dismissed H-1B Case: Accounting

U.S. Department of tiomeland Security 
20 Mass. Ave. N.W., Rm. A3042 
Washington. DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: WAC 01 287 55030 Office: CALIFORNIA SERVICE CENTER Date: 
# fig 
IN RE: Petitioner: 
Beneficiary: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)( 1 S)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 3 1 10 1 (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, Director 
Administrative Appeals Office 
WAC 01 287 55030 
Page 2 
DISCUSSION: The director initially approved the nonimmigrant visa petition. Upon subsequent review 
of the record, the director issued a notice of intent to revoke (NOIR), and ultimately did revoke, approval 
of the petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The 
director's decision will be affirmed. The petition's approval will be revoked. 
The petitioner is a wholesale distributor of wireless communications equipment and accessories seeking 
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 lOl(a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. 5 1 10 l(a)(l S)(H)(i)(b). 
The record of proceeding before the AAO contains (1) the Form 1-129 and supporting documentation, filed 
on September 14, 2001; (2) the director's approval of the petition, dated November 13, 2001; (3) the 
director's March 23, 2004 notice of intent to revoke the petition (NOIR); (4) the petitioner's April 15, 2004 
response to the NOIR; (5) the director's July 29, 2004 notice of revocation; and (6) the Form 
1-290B and supporting documentation, filed on August 16, 2004. The AAO reviewed the record in its 
entirety before issuing its decision. 
Pursuant to 8 C.F.R. 3 214.2(h)(l l)(B)(iii)(S), the director may revoke an H-1B petition if approval of the 
petition violated paragraph (h) of 8 C.F.R. 3 214.2, or involved gross error. 
At the time the instant petition was filed in 2001, the petitioner proposed to employ the beneficiary as a 
part-time accountant. In its August 8, 2001 letter of support, the petitioner set forth the duties of the 
positions as follows: 
[The beneficiary] will be responsible for compiling and analyzing financial information 
to prepare entries to accounts, such as general ledger account to document business 
transactions in accordance with generally accepted accounting principles (GAAP). The 
job will also involve preparation of financial statement, balance sheet, profit and loss 
statement[,] and other accounting reports. This aspect of the job does not call for [a] 
simple bookkeeping job which can be handle[d] by an ordinary bookkeeper or accounting 
clerk. . . . 
[The beneficiary] will be expected to prepare cash flow and budgetary projection[s]. She 
will prepare [a] schedule of payments and will prepare reports to show the company's 
current and projected cash position. She will be expected to provide the management 
with the a [sic] sound advice on cash management. Consequently, she will have to 
prepare budgetary projections, which will involve analysis and costing. 
The job will further inventory control, which will call for analysis of how much inventory 
of cell phones and accessories should be maintained at the warehouse to avoid 
unnecessary inventory cost. 
On transactions involving importation of cell phones and accessories, [the beneficiary] 
will oversee the preparation of required banking documents such as Letter of Credit. She 
will prepare comparative analysis comparison between locally manufactured products 
versus imported items, the factors affecting prices as well as the revenues generated from 
each type of transaction. 
WAC 01 287 55030 
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Moreover, [the beneficiary] will be engaged in internal control measures. She will 
institute check and balance, and will examine expenses, assets, and liabilities. She will 
also audit sales vouchers, check shipping documents, review sales contract[s], and 
prepare reports to substantiate individual transactions prior to settlement. 
Likewise, she will develop an accounting software to simplify operation, as well as to 
easily monitor daily financial transaction[s], sales, and collection. She will implement a 
sound accounting systems [sic] and procedures to ensure compliance with the GAAP and 
in adherence to company policies. 
The legacy Immigration and Naturalization Service approved the petition on November 13,2001. 
The petitioner later filed a nonimmigrant petition (WAC 04 056 50181) for another proposed position 
within its company. The petitioner submitted an organizational chart, dated February 17, 2004, which 
showed that the beneficiary was working in its administrative department, not its accounting department. 
The petitioner also submitted a listing of all employees at the company, along with job descriptions. The 
beneficiary was not listed as an accountant. Rather, she was listed as the administrative manager. Her 
duties had also changed; she was no longer performing accounting functions for the company. Rather, 
her duties were set forth as follows: 
Makes recommendations related to establishing policies and procedures for the 
[administrative] department. 
Selects, trains, and evaluates professional and company personnel. 
Provides planning and management analysis services. 
