). The director denied the petition because he determined the position was not 
a specialty occupation. 
The record of proceeding before the AAO contains: (1) Form 1-129 and supporting documentation; (2) the 
director's request for additional evidence; (3) the petitioner's response to the director's request; (4) the 
director's denial letter; and (5) Form I-290B, with counsel's brief and supporting documentation. The AAO 
reviewed the record in its entirety before issuing its decision. 
The record indicates that the beneficiary was previously granted H-1B status for the period June 15, 2002 to 
June 1, 2005, and that her employment ended with her previous employer on April 29, 2004. The instant 
petition was filed on June 24,2004. 
The issue before the AAO is whether the petitioner's proffered position qualifies as a specialty occupation. 
To meets its burden of proof in this regard, the petitioner must establish that the job it is offering to the 
beneficiary meets the following statutory and regulatory requirements. 
Section 214(i)(l) of the Act, 8 U.S.C. $ 1184(i)(l), defines the term "specialty occupation" as an occupation 
that requires: 
(A) theoretical and practical application of a body of highly specialized knowledge, and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) 
as a minimum for entry into the occupation in the United States. 
The term "specialty occupation" is further defined at 8 C.F.R. 5 214.2(h)(4)(ii) as: 
An occupation which requires theoretical and practical application of a body of highly 
specialized knowledge in fields of human endeavor including, but not limited to, architecture, 
engineering, mathematics, physical sciences, social sciences, medicine and health, education, 
business specialties, accounting, law, theology, and the arts, and which requires the 
attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, as a 
minimum for entry into the occupation in the United States. 
Pursuant to 8 C.F.R. $ 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, the position must meet one of 
the following criteria: 
(I) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
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(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. 
Citizenship and Immigration Services (CIS) interprets the term "degree" in the above criteria to mean not just 
any baccalaureate or higher degree, but one in a specific specialty that is directly related to the proffered 
position. 
To determine whether a particular job qualifies as a specialty occupation, CIS does not simply rely on a 
position's title. The specific duties of the proffered position, combined with the nature of the petitioning 
entity's business operations, are factors to be considered. CIS must examine the ultimate employment of the 
alien, and determine whether the position qualifies as a specialty occupation. CJ: Defensor v. Meissner, 201 
F. 3d 384 (5fi Cir. 2000). The critical element is not the title of the position nor an employer's self-imposed 
standards, but whether the position actually requires the theoretical and practical application of a body of 
highly specialized knowledge, and the attainment of a baccalaureate or higher degree in the specific specialty 
as the minimum for entry into the occupation, as required by the Act. 
The petitioner seeks the beneficiary's services as an accountant/auditor. Evidence of the beneficiary's duties 
includes: the Form 1-129; the petitioner's June 21,2004 letter of support; and the petitioner's response to the 
director's request for evidence. As described by the petitioner, the beneficiary would perform duties that 
entail: 
Conducting internal audits to assess and verify the accuracy of the company's financial 
records and the efficiency of operations; 
Establishing audit objectives and procedures and writing audit plans for the company; 
Reviewing and developing recommendations for the appropriate internal control measures to 
improve efficiency and avoid fiaud; 
Examining each department and reviewing daily operations; 
Interviewing employees to gather data, check the effectiveness of internal controls and 
determine possible duplication of work; 
Analyzing information systems, management procedures and internal controls; 
Reviewing accounting systems to determine proper recording of financial transactions; 
Analyzing data to check for possible discrepancies, fraud, waste or mismanagement; 
Determining whether the data processing systems that are currently in effect produce the 
desired reports to evaluate the effectiveness of internal control and security of operations; and 
Devising controls for modified computer applications designed to promote operational 
efficiency and prevent fiaud. 
The director determined that the record contained inconsistent information because the employer 
identification number (EIN) listed on the Form 1-129 and the labor condition application (LCA) did not match 
WAC 04 800 44435 
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the EIN on the petitioner's tax returns. On appeal, counsel states that this was the result of a clerical error, 
and that the EIN on the Form 1-129 and the LCA was that of the beneficiary's previous employer. Counsel 
provides evidence to support this assertion. The AAO finds that the petitioner has resolved this inconsistency 
and overcome this element of the director's denial. 
