dismissed H-1B Case: Accounting

U.S. Citizenship 
and Immigration 
Services 
MATTER OF 1-E-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 21, 2015 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a business operating beauty salons, seeks to temporarily employ the Beneficiary as an 
accountant and to classify him 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 matter is 
now before us on appeal. The appeal will be dismissed. 
The Director denied the petition, determining that the evidence of record did not establish that the 
proffered position qualifies for classification as a specialty occupation. On appeal, the Petitioner 
asserts that the Director's basis for denial of the petition was erroneous and contends that it has 
satisfied all evidentiary requirements. 
The entire record of proceeding includes: (1) the Petitioner's Form I-129 and supporting 
documentation; (2) the service center's request for evidence (RFE); (3) the Petitioner's response to 
the RFE; (4) the notice of decision; and (5) the Form I-290B, Notice of Appeal or Motion, a brief, 
and documentation. We reviewed the record in its entirety before issuing our decision. 1 
Upon review of the entire record of proceeding, we find that the evidence of record does not overcome 
the Director's grounds for denying this petition. Accordingly, the appeal will be dismissed, and the 
petition will be denied. 
I. THE PROFFERED POSITION 
The Petitioner identified the proffered position as an "Accountant" on the Form 1-129, and attested 
on the Form 1-129 and on the required Labor Condition Application (LCA) that the proffered 
1 
We conduct appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). 
Also, in light of the Petitioner's references to the requirement that U.S. Citizenship and Immigration Services (USCIS) 
apply the "preponderance of the evidence" standard, we affirm that, in the exercise of our appellate review in this matter, 
as in all matters that come within our purview, we follow the preponderance of the evidence standard as specified in the 
controlling precedent decision, Matter ofChawathe, 25 I&N Dec. 369, 375-376 (AAO 20 10). 
Matter of 1-E-, INC 
positiOn is full-time position.2 The Petitioner indicated on the LCA that the occupational 
classification for the proffered position is "Accountant and Auditors," SOC (ONET/OES) Code 
13-2011, at a Level I wage. 
The Petitioner initially stated that it is "in the service industry," employs nine persons, and currently 
has six locations in the New York area.3 The Petitioner stated that the "essential functions" of the 
job include, but are not limited to the following: 
• Prepare, examine, or analyze accounting records, financial statements, or other financial 
reports to assess accuracy, completeness, and conformance to reporting and procedural 
standards; 
• Report to President regarding the finances of establishment; 
• Maintain payroll for employees and ensure taxes are paid timely; 
• Establish tables of accounts and assign entries to proper accounts; 
• Develop, implement, modify, and document recordkeeping and accounting systems, 
making use of current computer technology; 
• Compute taxes owed and prepare tax returns, ensuring compliance with payment, 
reporting or other tax requirements; 
• Maintain or examine the records of government agencies; 
• Advise President in areas such as compensation, employee health care benefits, design of 
accounting or data processing systems; 
• Develop, maintain, and analyze budgets, preparing periodic reports that compare 
budgeted costs to actual costs; 
• Analyze business operations, trends, costs, revenues, financial commitments, and 
obligations, to project future revenues and expenses or to provide advice; and 
• Coordinate with CPA (Certified Public Accountant) on taxes, registration of new 
business under the Petitioner and so on[.] 
The Petitioner asserted that "[t]his is a professional position requmng a Bachelor's degree or 
equivalent education that is normally the minimum requirements for entry into this position." The 
Petitioner also asserted that "[i]n order to successfully discharge the duties to complete the job 
2 
In the letter submitted in support of the petition, the Petitioner stated that the proffered position "will be a part time 
position for the initial period of the H-I 8, as a non-immigrant worker, and depending on the business needs can become 
a full time position in the later years." The record does not include evidence clarifying whether the proffered position is 
a part-time or a full-time position. It is incumbent upon the Petitioner to resolve any inconsistencies in the record by 
independent objective evidence. Any attempt to explain or reconcile such inconsistencies will not suffice unless the 
Petitioner submits competent objective evidence pointing to where the truth lies. Matter of Ho, 19 l&N Dec. 582, 
591-92 (8 lA 1988). 
