dismissed H-1B Case: Accounting

PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: WAC 04 047 5 1408 Office: CALIFORNIA SERVICE CENTER Date: AUG 1 6 2006 
IN RE: 
PETITION: 
 Petition for a Nonirnmigrant Worker Pursuant to Section 101 (a)(l 5)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. $ 1 10 1 (a)(l 5)(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. 
4 Robert P. Wiernann, 
WAC 04 047 5 1408 
Page 2 
DISCUSSION: The director 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 is a medical clinic that seeks to employ the beneficiary as an accountant. The petitioner, 
therefore, endeavors to classify the beneficiary as a nonimmigrant worker in a specialty occupation pursuant to 
section I Ol(a)(lS)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 8 1 101 (a)(l S)(H)(i)(b). 
The director denied the petition on the ground that the proffered position is not a specialty occupation. On 
appeal, counsel submits additional evidence. 
Section 214(i)(l) of the Act, 8 U.S.C. 5 11 84(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. 
muSuant to 8 C.F.R. 
 214.2@)(4)(iii)(A), to qualifl 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) 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. 
The petitioner is seelung the beneficiary's services as an accountant. Evidence of the beneficiary's duties 
includes: the Form 1-129; the attachments accompanying the Form 1-129; the petitioner's support letter; and 
the petitioner's response to the director's request for evidence. According to this evidence, the beneficiary 
would perform duties that entail: conferring with staff and examining individual accounting transactions and 
WAC 04 047 51408 
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identifying areas that need procedural and informational changes; designing and implementing an integrated 
accounting system that includes computerization; preparing detailed accounting reports including ledgers, 
journals, and consolidated balance sheets to reflect assets, liabilities, capital, and profit and loss statements; 
preparing annual and quarterly tax returns and providing support to outside auditors in preparing audited tax 
returns; compiling data from financial statements; analyzing income and expenses and forecasting a five-year 
cycle of income and expenses using statistical tools such as regression and variance analysis; preparing the 
budget using statistical procedures such as correlation and regression analysis; advising management on the 
petitioner's accounting and financial health and on suitable accounting computer software. The petitioner 
requires a bachelor's degree in accounting or business administration with an emphasis in accounting. 
The director stated that some of the proposed duties reflect those of an accountant as that occupation is 
described in the Department of Labor's Occupational Outlook Handbook (the Handbook); but that sole 
reliance on duties resembling those of an accountant as that occupation is described in the Handbook and the 
Dictionaly of Occupational Titles (DOT) is misplaced. When determining whether a position qualifies as a 
specialty occupation, the director stated that the specific duties combined with the nature of the petitioning 
entity are factors that CIS considers, and that each position 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 explained the two reasons as to why the proposed position differs from the Handbook's 
description of an accountant. 
 The first reason concerned the petitioner's organizational structure. 
 The 
director found that the petitioner does not employ accounting staff to maintain accounting records that are 
used for analysis and reporting purposes by an accountant. According to the director, absent financial clerks, 
positions that are not specialty occupations, the beneficiary would perform those duties; and that even if the 
beneficiary performed some financial analysis, planning, budgeting, or cost accounting, those duties are 
incidental to the primary duties and are therefore insufficient to establish the proposed position as a specialty 
occupation. The second reason for the director's finding that the proposed position is not a specialty 
occupation relates to the field of accounting as described in the Handbook and where the beneficiary would 
be employed. The director determined that the petitioner does not have the organizational complexity, scale 
of business, or engage in the kind of business that requires the services of a part or full-time accountant. 
According to the director, the beneficiary would not be used exclusively to review, analyze, and report on 
accounting records, which are the duties of an accountant. The director concluded that the petitioner failed to 
establish any of the criteria under 8 C.F.R. fj 214.2(h)(4)(iii)(A), and found that the beneficiary is unqualified for 
a position as an accountant. 
