dismissed H-1B Case: Accounting

U.S. Department of Homelalld Security 
20 Mass Ave., N.W., Rm. A3342 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
?fit:: I /'lr?F 
FILE: SRC 04 115 52756 Office: CALIFORNIA SERVICE CENTER Date: 
IN RE: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(l 5)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 9 1 10 1 (a)(] S)(H)(i)(b) 
ON BEHATP OF PETITIONER: 
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INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
SRC 04 115 52756 
Page 2 
DISCUSSION: The director of the service center denied the nonirnmigrant 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 engaged in the business of the retail distribution of jewelry, gemstones and watches and 
indicated in the initial petition that it had 15 employees. It seeks to extend the employment of the beneficiary 
as a full-time accountant. The petitioner, therefore, endeavors to classify the beneficiary as a non~rnmigrant 
worker in a specialty occupation pursuant to section 10l(a)(l S)(H)(i)(b) of the Immigration and Natioinality Act 
(the Act), 8 U.S.C. 5 1 lOl(a)(lS)(H)(i)(b). 
The director denied the petition because the proffered position is not a specialty occupation. On a:ppeal, the 
petitioner submits a brief and supporting documents. 
Section 214(i)(l) of the Act, 8 U.S.C. 5 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. 
Pursuant to 8 C.F.R. 2 14.2(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; 
(2) The degree requirement is common to the industry in parallel positions among sirniliu 
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 criteria at 8 C.F.R. 
fj 214.2(h)(4)(iii)(A) to mean not just any baccalaureate or higher degree, but one in a specific specia.lty that is 
directly related to the proffered position. 
The record of proceeding before the AAO contains: (1) Form 1-129 and supporting documentation; (2) the 
director's request for additional evidence; (3) counsel's response to the director's request; (4) the director's 
denial letter; and (5) Form I-290B and supporting documentation. The AAO reviewed the reclord in its 
entirety before issuing its decision. 
SRC 04 1 15 52756 
Page 3 
The petitioner is seeking the beneficiary's services as a full-time accountant. Evidence of the beneficiary's 
duties includes: the Form 1-129; the attachments accompanying the Form 1-129; and the company support 
letter. According to this evidence, the beneficiary would perform duties that entail maintaining accounting 
systems for the petitioner; setting-up business transaction accounts in the system; entering and maintaining 
ledgers; managing bank accounts and performing bank reconciliation; maintaining budget records; and 
tracking costs and expenses. The petitioner indicated that the beneficiary had been performing duties such as 
keeping track of the budget and receivables, monitoring regulatory changes and reporting such changes to the 
management of the company; tracking financial operations and properly reporting revenues; advising the 
management on the systems of recording costs; preparing the payroll; and preparing tax returns and balance 
sheets. The petitioner indicated that the proffered position requires the minimum education of a bachelor's 
degree in business administration, finance or accounting. 
The director requested additional evidence. In response, counsel indicated that the nature of the business is 
jewelry and explained that the greatest portion of business occurred in the final quarter of the business year 
due to holiday purchasing. The petitioner submitted a Texas corporation franchise tax report for tax year 
2004 which indicated gross receipts of $478,941.00. The petitioner submitted Texas sales and use tax returns 
for filing periods March, April, May and June which listed 4 outlets. The petitioner submitted unsigned 
federal quarterly wage reports Form 94 1 for the quarters ending March 2004, September 2004, and December 
2004 which indicated three employees. Additionally, the petitioner submitted three purchase order invoices 
which indicated that the petitioner purchased jewelry. One receipt was dated April 15, 2004 and two receipts 
were dated March 17, 2004. The petitioner also submitted a list of nine employees as well as the 
beneficiary's W-2 for tax year 2004. 
The director determined that the proffered position was not a specialty occupation. The director noted that the 
instant petition was filed on March 8, 2004. The director noted that the records of the Texas Secretary of 
State indicated that the petitioner was an inactive company that forfeited its existence on January 9, 2004. 
The director determined that the petitioner was not a United States employer at the time of filing at; required 
by the regulations. The director noted that the petitioner indicated on the Form 1-129 that it had a grc~ss annual 
income of $1.5 million dollars and fifteen employees. The director noted that the submitted evidence 
indicated that the petitioner had gross sales of $478,941. Furthermore, after reviewing the evidence :submitted 
by the petitioner, the director found that the business in which the beneficiary is employed does not require an 
accountant who has complex or advanced financial duties; therefore, the director concluded that the 
beneficiary would not be employed in a specialty occupation. 
