dismissed H-1B Case: Accounting

(b)(6)
MATTER OF S- LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE : SEPT. 3, 2015 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a health and wellness products business, seeks to employ the Beneficiary as an 
accountant and to classify her as a nonimmigrant worker in a specialty occupation. See Immigration 
and Nationality Act (the Act)§ 101(a)(15)(H)(i)(b) , 8 U.S.C. § 1101(a)(15)(H)(i)(b). The Director , 
.California Service Center, denied the petition. The matter is now before us on appeal. The appeal 
will be dismissed. 
I. PROCEDURAL BACKGROUND 
In the Form I-129, Petition for a Nonimmigrant Worker, the Petitioner described itself as a health 
and wellness ·products business with 10 employees, established in In order to employ the 
Beneficiary in what it designates as an accountant, 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. § 110l(a)(15)(H)(i)(b). 
The Director denied the petition, finding that the evidence of record did not establish that the 
proffered position qualifies as a specialty occupation. On appeal, the Petitioner asserts that the 
Director's basis for denial was erroneous and contends that it satisfied all evidentiary requirements. 
The record of proceeding contains: (1) the Form 1-129 and supporting documentation; (2) the 
Director's request for additional evidence (RFE) ; (3) the Petitioner's response to the RFE ; ( 4) the 
Director's letter denying the petition ; and (5) the Notice of Appeal or Motion (Form I-290B) and 
supporting documentation . 
We reviewed the record in its entirety before issuing our decision. We conduct appellate review on a 
de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). We follow the preponderance 
of the evidence standard as specified in the Matter ofChawathe, 25 I&N Dec. 369, 375-376 (AAO 
2010). 
For reasons that will be discussed below , we agree with the Director that the Petitioner has not 
established eligibility for the benefit sought. Accordingly , the Director's decision will not be 
disturbed. The appeal will be dismissed. 
Matter of S- LLC 
II. SPECIALITY OCCUPATION 
The sole issue under consideration is whether the Petitioner has provided sufficient evidence to 
establish that it will employ the Beneficiary in a specialty occupation. 
A. Legal Framework 
For an H-IB petition to be granted, the petitioner must provide sufficient evidence to establish that it 
will employ the beneficiary in a specialty occupation position. To meet its burden of proof in this 
regard, the petitioner must establish that the employment it is offering to the beneficiary meets the 
applicable statutory and regulatory requirements of a specialty occupation. 
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 quality as a specialty occupation, a proposed position must 
meet one of the following criteria: 
(I) A baccalaureate or higher degree or its equivalent 1s normally the m1mmum 
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 
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Matter of S- LLC 
(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.P.R. § 214.2(h)(4)(iii)(A) must logically be read together 
with section 214(i)(l) of the Act and 8 C.P.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 ofW­
F-, 21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 C.P.R. § 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.P.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.P.R. 
§ 214.2(h)(4)(ii), U.S. Citizenship and Immigration Services (USCIS) consistently interprets the 
term "degree" in the criteria at 8 C.P.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 Cir. 2007) (describing "a degree requirement in 
a specific specialty" 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 occupa6ons that Congress contemplated 
when it created the H -1 B visa category. 
To determine whether a particular job qualifies as a specialty occupation, USCIS 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. USCIS 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. 
Matter of S- LLC 
B. The Proffered Position 
The Petitioner stated in its support letter dated April 17, 2014 that the Beneficiary will perform the 
following duties as an accountant: 
• Budgeting and forecasting in a multi-level marketing environment; 
• Domestic sales tax and European VAT filings; 
• Distributor commission calculations and payments; 
• Inventory analysis for reorder timeline; 
• Payroll submission and review; 
• Implement a fixed asset tracking system; 
• Employee expense review and payment; 
• Vendor payments; 
• Create travel and event budgets; 
• Assist with month end financial statement preparation; and 
• Assist in foreign transactions, translations and oversight. 
The Petitioner further indicated that the minimum educational requirement for the proffered position 
is a Bachelor's degree in Business Management with emphasis in Finance. 
The Petitioner submitted a Labor Condition Application (LCA) in support of the instant H-1 B. The 
Petitioner indicated that the proffered position corresponds to the occupational category 
"Accountants and Auditors" with SOC (ONET/OES) code 13-2011, at a Level I (entry level) wage. 
