dismissed H-1B Case: Business Management

U.S. Department of Hoereland Security 
20 Mass. Ave. N.W., Rm A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: WAC 04 043 5 1523 Office: CALIFORNIA SERVICE CENTER Date: FE~ 0 3 
IN RE: Petitioner: 
Beneficiary: 
PETITION: Petition for a Nonimrnigrant Worker Pursuant to Section 10 1 (a)(l5)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 9 1 10 l(a)(lS)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Th~s 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 oflice. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
WAC 04 043 51523 
Page 2 
DISCUSSION: The director of the service center denied the nonirnrnigrant 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 recently formed business management corporation that is making arrangements to 
eventually operate and manage a retail food store. In order to employ the beneficiary as its chief financial 
officer (CFO), the petitioner endeavors to classify the beneficiary as a nonirnmigrant 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. 
9 1 101(a)(l5)OI)(i)(b). 
The director denied the petition on the basis that the petitioner had failed to establish that the proffered 
position met the requirements of a specialty occupation. 
On appeal, counsel contends that the petition should be approved because the petitioner has provided 
sufficient evidence of the prospective duties of its chief financial officer to establish that he must possess a 
bachelor's degree in a specific specialty directly related to the position. The AAO disagrees. 
At the time the petition was filed, the retail food store enterprise that was to generate most of the duties of the 
proffered position had not yet begun. Therefore, because the duties that would eventually comprise the 
proffered position could not be performed by the time that the petition was filed, the position was not subject 
to classification as a specialty occupation at the time required by regulation. 
Additionally, the evidence of record does not establish that the proffered position is a specialty occupation 
under the regulation at 8 C.F.R. 9 214.2(h)(4)(iii)(A). 
The AAO bases its decision upon its consideration of the entire record of proceeding before it, which 
includes: (1) the petitioner's Form 1-129 and the supporting documentation filed with it; (2) the director's 
request for additional evidence (RFE); (3) the materials submitted in response to the RFE; (4) the director's 
denial letter; and (5) the Form I-290B with addendum, counsel's brief, and the documents filed with the brief. 
Section 10 l(a)(l S)(H)(i)@) of the Act, 8 U.S.C. $ 1 10 1 (a)(l 5)(H)(i)(b), provides a nonimmigrant 
classification for aliens who are coming temporarily to the United States to perform services in a specialty 
occupation. 
Section 214(i)(l) of the Act, 8 U.S.C. 9 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. 
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Thus, it is clear that Congress intended this visa classification only for aliens who are to be employed in an 
occupation that requires the theoretical and practical application of a body of highly specialized knowledge 
that is conveyed by at least a baccalaureate or higher degree in a specific specialty. 
Consonant with section 214(i)(l) of the Act, the regulation at 8 C.F.R. 4 214.2(h)(4)(ii) states that a specialty 
occupation means an occupation: 
which [I] 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. (Italics added.) 
Pursuant to 8 C.F.R. $ 214,20(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) has consistently interpreted the term "degree" in the criteria at 
8 C.F.R. 8 214.2(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. Applying this standard, CIS regularly approves 
H-1B petitions for qualified aliens who are to be employed as engineers, computer scientists, certified public 
accountants, college professors, and other such professions. These occupations all require a baccalaureate 
degree in the specific specialty as a minimum for entry into the occupation and fairly represent the types sf 
professions that Congress contemplated when it created the H-1B visa category. 
Part 5 of the petitioner's Form 1-129 contains this non-technical description of the job: 
Preparing and maintaining cost records and reports for the use in controlling expenditures. 
Providing management with cost information required to review direct and indirect costs. 
Gathering historical cost data on such activities as material purchases, labor, equipment 
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depreciation, repairs, operating expenses, etc. Classifying labor, materials, and overhead 
costs to develop unit standard. Supervising physical inventories to ensure accurate inventory 
counts. Ensuring that costs are allocated according to established procedures. Preparing 
journal entries related to fixed asset acquisitions and disposal and gainlloss accounting for 
fixed assets. Reconciliation of Fixed Asset System to the general ledger. Preparing various 
income depreciation tax schedules. Recording of all transactions and appropriate asset 
reclass entries. Preparing reconciliation's [sic] of bank accounts to the general ledger. 