On appeal, counsel contends that the petitioner is 
explains that the beneficiary was initially employed b 
petitioner rents retail locations to other retail busin 
services. Although it was not asserted in the initial petition, on appeal counsel states that the beneficiary has 
the responsibility of provided accounting services to the tenants of the petitioner. Counsel further explains 
that the proffered position requires the beneficiary to work in-house for the petitioner and on-site for the 
tenants. Counsel states that the beneficiary will remain a full-time employee of the petitioner. A petitioner 
cannot offer a new position to the beneficiary, or materially change a position's title or its associated job 
responsibilities on appeal. The petitioner must establish that the position offered to the beneficiary when the 
petition was filed is a specialty occupation. See Matter of Michelin Tire, 17 I&N Dec. 248, 249 (Reg. Comm. 
1978). If significant changes are made to the initial request for approval, the petitioner must file a new petition 
SRC 04 1 15 52756 
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rather than seek approval of a petition that is not supported by the facts in the record. Therefore, only the job 
description before the director will be considered. 
Additionally, the petitioner has submitted no evidence of tenants or contracts for supplying accounting services to 
tenants. Going on record without supporting documentary evidence is not sufficient for purposes of meeting 
the burden of proof in these proceedings. Matter of Sof$ci, 22 I&N Dec. 158, 165 (Comm. 1998) (citing 
Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
Furthermore, the petitioner submits its payroll dated November 15, 2004; which indicates six employees. 
Counsel asserts that the combined number of employees and contractors providing services to the petitioner 
amounts to approximately 15 people. Without documentary evidence to support the claim, the assertions of 
counsel will not satisfy the petitioner's burden of proof. The unsupported assertions of counsr:l 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 ofRamirez-Sanchez, 17 I&N Dec. 503,506 (BIA 1980). 
Counsel contends that the beneficiary will interact with managers who perform the bookkeeping functions. 
Counsel asserts that the beneficiary will advise upper management in cost control and regulatory changes. 
Counsel notes that the beneficiary would spend a majority of his time preparing, reviewing, and evaluating 
financial and tax records, implementing cost management techniques and advising management in financial 
investment decisions. Counsel explains that the petitioner is experiencing significant expansion in its 
business functions and revenues. Counsel contends that due to the complexity of job functions and the 
enormous amount of transactions that are talung place on an every day basis, the petitioner needs an in-house 
accountant. 
The AAO notes that the petitioner did not address the director's'concern that the records of tlhe Texas 
Secretary of State indicated that the petitioner was an inactive company at the time of filing the petition that 
forfeited its existence on January 9, 2004. It is incumbent upon the petitioner to resolve any incon:;istencies 
in the record by independent objective evidence. Any attempt to explain or reconcile such inconsistericies will 
not suffice unless the petitioner submits competent objective evidence pointing to where the truth lie:;. Matter 
of Ho, 19 I&N Dec. 582,591-92 (BIA 1988). 
Upon review of the record, the petitioner has established none of the four criteria outlined in 8 C.F.R. 
3 214.2(h)(4)(iii)(A). Therefore, the proffered position is not a specialty occupation. 
The AAO first considers the criteria at 8 C.F.R. $9 214.2(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; 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 often 
considered by CIS when determining these criteria include: whether the Department of Labor's Occldpational 
Outlook Handbook (the Handbook) reports that the industry requires a degree; whether the industry's prclfessional 
association has made a degree a minimum entry requiremeht; and whether letters or affidavits from fms 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 11 5 1, 1 165 (D.Minn. 1999)(quoting HirdBlaker Corp. v. Sava, 712 F. Supp. 
1095, 1102 (S.D.N.Y. 1989)). 
SRC 04 115 52756 
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In determining whether a position qualifies as a specialty occupation, CIS looks beyond the title of the 
position and determines, from a review of the duties of the position and any supporting evidence, whether the 
position actually requires the theoretical and practical application of a body of highly specialized knowledge, 
and the attainment of a baccalaureate degree in a specific specialty as the minimum for entry into the 
occupation as required by the Act. The AAO routinely consults the Handbook for its information about the 
duties and educational requirements of particular occupations. 