In response to the Director's RFE, the Petitioner provided a more detailed job description for the 
proffered position. 
Analysis (50%): 
• Perform monthly and year-end financial statement consolidation procedures, 
including intercompany reconciliations and foreign currency exchange 
translation; 
• Analyze financial information detailing assets, liabilities and capital and prepare 
balance sheet, profit and loss statement and other reports to summarize current 
and projected company financial position using Excel; 
• Prepare management reports such as project revenue and cost analysis, product 
and service margin analyses and cash reports; 
• Prepare account analysis, accounting entries and financial reports and statements 
to ensure payroll information is accurately and properly reflected in the 
company's financial accounting system in a timely manner; 
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Matter of S- LLC 
• Compile and analyze financial information to prepare entries to accounts such as 
general ledger accounts, documenting business contracts; 
• Perform financial calculations such as amounts due, interest charges, balances, 
discounts, equity and principal, and variance analysis of revenue and department 
expenses; 
• Perform analytics on subsidiary companies to assess the accuracy and quality of 
the reporting to assist in analyzing trends; and 
• Actively participate in the monthly, quarterly and annual financial closing 
process. 
Forecasting (20%): 
• Provide potential investors due diligence; and 
• Perform budget projection to support the CEO with budgeting management and business 
decisions. 
Developing (10%): 
• Develop/improve processes to integrate data and analyses from different systems and sources 
for enhanced reporting of revenue, margin and spending; and 
• Represent the accounting team on IT systems development and implementation projects. 
Auditing (1 0%): 
• Audit contracts, orders and vouchers and prepare reports to substantiate individual 
transactions prior to settlement; 
• Responsible for monitoring and maintaining all payroll general ledger accounts and 
personnel budgetary balances for all company payroll accounts; and 
• Ensure that financial information is accurate, meaningful, timely, and in conformance with 
GAAP. 
Training (5%): 
• Prepare and assist in inter-company billing and reconciliation of accounts; 
• Interact with our offices in foreign markets, Taiwan, Russia, and Kazakhstan; and 
• Train foreign offices on corporate financial procedures such as accounts payable, 
general ledger accounting, and reconciliations. 
Additional duties (5%): 
• Coordinate with all foreign market entity accountants the timely and efficient 
period-end (monthly) close of accounts, ledgers and registers for all reporting 
units, including roll-up of all reporting unit trial balances into corporate 
Matter of S- LLC 
accounting system, journal entries, adjusting entries, and detailed reconciliations 
of GIL accounts; 
• Receive debit notes from subsidiary offices, generate reports from QuickBooks 
Premier to research on inter-company transactions, prepare billing reports to each 
office and reconcile the accuracy of amount billed, foreign office records, and 
corporate office record; 
• Perform reconciliation on each company account by using current computer 
technology such as Excel and Access to develop, maintain and document record 
keeping; 
• Prepare and assist in Accounts Payable, input invoices and process checks for 
payment, and process sales taxes and inquiries from state in a timely manner; and 
• Reconcile the daily balance in the company checking account with the 
corresponding general ledger account. 
C. Analysis 
When determining whether a position is a specialty occupation, we must look at the nature of the 
business offering the employment and the description of the specific duties of the position as it 
relates to the particular employer. To ascertain the intent of a petitioner, USCIS looks to the Form 1-
129 and the documents filed in support of the petition. It is only in this manner that the agency can 
determine the exact position offered, the location of employment, the proffered wage, et cetera. 
Pursuant to 8 C.F.R. § 214.2(h)(9)(i), the director has the responsibility to consider all of the 
evidence submitted by a petitioner and such other evidence that he or she may independently require 
to assist his or her adjudication. Further, the regulation at 8 C.F.R. § 214.2(h)(4)(iv) provides that 
"[a ]n H-1 B petition involving a specialty occupation shall be accompanied by [ d]ocumentation ... 
or any other required evidence sufficient to establish . . . that the services the beneficiary is to 
perform are in a specialty occupation." 
