dismissed H-1B Case: Accounting

U.S. Department of Homeland Security 
20 Mass Ave., N.W., Rrn. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: WAC 04 039 502 18 Office: CALIFORNIA SERVICE CENTER Date: MAY 0 4 UX16 
PETITION: 
 Petition for a Nonimrnigrant Worker Pursuant to Section 10 1 (a)( 1 S)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 5 1 lOl(a)(lS)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
WAC 04 039 50218 
Page 2 
DISCUSSION: The &rector of the service center denied the nonimmigrant 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 specializes in bathroom and kitchen remodeling and seeks to extend its employment of the 
beneficiary as an accountant and to classify her as a nonimmigrant worker in a specialty occupation pursuant to 
section 10 l(a)(lS)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 3 1 lOl(a)(lS)(H)(i)(b). 
The director denied the petition on the basis that the proposed position is not a specialty occupation. On 
appeal, counsel submits a brief and additional evidence. 
Section 214(i)(l) of the Act, 8 U.S.C. 8 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. ij 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, the position must meet one of the 
following criteria: 
(I) 
 A baccalaureate or higher degree or its equivalent is normally the minimum requirement 
for entry into the particular position; 
(2) 
 The degree requirement is common to the industry in parallel positions among similar 
organizations or, in the alternative, an employer may show that its particular position is 
so complex or unique that it can be performed only by an individual with a degree; 
(3) 
 The employer normally requires a degree or its equivalent for the position; or 
(4) 
 The nature of the specific duties is so specialized and complex that knowledge required 
to perform the duties is usually associated with the attainment of a baccalaureate or 
higher degree. 
Citizenship and Immigration Services (CIS) interprets the term "degree" in the criteria at 8 C.F.R. 
$214.2@)(4)(iii)(A) to mean not just any bachelor's or higher degree, but one in a specific specialty that is 
directly related to the proposed position. 
The record of proceeding before' the AAO contains: (1) Form 1-129 and supporting documentation; (2) the 
director's request for additional evidence (RFE); (3) the petitioner's response to the WE; (4) the director's 
denial letter; and (5) Form I-290B with brief and supporting documentation. The AAO reviewed the record in 
its entirety before issuing its decision. 
The petitioner seeks the beneficiary's services as an accountant. Evidence of the beneficiary's duties includes 
the Form 1-129 with attachments and company support letter and the petitioner's response to the RFE. 
According to this evidence, the beneficiary would perform duties that entail analyzing changes in product 
WAC 04 039 50218 
Page 3 
design, raw materials, manufacturing methods, or services provided to determine effects on costs; analyzing 
actual manufacturing costs and preparing periodic reports comparing standard costs to actual production 
costs; allocating materials invoices; tabulating and updating reports on overhead and materials payable; 
reconciling bank statements; updating databases on all journal entries on payables and receivables; cost 
analysis on each project; calculating the amount of materials used; analysis of projecdjob breakdown on each 
bath or kitchen project; accounting for all raw materials used for each project; calculating a11 materials used 
and determining the split commission pay earned by the crews; calculating payroll; database entry of all sales 
and production activity, makng financial reports on all sales and production activity; determining the amount 
of advertising costs spent against the amount of sales made; updates on reports, charts, and graphs; doing the 
bank reconciliations each month; and preparing profit and loss statements and the general ledger. The 
petitioner stated that the proposed position requires a bachelor's degree in accounting or a related field. 
The director stated that many of the proposed duties reflect those of an accountant as that occupation is 
described in the Department of Labor's (DOL) Occupational Outlook Handbook (the Handbook); but that 
sole reliance on duties resembling those of an accountant as that occupation is described in the Handbook is 
misplaced. The director stated that the specific duties combined with the nature of the petitioning entity are 
factors that CIS considers, and that each positlon must be evaluated based on the nature and complexity of the 
actual job duties. The director stated that the beneficiary's obtaining a degree in a related area does not 
guarantee the position is a specialty occupation. The director discussed the Handbook's description of 
accountants, and stated that the petitioner does not have the organizational complexity, scale of business, or 
engage in the type of business to require the services of a part or full-time accountant. The d~rector found 
inconsistencies in the record and cited Muttev of Ho, 19 I&N Dec. 582 (BIA 1988), a case that d~scusses 
evidenbary matters. The director stated that slnce the petitioner did not employ financial clerks, which is an 
occupation that does not qualify as a specialty occupation, the beneficiary would perform these duties. The 
director stated that the evidence is insufficient to show that the proposed duties could not be performed by an 
experienced person whose educational training falls short of a bachelor's degree. The director concluded that 
the petitioner failed to establish any of the criteria under 8 C.F.R. 9 214.2(h)(4)(iii)(A). 