To make its determination whether the employment described qualifies as a specialty occupation, the AAO 
turns to the criteria at 8 C.F.R. fj 214.2(h)(4)(iii)(A)(I) and (2): a baccalaureate or higher degree or its 
equivalent is the normal minimum requirement for entry into the particular position; and a degree requirement 
is common to the industry in parallel positions among similar organizations or a particular position is so 
complex or unique that it can be performed only by an individual with a degree. Factors considered by the 
AAO when determining these criteria include: whether the Department of Labor's Occupational Outlook 
Handbook (Handbook), on which the AAO routinely relies for the educational requirements of particular 
occupations, reports the industry requires a degree; whether the industry's professional association has made a 
degree a minimum entry requirement; and whether letters or affidavits from firms or individuals in the 
industry attest that such firms "routinely employ and recruit only degreed individuals." See Shanti, Inc. v. 
Reno, 36 F. Supp. 2d 1151, 1165 (D. Minn. 1999) (quoting Hird/Blaker Corp. v. Suva, 712 F. Supp. 1095, 
1 102 (S.D.N.Y. 1989)). 
In his denial, the director found the duties described by the petitioner to reflect many of those performed by 
accountants, but determined that the petitioner did not have the type of business or the organizational 
complexity and scale to require the services of a full- or part-time accountant. While, as discussed below, the 
AAO does not find the record to demonstrate that the petitioner would employ the beneficiary in a position 
requiring a degreed accountant, it has reached its conclusions on grounds other than those relied upon by the 
director. 
The AAO finds the director to have erred in concluding that the petitioner does not have the organizational 
complexity, nor operate the type of business that would require an accountant. The 2006-2007 edition of the 
Handbook indicates that accountants work throughout private industry and government, helping to ensure that 
the "Nation's firms are run efficiently, its public records kept accurately, and its taxes paid properly and on 
time."' It does not indicate that accountants are employed solely by public accounting, payroll services, and 
tax preparation firms; computer accounting systems, software developers, government agencies or academic 
institutions, as stated by the director. Accordingly, the petitioner's intention to employ an accountant may not 
be discounted based on its type of business. Neither does the fact that the petitioner does not have an 
accounting/bookkeeping staff establish that it would not employ the beneficiary to perform the duties of an 
accountant. Therefore, the AAO withdraws the director's findings in this regard. 
The petitioner has identified its proffered position as that of an accountant/auditor. Therefore, the AAO turns 
first to the 2006-2007 edition of the Handbook and its discussion of ths occupation. 
1 Occupational Outlook Handbook, 2006-2007 Edition, at www.bls.gov/oco/ocos001 .htm. 
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The Handbook describes the job duties of an internal auditor as follows: 
Internal auditors verify the accuracy of their organization's internal records and check for 
mismanagement, waste, or fraud. Internal auditing is an increasingly important area of 
accounting and auditing. Internal auditors examine and evaluate their firms' financial and 
information systems, management procedures, and internal controls to ensure that records are 
accurate and controls are adequate to protect against fraud and waste. They also review 
company operations, evaluating their efficiency, effectiveness, and compliance with 
corporate policies and procedures, laws, and government regulations. 
The AAO finds the above discussion to be generally reflected in the petitioner's description of the duties of 
the proffered position and agrees that the petitioner's employment would require the beneficiary to have an 
understanding of accounting principles. However, the performance of duties requiring accounting knowledge 
does not establish the proffered position as that of an accountant. The question is not whether the position 
requires knowledge of accounting principles but rather whether it is one that normally requires the level of 
accounting knowledge that is signified by at least a bachelor's degree, or its equivalent, in accounting. To 
make this determination, the AAO considers the petitioner's business operations. 
The petitioner asserted that the duties of the proffered position were highly technical and complex and that it 
was work that could not be performed by an individual who did possess at least a baccalaureate degree in 
accounting or a related field. 
On appeal, counsel re-states the duties of the position, and asserts that the director erred in assuming that 
some of the duties are those of a bookkeeper or accounting clerk. Counsel also states that the director was 
incorrect in stating that the petitioner does not engage in the type of business for which an accountant or 
auditor would normally be hired. Counsel refers back to the petitioner's letter of support regarding its size, 
work and complexity, and states the a company with 765 workers and multiple branches is the type of 
company which needs an accountant/auditor to ensure that it does not find itself in a situation involving fraud 
and waste. 
Counsel asserts that the petitioner's DE-6 information and tax information differs from that supplied in the 
petitioner's Form 1-129 due to the nature of the petitioner's company as separate limited liability companies 
with branches outside of California. No evidence is supplied to support this assertion, however. Without 
documentary evidence to support the claim, the assertions of counsel will not satisfy the petitioner's burden of 
proof. The unsupported assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 
533, 534 (BIA 1988); Matter of laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N 
Dec. 503,506 (BIA 1980). 