For H-lB approval, the petitioner must demonstrate a legitimate need for an employee exists and to 
substantiate that it has H-1B caliber work for the beneficiary for the period of employment requested 
in the petition. It is incumbent upon the petitioner to demonstrate it has sufficient work to require 
the services of a person with at least a bachelor's degree in a specific specialty, or its equivalent, to 
perform duties at a level that requires the theoretical and practical application of at least a bachelor's 
degree level of a body of highly specialized knowledge in a specific specialty for the period 
specified in the petition. 
We find that the record of proceeding lacks sufficient documentation regarding the Petitioner's 
business activities and the actual work that the Beneficiary will perform to credibly substantiate the 
claim that the Petitioner has H-lB caliber work for the Beneficiary for the period of employment 
requested in the petition. Specifically, in the Form 1-129, the Petitioner indicated that it is a start-up 
company established in 2013, and has 10 employees. In the letter dated April 17, 2014, the 
Petitioner claimed that it is currently doing business in the United States, Taiwan, Mexico, Russia, 
and Kazakhstan. However, the Petitioner did not include evidentiary documents to substantiate its 
claims regarding the size of its workforce or operations, which undermines its claims regarding the 
h 
Matter of S- LLC 
Beneficiary's duties. For example, the Petitioner initially indicated that the Beneficiary's duties 
include "domestic sales tax and European VAT filings," but there is no evidence that the Petitioner 
conducts business in Europe or any other countries. Further, in the expanded description of duties 
provided in response to the RFE, the Beneficiary is responsible for "perform[ing] analytics on 
subsidiary companies to assess the accuracy and quality of the reporting to assist in analyzing 
trends," "receiving debit notes from subsidiary offices," "represent[ing] the accounting team on IT 
systems development and implementation projects," and "coordinating with all foreign market entity 
accountants the timely and efficient period-end (monthly) close of accounts." However, the record 
of proceeding does not contain evidence of subsidiary companies or an accounting team or foreign 
market entity accountants. We note that 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 ~~ Caf?fornia, 14 I&N Dec. 
190 (Reg'l Comm'r 1972)). 
However, assuming arguendo that the proffered position is an accountant position, we will now 
discuss the proffered position in relation to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(J), which 
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. 
A baccalaureate or higher degree in a specific specialty. or its equivalent, is normally the 
minimum requirement for entry into the particular position 
USCIS recognizes the U.S. Department of Labor Occupational Outlook Handbook (Handbook) as an 
authoritative source on the duties and educational requirements of the wide variety of occupations 
that it addresses. 1 We reviewed the section of the Handbook on "How to Become an Accountant or 
Auditor," which states the following, in 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 master's degree, either in accounting or in business administration with a 
concentration in accounting. 
1 All 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. 
Matter of S- LLC 
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. 
Licenses, Certifications, and Registrations 
Every accountant filing a report with the Securities and Exchange Commission 
(SEC) is required by law to be a Certified Public Accountant (CPA). Many other 
accountants choose to become a CPA to enhance their job prospects or to gain 
clients. Many employers will often pay the costs associated with the CPA exam. 
U.S. Department of Labor (DOL), Bureau of Labor Statistics, Occupational Outlook Handbook, 
2014-15 ed., Accountants and Auditors, available on the Internet at 
http://www.bls.gov/ooh/business-and-financial/accountants-and-auditors.htm (last viewed 
September 1, 20 15). 
The Handbook reports that certification may be advantageous or even required for some accountant 
positions. However, we note that there is no indication that the Petitioner requires the Beneficiary to 
have obtained the designation CPA, Certified Management Accountant (CMA) or any other 
professional designation to serve in the proffered position. 
The Handbook does not indicate that at least a bachelor's degree in a specific specialty, or its 
equivalent, is normally the minimum requirement for entry into this occupation. Rather, the 
occupation accommodates other paths for entry, including less than a bachelor's degree in a specific 
specialty. While the Handbook states that most accountants and auditors need at least a bachelor's 
degree in accounting or a related field, it does not indicate that such a degree is a normal minimum 
requirement. Specifically, the Handbook states that those with associate's degrees as well as 
bookkeepers and accounting clerks who meet the education and experience requirements set by their 
employers obtain junior accounting positions and advance to accountant positions by showing their 
accounting skills on the job. Accordingly, individuals who have less than a bachelor's degree in a 
specific specialty, or its equivalent, can obtain junior accounting positions and advance to accountant 
positions. Furthermore, the Handbook does not indicate that the education and experience 
requirements set by the employers must be the equivalent to at least a bachelor's degree in a specific 
specialty. 
