dismissed H-1B Case: Accounting

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U.S. Department of Homeland Security
20 Mass Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
PUliLICCOPY
Q2
SttJ 0 5Z007
FILE: WAC 04 09152638 Office: CALIFORNIA SERVICE CENTER Date:
IN RE: Petitioner:
Beneficiary:
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(H)(i)(b) of the
Immigration and Nationality Act, 8 U.S.c. § 1101(a)(15)(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 originally decided your case. Any further inquiry must be made to that office.
Robert P. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
WAC 04 09152638
Page 2
DISCUSSION: The service center director denied the nonimmigrant visa petition on March 30, 2004. The
director rejected a subsequent appeal, filed on May 3, 2004, as untimely filed. In response to a motion to
reopen, the director found that the May 3, 2004 appeal was timely filed and forwarded it to the AAO for
adjudication. The appeal will be dismissed. The petition will be denied.
The petitioner is an importer and wholesaler of leather goods! that seeks to employ the beneficiary as a
full-time accountant. The petitioner, therefore, endeavors to classify the beneficiary as a nonimmigrant worker
in a specialty occupation pursuant to section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (the
Act), 8 U.s.C. § 1101(a)(15)(H)(i)(b). The director denied the petition because the proffered position is not a
specialty occupation.
The record of proceeding before the AAO contains: (1) the Form 1-129 and supporting documentation; (2) the
director's request for evidence (RFE); (3) counsel's response to the director's request; (4) the director's denial
letter; (5) the Form 1-290B, with counsel's brief; (6) the director's decision to reject the appeal as untimely
filed; and (7) the petitioner's motion to reopen. The AAO reviewed the record in its entirety before reaching
its decision.
The issue before the AAO is whether the proffered position qualifies as a specialty occupation. To meet 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)(1) of the Act, 8 U.S.C. § 1184(i)(1), 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. § 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
! A search of the California Business Portal website at inds a "suspended"
status, filing dat~2, for at Bellflower,
California, with listed as the agent. This website also reports a "cancelled" status, filing
date of February 28, 2007, for at
California, with listed as the agent. Thus the petitioner's status as a .. emp oyer as not
been established.
WAC 04 09152638
Page 3
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:
(1) A baccalaureate or higher degree or its equivalent IS normally the minimum
requirement for entry into the particular position;
(2) The degree requirement is common to the industry in parallel positions among
similar organizations or, in the alternative, an employer may show that its particular
position is so complex or unique that it can be performed only by an individual with a
degree;
(3) The employer normally requires a degree or its equivalent for the position; or
(4) The nature of the specific duties is so specialized and complex that knowledge
required to perform the duties is usually associated with the attainment of a
baccalaureate or higher degree.
Citizenship and Immigration Services (CIS) consistently 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. Cf Defensor v. Meissner, 201 F.
3d 384 (5 th 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 a full-time accountant. Evidence of the beneficiary's duties
includes: the petitioner's February 4, 2004 letter in support of the petition and counsel's March 15, 2004
response to the director's RFE. As stated by the petitioner, the proposed duties are as follows:
[The beneficiary] will apply established accounting standards, principles, and practices to analyze
financial information and prepare financial reports using computer software programs. He will
prepare accounts receivable and payable, balance sheets, and financial reports to determine or
maintain records of assets, liabilities, profit and loss, and tax liability. He will prepare tax returns
WAC 04 091 52638
Page 4
and payroll. He will analyze financial information detailing assets, liabilities, and capital to
summarize current and projected growth for the corporation.
In response to the director's RFE, counsel further described the proposed duties as follows:
1. Prepare financial reports using computer software programs - 20%;
2. Analyze financial information detailing assets, liabilities, and capital to summarize current and
projected growth - 20%;
3. Prepare accounts receivable, payable, and balance sheets - 20%;
4. Record daily sales and purchase activities - 20%;
5. Prepare payroll for the companies - 10%; and
6. Prepare corporate income tax returns using software programs - 10%.
The director found that the proposed duties are similar to the duties of a bookkeeper, an occupation that does
not require a bachelor's degree. Citing the Department of Labor's (DOL) Occupational Outlook Handbook
(Handbook), the director noted that the minimum requirement for entry into the position was not a
baccalaureate degree or its equivalent in a specific specialty. The director concluded that the petitioner failed
to establish any of the criteria found at 8 C.F.R. § 214.2(h)(4)(iii)(A).
On appeal, counsel states, in part, that the proffered position is that of an accountant, not a bookkeeping or
accounting clerk. Counsel also states that the petitioner's increased sales, purchases, and net profit warrant the
services of an accountant who will also serve as a financial management consultant. Counsel submits
documentation to show that similar businesses require the services of an accountant, and asserts that CIS has
approved similar petitions.