3 On appeal, the Petitioner notes that it is an 11-employee business, as it added two employees subsequent to the date of 
filing the Form I-129. In that regard, we observe that the Petitioner must establish eligibility at the time of filing the 
nonimmigrant visa petition. 8 C.F.R. § 103.2(b)(l). A visa petition may not be approved at a future date after the 
Petitioner or Beneficiary becomes eligible under a new set of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248 
(Reg'! Comm'r 1978). 
2 
Matter of 1-E-, INC 
requirements in suitable manner, an Accountant must have theoretical and practical application of a 
body of highly specialized knowledge in the field of Accounts/Management, and requires a 
bachelor's degree or higher in the related field." The Petitioner added that "to perform the related 
job duties, the Beneficiary should have apprehensive [sic] knowledge of computer skills and 
accounting." 
II. SPECIALTY OCCUPATION 
A. Legal Framework 
To meet its burden of proof, the Petitioner must establish that the employment it is offering to the 
Beneficiary meets the following statutory and regulatory requirements. 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized 
knowledge, and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.F .R. § 214.2(h)( 4 )(ii) states, in pertinent part, the following: 
Specialty occupation means an occupation which [(1)] requires theoretical and 
practical application of a body of highly specialized knowledge in fields of human 
endeavor including, but not limited to, architecture, engineering, mathematics, 
physical sciences, social sciences, medicine and health, education, business 
specialties, accounting, law, theology, and the arts, and which [(2)] requires the 
attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, as 
a minimum for entry into the occupation in the United States. 
Pursuant to 8 C.F.R. § 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, a proposed position must 
meet one of the following criteria: 
(1) A baccalaureate or higher degree or its equivalent is normally the 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 1-E-, INC 
(4) The nature of the specific duties [is] so specialized and complex that knowledge 
required to perform the duties is usually associated with the attainment of a 
baccalaureate or higher degree. 
As a threshold issue, it is noted that 8 C.F.R. § 214.2(h)(4)(iii)(A) must logically be read together 
with section 214(i)(l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). In other words, this regulatory 
language must be construed in harmony with the thrust of the related provisions and with the statute 
as a whole. SeeK Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (holding that construction 
of language which takes into account the design of the statute as a whole is preferred); see also COlT 
Independence Joint Venture v. Federal Sav. and Loan Ins. Corp., 489 U.S. 561 (1989); Matter of 
W-F-, 21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 C.F.R. § 214.2(h)(4)(iii)(A) 
should logically be read as being necessary but not necessarily sufficient to meet the statutory and 
regulatory definition of specialty occupation. To otherwise interpret this section as stating the 
necessary and sufficient conditions for meeting the definition of specialty occupation would result in 
particular positions meeting a condition under 8 C.F.R. § 214.2(h)(4)(iii)(A) but not the statutory or 
regulatory definition. See Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). To avoid this 
result, 8 C.F.R. § 214.2(h)(4)(iii)(A) must therefore be read as providing supplemental criteria that 
must be met in accordance with, and not as alternatives to, the statutory and regulatory definitions of 
specialty occupation. 
As such and consonant with section 214(i)(l) of the Act and the regulation at 8 C.F.R. 
§ 214.2(h)(4)(ii), U.S. Citizenship and Immigration Services (USCIS) consistently interprets the 
term "degree" in the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) to mean not just any baccalaureate or 
higher degree, but one in a specific specialty that is directly related to the proffered position. See 
Royal Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st 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 occupations 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. users must examine the 
ultimate employment of the alien, and determine whether the position qualifies as a specialty 
occupation. See generally Defensor v. Meissner, 201 F. 3d 384. The critical element is not the title 
of the position nor an employer's self-imposed standards, but whether the position actually requires 
the theoretical and practical application of a body of highly specialized knowledge, and the 
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Matter of 1-E-, INC 
attainment of a baccalaureate or higher degree in the specific specialty as the minimum for entry into 
the occupation, as required by the Act. 
