dismissed H-1B Case: Cellular Phone Parts Sales

U.S. Department of Homeland Security 
20 Mass Ave., N.W., Rm. A3042 
Washington, DC 20529 
identifying data deleted to 
 U. S. Citizenship 
prevent cle.;r-ly unwarranted and Immigration 
invasion of personal privacy 
FILE: WAC 04 1 19 50303 Office: CALIFORNIA SERVICE CENTER Date: 2 2 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(l S)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 9 1 1 Ol(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. 
~Z%&S= Robert P. Wiemann, ire 
1 Administrative ~~~eal@ffice 
WAC 04 1 19 50303 
Page 2 
DISCUSSION: The director of the service center denied the nonimrnigrant 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 imports and sells aftermarket cellular phone parts and accessory products. It seeks to employ 
the beneficiary as a financial analyst/accountant. The petitioner, therefore, endeavors to classify the 
beneficiary as a nonimmigrant worker in a specialty occupation pursuant to section 10 1 (a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. $ 1 lOl(a)(lS)(H)(i)(b). The director denied the petition, 
finding that the proposed position did not qualify as a specialty occupation. 
The record of proceeding before the AAO contains: (1) Form 1-129 and supporting documentation; (2) the 
director's denial letter; and (3) Form I-290B. The AAO has reviewed the entire record of proceeding in 
making its determination as to whether the proposed position qualifies as a specialty occupation. 
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. 
Pursuant to 8 C.F.R. 9 2 14.2(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(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. 
WAC 04 119 50303 
Page 3 
Evidence of the beneficiary's proposed duties as a financial analyst/accountant includes: the Form 1-129; the 
attachments accompanying the Form 1-129; and the petitioner's support letter. According to this evidence, 
the beneficiary will oversee accounts receivables and accounts payables; analyze financial information 
detailing assets, liabilities, and capital; prepare the balance sheet and profit and loss statement to summarize 
the petitioner's current and projected financial position; analyze the petitioner's present and past operations 
records, trends and costs, estimated and realized revenues, administrative commitments, and obligations in 
order to project future revenues and expenses; develop and maintain budgeting systems that control 
expenditures such as advertising and marketing, maintenance and repairs, and employee salaries and benefits; 
establish, document, coordinate, and implement accounting and accounting control procedures; advise 
management of the impact of business and internal programs and activities on taxes; ensure compliance with 
federal and state regulations; devise and implement computer-based systems for general accounting; examine 
and analyze the petitioner's accounting records and prepare federal, state, and local income tax returns; and 
formulate policies and procedures governing the financial relationship with banks, distributors, suppliers, and 
customers. For the proposed position, the petitioner requires a baccalaureate degree in accounting, finance, or 
a related business discipline. 
In the denial letter, 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 and the Dictionaiy 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, and that incidental specialty 
occupation duties do not establish a position as a specialty occupation. The director discussed the 
Handbook's description of a management accountant, and stated that the petitioner does not have the 
organizational complexity, scale or complexity of business, or engage in the type of business to require the 
services of a full-time accountant for any significant length of time. The director found that the petitioner 
does not employ financial clerks, positions that are not specialty occupations, and that although the proposed 
position requires some financial analysis the actual duties to be performed by the beneficiary are more closely 
related to those of financial clerks. 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 one of the criteria under 8 C.F.R. 9 214.2(h)(4)(iii)(A). 
On appeal, counsel asserts that the field of aftermarket cellular phone accessories/parts products is highly 
competitive and has new products. Counsel maintains that the petitioner is a young company, is at a critical 
development stage, and is expanding and hiring employees. Counsel states that the petitioner has employees 
that handle bookkeeping and accounting work, and describes the proposed duties. 
Upon review of the record, the petitioner has established none of the four criteria outlined in 8 C.F.R. 
8 214.2(h)(4)(iii)(A). Therefore, the proffered position is not a specialty occupation. 
WAC 04 119 50303 
Page 4 
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 often 
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 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 1 15 1, 1 165 
(D.Minn. 1999)(quoting Hird/Blaker Corp. v. Suva, 7 12 F. Supp. 1095, 1 102 (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. 
In the denial, the director stated that the petitioner is not in the kind of industry that typically employs an 
accountant. The AAO does not agree with the director's conclusions regarding the industries or the size of 
company in need of accountants. The 2006-2007 edition of the Handbook indicates that an accountant 
position can be found "throughout private industry" and the Handbook does not suggest that a company 
employing an accountant must be of a particular size. Notwithstanding this, the AAO does not find that the 
proposed position resembles that of an accountant. 