The AAO notes that the duties described by the petitioner, if performed for only one of the petitioner's 
entities, do not appear to require accounting knowledge beyond that held by junior accountants, employment 
that does not impose a degree requirement on those seeking entry-level employment. It is only when 
combined with the complexity imposed by the petitioner's multiple business operations that the duties of the 
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proffered position may require a level of knowledge that can be acquired only through a baccalaureate degree 
in accounting or its equivalent. 
The Handbook's discussion of the occupation of accountants clearly indicates that accounting positions may 
be filled by individuals holding associate degrees or certificates, or who have acquired their accounting 
expertise through experience: 
Capable accountants and auditors may advance rapidly; those having inadequate academic 
preparation may be assigned routine jobs and find promotion difficult. Many graduates of 
junior colleges or business or correspondence schools, as well as bookkeepers and accounting 
clerks who meet the education and experience requirements set by their employers, can 
obtain junior accounting positions and advance to positions with more responsibilities by 
demonstrating their accounting slulls on the job. 
Further proof of the range of academic backgrounds that may prepare an individual for accounting 
employment is provided by the credentialing practices of the American Council for Accountancy and 
Taxation (ACAT), an independent accrediting and monitoring organization affiliated with the National 
Society of Accountants. The ACAT does not require a degree in accounting or a related specialty to issue a 
credential as an Accredited Business Accountant@ /Accredited Business Advisor@ (ABA). Eligibility for the 
eight-hour comprehensive examination for the ABA credential requires only three years of "verifiable 
experience in accounting, taxation, financial services, or other fields requiring a practical and theoretical 
knowledge of the subject matter covered on the ACAT Comprehensive Examination." Up to two of the 
required years of work experience may be satisfied through college  redi it.^ In addition, The Institute of 
Internal Auditors also offers a credentialing option, the Certified Internal Auditor@ designation. CIA 
candidates must hold a bachelor's degree or its equivalent from an accredited college-level institution, but 
there is no requirement for that degree to be in a specific specialty.3 
To determine whether the accounting knowledge required by the proffered position rises above that which 
may be acquired through experience or an associate's degree in accounting: the AAO turns to the record for 
information regarding the nature of the petitioner's business operations. While the size of a petitioner's 
business operations is normally not a factor in determining the nature of a proffered position, both level of 
income and organizational structure are appropriately reviewed when a petitioner seeks to employ an H-1B 
Information provided by the ACAT website (http://www.acatcredentials.org/index.html). The Handbook 
identifies the ACAT website as one of several "Sources for Additional Information" at the end of its 
discussion of the occupation of accountants. 
http://www. theiia.org/?docjd=5 
4 According to the website for Skyline College, a community college located in San Mateo, CA 
(www.skylinecollege.net), an associate's degree in business or accounting would involve learning the 
fundamentals about financial accounting principles and concepts, balance sheets, income statements, cash 
flow statements, the GAAP, forecasting, budgeting, cost accounting, break even analysis, developing and 
operating a computerized accounting system. Thus, an associate's degree would provide knowledge about the 
GAAP and accounting techniques that serve the needs of management and facilitate decision-malung. 
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worker as an accountant. The AAO reviews the record for evidence that a petitioner's operations are of 
sufficient complexity to establish that the proffered position's accounting duties would require a level of 
knowledge obtained only through a baccalaureate degree in accounting or its equivalent. 
In the instant case, the record indicates that the petitioner is a group of four limited liability companies 
operating as a partnership, with two of the companies based in California. The director found that the 
petitioner's statement that it had 725 employees was inconsistent with the DE-6 forms indicating that it had 
approximately 200 employees. On appeal, counsel states that the petitioner has 200 employees in California, 
as represented on the DE-6 forms, a California reporting form. The balance of the petitioner's employees is 
outside California and, therefore, not represented on the DE-6 forms. The director makes the same finding of 
inconsistency regarding the petitioner's tax documents; the documents submitted indicated a total income of 
$3.9 million, rather than the $8.2 million stated on the Form 1-129. Counsel states on appeal that $3.9 million 
represents the income from the petitioner's two California offices and, again, that the balance is from the 
offices outside California. The size of its business operations - 725 employees and $8.2 million in gross 
income - is not independently documented in the record. Going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Sofici, 
22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. 