On appeal, counsel asserts that, since this an extension of status request, CIS should not re-adjudicate the 
petition. Counsel refers to several cases to state that the duties of the proposed position, not the job title, are 
dispositive in determining whether a position is a specialty occupation. Counsel asserts that the proposed 
position is a specialty occupation because the beneficiary's duties are similar to those of an accountant as 
described in the Handbook. Counsel emphasizes that the beneficiary's duties are similar to an accountant 
because the beneficiary will analyze and interpret financial information, and prepare financial reports. 
Counsel states that a bookkeeper's duties are limited to financial recordkeeping; an accountant's are broader 
in scope, entailing analysis and interpretation of financial records to prepare financial reports. Counsel cites 
to the court's decision in Young China Daily vs. Chappell, 742 F. Supp. 552 (N.D. Cal. 1989) to state that an 
employer's size bears no rational relationship to the need for a professional. Counsel emphasizes that the 
beneficiary is qualified for the proposed position. According to counsel, the petitioner has established all the 
criteria at 8 C.F.R. $9 2 14,2(h)(4)(iii)(A). 
The petitioner need only satisfy one of the criterion at 8 C.F.R. 214.2@)(4)(iii)(A) to establish that a position 
is a specialty occupation. Upon a thorough review of the record, the AAO concludes that the petitioner has 
failed to establish that the proposed position meets any of the four criteria outlined in 8 C.F.R. 
§214.2(h)(4)(iii)(A). Therefore, the proposed position is not a specialty occupation. 
h 
WAC 04 039 502 18 
Page 4 
Counsel asserts that CIS should give deference to the prior approval of a petition when the same petitioner is 
filing an extension of the same petition on behalf of the same beneficiary. 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. 
8 103,2(b)(16)(ii). Although the AAO may attempt to hypothesize as to whether the prior case was approved 
in error, no such determination may be made without review of the original record in its entirety. If the prior 
petition was approved based on evidence that was substantially similar to the evidence contained in this 
record of proceeding, however, the approval of the prior petition 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 of Church 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 U.S. 1008 (1988). 
To determine 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 highly specialized knowledge and the attainment 
of a bachelor's degree in a specific field of study as the minimum for entry into the occupation. 
The AAO routinely consults the Handbook for its information about the duties and educational requirements 
of particular occupations. As the petitioner has identified its proposed position as that of an accountant, the 
AAO turns first to the Handbook's discussion of this occupation. According to the Harzdbook, accounting 
duties vary widely among four major fields of accounting: public, management, government, and internal. 
The closest category to the proposed position is that of management accountants, who: 
[rlecord 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. 
Based on the above discussion, the AAO does not find that the petitioner's general description of the duties of 
the proposed position reflects the scope or complexity of a position that requires at least a bachelor's degree 
in accounting or a related specialty. While it agrees that the duties of the proposed position, as described, 
indicate that the beneficiary would require some knowledge of accounting principles, these duties do not 
establish the position requires a bachelor's degree level of knowledge in the field. The decisive question is 
not whether the petitioner's position requires knowledge of accounting principles - which it does - but 
whether it is one that requires the level of accounting knowledge that is acquired by at least a bachelor's 
degree, or its equivalent, in accounting. Many of the duties described in the above passage in the Handbook 
do not apply to the proposed position. The complexity of the beneficiary's duties and responsibilities do not 
rise to the level of an accountant. Counsel asserts that just because the beneficiary is not part of a formal 
accounting department or team does not disprove her responsibilities as an accountant, but did not submit 
documentation to establish these responsibilities, e.g. examples of the accounting work she has performed for 
WAC 04 03 9 502 1 8 
Page 5 
the petitioner. 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). 
To the extent that they are described in the record, the duties of the proposed position - which include 
preparing reports that compare standard costs to actual production costs - more closely resemble the 
accounting responsibilities performed by bookkeepers and other financial clerks or a junior accountant. 
Based on the record before it, the AAO finds the duties of the proposed position, including the reporting 
responsibilities identified by the petitioner, fall within the typical employment of a full-charge bookkeeper, 
who in addition to serving as businesses' financial record keepers, may also be responsible for the 
development of financial statements, as well as the preparation of the type of financial reports and summaries 
described by the petitioner. The petitioner stated that the beneficiary will "calculate, document, and tabulate 
financial operations"; "calculate costs of raw materials, products and labor costs and make a determination of 
cost allocation7'; and "prepare Profits and Loss Statements and General Ledger." These duties are performed 
by bookkeeping, accounting, and auditing clerks who, according to the Handbook, update and maintain 
accounting records that tabulate profit and loss reports, verify records of transactions, produce financial 
statements, prepare reports and summaries for supervisors and managers, and handle the payroll. The 
Handbook notes the growing use of financial software to enter and manipulate data. The AAO notes that the 
Handbook states that full-charge bookkeepers are called upon to "do much of the work of acco~ntants.~' 
To determine whether the proposed position qualifies as a specialty occupation under the criterion at 8 C.F.R. 