On appeal, counsel asserts that the proposed duties resemble those of an accountant, particularly a 
management accountant. The Handbook, a resource that the AAO routinely consults about the duties and 
educational requirements of particular occupations, portrays a management accountant as follows: 
Management accountants-also called cost, managerial, industrial, corporate, or private 
accountants-record and analyze the financial information of the companies for which they 
work. Among their other responsibilities are budgeting, performance evaluation, cost 
management, and asset management. Usually, management accountants are part of executive 
teams involved in strategic planning or the development of new products. They analyze and 
interpret the financial information that corporate executives need in order to make sound 
business decisions. They also prepare financial reports for other groups, including 
stockholders, creditors, regulatory agencies, and tax authorities. Within accounting 
departments, management accountants may work in various areas, including financial 
analysis, planning and budgeting, and cost accounting. 
An accountant is a specialty occupation, normally requiring at least a bachelor's degree in accounting or a 
related discipline. Although counsel states that the proposed duties parallel those of an accountant, the 
evidence in the record does not support this. In the March 15, 2004 letter, the petitioner states it is a 
subsidiary of an overseas company, and that its primary function is to sell and distribute cellular phone 
WAC 04 1 19 50303 
Page 5 
accessories/parts products that have been purchased from the parent company. The submitted invoices reflect 
that the petitioner primarily sells cell phone holsters to distributors, and the Form 1-129 petition shows that the 
petitioner has five employees and gross annual sales of $700,000. This evidence does not establish the 
complexity of business operations or financial transactions, or the handling of many accounts, that would 
require a four-year degree in accounting. The Handbook's subsection "Sources of Additional Information" 
refers the reader to the Internet site for the Accreditation Council for Accountancy and Taxation (ACAT), the 
professional organization that provides the credentials Accredited Business Accountant@/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 
  red it."^ Buying various kinds of cell phone holsters, which are purchased directly from the parent company, 
do not suggest a complexity of business operations or financial transactions that would require the services of 
a financial analystlaccountant. The level of income generated by the petitioner has a direct and substantial 
bearing on the scope and depth of the beneficiary's duties. Responsibility for income of $700,000 differs 
vastly from responsibility associated with a far larger income. The AAO notes that the Handbook reports that 
tax returns for small businesses are prepared by tax preparers, which is an occupation that requires moderate- 
term on-the-job training. Based on the evidence submitted, the AAO finds that the proposed duties are 
distinguishable from those of a management accountant. 
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. 
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." 
3 
 The website from Skyline College, a community college located in San Mateo, California, 
(www.skylinecol1ege.net) reflects that 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 generally accepted accounting principles (GAAP), forecasting, budgeting, cost 
accounting, break even analysis, developing and operating a computerized accounting system using tools such 
as QuickBooks, QuickBooks Pro, or Peachtree, which is an integrated commercial accounting software 
package that is used to review, differentiate, and interpret accounting concepts and data in a multitude of 
business situations. 
WAC 04 1 19 50303 
Page 6 
For the reasons discussed above, the petitioner fails to satisfy the regulation at 8 C.F.R. 
214.2(h)(4)(iii)(A)(I): that a baccalaureate or higher degree or its equivalent is the normal minimum 
requirement for entry into the particular position. 
The petitioner submitted no evidence to establish the first alternative prong at 8 C.F.R. 
g 214.2(h)(4)(iii)(A)(2), that a specific degree requirement is common to the industry in parallel positions 
among similar organizations. 
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 discussed under 8 C.F.R. 5 214.2(h)(iii)(A)(I), based on the evidence submitted, the 
proposed duties differ from those of a management accountant, which is a position that qualifies as a specialty 
occupation. Consequently, the petitioner fails to establish the second alternative prong at 8 C.F.R. 
9 2 14.2(h)(4)(iii)(A)(2). 
There is no evidence demonstrating that the petitioner normally requires a degree or its equivalent for the 
position, the third criterion at 8 C.F.R. 9 214.2(h)(4)(iii)(A). 
The fourth criterion at 8 C.F.R. 5 214.2(h)(4)(iii)(A) requires that the petitioner establish that the nature of the 
specific duties is so specialized and complex that the knowledge required to perform 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), the evidence does not support counsel's assertion that the proposed position reflects that of 
an accountant. Therefore, the petitioner fails to establish this last criterion at 8 C.F.R. 9 2 14.2(h)(4)(iii)(A). 
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.