Various other account reconciliations. Preparing other month-end closing journal entries. 
Providing accurate analysis of financial statements, trends, and needs to maintain fiscal 
strength, performance and growth. Participation in the review and analysis of the annual 
planning process. Utilizing financialJquantitative techniques and analyses to support 
management decision-making. Providing detailed sales and margin analysis. Analysis of 
data obtained for evidence of deficiencies in controls, duplication of effort, fraud, or lack of 
compliance with laws, government regulations, and management policies or procedures. 
Preparing acceptable working papers that record and summarize data on the assigned audit 
task. Treasury functions to include payment processing and stop payment with checks. 
Creating, negotiating and maintaining banking and insurance relationships. 
The proposed duties that relate exclusively to the operation of the retail store for which a location has not yet been 
obtained are not a basis for approval of the petition. CIS regulations affirmatively require a petitioner to 
establish eligibility for the benefit it is seeking at the time the petition is filed. See 8 C.F.R. 103.2(b)(12). 
The petitioner must establish that the position as offered to the beneficiary when the petition was filed is a 
specialty occupation, and 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. 1978). As indicated in the following paragraph from page 1 of counsel's April 28, 2004 letter 
responding to the RFE, at the time of the RFE the petitioner had not advanced beyond preliminary steps to start 
the enterprise that the CFO would oversee: 
At the outset, it should be noted that the petitioner is a start-up company. It is still in [the] 
process of negotiating the purchase of an existing National City-based retail food store. 
Likewise, the company is currently in lease negotiations with the landlord of the retail site. After 
the purchase has been consummated, the petitioner will run and manage the retail food store and 
hire appropriate employees. The company will relocate its operations, and accordingly file its 
business 1icenseJtax application in the city of National City as soon as the purchase contract and 
lease have been executed and the transfer of ownership has been completed. Also by then the 
petitioner will apply for a seller's permit and registration with the Board of Equalization. A copy 
of the lease agreement, floor plan, telephone directory listing, and other media marketing 
materials will be available only after the ownershp transfer. 
The record of proceedings includes evidence of a wire transfer of $75,000; a list indicating initial required 
funds of $50,000; projected sales figures for the first two years of $534,607 and $588,068, respectively; 
projected cash flow; a projected balance sheet; projected sales; estimated gross margin; and estimated yearly 
profit for two years. In response to the WE, the petitioner submitted a balance sheet reflecting a year-end 
WAC 04 043 5 1523 
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balance of $101,550; articles of incorporation; and registration of name. The petitioner indicated that it was 
negotiating a lease for the property. On appeal, the petitioner has not submitted a copy of the negotiated 
lease, and there is no indication of record that the petitioner has yet commenced operations. The petitioner 
has not established that, at the time of filing, it will employ the beneficiary in a specialty occupation. Section 
lOl(a)(lS)(H)(i)(b) of the Act, 8 U.S.C. 4 1 lOl(a)(lS)(H)(i)(b); 8 C.F.R. 2 14.2(h)(l)(ii)(B)(I). 
The financial projection documents may indicate the petitioner's intent to begn and maintain a business with 
certain financial assumptions and expectations, but they do not detail any specific matters that would require the 
CFO to apply a bachelor's degree level of knowledge in accounting or any other specific specialty. Therefore, 
they are not probative of the minimum educational credentials that the petitioner claims that the beneficiary 
would need to successfully perform as CFO. 
The petitioner has not satisfied the criterion at 8 C.F.R. 4 214.2(h)(4)(iii)(A)(I), which assigns specialty 
occupation status to a position for which the normal minimum entry requirement is a baccalaureate or higher 
degree, or the equivalent, in a specific specialty closely related to the position's duties. For an accounting 
position to qualify as a specialty occupation under this criterion, the position must be such that it requires at 
least a bachelor's degree, or its equivalent, in accounting or a related specialty. 
The AAO recognizes the Handbook as an authoritative source on the duties and educational requirements of 
the wide variety of occupations that it addresses. Accordingly, the AAO considered the information on 
accounting duties as presented in the 2004-2005 Handbook sections on accountants and auditors (pages 
68-72) and bookkeeping, accounting, and auditing clerks (pages 437-438). 