B. Analysis 
With respect to the proposed duties of the positiOn, the Petitioner described the duties of the 
proffered position in terms of general and generic functions. The evidence of record does not 
describe any of the listed functions in sufficient detail to either establish the substantive nature and 
associated complexity or specialization of the Petitioner's matters upon which the Beneficiary would 
focus or the practical and theoretical level of accounting knowledge that the Beneficiary would have 
to apply to those matters. We have also reviewed the Petitioner's response to the RFE and the 
allocation of the Beneficiary's time and find that the description provided is also insufficiently 
detailed. For example, the Petitioner stated that the Beneficiary would spend 35% of his time 
helping the Petitioner come up with a business plan and personal financial plan, as well as offering 
advice on insurance and expansion. The Petitioner also noted that the Beneficiary would spend: 
15% of his time managing its day-to-day records and setting up bookkeeping and accounting 
systems; 25% ofhis time providing assistance with tax-related issues such as tax compliance and tax 
planning and advising the president on employee compensation and health care benefits; and 25% of 
his time preparing financial statements and audits as well as dealing with the CP As and Accountants 
of other businesses prior to purchase. These duties present such a broad view of the proposed duties 
of the position, that it is not possible to differentiate the duties between basic business consulting 
duties and routine bookkeeping functions, and specific accounting duties. 
The Petitioner has not included sufficient detail regarding the Beneficiary's actual day-to-day tasks 
associated with its general outlines of duties to ascertain that its duties actually include tasks that 
entail accounting services at a level requiring the theoretical and practical application of at least a 
bachelor's degree level of knowledge in accounting. The Petitioner has not established the 
substantive nature of the work to be performed by the Beneficiary, which therefore precludes a 
finding that the proffered position satisfies any criterion at 8 C.F.R. § 214.2(h)( 4)(iii)(A), because it is 
the substantive nature of that work that determines (1) the normal minimum educational requirement for 
the particular position, which is the focus of criterion 1; (2) industry positions which are parallel to the 
proffered position and thus appropriate for review for a common degree requirement, under the first 
alternate prong of criterion 2; (3) the level of complexity or uniqueness of the proffered position, which 
is the focus of the second alternate prong of criterion 2; ( 4) the factual justification for a petitioner 
normally requiring a degree or its equivalent, when that is an issue under criterion 3; and (5) the degree 
of specialization and complexity of the specific duties, which is the focus of criterion 4. 
Accordingly, as the Petitioner has not established that it has satisfied any of the criteria at 8 C.F.R. § 
214.2(h)( 4)(iii)(A), it cannot be found that the proffered position qualifies as a specialty occupation. 
That being said and with the understanding that we are incorporating these comments and findings 
as part of our analysis of each of the criterion at 8 C.F .R. § 214.2(h)( 4 )(iii), we shall now separately 
address each of those criteria. 
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Matter of 1-E-, INC 
A baccalaureate or higher degree in a specific specialty, or its equivalent, is 
normally the minimum requirement for entry into the particular position 
We will first address the criterion at 8 C.P.R. § 214.2(h)(4)(iii)(A)(l). This criterion requires that a 
baccalaureate or higher degree in a specific specialty, or its equivalent, is normally the minimum 
requirement for entry into the particular position. We recognize the Department of Labor's (DOL) 
Occupational Outlook Handbook (Handbook) as an authoritative source on the duties and educational 
requirements of the wide variety of occupations that it addresses.4 
The Petitioner asserts that the duties it describes are those of an accountant and are thus completely 
different than the duties of a bookkeeper. 5 However, the Petitioner has not identified anyone who 
would perform the routine bookkeeping functions of its business. In response to the service center's 
RFE, the Petitioner submitted its organizational chart identifying the president of the company and 
listing five locations, each with a store manager and a technician as employees. The only other 
position on the organizational chart is the proposed position of accountant.6 Neither the 
organizational chart nor other evidence in the record demonstrates that the Petitioner employs or 
contracts with anyone to perform the routine bookkeeping functions of its organization. This brings 
into question how much of the Beneficiary's time can actually be devoted to accounting duties above 
those usually performed by a junior accountant or a bookkeeping, auditing, or accounting clerk. 