A review of the Handbook reveals that specific job duties vary widely among the four major fields of 
accounting: public, management, government, and internal. The closest category to the proffered position is 
the management accountant. In the Handbook, management accountants - also called cost, managerial, 
industrial, corporate, or private accountants - record and analyze the financial information of the companies 
for which they work. Other responsibilities include budgeting, performance evaluation, cost management, and 
asset management. Usually, management accountants are part of executive teams involved in strategic 
planning or new-product development. They analyze and interpret the financial information that corporate 
executives need to make sound business decisions. They also prepare financial reports for nonmanagement 
groups, including stockholders, creditors, regulatory agencies, and tax authorities. Within accounting 
departments, they may work in various areas, including financial analysis, planning and budgeting, and cost 
accounting. 
While it is true that not all accountants are part of an executive team, the Handbook's delineation of a 
management accountant as part of an executive team involved in strategic planning or new-product 
development illustrates the scope and complexity of a management accountant's responsibilities. Likewise, 
the role of the accountant to prepare financial reports for nonmanagement groups, including stockholders, 
creditors, regulatory agencies, and tax authorities also illustrates the level of a management accountant's 
responsibilities. Because the beneficiary will not be part of an executive team and will not prepare financial 
reports for nonmanagement groups, including stockholders, creditors, regulatory agencies, and tax authorities, 
this indicates that the beneficiary's duties do not rise to the same level as a management accountant. 
The Handbook states: 
Accountants and auditors held about 1.1 million jobs in 2002. They worked throughout 
private industry and government, but 1 out of 5 wage and salary accountants worked for 
accounting, tax preparation, bookkeeping, and payroll services firms. Approximately 1 out of 
10 accountants or auditors were self-employed. 
Many accountants and auditors are unlicensed management accountants, internal auditors, or 
government accountants and auditors; however, a large number are licensed Certified Public 
Accountants. Most accountants and auditors work in urban areas, where public accounting 
firms and central or regional offices of businesses are concentrated. 
The petitioner indicated on the Form 1-129 that it had 15 employees and grossed $1.5 million in rtxeipts or 
sales. The submitted Form 941 indicated three employees. Additionally, the petitioner submitted three 
purchase order invoices which indicated that the petitioner purchased jewelry three times. The petitioner 
submitted a Texas corporation franchise tax report for tax year 2004 which indicates gross receipts of 
$478,941.00. It is incumbent upon the petitioner to resolve any inconsistencies in the record by independent 
SRC 04 115 52756 
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objective evidence. Any attempt to explain or reconcile such inconsistencies will not suffice ~lnless the 
petitioner submits competent objective evidence pointing to where the truth lies. Matter of Ho, 19 [&N Dec. 
582, 591-92 (BIA 1988). 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 ofHo. The petitioner's level of income has a direct and substantial bearing on the scope and depth of 
the beneficiary's proposed duties. The petitioner has not provided evidence that supports its contention that 
due to the size and complexity of its business the proffered duties are so complex and specialized that it is an 
accounting position requiring a baccalaureate level of education in a specialty occupation. 
The Handbook reveals that many of the beneficiary's duties are performed by bookkeeping, accounting, 
auditing and financial clerks: 
Bookkeeping, accounting, and auditing clerks are an organization's financial record keepers. 
They update and maintain one or more accounting records, including those that tabulate 
expenditures, receipts, accounts payable and receivable, and profit and loss. . . . post debits artd 
credits, produce financial statements, and prepare reports and summaries for supervisors ar~d 
managers. . . . handle the payroll, make purchases, prepare invoices, and keep track of 
overdue accounts. 
More advanced accounting clerks may total, balance, and reconcile billing vouchers; ensure 
completeness and accuracy of data on account. . . . They may also review invoices and 
statements to ensure that all information is accurate and complete. . . . Auditing clerks veri@ 
records of transactions posted by other workers. 
Financial clerks . . . record all amounts coming into or leaving an organization . . . keep track 
of a store's inventory. . . . 
Auditing clerks verify records of transactions posted by other workers. They check figures, 
postings, and documents to ensure that they are correct, mathematically accurate, and proper:ly 
coded. 
The petitioner stated that the beneficiary would enter and maintain ledgers; manage bank accounts and 
perform bank reconciliation; and maintain budget records; and track costs and expenses. 