The totality of information in the aforementioned sections of the Handbook establishes that there are many 
positions that require knowledge and application of accounting principles, but not on a level attained by at 
least a bachelor's degree, or its equivalent, in accounting or a related field. Examples found in the Handbook 
are bookkeepers, full-charge bookkeepers, accounting clerks, auditing clerks, and junior accounting clerks. 
These excerpts illustrate the fact that not all accounting functions require a person with a bachelor's degree in 
accounting or a related specialty: 
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. 
(Handbook, page 428) 
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. 
(Handbook, page 70) 
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The Handbook's subsection "Sources of Additional Information" (page 74) refers the reader to the Internet 
site for the American Council for Accountancy and Taxation (ACAT), the professional organization that 
provides the credentials Accredited Business AccountantB/Accredited Business Advisors@ (ABA).' That 
Internet site reveals that a degree in accounting or a related specialty is not required for ABA accreditation. 
Eligibility for the eight-hour comprehensive examination for the ABA credential requires three years of 
"verifiable experience in accounting, taxation, financial services, or other field requiring a practical and 
theoretical knowledge of the subject matter covered on the ACAT Comprehensive ~xamination."~ "Up to 
two" of the required years of work experience "may be satisfied through college credit." 
To determine whether a particular job qualifies as a specialty occupation, CIS does not simply rely on a 
position's title. The specific duties of the proffered position, combined with the nature of the petitioning 
entity's business operations, are factors to be considered. CIS must examine the ultimate employment of the 
alien, and determine whether the position qualifies as a specialty occupation. CJ Defensor v. Meissner, 201 
F. 3d 384 (5th Cir. 2000). CIS must determine whether the evidence establishes that performance of the 
specific duties that comprise the position actually requires the theoretical and practical application of a body 
of highly specialized knowledge, and the attainment of a baccaIaureate or higher degree in the specific 
specialty as the minimum for entry into the occupation, as required by the Act. What the record reveals about 
the nature of the specific duties is decisive. A position's title is not persuasive, nor are an employer's hiring 
standards that exceed the educational level shown to be required by the specific duties. 
The petitioner has not established that the proposed duties, as they actually would be performed upon the 
petitioner's particular business matters, require the theoretical and practical application of a bachelor's degree 
level of knowledge in accounting or a related specialty. The Form 1-129, the response to WE, and the appeal 
list generic duties in such general functional areas as cost management (e.g., preparing and maintaining cost 
records and reports for use in controlling expenditures); preparation and maintenance of financial records 
(e.g ., preparing journal entries related to depreciation and tax depreciation); financial analysis (e.g., preparing 
balance sheets and income statements and supporting schedules); auditing (e.g., performing audit tasks to 
ensure compliance with regulations and company policy); and miscellaneous areas such as policy and 
procedures related to accounting, financial reporting, inventory control, and asset management; treasury 
functions such as payment processing and stop-payment orders; and "[clreating, negotiating, and maintaining 
banking and insurance relationships." 
1 At its Internet site (http://www.nsacct.org/acat.asp), the National Society of Accountants describes ACAT 
as follows: 
The Accreditation Council for Accountancy and Taxation (ACAT) is an independent 
accrediting and monitoring organization affiliated with the National Society of Accountants. 
ACAT accredits professionals in independent practice who have demonstrated measurable 
knowledge of the principles, practices, and ethical standards of accounting, taxation, 
information technology and related financial services. 
2 The ACAT Internet site (http://www.acatcredentials.org/index.html) states that the examination tests 
"proficiency in financial accounting, reporting, statement preparation, taxation, business consulting services, 
business law, and ethics." 