On appeal, the petitioner states that the proposed duties are those of an accountant, and that they do not 
correspond to a financial clerk. The petitioner states that with the growing complexity of governmental 
regulations, every industry finds it important and cost-effective to hire an in-house accountant. The petitioner 
asserts that it previously employed an accountant, and that it has always required a baccalaureate degree in 
accounting or business adrmnistration for an accountant position. The petitioner references submitted job 
postings to establish that a baccalaureate degree is a normal educational requirement for an accountant in the 
healthcare industry. 
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The AAO finds that the evidence of record does not establish that proffered position is a specialty occupation; 
this decision is based upon consideration of the entire record of proceeding which includes: (1) the 
petitioner's Form 1-129 and the supporting documentation filed with it; (2) the director's request for 
additional evidence; (3) the petitioner's response to the director's request; (4) the director's denial letter; and 
(5) the Form I-290B with supporting documentation, and the brief. 
The AAO concurs with the director's conclusion that the evidence does not support approving the petition. 
But the AAO disagrees with the director's reasoning in several respects. A position involving some 
non-specialty-occupation duties does not necessarily preclude it from being a specialty occupation. In 
circumstances not present here, a position may require a baccalaureate degree or its equivalent in accounting 
even if some of its duties, such as bookkeeping or clerical tasks, do not. The Handbook's information does 
not suggest that a particular kind of business would not need an accountant, or that a business must have a 
certain organizational structure (such as an accounting department and finance clerks) in order to substantiate 
the need for an accountant. 
The AAO first considers the criteria at 8 C.F.R. $9 214.2(h)(4)(iii)(A)(I) and (2): a baccalaureate or higher 
degree or its equivalent is the normal minimum requirement for entry into the particular position; a degree 
requirement is common to the industry in parallel positions among similar organizations; or a particular 
position is so complex or unique that it can be performed only by an individual with a degree. Factors oRen 
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 fm 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 1 15 1, 1 1 65 
(D.Minn. 1999)(quoting Hird/Blaker Corp. v. Suva, 712 F. Supp. 1095,1102 (S.D.N.Y. 1989)). 
In determining whether a position qualifies as a specialty occupation, CIS looks beyond the title of the 
position and determines, from a review of the duties of the position and any supporting evidence, whether the 
position actually requires the theoretical and practical application of a body of highly specialized knowledge, 
and the attainment of a baccalaureate degree in a specific specialty as the minimum for entry into the 
occupation as required by the Act. 
The director correctly observed that the Handbook explains that specific job duties vary widely among the 
four major fields of accounting: public, management, government, and internal. The closest category to the 
proffered position is the management accountant. In the 2006-2007 edition of the Handbook, management 
accountants - also called cost, managerial, industrial, corporate, or private accountants - record and 
analyze the financial information of the companies for which they work. Other responsibilities include 
budgeting, performance evaluation, and cost 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. 
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The AAO finds that the Handbook's description of an accountant is generally reflected in the petitioner's 
description of the duties of the proffered position and agrees that the petitioner's employment would require 
the beneficiary to have an understanding of accounting principles. However, not all accounting is performed 
by degreed accountants. Therefore, the performance of duties requiring accounting knowledge does not 
establish the proffered position as that of an accountant. The question is not whether the petitioner's position 
requires knowledge of accounting principles, which it does, but rather whether it is one that normally requires 
the level of accounting knowledge that is signified by at least a bachelor's degree, or its equivalent, in 
accounting. 
The Handbook's 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 
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. 
It also notes in its description of the work performed by bookkeeping, accounting and auditing clerks that: 
Demand for hll-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.' 
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 
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   red it.^ 
1 
Occupational Outlook Handbook, 2006-2007 Edition, at www.bls.gov/oco/ocos144.htm. 
2 
 Information provided by the ACAT website (http://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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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,3 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 cases where a petitioner's business is relatively small, the AAO reviews the record for 
evidence that its operations, are, nevertheless, of sufficient 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. 