Doubt cast on any aspect of the Petitioner's proof may, of course, lead to a reevaluation of the 
reliability and sufficiency of the remaining evidence offered in support of the visa petition. Matter 
of Ho, 19 I&N Dec. 582, 591 (BIA 1988). 
Even though the record is materially deficient regarding the Beneficiary's actual duties, we have 
reviewed the information in the Handbook regarding the occupational category "Accountants and 
Auditors," including the section entitled "How to Become an Accountant or Auditor," which 
describes the following preparation for the occupation, in pertinent part: 
4 All of the references are to the 2014-2015 edition of the Handbook, which may be accessed at the Internet site 
http://www.b1s.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. 
5 The Handbook reports that most bookkeeping, accounting, and auditing clerks need a high school diploma. In other 
words, a bachelor's degree in a specific specialty is not required for bookkeeping, accounting and auditing clerk 
positions. See U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2014-2015 ed., 
"Bookkeeping, Accounting and Auditing Clerks," http://www.bls.gov/ooh/office-and-administrative-support/bookkeeping­
accounting-and-auditing-clerks.htm#tab-4 (last visited Sep. 16, 20 15). 
6 The record includes inconsistent information on the number ofthe Petitioner's employees in 2014. For example, when 
the petition was filed in September 2014, the Petitioner stated that it employed nine individuals. However, on the 
Petitioner's Form 941, Employer's Quarterly Federal Tax Return, for the quarter the petition was filed, the Petitioner 
listed only two employees who had received wages, tips, or other compensation. Again, it is incumbent upon the 
Petitioner to resolve any inconsistencies in the record by independent objective evidence. Any attempt to explain or 
reconcile such inconsistencies will not suffice unless the Petitioner submits competent objective evidence pointing to 
where the truth lies. Matter of Ho, 19 I&N Dec. at 591-92. 
Matter of 1-E-, INC 
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. 
A few universities and colleges offer specialized programs, such as a bachelor's 
degree in internal auditing. In some cases, those with associate's degrees, as well as 
bookkeepers and accounting clerks who meet the education and experience 
requirements set by their employers, get junior accounting positions and advance to 
accountant positions by showing their accounting skills on the job. 
Many colleges help students gain practical experience through summer or part-time 
internships with public accounting or business firms. 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2014-15 ed., 
"Accountants and Auditors," http://www. bls. gov I ooh/business-and- financial/ accountants-and­
auditors.htm#tab-4 (last visited Sep. 16, 20 15). 
The Handbook indicates only that "[ m ]ost accountant and auditor positiOns require at least a 
bachelor's degree in accounting or a related field." The Handbook does not state that such a degree 
is a normal minimum entry requirement for all accountant and auditor positions. In addition, as set 
out above, the Handbook indicates that some without a bachelor's degree or even a postsecondary 
degree may "advance to accountant positions by demonstrating their accounting skills on the job." 
When reviewing the Handbook, it also must be noted that the Petitioner designated the proffered 
position as a Level I (entry level) position on the LCA. The wage levels are defined in DOL's 
"Prevailing Wage Determination Policy Guidance." A Level I wage rate is described as follows: 
Level I (entry) wage rates are assigned to job offers for beginning level employees 
who have only a basic understanding of the occupation. These employees perform 
routine tasks that require limited, if any, exercise of judgment. The tasks provide 
experience and familiarization with the employer's methods, practices, and programs. 
The employees may perform higher level work for training and developmental 
purposes. These employees work under close supervision and receive specific 
instructions on required tasks and results expected. Their work is closely monitored 
and reviewed for accuracy. Statements that the job offer is for a research fellow, a 
Matter of I-E-, INC 
worker in training, or an internship are indicators that a Level I wage should be 
considered. 
See U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy 
Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http:/ /www.foreignlaborcert.doleta.gov/pdf/NPWHC _Guidance_ Revised _11_ 2009 .pdf. 