Budget preparation and presentation. 
Contract monitoring. 
Economic or business needs forecasting. 
Develops and implements management techniques. 
Monitors external regulatory and legal precedents affecting the operation of the 
department. 
May act as a liaison with human resource, fiscal, risk management, or materials 
management personnel. 
Accordingly, the director issued the NOIR on March 23, 2004. The NOIR articulated the concerns of the 
director and provided the petitioner 30 days during which to address these concerns. Specifically, the 
director noted that "[tlhe petitioner no longer employs the beneficiary in the capacity specified in the 
petition." Therefore, the director further noted, "the beneficiary is no longer eligible for classification 
under this section of the law." 
Counsel submitted a timely response to the director's NOIR. Counsel stated the following: 
Please be advised that the [organizational] chart described how the organization might 
appear with the addition of another employee (emphasis in original). Due to the 
continuing expansion of [the petitioner] with complex transactions and over nine million 
dollars in sales, the changed organizational model would have taken effect upon entry of 
the new employee. 
WAC 01 287 55030 
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[The beneficiary] at all times functioned as [an] Accountant with additional job duties. 
At present, [the beneficiary] is the Accountant of the company and she controls the 
Accounting Department. She has been and is still performing the functions as indicated 
in her petition. 
In view of the company's voluminous transaction[s], the company has had 2 other part 
time accountants, namely [name redacted] and [name redacted]. [Name redacted] had 
voluntarily left the company while [name redacted] provided internal auditing, leaving 
the entire accounting function to [the beneficiary]. 
The Petitioner, [company name redacted] has always complied with the conditions of the 
Labor Condition Application that was filed and approved on behalf of [the beneficiary]. 
Enclosed please find the present organization chart. 
Counsel submitted an organizational chart that differed from the one dated February 17, 2004. In the 
organization chart submitted with the NOIR response, the beneficiary was listed as the accountant. No 
administrative manager was named. 
The director found counsel's response unpersuasive and revoked the approval of the petition. The 
director found counsel's contention that the February 17, 2004 organizational chart reflected only how the 
petitioner's company "might appear" unpersuasive: 
At the time the USCIS received the petitioner's evidence pertaining to, WAC 04 056 
50181, there was no mention [of] the organizational chart and the accompanying list of 
duties being prospective in nature. It serves no logical purpose and holds no evidentiary 
value for a petitioner to submit documents that are based on speculation or conjecture. 
The USClS does not make determinations of eligibility based upon speculations of what 
may occur in the future. The record, as it currently stands, contains conflicting and 
contradictory evidence as to the actual duties that the beneficiary is currently, and has 
been previously[,] perfonning. 
The director was not convinced that the beneficiary had been solely performing the duties of an 
accountant. The director noted that "[wlhen a petitioner signs the petition, he or she is certifying that the 
petition and all evidence submitted with it, either at the time of filing or thereafter, is true and correct." 
The director also noted that it appeared as though the beneficiary appeared to have been working in a full- 
time capacity for the petitioner: 
In his letter, counsel states that the beneficiary has been performing additional duties - 
the evidence of record supports this claim and thus further supports the USCIS position to 
revoke the instant petition. According to the petitioner's State of California Employment 
Development Department, Quarterly Wage Reports, Forms DE-6. it appears that the 
beneficiary has been employed on a full-time basis during 2002 and 2003, not on a part- 
time basis as was originally petitioned. . . . The performance of additional duties along 
with the change in the hours of employment constitutes a significant change in the tenns 
and conditions of employment. 
Finally, the director stated the following: 
WAC 01 287 55030 
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The numerous discrepancies encountered in the evidence call into question the 
petitioner's ability to document the requirements under the statute and regulations. The 
discrepancies in the petitioner's submissions have not been explained satisfactorily. . . . 
In the present case, it appears that the petitioner has provided clear misrepresentation, 
possibly fraudulent, through the inconsistent and completely conflicting information. As 
such[,] the reliability of all of the evidence provided with the present petition is in 
question and will be accorded no evidentiary value. The USCIS is not convinced that the 
petitioner has employed the beneficiary solely in the capacity of an accountant during the 
validity period of the approved petition. 
Counsel submitted a timely appellate brief and supporting documentation. 