The record of proceeding contains DE-6 records, which reflect the petitioner employs five persons, and 
federal income tax returns for the year 2002 and 2003 indicating gross receipts or sales of $590,331 and 
$714,680, respectively. This evidence is not sufficient for the AAO to determine the level of accounting 
knowledge that the beneficiary will perform in handling financial transactions for a small medical clinic. For 
instance, there is no information about the types and volume of transactions, the nature of the petitioner's 
financial statements and records, the spectrum of costs to be managed, the extent of the petitioner's financial 
dealings, the range and scope of the petitioner's financial records, the specific types of data which the 
beneficiary would analyze, the size of the petitioner's budget, or the number of the petitioner's budget 
elements. There is no evidence of previous budgets or financial documents illustrating the scope or depth of 
the petitioner's financial transactions and operations. Going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Sofici, 
22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. 
Cornm. 1 972)). 
Further, the petitioner's organizational structure of four employees and income of $714,680 and $590,331 do 
not establish that the petitioner's operations have a scope, breath, or depth that would require the services of a 
baccalaureate degreed accountant. Therefore, the petitioner has failed to demonstrate that its financial 
operations are of sufficient complexity to indicate that it would employ the beneficiary in a position requiring 
a level of accounting knowledge that may only be obtained through a baccalaureate degree in accountancy. 
Accordingly, the duties of the proffered position are not established as those requiring a person with at least a 
bachelor's degree in accounting. Therefore, the petitioner has not established the proffered position as a 
specialty occupation under the first criterion at 8 C.F.R. 5 214.2(h)(4)(A) - a baccalaureate or higher degree 
or its equivalent is normally the minimum requirement for entry into the particular position. 
3 
According to the website for Skyline College, a community college located in San Mateo, CA 
(www.sk~linecollene.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. 
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To establish the first alternative prong at 8 C.F.R. @ 214.2(h)(4)(iii)(A)(2), that a specific degree requirement 
is common to the industry in parallel positions among similar organizations, the petitioner refers to job 
postings. The postings are not persuasive as the petitioner is a for-profit entity, and Vista Community Clinic 
is a nonprofit organization; and the postings do not describe the size and scope of the organizations they 
represent. Consequently, the AAO cannot determine whether they are similar to the petitioner, a small 
medical clinic. As such, the postings do not establish that a specific degree requirement is common to the 
industry in parallel positions among organizations that are similar to the petitioner. 
The second alternative prong at 8 C.F.R. 9 214.2(h)(4)(iii)(A)(2) requires that the petitioner show that its 
particular position is so complex or unique that it can be performed only by an individual with a degree in a 
specific specialty. As reflected in the discussion under 8 C.F.R. @ 214.2(h)(iii)(A)(l), the record lacks 
sufficient evidence to establish that the proposed duties and the position that they comprise are more complex 
or unique than accounting positions that can be performed with less than a bachelor's degree or the equivalent 
in accounting. As such, the petitioner fails to establish the second alternative prong at 
8 C.F.R. 5 214.2(h)(4)(iii)(A)(2). 
The criterion at 8 C.F.R. @ 214.2(h)(4)(iii)(A)(3) states that the petitioner must normally require a degree or its 
equivalent for the position. Although the petitioner states that it normally requires a baccalaureate degree in 
accounting or business administration for the proposed position, there is no evidence in the record that 
substantiates this statement. Simply going on record without supporting documentary evidence is not 
sufficient for the purpose of meeting the burden of proof in these proceedings. Matter ofsofici, 22 I&N Dec. 
158, 165 (Cornrn. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 
1972)). 
The criterion at 8 C.F.R. 9 214.2(h)(4)(iii)(A)(4) requires that the petitioner establish that the nature of the 
specific duties is so specialized and complex that the knowledge required to perfonn them is usually 
associated with the attainment of a baccalaureate or higher degree. As conveyed in the discussion of 
8 C.F.R. 9 214.2(h)(iii)(A)(I), to the extent that they are described in the record, the proffered duties do not 
exhibit a level of specialization and complexity sufficient to establish that their performance requires 
knowledge that is usually associated with at least a bachelor's degree in accounting or a related field. 
Consequently, the petitioner fails to establish this last criterion at 8 C.F.R. 9 214.2(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 U.S.C. 9 1361. 
The petitioner has not sustained that burden. 
ORDER: 
 The appeal is dismissed. The petition is denied.