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The evidence of record does not convey any details about the specific matters of the petitioner upon which the 
beneficiary would work, or, consequently, any indication about the level of accounting knowledge required to 
address those matters. For instance, there is no specific information about the spectrum of costs to be 
managed; the range of the petitioner's financial records; the financial data that would be analyzed; the nature 
and complexity of the financial reports with which the beneficiary would be involved; or the assets to be 
managed. There is no evidence of record that establishes specific types of analysis or judgment required of 
the beneficiary, or that substantiates a correlation between such analysis or judgment and a bachelor's degree 
level in accounting or a related specialty. Therefore, there is no factual basis for the MO to determine the 
proffered position is one that normally would require least a bachelor's degree, or its equivalent, in 
accounting or a related specialty. The record of proceeding lacks evidence from which the MO can 
conclude that the beneficiary would serve in an accountant or any other occupational category for which the 
Handbook recognizes the need for at least a bachelor's degree level of knowledge in accounting or any other 
specific specialty. 
It is impossible for the MO to determine where the proffered position fits within the wide spectrum of jobs 
requiring different levels of accounting knowledge. The evidence of record fails to convey that the 
beneficiary's specific performance of the record's list of generalized duties would require the theoretical and 
practical application of highly specialized knowledge attained by at least a bachelor's degree or the equivalent 
in accounting or any other specific specialty. 
The AAO notes that the 2004-2005 edition of the Handbook (at page 64) includes CFOs in the Top Executive 
occupational category. The Handbook's "Training, Other Qualifications, and Advancement" section on Top 
Executives (at pages 66 and 67) reports that a bachelor's degree in a specific specialty is not a normal 
requirement for this occupational category. 
Because the evidence of record does not establish that the proffered position is one for which the normal 
minimum entry requirement is at least a bachelor's degree, or the equivalent, in a specific specialty closely 
related to the position's duties, the petitioner has not satisfied the criterion at 8 C.F.R. 8 214.2(h)(4)(iii)(A)(I). 
The petitioner has not satisfied either of the alternative prongs of 8 C.F.R. 5 214.2(h)(4)(iii)(A)(2). 
The first alternative prong assigns specialty occupation status to a proffered position with a requirement for at 
least a bachelor's degree, in a specific specialty, that is common to the petitioner's industry in positions that 
are both (1) parallel to the proffered position and (2) located in organizations that are similar to the petitioner. 
In determining whether there is such a common degree requirement, factors often considered by CIS 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 fms 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, 1 165 @.Minn. 1999) (quoting Hird/Blaker Coup. v. Suva, 7 12 F. Supp. 1095, 1 102 
(S.D.N.Y. 1989)). 
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The petitioner has failed to establish that its proffered position - a person overseeing the financial aspects of a 
retail food store - is one for which the Handbook reports an industry-wide requirement for a bachelor's degree in 
a specific specialty. The record does not include any submissions from firms, individuals, or a professional 
association attesting to routine recruitment and hiring practices regarding the proffered position. 
The evidence of record does not establish either that ths particular position is so complex or unique that it can 
be performed only by an individual with a degree (so as to satisfj the second alternative criterion of 8 C.F.R. 
214.2(h)(4)(iii)(A)(2)), or that the specific duties are so specialized and complex that their performance 
requires knowledge usually associated with at least a baccalaureate degree in a specific specialty (so as to satisfj 
the criterion of 8 C.F.R. 5 214.2(h)(4)(iii)(A)(#)). The petitioner's business is a start-up retail food store with 
initial capital of $75,000 and one employee. The business transactions which the beneficiary will manage as 
CFO do not convey the complexity or uniqueness required by 8 C.F.R. 5 214.2(h)(4)(iii)(A)(2). The 
petitioner fails to demonstrate duties so specialized and complex as to be normally associated with a 
baccalaureate or higher degree in a specific specialty, as required by 8 C.F.R. 5 214.2(h)(4)(iii)(A)(4). 
Finally, the criterion at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(3) for establishing a history of hiring for the proffered 
position only persons with at least a bachelor's degree in a specialty occupation is not relevant, as this is a 
newly formed petitioner without a recruiting and hiring history. 
As the petitioner has failed to establish that the proffered position qualifies as a specialty occupation under any 
criterion of 8 C.F.R. $ 214.2(h)(4)(iii)(A), the director's decision shall not be disturbed. 
As always, the burden of proving eligibility for the benefit sought remains entirely with the petitioner. Section 
291 of the Act, 8 U.S.C. 1361. The petitioner has not met that burden. 
ORDER: The appeal is dismissed. The petition is denied.