Comm. 1972)). 
The petitioner did not establish the nature of the business enterprise for which the beneficiary would provide 
services. The record does not establish whether the beneficiary would be worlung for one of the petitioner's 
limited liability companies, for the two companies in California, or for the entire organization. In its letter of 
support, the petitioner stated that it has offices in Los Angeles, San Francisco, San Diego, Pittsburgh, 
Louisiana and New York. It also stated that each of its four limited liability companies corresponds to an 
individual branch office, but it did not explain which of its sites were branch offices, and which were some 
other type of office. 
The AAO has also reviewed the record for a discussion of the petitioner's business operations to understand 
the financial requirements imposed by these apparently distinct operations and their relation to the 
beneficiary's duties. However, the record contains no evidence to indicate how the petitioner's business 
operations relate to one another organizationally or financially, including whether they have separate and 
unique financial operations or share a single budget and accounting system. As noted above, going on record 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these proceedings. Matter of Sofici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of 
California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
As the record fails to establish the specific accounting position for which the petitioner is seelung the 
beneficiary's service or the type of financial structure within which the beneficiary would work, the duties of 
the proffered position have not been established as sufficiently complex to indicate that the petitioner would 
employ the beneficiary as a management accountant. Instead, as the record is currently constituted, the duties 
appear more closely aligned to accounting responsibilities that may be performed by junior accountants, 
employment that does not impose a baccalaureate degree requirement on those seeking entry-level 
employment. Therefore, the petitioner has not established the proffered position as a specialty occupation 
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under the first criterion at 8 C.F.R. § 214.2(h)(4)(A) - a baccalaureate or higher degree or its equivalent is 
normally the minimum requirement for entry into the particular position. 
To establish the proffered position as a specialty occupation under the second criterion at 8 C.F.R. 
tj 214.2(h)(4)(A), a petitioner must prove that a specific degree requirement is common to its industry in 
parallel positions among similar organizations or that the proffered position is so complex or unique that it 
can be performed only by an individual with a degree. The proffered position is not that of a management 
accountant, but a junior accountant, employment that the Handbook indicates may be performed by 
individuals who have associate's degrees in accounting or who have an appropriate level of experience. 
Accordingly, the proffered position has not been established as a specialty occupation under the first prong of 
the second criterion based on the Handbook's discussion of the standard degree requirement for management, 
public and government accountants and auditors. As the petitioner has submitted no evidence to prove that its 
degree requirement for the proffered position is common in parallel positions among similar organizations, it 
has failed to establish the proffered position as a specialty occupation based on the practices in its industry. 
The AAO also concludes that the record before it does not establish that the position qualifies as a specialty 
occupation under the second prong at 8 C.F.R. $ 214.2(h)(4)(iii)(A)(2) -- the position is so complex or unique 
that it can be performed only by an individual with a degree. It finds no evidence that would support such a 
finding. Accordingly, the petitioner has not established its position as a specialty occupation under either 
prong of the second criterion. 
To determine whether a proffered position may be established as a specialty occupation under the third 
criterion - the employer normally requires a degree or its equivalent for the position - the AAO usually 
reviews the petitioner's past employment practices, as well as the histories, including names and dates of 
employment, of those employees with degrees who previously held the position, and copies of those 
employees7 diplomas. In the instant case, the petitioner has submitted no evidence regarding its hiring 
practices. Accordingly, the record does not establish the proffered position as a specialty occupation under 
the third criterion. 
The fourth criterion requires a petitioner to establish that the nature of the specific duties of its position is so 
specialized and complex that the knowledge required to perform these duties is usually associated with the 
attainment of a baccalaureate or higher degree. The AAO, however, finds no evidence to indicate that the 
beneficiary's duties would require greater knowledge or skill than that normally possessed by junior 
accountants. Further, the position, as described, does not appear to represent a combination of jobs that 
would require the beneficiary to have a unique set of skills other than those of a junior accountant. As a 
result, the record fails to establish that the proffered position meets the specialized and complex threshold of 
the fourth criterion at 8 C.F.R. 214.2(h)(4)(iii)(A). 
For reasons related in the preceding discussion, the petitioner has failed to establish the proffered position as a 
specialty occupation. Accordingly, the AAO shall not disturb the director's denial of the petition. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
tj 1361. The petitioner has not sustained that burden. 
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ORDER: The appeal is dismissed. The petition is denied.