On appeal, counsel contends that the revocation is "arbitrarily punitive in nature and simply devastating 
to the company's future existence." Counsel asserts the following: 
We maintain our position that the Beneficiary is being employed by the Petitioner in the 
capacity specified in the petition, i.e. an Accountant. The primary duties as stated in the 
original petition are being performed by the Beneficiary and such additional d~ti~~ as 
rnay be incicientul and necesssa in order to complete the iob effectively. Therefore, the 
mere inclusion of incidental duties such as management or supervision of subordinates 
that may be involved in the accounting process should not change or alter the 
requirements of the position as a specialty occupation since it increases, rather than 
decreases[,] the need for appropriate educational background (emphasis in original). 
However, the issue on appeal is not whether the position qualifies as a specialty occupation. Accountant 
positions normally qualify for classification as specialty occupations, and supervisory accountants would 
therefore normally qualify as well. The issue here is whether the beneficiary was working pursuant to the 
terms and conditions of the approved petition, or whether the change in the beneficiary's duties 
constituted a "material change" to those terms and conditions. 
Minor changes in job duties or salary increases do not necessitate the filing of a new petition, nor do 
promotions within the same occupation. Only material changes require the filing of a new petition. 
Letter, LaFleur, Chief, NIV Branch, Adjudications, HQ 214h-C (Oct. 12, 1995), reprinted in 72 No. 45 
Interpreter Releases 1578, 1599- 160 1 (Nov. 20, 1995). 
The regulation at 8 C.F.R. 4 2 14.2(h)(Z)(i)(E) states, in part, the following: 
Amended or new petition. The petitioner shall file an amended or new petition, with fee, 
with the Service Center where the original petition was filed to reflect any material 
changes in the terms and conditions of employment or training. . . 
The regulation at 8 C.F.R. 5 214.2(h)(11) states, in part, the following: 
Revocution of'approval yfpetition - 
WAC 01 287 55030 
Page 6 
(A) The petitioner shall immediately notify the Service of any changes in the 
terms and conditions of employment of a beneficiary which may affect 
eligibility under section 10 1(a)(15)(H) of this Act and paragraph (h) of 
this section. An amended petition on Form 1-129 should be filed when 
the petitioner continues to employ the beneficiary. 
The AAO agrees with the director and finds counsel's statement that the February 17,2004 organizational 
chart and accompanying list of duties reflected how the petitioner's organizational structure "might 
appear" to be unsupported by the record. The unsupported assertions of counsel do not constitute 
evidence. Matter qf Obaigbenu, 19 I&N Dec. 533, 534 (BIA 1988); Matter qfLaureano, 19 I&N Dec. 1 
(BTA 1983); Matter qJ'Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). The AAO agrees that there 
is no evidentiary value for a petitioner to submit documents that are based on speculation or conjecture. 
A petitioner must establish eligibility at the time of filing the nonimmigrant visa petition. A visa petition 
may not be approved at a future date after the petitioner or beneficiary becomes eligible under a new set 
of facts. Mutter ~f'Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). Had counsel wished for 
CIS to consider these documents as speculative, he should have labeled them as such. 
Accordingly, the AAO will review the information contained in the February 17, 2004 organizational 
chart and accompanying list of duties. The beneficiary's title was labeled as "administrative manager," 
and she was listed as working in the administrative department (as opposed to operating solely out of the 
accounting department). 
The petitioner stated that the beneficiary coordinated the activities of all departments in the company: 
accounting, purchasing, sales, RMA, and IT. Such supervision of non-accounting functions was not 
reflected in the original petition. 
The petitioner also stated that the beneficiary "selects, trains, and evaluates professional and company 
personnel." Such human resource-type duties were not reflected in the original petition, either. Nor was 
management analysis, or acting as a liaison with human resource, fiscal, risk management, or materials 
management personnel. 
The responsibility to develop and implement management techniques was not in the original petition, 
either. 
These are not accounting functions, and they are materially different from the duties listed in the original 
petition. After a thorough review of the record in its entirety, the AAO concludes that the duties of the 
position have materially changed since the petition was approved. The petitioner no longer employs the 
beneficiary in the capacity specified in the petition, and an amended petition should have been filed. The 
approval of the petition was properly revoked. 
The director also questioned whether the petitioner still in fact employed the beneficiary on a part-time 
basis. This question arose after the director's review of the petitioner's Quarterly Wage and Withholding 
Report (DE-6). According to the Forms DE-6, the beneficiary earned $7806 in the first quarter of 2003, 
$6000 in the second quarter of 2003, $lo,@ 12 in the third quarter of 2003, and $1 1,226.75 in the fourth 
quarter of 2003, for a total annual income of $35,044.75 in 2003. 