Thus, in designating the proffered position at a Level I wage, the Petitioner has indicated that the 
proffered position is a comparatively low, entry-level position relative to others within the 
occupation. That is, in accordance with the relevant DOL explanatory information on wage levels, 
this wage rate indicates that the. Beneficiary is only required to have a basic unqerstanding of the 
occupation and carries expectations that the Beneficiary perform routine tasks that require limited, if 
any, exercise of judgment; that he would be closely supervised; that his work would be closely 
monitored and reviewed for accuracy; and that he would receive specific instructions on required 
tasks and expected results. As noted above, according to DOL guidance, a statement that the job 
offer is for a research fellow, worker in training or an internship is indicative that a Level I wage 
should be considered. 
When the Handbook does not support the proposition that a proffered position is one that meets the 
statutory and regulatory provisions of a specialty occupation, it is incumbent upon the Petitioner to 
provide persuasive evidence that the proffered position more likely than not satisfies this or one of 
the other three criteria, notwithstanding the absence of the Handbook's support on the issue. In such 
case, it is the Petitioner's responsibility to provide probative evidence (e.g., documentation from 
other objective, authoritative sources) that supports a finding that the particular position in question 
qualifies as a specialty occupation. Whenever more than one authoritative source exists, an 
adjudicator will consider and weigh all of the evidence presented to determine whether the particular 
position qualifies as a specialty occupation. 
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, the record lacks sufficient evidence to support a 
finding that the particular position proffered here, an entry-level accountant position (as indicated on 
the LCA), would normally have such a minimum, specialty degree requirement or its 
equivalent. The Petitioner has not submitted other authoritative evidence to establish that the 
proffered position, as described, more likely than not satisfies this criterion. The duties and 
requirements of the position as described in the record of proceeding do not indicate that this 
particular position proffered by the Petitioner is one for which a baccalaureate or higher degree in a 
specific specialty, or its equivalent, is normally the minimum requirement for entry. Thus, the 
Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)( 4)(iii)(A)(l). 
Matter of I-E-, INC 
The requirement of a baccalaureate or higher degree in a specific specialty, 
or its equivalent, is common to the industry in parallel 
positions among similar organizations 
Next, we will review the record of proceeding regarding the first of the two alternative prongs of 
8 C.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 
USCIS include: whether the Handbook reports that the industry requires a degree; whether the 
industry's professional association has made a degree a minimum entry requirement; and whether 
letters or affidavits from firms or individuals in the industry attest that such firms "routinely employ 
and recruit only degreed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D. Minn. 
1999) (quoting Hird/Blaker Corp. v. Sava, 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989)). 
In the instant case, the Petitioner has not established that the proffered position falls under an 
occupational category for which the Handbook, or other reliable and authoritative source, indicates 
that there is a standard, minimum entry requirement of at least a bachelor's degree in a specific 
specialty or its equivalent. Also, there are no submissions from professional associations in the 
Petitioner's industry attesting that individuals employed in positions parallel to the proffered position 
are routinely required to have a minimum of a bachelor's degree in a specific specialty or its 
equivalent for entry into those positions. 
As set out above, we do not find, based upon a complete review of the record of proceeding, that the 
Petitioner has established that a requirement for at least a bachelor's degree in a specific specialty, or 
its equivalent, is (1) common to the Petitioner's industry (2) in parallel positions (3) among 
organizations similar to the Petitioner. Thus, for the reasons discussed above, the Petitioner has not 
satisfied the first alternative prong of8 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 
specific 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, including evidence regarding its business operations. For 
example, the Petitioner submitted its 2013 federal tax return, website articles on beauty salons and 
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Matter of 1-E-, INC 
on small businesses need for accountants and/or CPAs, and a brief description of its company. The 
Petitioner initially noted its desire to expand its business operations and on appeal indicates that it is 
looking to advance its business into the purchase and sale of commercial property, gas stations, and 
convenience stores. However, upon review of the record of proceeding, the evidence of record does 
not include the Petitioner's business plans, or other documentation to demonstrate that it is 
expanding its operations. 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 ofTreasure Craft ofCalifornia, 14 I&N Dec. 