Thus, 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 
(b)(6)
Matter of S- LLC 
position relative to others within the occupation- as indicated on the LCA), would normally have 
such a minimum, specialty degree requirement, or its equivalent. 
On appeal, the Petitioner submits a specialty occupation evaluation prepared by Professor 
at the School of Business at . Dr. states that the 
proffered position requires the attainment of a bachelor's degree or its equivalent in accounting, 
business administration, or a related field, which differs from the requirements set by the Petitioner. 
Further, Dr. does not provide a substantive, 
analytical basis for his opinion and 
ultimate conclusion. His opinion does not relate his conclusion to specific, concrete aspects of the 
Petitioner's business operations to demonstrate a sound factual basis for the conclusion about the 
educational requirements for the particular position here at issue. For instance, he does not 
demonstrate or assert in-depth knowledge of the Petitioner's specific business operations or how the 
duties of the position would actually be performed in the context of the Petitioner's business 
enterprise. 
Moreover, Dr. does not discuss the duties of the proffered position in any substantive 
detail. To the contrary, he simply lists the tasks in bullet-point fashion with little discussion. As a 
result, it is not evident that he analyzed the duties prior to formulating his letter. 
Importantly, there is also no indication that the Petitioner advised Dr. that it 
characterized the proffered position as a low, entry-level accountant position, for a beginning 
employee who has only a basic understanding of the occupation (as indicated by the wage-level on 
the LCA). The wage-rate indicates that the Beneficiary will be expected to perform routine tasks 
that require limited, if any, exercise of judgment; that she will be closely supervised and her work 
closely monitored and reviewed for accuracy; and that she will receive specific instructions on 
required tasks and expected results. It appears that Dr. would have found this 
information relevant for his opinion letter. Moreover, without this information, the Petitioner has 
not demonstrated that Dr. possessed the requisite information necessary to adequately 
assess the nature of the Petitioner's position and appropriately determine parallel positions based 
upon the job duties and responsibilities. 
Even if established by the evidence of record, which it has not, we note that the requirement of a 
bachelor's degree in accounting, business administration, or a related field 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 
or a related field, without further specification, does not establish the position as a specialty 
occupation. C.f Matter of Michael Hertz Assocs., 19 l&N Dec. 558 (Comm'r 1988). 
In addition to demonstrating that a job requires the theoretical and practical application of a body of 
specialized knowledge as required by section 214(i)(l) of the Act, a petitioner must also establish 
that the position requires the attainment of a bachelor's or higher degree in a specialized field of 
study or its equivalent. As explained above, USCIS interprets the supplemental degree requirement 
9 
(b)(6)
Matter of S- LLC 
at 8 e.F.R. § 214.2(h)(4)(iii)(A) as requiring a degree in a specific specialty that is directly related to 
the proposed position. users 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 Corp. v. Chertoff 484 F.3d at 
14 7. Therefore, the letter from Dr. does not support the Petitioner's assertion that the 
proffered position qualifies as a specialty occupation. 
Further, Dr. does not reference or discuss any studies, surveys, industry publications, 
authoritative publications, or other sources of empirical information which he may have consulted. 
We may, in our discretion, use advisory opinion statements submitted by the petitioner as expert 
testimony. Matter of Caron International, 19 I&N Dec. 791 (eomm'r 1988). However, where an 
opinion is not in accord with other information or is in any way questionable, we are not required to 
accept or may give less weight to that evidence. Jd. 
The fact that a person may be employed in a position designated by a petitioner as that of an 
accountant and may apply some accounting principles in the course of his or her job is not in itself 
sufficient to establish the position as one that qualifies as a specialty occupation. In this case, the 
Petitioner has not established that the proffered position falls under an occupational category for 
which the Handbook, or other authoritative source, indicates that normally the minimum requirement 
for entry is at least a bachelor's degree in a specific specialty, or its equivalent. Thus, the Petitioner 
has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(J). 
The requirement ofa 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 regarding the first of the two alternative prongs of 8 e.F.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 
USeiS 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. Afinn. 