WAC 01 287 55030 
Page 7 
According to the Form 1-129, the beneficiary was to work 20 hours per week, at a compensation of 
$18.50 per hour. This equates to $370 per week, or $19,240 for a 52-week period. Therefore, the 
beneficiary earned nearly twice the annual salary that would have been expected. 
In his revocation, the director interpreted this as evidence that the beneficiary was no longer working on a 
part-time basis, thus lending further support to his decision to revoke the approval of the petition. On 
appeal, counsel responds to this issue as follows: 
With regards to the change in the number of hours, it appears that the Service made a 
speculation based on the wages received by the Beneficiary as reflected in the DE 6, 
Quarterly Wage Report Forms that was [sic] previously submitted by the Petitioner. It 
was concluded by the Service that the Beneficiary has been employed on a full time basis 
during 2002 and 2003 [and] not on a part time basis as was originally petitioned. Please 
be advised that the wages received by the Beneficiary vary from 2002 and 2003. 
It is not proper for the Service to make the above conclusion since the DE 6 does not 
indicate the number of hours worked by the Beneficiary. Enclosed please find the DE 6, 
previously submitted as Exhibit "E." Note that it was only during the last quarter of 2003 
that the Beneficiary received $10,013 [sic]', which reflect wages and the addition of 
perfi,rmance related honl4se.~ (emphasis in original). 
Further, we believe that any minor change in the number of hours of employment would 
only necessitate an amendment of the conditions of employment and not be grounds for 
revocation. 
Counsel's explanation would be reasonably accepted if the annual salary varied only slightly. However, 
as noted Supra, the beneficiary earned nearly twice the annual salary that would have been expected. Had 
the salary varied only slightly, then it would have indeed been improper for the director to conclude that 
the beneficiary was not working on a part-time basis. 
However, when coupled with the fact that the beneficiary's duties were changed significantly, an annual 
income that is nearly twice that normally expected leads the AAO to conclude that the beneficiary was 
not working on a part-time basis, and/or that the job duties had changed significantly. Counsel explained 
that the increased wage was the result of a performance bonus. Many employers offer performance- 
related bonuses. However, such bonuses rarely double a worker's annual salary. Moreover, counsel only 
addresses the quarter in which the beneficiary earned $10,012 (the third quarter of 2003). As noted supra, 
the beneficiary earned $7806 in the first quarter of 2003, $6000 in the second quarter of 2003, and 
$1 1,226.75 in the fourth quarter of 2003, all well over the $4440 per quarter established on the LCA and 
in the petition. 
Counsel asserts that "we believe that any minor change in the number of hours would only necessitate an 
amendment of the conditions of employment and not be grounds for revocation." The director and the 
AAO both agree with counsel that an amendment should have been filed. 
The photocopies from the H-IB Handhook that counsel submits on appeal underscore this point. The 
pages submitted by counsel indicate that an amended petition is not required if there is "a change in 
I According to the Form DE-6, the figure was actually $10,012. 
WAC 0 1 287 55030 
Page 8 
salary, unless the change is so dramatic that it indicates a significant change in responsibility or duties." 
The beneficiary's actual salary was nearly twice the amount indicated on the Form 1-129, which, in the 
context of this record, indicates to the AAO that there was "a significant change in responsibility or 
duties." 
For this additional reason, the AAO concludes that the duties of the position have materially changed 
since the petition was approved. The petitioner no longer employs the beneficiary in the capacity 
specified in the petition. and an amended petition should have been filed. The approval of the petition 
was properly revoked. 
Pursuant to 8 C.F.R. 5 2 14.2(h)(l l)(B)(iii)(S), the director may revoke an H-IB petition if approval of the 
petition violated paragraph (h) of 8 C.F.R. 5 214.2, or involved gross error. In this instance, approval of 
the petition was in violation of paragraph (h) of the cited regulation in that the beneficiary is no longer 
employed by the petitioner in the capacity specified in the petition. See 8 C.F.R. 
5 2 14.2(h)(l l)(B)(iii)(l). 
Neither counsel nor the petitioner have offered sufficient evidence to overcome the grounds for the 
director's revocation, and the AAO will not withdraw the director's decision. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
3 136 1. The petitioner has not sustained that burden. 
ORDER: The director's July 29,2004 decision is affirmed. The approval of the petition is revoked.