190 (Reg'l Comm'r 1972)). 
Other than offering a comparison of the proffered position's duties to the duties listed in the 
Handbook for an accountant, the Petitioner does not discuss which particular aspects of its company 
products or its business elevate the proffered position to one that is complex and unique.7 The 
record here does not include evidence of the specific financial requirements associated with the 
Petitioner's management of five, two-employee locations, including whether its business operations 
has unique financial requirements that would add complexity to the Beneficiary's duties.8 Neither 
does the Petitioner claim that it is currently required to deal with specific complex agreements and 
functions that might complicate its financial situation. We here reiterate that the actual 
responsibilities of the proffered position must be considered and those responsibilities must be 
related to the nature of the Petitioner's ongoing business. Furthermore, the Petitioner must establish 
the actual responsibilities exist when the petition is filed. The Petitioner must establish eligibility at 
the time of filing the nonimmigrant visa petition. 8 C.F .R. § 103 .2(b )(1 ). A visa petition may not be 
approved at a future date after the Petitioner or Beneficiary becomes eligible under a new set of 
facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg'l Comm'r 1978). 
Although the Petitioner repeatedly asserts that the job duties it describes for the proffered position 
establish the position as a specialty occupation, the record does not credibly demonstrate that the 
duties the Beneficiary will be responsible for or perform on a day-to-day basis constitute a position 
so complex or unique that it can only be performed by a person with at least a bachelor's degree in a 
specific specialty, or its equivalent. The evidence does not demonstrate how the duties that 
collectively constitute the proffered position require the theoretical and practical application of a 
body of highly specialized knowledge such that a bachelor's or higher degree in a specific specialty, 
7 We note here that the Handbook offers generalized descriptions of occupations and sets out a range of duties that may 
be performed within an occupation. Repeating or paraphrasing the duties in the Handbook cannot be relied upon by a 
Petitioner when discussing the duties attached to specific employment. When establishing a position as a specialty 
occupation, a Petitioner must describe the specific duties and responsibilities to be performed by a Beneficiary in relation 
to its particular business interests. Otherwise, the record lacks the substantive information allowing for an accurate 
analysis ofthe actual position. 
8 The Petitioner states that it operates six salon locations; however, the record includes lease agreements for only five 
locations and the Petitioner's organizational chart only identifies five locations. Again, it is incumbent upon the 
Petitioner to resolve any inconsistencies in the record by independent objective evidence. Any attempt to explain or 
reconcile such inconsistencies will not suffice unless the Petitioner submits competent objective evidence pointing to 
where the truth lies. Matter of Ho, 19 l&N Dec. at 591-92. 
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Matter of 1-E-, INC 
or its equivalent, is required to perform them. For instance, the Petitioner did not submit information 
relevant to a detailed course of study leading to a specialty degree and did not establish how such a 
curriculum is necessary to perform the duties of the proffered position. While a few related courses 
may be beneficial, or even required, in performing certain duties of the proffered position, the 
Petitioner has not demonstrated 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 particular position here. 
The Petitioner also references the Beneficiary's education and experience and also claims that the 
Beneficiary's job duties and requirements, performed for his previous employer in H -1 B 
classification, are the same as those to be performed here. 9 It is not clear if the Petitioner is relying 
on the Beneficiary's education and experience as support for the proffered position as a specialty 
occupation. However, if that is the case, we find that the test to establish a position as a specialty 
occupation is not the skill set or education of a proposed Beneficiary, but whether the position itself 
qualifies as a specialty occupation. Again, the Petitioner does not explain or clarify which of the 
duties, if any, of the proffered position would be so complex or unique as to be distinguishable from 
those of similar but non-degreed or non-specialty de greed employment. 