1999) (quoting Hird!Blaker Corp. v. Sava, 712 F. Supp. 1095, 1102 (S.D:N.Y. 1989)). 
As previously discussed, the Petitioner has not established that its proffered position is one for which 
the Handbook (or other independent, authoritative source) reports a standard industry-wide 
requirement for at least a bachelor's degree in a specific specialty, or its equivalent. Thus, \Ve 
incorporate by reference the previous discussion on the matter. 
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Matter of S- LLC 
There are no submissions from the industry's professional association indicating that it has made a 
degree a minimum entry requirement and no submission of letters or affidavits from firms or 
individuals that attest that such firms routinely employ only individuals with a degree in a specific 
specialty. 
In support of the assertion that the degree requirement is common to the Petitioner's industry in 
parallel positions among similar organizations, the Petitioner submitted copies of job advertisements. 
However, upon review of the documents, we find that the Petitioner's reliance on the job 
announcements is misplaced. 
As noted, the Petitioner stated that it is a health and wellness products business established in 2013 
with 1 0 employees. Although required on the petition, the Petitioner did not provide its gross or net 
annual income; instead, it indicated that it is a start-up business. The Petitioner designated its 
business operations under the North American Industry Classification System (NAICS) code 44619? 
This NAICS code is designated for "Other Health and Personal Care Stores." The U.S. Department 
of Commerce, Census Bureau website describes this NAICS code by stating the following: 
This industry comprises establishments primarily engaged in retailing health and 
personal care items (except drugs, medicines, optical goods, perfumes, cosmetics, and 
beauty supplies). 
U.S. Dep't of Commerce, U.S Census Bureau, 2012 NAICS Definition, 44619 - Other Health and 
Personal Care Stores, on the Internet 
http://www.census.gov/econlisp/sarnpler.php?naicscode=44619&naicslevel=5# (last visited 
September 1, 2015). 
For the petitioner to establish that an organization is similar, it must demonstrate that they share the 
same general characteristics. 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 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). Notably, 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. 
Upon review of the documentation, the Petitioner did not establish that a requirement of a bachelor's 
or higher degree in a specific specialty, or its equivalent, is common for positions that are 
2 
According to the U.S. Census Bureau, the North American Industry Classification System (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 
September 1, 20 15). 
I I 
(b)(6)
Matter of S- LLC 
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. 
For instance, the advertisements include a position with (a leading manufacturer of 
institutional furniture), (a software company), and a campus store at the 
Without further information , these advertisements appear to be for organizations that are not similar 
to the Petitioner and the Petitioner has not provided probative evidence to suggest otherwise. 
Furthermore, the Petitioner submitted job postings placed by staffing companies (Accountemps and 
Supplemental Health Care), and advertisements for , for which little or no 
information regarding the employers is provided.3 Consequently, the record is devoid of sufficient 
information regarding the employers to conduct a legitimate comparison of the organizations to the 
Petitioner. The Petitioner did not supplement the record of proceeding to establish that the 
employers are similar to it. 
Moreover, some of the advertisements do not appear to be for parallel positions. More specifically, 
the job posting by requires "5+ years of accounting experience " and Accountemps 
requires "5-7 years of corporate accounting experience." As previously discussed, the Petitioner 
designated the proffered position as an entry-level position on the LCA. The advertised positions 
appear to be for more senior positions than the proffered position. Moreover, the Petitioner has not 
sufficiently established which primary duties of the advertised positions are parallel to the duties of 
the proffered position. 
As the documentation does not establish that the Petitioner has met this prong of the regulations , 
further analysis regarding the specific information contained in each of the job postings is not 
necessary. That is, not every deficit of every job posting has been addressed. The evidence does not 
establish that similar organizations in the same industry routinely require at least a bachelor's degree 
in a specific specialty or its equivalent for parallel positions.4 
3 On appeal, the Petitioner asserts that are similarly structured . However, the Petitioner did 
not submit documentary 
evidence to substantiate its claims. 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 l&N Dec. at 165 
(citing Matter of Treasure Craft of California, 14 l&N Dec. 190). 
4 Although the size of the relevant study population is unknown , the Petitioner does not demonstrate what statistically 
valid inferences , if any, can be drawn from these advertisements with regard to determining the common educational 
requirements for entry into parallel positions in similar companies. 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 offers access to the body of probability theory, which provides the basis for estimates of population 
parameters and estimates of error.") 