As shown in the Handbook, bookkeeping, accounting, and auditing clerks produce financial statements and 
prepare reports and summaries for supervisors and managers, which would be used by them to make sound 
business decisions. Further, the Handbook reports that employers require most financial clerks to have at 
least a high school diploma, and for bookkeepers and accounting clerks, they often require an associate's 
1 degree in business or accounting. The Handbook also states that many graduates of junior colleges and 
1 According to the website for Skyline College, a community college located in San Mateo, California, 
(www.skvlinecolle~e.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 using tools such as QuickBooks, QuickBooks Pro, or I'eachtree, 
an integrated commercial accounting software package that is used to review, differentiate, and interpret 
SRC 04 1 15 52756 
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business and correspondence schools, as well as some bookkeepers and accounting clerks, obtain positions as 
junior accountants. 
Based on the above discussion regarding the Handbook's information about management accountants and 
bookkeeping, accounting, auditing and financial clerks, the evidence in the record is insufficient to establish 
the regulation at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(I): that a baccalaureate or higher degree or its equivallent is the 
normal minimum requirement for entry into the particular position. 
The petitioner has not established the second criterion - that a specific degree requirement is comrrlon to the 
industry in parallel positions among similar organizations. No evidence in the record establishes the 
regulation at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(2) which requires the petitioner to establish that a specific degree 
requirement is common to the industry in parallel positions among similar organizations. Nor can the 
petitioner establish that the particular position is so complex or unique that it can be performed oinly by an 
individual with a degree. As already discussed above, the Handbook reveals that many of the beneficiary's 
duties are performed by bookkeeping, accounting, and auditing clerks, occupations that do not require a 
bachelor's degree. 
Nor is there evidence in the record to establish the third criterion at 8 C.F.R. 5 214.2(h)(4)(iii)(A): that the 
petitioner normally requires a degree or its equivalent for the position. The petitioner submitted the 
beneficiary's previous H-1B approval notice. If the previous nonirnmigrant petition was approved based on 
the same unsupported and contradictory assertions that are contained in the current record, the approval would 
constitute material and gross error on the part of the director. The AAO is not required to approve 
applications or petitions where eligibility has not been demonstrated, merely because of prior apprlovals that 
may have been erroneous. See, e.g. Matter of Church Scientology International, 19 I&N Dec. 593, 597 
(Comm. 1988). It would be absurd to suggest that CIS or any agency must treat acknowledged errors as 
binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 
U.S. 1008 (1988). 
Furthermore, the AAO's authority over the service centers is comparable to the relationship between a court 
of appeals and a district court. Even if a service center director had approved the nonimmigrant petitions on 
behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service 
center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), afd, 248 F.3d 11351 (5th Cir. 
2001), cert. denied, 122 S.Ct. 5 1 (2001). 
The regulation at 8 C.F.R. !j 214.2(h)(4)(iii)(A)(4) requires that the petitioner establish that the nature of the 
specific duties is so specialized and complex that the knowledge required to perform the duties is usually 
associated with the attainment of a baccalaureate or higher degree. Counsel explains that the petitioner is 
experiencing significant expansion in its business functions and revenues. Counsel contends that due to the 
complexity of job functions and the enormous amount of transactions that are talung place on an every day 
basis, the petitioner needs an in-house accountant. Counsel's assertions are not substantiated by the facts of 
accounting concepts and data in a multitude of business situations. Thus, an associate's degree would provide 
knowledge about the GAAP and accounting techniques which serve the needs of management and facilitate 
decision-making. 
SRC 04 1 15 52756 
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the record. The petitioner contends that it sells jewelry and employs 15 people. The petitioner provided 
evidence that it purchased jewelry three times for a total amount of approximately $17,000. The record 
reflects that it employs between 3 and 6 people and has gross earnings of $478,941. The petitionler has not 
provided any information about its retail sales which would establish the volume or complexity of' business. 
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 (Cornrn. 1998) (citing Matter 
of Treasure Craft ofCalifornia, 14 I&N Dec. 190 (Reg. Comm. 1972)). Although the petitioner refers to the 
management of the company, the petitioner has not provided an organizational chart to relate the duties of 
advising management in relation to the organization of the petitioner. Many of the beneficiary's duties are 
performed by bookkeeping, accounting, auditing and financial clerks, occupations that do not require a 
bachelor's degree. The petitioner therefore fails to establish 8 C.F.R. § 214.2(h)(4)(iii)(A)(#). 
As related in the discussion above, the petitioner has failed to establish that the proffered position is 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. 5 1361. 
The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed. The petition is denied.