Further, as was also noted above, the LCA submitted in support of the visa petition is approved for a 
wage Level I employee, an indication that the proffered position is an entry-level position for an 
employee who has only a basic understanding of the occupation. 10 This does not support the 
proposition that the proffered position is so complex or unique relative to other positions in the same 
occupation that it can only be performed by a person with a specific bachelor's degree.11 
Upon review of the totality of the record, the record lacks sufficiently detailed information to 
distinguish the proffered position as unique from or more complex than positions that can be 
performed by persons without at least a bachelor's degree in a specific specialty, or its 
9 If the Petitioner is relying on the prior approval of the Beneficiary to work for another employer in H-1 8 classification, 
we reiterate that this record of proceeding does not include sufficient probative evidence to establish that the position 
proffered by this Petitioner 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 or its equivalent as the minimum for entry 
into the occupation, as required by the Act. 
10 See U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. 
Immigration Programs (rev. Nov. 2009), available at http://www.foreignlaborcert.doleta.gov/pdf/ 
N PWH C _Guidance_ Revised _I I_ 2009 .pdf. 
11 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 ofwhether a proffered position meets the requirements of section 214(i)(l) ofthe Act. 
11 
Matter of 1-E-, INC 
equivalent As the evidence of record does not so demonstrate it cannot be concluded that the 
Petitioner has satisfied the second alternative prong of8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
The employer normally requires a baccalaureate or higher degree in a 
spec?fic 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, USCIS reviews the Petitioner's past recruiting and hiring practices, information regarding 
employees who previously held the position, as well as any other documentation submitted by a 
Petitioner in support of this criterion of the regulations. Here, the Petitioner indicates that the 
proffered position is its first internal accounting position. 
We note, however, that to merit approval of the petition under this criterion, the record must 
establish that a Petitioner's imposition of a degree requirement is not merely a matter of preference 
for high-caliber candidates but is necessitated by performance requirements of the position. A 
Petitioner's perfunctory declaration of a particular educational requirement will not mask the fact 
that the position is not a specialty occupation. Again, USCIS must examine the actual employment 
requirements, and, on the basis of that examination, determine whether the position qualifies as a 
specialty occupation. See generally Defensor v. Meissner, 201 F. 3d 384. In this pursuit, the critical 
element is not the title of the position, or the fact that an employer has routinely insisted on certain 
educational standards, but whether performance of the position actually requires the theoretical and 
practical application of a body of highly specialized knowledge, and the attainment of a 
baccalaureate or higher degree in the specific specialty as the minimum for entry into the occupation 
as required by the Act According to the Court in Defensor, "To interpret the regulations any other 
way would lead to an absurd result" Id. at 388. IfUSCIS were constrained to recognize a specialty 
occupation merely because the Petitioner has an established practice of demanding certain 
educational requirements for the proffered position - and without consideration of how a Beneficiary 
is to be specifically employed -then any alien with a bachelor's degree in specific specialty could 
be brought into the United States to perform non-specialty occupations, so long as the employer 
required all such employees to have baccalaureate or higher degrees. See id. 
Upon review, the record does not include evidence to establish that the Petitioner normally requires 
at least a bachelor's degree in a specific specialty, or its equivalent, for the proffered position. 12 As 
the record of proceeding does not demonstrate that the Petitioner normally requires at least a 
12 Again, the critical element is not the title of the position, or even the fact that an employer has routinely insisted on 
certain educational standards. As noted above, the Petitioner must still establish that the performance of the position 
actually requires the theoretical and practical application of a body of highly specialized knowledge, and the attainment 
of a baccalaureate or higher degree in the specific specialty as the minimum for entry into the occupation as required by 
the Act. 
12 
Matter of 1-E-, INC 
bachelor's degree in a specific specialty or its equivalent for the proffered position, it does not 
satisfy 8 C.F.R. § 214.2(h)(4)(iii)(A)(3). 
The nature of the spec?fic duties is so specialized and complex that knowledge 
required to perform the duties is usually associated with the attainment of a 
baccalaureate or higher degree in a specific specialty, or its equivalent 
Finally, the Petitioner has not satisfied the fourth criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A), which is 
reserved for positions with specific duties so specialized and complex that their performance 
requires knowledge that is usually associated with the attainment of a baccalaureate or higher degree 
in a specific specialty or its equivalent. 