Upon review of the record, the petitioner has established none of the four criteria outlined m
8 C.F.R. § 214.2(h)(4)(iii)(A). Therefore, the proffered position is not a specialty occupation.
The AAO turns first to the criteria at 8 C.F.R. §§ 214.2(h)(4)(iii)(A)(1) 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 Handbook reports that the industry
requires a degree; whether the industry's professional association has made a degree a minimum entry
requirement; and whether letters or affidavits from firms or individuals in the industry attest that such firms
"routinely employ and recruit only degreed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D.
Minn. 1999)(quoting Hird/Blaker Corp. v. Sava, 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989».
WAC 04 09152638
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The AAO routinely consults the Handbook for its information about the duties and educational requirements
of particular occupations. The 2006-07 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." Counsel and the petitioner have stated that
the proffered position is that of an accountant and have offered a general description of the position that lists
duties typically performed by accountants. As discussed by the DOL, management accountants, the category
of accounting most closely aligned to the duties described by the petitioner, are individuals who:
[r]ecord and analyze the financial information of the companies for which they work. Among
their other responsibilities are budgeting, performance evaluation, cost management, and
asset management . . . . They analyze and interpret the financial information that corporate
executives need in order to make sound business decisions. They also prepare financial
reports for other groups, including stockholders, creditors, regulatory agencies, and tax
authorities. Within accounting departments, management accountants may work in various
areas, including financial analysis, planning and budgeting, and cost accounting.
The AAO acknowledges that part of the above discussion is generally reflected in the petitioner's description
of the proffered position. A petitioner, however, cannot establish employment as a specialty occupation by
describing the duties of the employment in the same general terms as discussed in sources outlining
occupations. The petitioner does not detail specific tasks that would be performed by the beneficiary in
connection with the petitioner's import and wholesale ofleather goods business. The petitioner must detail its
expectations of the proffered position and must provide evidence of the duties that comprise the proffered
position as they relate specifically to the petitioner's business. Information on the petition reflects that the
petitioner was established in 1998, has four employees and a gross annual income of $1.1 million. The
petitioner's federal income return for 2002 reflects $430,083 in gross receipts or sales, $23,000 in
compensation of officers, and $14,300 in salaries and wages. The petitioner's federal income tax return for
2003 reflects $1,095,684 in gross receipts or sales, $8,500 in compensation of officers, and $27,894 in salaries
and wages. The record contains no documentation that supports counsel's assertion on appeal that the
petitioner's increased sales, purchases, and net profit require the services of a full-time accountant holding a
related bachelor's degree. 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 ofObaigbena, 19 I&N Dec. 533,534 (BIA 1988); Matter ofLaureano, 19 I&N Dec. 1 (BIA 1983);
Matter ofRamirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980).
A review of the Handbook finds that not all accounting employment is performed by degreed accountants. Its
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
WAC 04 091 52638
Page 6
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 skills 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
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 Eligibility for the
eight-hour comprehensive examination for the 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 credit?
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 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 worker as an
accountant. In matters where a petitioner's business is relatively small, like that in the instant matter, the AAO
reviews the record for evidence that its operations, are, nevertheless, of sufficient scope and/or complexity to
indicate that it would employ the beneficiary in an accounting position requiring a level of financial
knowledge that may be obtained only through a baccalaureate degree in accounting or its equivalent. As
discussed above, information on the petition reflects that the petitioner was established in 1998, and has four
employees and a gross annual income of $1.1 million. The record contains no documentation that supports
counsel's claim on appeal that the petitioner's increased sales, purchases, and net profit require the services of
a full-time accountant with a related bachelor's degree. Again, 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
2 Information provided by the ACAT website
identifies the ACAT website as one of severa
discussion of the occupation of accountants.
3 According to the website for Skyline College, a community college located in San Mateo, CA
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-making.
WAC 04 091 52638
Page 7
petitioner has not provided documentary evidence to demonstrate that it is a business with complex financial
requirements. The record does not contain evidence, such as audits, loan agreements or business plans that
document the petitioner's business operations as complex. The petitioner has not provided documentary
evidence to establish that it has a complicated financial situation and thus that its business, despite its
relatively limited income and small size, has the complexity of financial operations to require that the
proffered position requires a degree in accounting. Going on record without supporting documentary evidence
is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter ofSoffici, 22 I&N
Dec. 158, 165 (Comm. 1998)(citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm.