214.2(h)(4)(iii)(A)(I) - a bachelor's or higher degree or its equivalent, in a specific field of study, is normally 
the minimum requirement for entry into the particular position - the AAO turns to the 2006-'07 Handbook's 
discussion of the educational requirements for individuals in this field. The Handbook states the following 
regarding the education and experience requirements imposed on those who seek these jobs: 
Capable accountants and auditors may advance rapidly; those having inadequate academic 
preparation may be assigned routine jobs and find promotion difficult. Many graduates of 
junior colleges and business and 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 American Council for Accountancy and 
Taxation (ACAT), an independent accrediting and monitoring organization affiliated with the National 
Society of Accountants. The ACAT does not require a degree in accounting or a related specialty to issue a 
1 
 According to the website for Skyline College, a community college located in San Mateo, CA 
(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. 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 04 039 5021 8 
Page 6 
credential as an Accredited Business Accountant@ /Accredited Business Advisor@ (ABA). Eligibility for the 
eight-hour comprehensive examination for the ABA credential requires only three years of "verifiable 
experience in accounting, taxation, financial services, or other fields requiring a practical and theoretical 
knowledge of the subject matter covered on the ACAT Comprehensive Examination." Up to two of the 
required years of work experience may be satisfied through college credit.* 
The Handbook further states the following regarding job opportunities for full-charge bookkeepers: 
Demand for full-charge bookkeepers is expected to increase, because they are called upon 
to do much of the work of accountants, as well as perform a wider variety of financial 
transactions, from payroll to billing. Those with several years of accounting or bookkeeper 
certification will have the best job prospects. 
Thus, individuals can do accounting work as bookkeepers or junior accountants with either associate's 
degrees, bachelor's degrees, or with relevant work experience in the field. The petitioner failed to establish 
that the proposed position exceeds these job levels. Since individuals with two and four-year degrees and 
even those with high school diplomas who gain accounting slalls and perform well can work at these jobs, the 
petitioner has failed to establish that the proposed position is a specialty occupation under 8 C.F.R. 
3 14.2(h)(4)(iii)(A)(l). 
The AAO turns next to the first alternative prong of the second criterion at 8 C.F.R. 3 214.2 (h)(4)(iii)(A)(2) 
- a degree requirement is common to the industry in parallel positions among similar organizations. To 
determine if a position is a specialty occupation under this criterion, CIS generally considers whether or not 
letters or afidavits from companies or individuals in the industry attest that such companies "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)). The job 
announcements submitted with the RFE either do not describe the duties with sufficient particularity to determine 
if they are similar to the proposed position, or are from companies dissimilar to the petitioner, a contractor 
specializing in lutchen and bathroom remodeling with about 12 employees. Therefore, the proposed position 
does not qualifjr as a specialty occupation under the first alternative prong at 8 C.F.R. 3 214.2(h)(4)(iii)(A)(2). 
The AAO now turns to the criterion at 8 C.F.R. 3 214.2(h)(4)(iii)(A)(3) - the employer normally requires a 
bachelor's degree or its equivalent for the proposed position. To determine if a petitioner has established this 
criterion, the AAO generally reviews the petitioner's past employment practices, including the histories of 
those employees who previously held the position, as well as their names, dates of employment, and copies of 
their diplomas. This criterion is not a factor in this proceeding as the petitioner states that this is a newly created 
position. In the absence of an employment history for the proposed position, the petitioner failed to establish 
that the position qualifies as a specialty occupation under the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(3). 
Finally, the AAO turns to the criteria related to the complexity, uniqueness, or specialized nature of the 
proposed position. A petitioner satisfies the second alternative prong of the second criterion at 8 C.F.R. 
Information provided by the ACAT website (htt~://www.acatcredentials.org/index.html). The Handbook 
identifies the ACAT website as one of several "Sources of Additional Information" at the end of its 
discussion of the occupation of accountants. 
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Page 7 
5 214.2(h)(4)(iii)(A)(2) if it establishes that a particular position is so complex or unique that it can be 
performed only by an individual with a bachelor's degree in a specific field of study. The criterion at 
8 C.F.R. 5 214.2(h)(4)(iii)(A)(4) requires a petitioner to 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 bachelor's or higher degree in a specific field of study. The duties, as listed by the petitioner, 
appear to be typical of a full-charge bookkeeper or junior accountant position. On appeal, the petitioner 
asserts that the beneficiary "will spend a substantial amount of her time on analytical tasks, not clerical 
duties." The petitioner has not submitted any documentary evidence to establish that the proposed duties 
bring a uniqueness, complexity, or specialization to the position that requires or is usually associated with a 
bachelor's 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 of Sofficl, 22 I&N Dec. 158, 165 
(Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). The 
petitioner has not established that the proposed position is a specialty occupation based upon the complexity 
or uniqueness of its duties. 
As related in the discussion above, the petitioner has failed to establish that the proposed position is a 
specialty occupation. Accordingly, the AAO will not disturb the director's denial of the petition. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. tj 1361. 
The petitioner has not sustained that burden. 
ORDER: 
 The appeal is dismissed. The petition is denied.