Again, relative specialization and complexity have not been sufficiently developed by the Petitioner 
as an aspect of the proffered position. In other words, the proposed duties have not been described 
with sufficient specificity to show that they are more specialized and complex than a junior 
accounting position, a position that is not usually associated with at least a bachelor's degree in a 
specific specialty or its equivalent. We have reviewed the Petitioner's 2013 IRS Form 1120S and 
the documents submitted to demonstrate the nature and scope of the Petitioner's business. However, 
the record does not include probative evidence establishing that the Petitioner's business and its 
financial transactions and functions require the performance of specialized and complex duties. 
Again, the Petitioner's description of the Beneficiary's proposed duties is broad and does not convey 
an understanding of what the Beneficiary is expected to actually do for the Petitioner on a daily 
basis. 
The Petitioner here relies on Young China Daily v. Chappell, 742 F. Supp. 552 (N.D. Cal. 1989), 
asserting that the Director erroneously focused on the size of the Petitioner in reviewing the petition 
and reaching her decision. While we concur that USCIS should not limit its review to the size of a 
Petitioner and must consider the actual responsibilities of the proffered position, we also note that it 
is reasonable to assume that the size of an employer's business has or could have an impact on the 
claimed duties of a particular position. See EG Enterprises, Inc. d/b/a/ Mexican Wholesale Grocery 
v. Department of Homeland Security, 467 F. Supp. 2d 728 (E.D. Mich. 2006). Thus, the size of a 
Petitioner may be considered as a component of the nature of the Petitioner's business, as the size 
impacts upon the actual duties of a particular position. In this matter, the job description provided 
both initially and in response to the service center's RFE identifies general accounting functions and 
financial management advisory duties. The record does not include evidence of how or why these 
duties are so complex or specialized as they relate to the Petitioner's operations that their 
performance requires knowledge that is usually associated with the attainment of a baccalaureate or 
higher degree in a specific specialty or its equivalent. The Petitioner also submits no evidence, such 
as a business plan which outlines a proposed expansion of the Petitioner's enterprise, or any 
additional documentation demonstrating that the duties of the proffered position require duties 
beyond basic duties performed by a junior accountant or a bookkeeping or accounting clerk. 
13 
Matter of 1-E-, INC 
Absent any independent documentary evidence to support a finding that the duties to be performed 
by the Beneficiary in relation to the Petitioner's claimed operations are sufficiently complex to 
require the services of a degreed accountant, or that a degree requirement is common to the industry, 
the Petitioner's reliance on Young China Daily is not persuasive. Regardless, in contrast to the broad 
precedential authority of the case law of a United States circuit court, we are not bound to follow the 
published decision of a United States district court in matters arising within the same district. See 
Matter of K-S-, 20 I&N Dec. 715 (BIA 1993). Although the reasoning underlying a district judge's 
decision will be given due consideration, when it is properly before us, the analysis does not have to 
be followed as a matter of law. Id. at 719. 
We again note that the Petitioner has designated the proffered position as a Level I position on the 
submitted LCA, indicating that it is an entry-level position for an employee who has only basic 
understanding of the occupation. 13 Such a classification is inconsistent with the Petitioner's claim 
that the duties are specialized and complex. The record does not include sufficient consistent and 
probative evidence to establish that the position proffered here encompasses the performance of 
specialized and complex duties the nature of which requires knowledge usually associated with at 
least a bachelor's degree in a specific specialty. For the reasons discussed above, the evidence of 
record does not satisfy the fourth criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A). 
III. CONCLUSION 
The evidence of record does not satisfy 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 for classification as a specialty 
occupation. Accordingly, the appeal will be dismissed and the petition denied. 
In visa petition proceedings, it is the Petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter o[Otiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter of I-E-, INC, ID# 13859 (AAO Sept. 21, 2015) 
13 See U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. 
Immigration Programs (rev. Nov. 2009), available at 
http://www.foreignlaborcert.doleta.gov/pdf/NPWHC _Guidance_ Revised _II_ 2009.pdf. 
14