1972)). The duties of the proffered position are not established as those of a degreed accountant. Instead, they
appear at most to be 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. Accordingly, the petitioner has failed to establish the proffered position as a
specialty occupation under the first criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(1) - a baccalaureate or higher
degree or its equivalent is normally the minimum requirement for entry into the particular position.
Regarding parallel positions in the petitioner's industry, the record contains letters from the CEO of a
wholesale chemical business and from the president of a packaging equipment business who both assert that
they require the services of an accountant. They, however, do not provide any evidence in support of their
assertions. Nor do they rely on industry surveys, data or other documentation to reach the conclusion that the
proffered position requires a bachelor's degree in a field related to accounting. 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. 1998)(citing Matter of Treasure Craft of
California, 14 I&N Dec. 190 (Reg. Comm. 1972)). The Handbook is a compilation of results of nationwide
industry questionnaires, surveys and personal interviews by the DOL, and indicates that there is no specific
degree requirement for entry into the field as a junior accountant. The AAO may, in its discretion, use as
advisory opinions statements submitted as expert testimony. However, where an opinion is not in accord with
other information or is in any way questionable, the AAO is not required to accept or may give less weight to
that evidence. Matter ofCaron International, 19 I&N Dec. 791 (Comm. 1988).
Counsel states that CIS has already determined that the proffered position is a specialty occupation since CIS
has approved other, similar petitions in the past. This record of proceeding does not, however, contain all of
the supporting evidence submitted to CIS in the prior cases. In the absence of all of the corroborating
evidence contained in other records of proceeding, the information submitted by counsel is not sufficient to
enable the AAO to determine whether the positions offered in the prior cases were similar to the position in
the instant petition.
Each nonimmigrant petition is a separate proceeding with a separate record. See 8 C.F.R. § 103.8(d). In
making a determination of statutory eligibility, CIS is limited to the information contained in the record of
proceeding. See 8 c.F.R. § 103.2(b)(16)(ii). Although the AAO may attempt to hypothesize as to whether the
prior cases were similar to the proffered position or were approved in error, no such determination may be
made without review of the original records in their entirety. If the prior petitions were approved based on
evidence that was substantially similar to the evidence contained in this record of proceeding, however, the
WAC 04 09152638
Page 8
approval of the prior petitions would have been erroneous. CIS is not required to approve petitions where
eligibility has not been demonstrated, merely because of prior approvals that may have been erroneous .
See, e.g., Matter ofChurch Scientology International, 19 I&N Dec. 593 , 597 (Comm. 1988). Neither CIS nor
any other agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v, Montgomery 825
F.2d 1084, 1090 (6th Cir . 1987), cert denied, 485 V.S. 1008 (1988).)
The record does not include sufficient evidence from firms, individuals , or professional associations regarding
an industry standard . In the alternative, the petitioner may show that the proffered position is so complex or
unique that only an individual with a degree can perform the work associated with the position. In the instant
petition, the petitioner has not submitted sufficient documentation to establish that the duties of the proffered
position involve duties that are complex or unique ; rather the petitioner has provided a general description of
the occupation without identifying any complex or unique tasks pertinent only to the petitioner's business that
would elevate the position to one that requires the knowledge associated with a bachelor's degree in a specific
discipline. The petitioner has failed to establish the proffered position as a specialty occupation under either
prong of the criterion at 8 C.F.R. § 214.2(h)(4)( iii)(A)(2).
The AAO now turns to the criterion at 8 C.F.R . § 214 .2(h)(4)(iii)(A)(3) - the employer normally requires a
degree or its equivalent for the position . As counsel does not address this issue on appeal, it will not be
discussed further. The evidence ofrecord does not establish this criterion.
Finally, the AAO turns to the criterion at 8 C .F.R . § 214.2(h)(4)(iii)(A)(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.
Counsel states, on appeal, that the proposed duties and responsibilities can be effectively performed by an
individual with a bachelor's degree in accounting . The MO, however, finds no evidence in the record to
indicate that the beneficiary's duties would require greater knowledge or skill than that normally possessed by
junior accountants. Neither does the position, as described, represent a combination of jobs that would require
the beneficiary to have a unique set of skills beyond those of a junior accountant. To the extent that they are
generically depicted in the record, the duties do not appear so specialized and complex as to require the highly
specialized knowledge associated with a baccalaureate or higher degree in a specific specialty . Therefore , the
evidence does not establish that the proffered position is a specialty occupation under 8 C .F.R.
§ 214.2(h)(4)(iii)(A)( 4).
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 V.S.C. § 1361.
The petitioner has not sustained that burden.
ORDER: The appeal is dismissed. The pet ition is denied.