As such, even if the job announcements supported the finding that the position of accountant for companies that are 
similar to the Petitioner requires a bachelor's or higher degree in a specific specialty, or its equivalent , it cannot be found 
that such a limited number of postings that appear to have been consciously selected could credibly refute the finding s of 
the Handbook published by the Bureau of Labor Statistics that such a position does not require at least a baccalaureate 
degree in a specific specialty, or its equivalent, for entry into the occupation in the United States. 
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Matter of S- LLC 
Therefore, the Petitioner has not established that a requirement of a bachelor's or higher degree in a 
specific specialty, or its equivalent, is common to the Petitioner's industry in positions that are (1) in 
the Petitioner's industry, (2) parallel to the proffered position, and also (3) located in organizations 
that are similar to the Petitioner. 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 be performed only by an individual 
with a baccalaureate or higher degree in a spectfic specialty, or its equivalent 
We will next consider the second alternative prong of 8 C.F.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 such as certification of incorporation, business plan, lease 
agreements, and invoices. We reviewed the record in its entirety and find that while the documents 
provide some insight into the Petitioner's business operations, the Petitioner has not explained how 
the documents establish that its particular position is so complex or unique that it can only be 
performed by an individual with a baccalaureate or higher degree in a specific specialty, or its 
equivalent. 
This is further evidenced by the LCA submitted by the Petitioner in support of the instant petition. 
The LCA indicates a wage level at a Level I (entry) wage, which is the lowest of four assignable 
wage levels. 5 Without further evidence, the record of proceeding does not indicate that the proffered 
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 intemsh ip 
are indicators that a Level I wage should be considered. 
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. flcdatacenter.com/download/NPWHC _Guidance_ Revised _II_ 2009.pdf. 
Thus, in accordance with the relevant DOL explanatory information on wage levels, this wage rate indicates that the 
beneficiary is only required to have a basic understanding of the occupation and carries expectations that the beneficiary 
13 
Matter of S- LLC 
position is complex or unique as such a position falling under this occupational category would 
likely be classified at a higher-level, such as a Level III (experienced) or Level IV (fully competent) 
position, requiring a significantly higher prevailing wage.6 For example, a Level IV (fully 
competent) position is designated by DOL for employees who "use advanced skills and diversified 
knowledge to solve unusual and complex problems." 7 The evidence of record does not establish that 
this position is significantly different from other positions in the occupational category such that it 
refutes the Handbook's information that a bachelor's degree in a specific specialty or its equivalent is 
not required for the proffered position. 
Upon review, we find that the Petitioner has not sufficiently developed relative complexity or 
uniqueness as an aspect of the proffered position. 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 it may believe are so complex and 
unique. While a few related courses may be beneficial, or even required, in performing certain 
duties of the position, the Petitioner has not demonstrated how 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 proffered position. The description of the duties does not 
specifically identify any tasks that are so complex or unique that only a specifically degreed 
individual could perform them. The record lacks sufficiently detailed information to distinguish the 
proffered position as more complex or unique from other positions that can be performed by persons 
without at least a bachelor's degree in a specific specialty, or its equivalent. 
The Petitioner repeatedly claims that the Beneficiary is well qualified for the position. However, the 
test to establish a position as a specialty occupation is not the education or experience of a proposed 
Beneficiary, but whether the position itself requires at least a bachelor's degree in a specific 
specialty, or its equivalent. The Petitioner did not establish that its particular position is so complex 
or unique that it can only be performed by an individual with at least a bachelor's degree in a specific 
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. DOL guidance indicates that a Level I designation should be considered for positions in 
which the employee will serve as a research fellow, worker in training, or an intern. 
6 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)( I) of the Act. 
7 For additional information regarding wage levels as defined by DOL, 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.flcdatacenter.com/download/NPWHC _Guidance_ Revised _11_2009.pdf 
14 
Matter of S- LLC 
specialty, or its equivalent. Therefore, the Petitioner has not 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, we review the petitioner's past recruiting and hiring practices, as well as information 
regarding employees who previously held the position, and 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. While a petitioner may assert that a 
proffered position requires a specific degree, that statement alone without corroborating evidence 
cannot establish the position as a specialty occupation. Were USCIS limited solely to reviewing a 
petitioner's claimed self-imposed requirements, then any individual with a bachelor's degree could be 
brought to the United States to perform any occupation as long as the petitioner artificially created a 
token degree requirement, whereby all individuals employed in a particular position possessed a 
baccalaureate or higher degree in the specific specialty, or its equivalent. See Defensor v. Meissner, 
201 F.3d at 388. In other words, if a petitioner's stated degree requirement is only designed to 
artificially meet the standards for an H-1B visa and/or to underemploy an individual in a position for 
which he or she is overqualified and if the proffered position does not in fact require such a specialty 
degree or its equivalent, to perform its duties, the occupation would not meet the statutory or 
regulatory definition of a specialty occupation. See§ 214(i)(l) ofthe Act; 8 C.P.R.§ 214.2(h)(4)(ii) 
(defining the term "specialty occupation"). 
To satisfy this criterion, the evidence of record must show that the specific performance 
requirements of the position generated the recruiting and hiring history. A petitioner's perfunctory 
declaration of a particular educational requirement will not mask the fact that the position is not a 
specialty occupation. USCIS must examine the actual employment requirements, and, on 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. 
The Petitioner has stated that the proffered position is a new one for the company. As such, the 
Petitioner has not asserted that it has a history of recruiting and hiring only persons with at least a 
bachelor's degree in a specific specialty, or its equivalent, for the proffered position. Additionally, 
we have reviewed the record and find no evidence that the Petitioner normally reqmres a 
15 
Matter of S- LLC 
baccalaureate or higher degree in a specific specialty, or its equivalent, for the proffered position. 
Therefore, the Petitioner has not satisfied the third criterion of 8 C.F.R. § 214.2(h)( 4)(iii)(A). 
The nature of the specific duties is so specialized and complex that knowledge required to 
perform the duties is usually associated with the attainment ofa baccalaureate or higher degree 
in a specific specialty. or its equivalent 
The fourth criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A) requires a petitioner to establish that the nature 
of the specific duties is so specialized and complex that the knowledge required to perform them is 
usually associated with the attainment of a baccalaureate or higher degree in a specific specialty, or 
its equivalent. 
Upon review of the record of the proceeding, we note that the Petitioner has not provided sufficient 
evidence to satisfy this criterion of the regulations. In the instant case, relative specialization and 
complexity have not been credibly developed by the Petitioner as an aspect of the proffered position. 
That is, the proposed duties have not been described with sufficient specificity to establish that they 
are more specialized and complex than positions that are not usually associated with at least a 
bachelor's degree in a specific specialty, or its equivalent. 
We further incorporate our earlier discussion and analysis regarding the duties of the proffered 
position, and the designation of the proffered position in the LCA as a Level I position (the lowest of 
four assignable wage-levels) relative to others within the occupational category. Without more, the 
position is one not likely distinguishable by relatively specialized and complex duties. That is, 
without further evidence, the Petitioner has not demonstrated that its proffered position is one with 
specialized and complex duties as such a position falling under this occupational category would 
likely be classified at a higher-level, such as a Level III (experienced) or Level IV (fully competent) 
position, requiring a substantially higher prevailing wage. 8 
The Petitioner has submitted insufficient evidence to satisfy this criterion of the regulations. We, 
therefore, conclude that the Petitioner did not satisfy the criterion at 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A)( 4). 
For the reasons related in the preceding discussion, the Petitioner has not established that it has 
satisfied any of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) and, therefore, it cannot be found that 
the proffered position qualifies as a specialty occupation. 
8 As previously discussed, a Level IV (fully competent) position is designated by DOL for employees who "use 
advanced skills and diversified knowledge to solve unusual and complex problems" and requires a significantly higher 
wage. 
16 
Matter of S- LLC 
III. CONCLUSION AND ORDER 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 ofthe Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met.9 
ORDER: The appeal is dismissed. 
Cite as Matter ofS- LLC-, ID#14007 (AAO Sept. 3, 2015) 
9 Since the identified bases for denial are dispositive of the Petitioner's appeal, we will not address other grounds of 
ineligibility we observe in the record of proceeding. 
1 '"7