dismissed H-1B Case: Finance

U.S. Citizenship 
and Immigration 
Services 
In Re: 10448624 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: SEPT. 23, 2020 
The Petitioner, a marketing consultation company, seeks to temporarily employ the Beneficiary as a 
"financial specialist" under the H-lB nonimmigrant classification for specialty occupations. See 
Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. 
§ 1101(a)(15)(H)(i)(b). The H-lB program allows a U.S. employer to temporarily employ a qualified 
foreign worker in a position that requires both (a) the theoretical and practical application of a body 
of highly specialized knowledge and (b) the attainment of a bachelor's or higher degree in the specific 
specialty ( or its equivalent) as a minimum prerequisite for entry into the position. 
The Director of the Vermont Service Center denied the petition, concluding that the evidence of record 
does not establish that the proffered position qualifies as a specialty occupation. The matter is now 
before us on appeal. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Section 291 of the Act; Matter of Chawathe, 25 I&N Dec. 369, 375 (AAO 2010) . We review the 
questions in this matter de nova. See Matter of Christo 's Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). 
Upon de nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-lB nonimmigrant as a foreign national "who is 
coming temporarily to the United States to perform services ... in a specialty occupation described in 
section 214(i)(l) ... " ( emphasis added). Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the 
term "specialty occupation" as an occupation that requires "theoretical and practical application of a 
body of highly specialized know ledge, and 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." The 
regulation at 8 C.F .R. § 214.2(h)(4)(ii) largely restates section 214(i)(l) of the Act, but adds a 
non-exhaustive list of fields of endeavor. In addition, 8 C.F.R. § 214.2(h)(4)(iii)(A) provides that the 
proffered position must meet one of four criteria to qualify as a specialty occupation position. 1 Lastly, 
1 8 C.F.R. § 214.2(h)(4)(iii)(A) must be read with the statutory and regulatory definitions ofa specialty occupation under 
section 214(i)(l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). We construe the te1m "degree" to mean not just any 
8 C.F.R. § 214.2(h)(4)(i)(A)(l) states that an H-lB classification may be granted to a foreign national 
who "will pe1:form services in a specialty occupation ... " ( emphasis added). 
Accordingly, to determine whether the Beneficiary will be employed in a specialty occupation, we 
look to the record to ascertain the services the Beneficiary will perform and whether such services 
require the theoretical and practical application of a body of highly specialized knowledge attained 
through at least a bachelor's degree or higher in a specific specialty or its equivalent. Without 
sufficient evidence regarding the duties the Beneficiary will perform, we are unable to determine whether 
the Beneficiary will be employed in an occupation that meets the statutory and regulatory definitions of 
a specialty occupation and a position that also satisfies at least one of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). The services the Beneficiaiy will perform in the position determine: (1) the nmmal 
minimum educational requirement for entry into the particular position, which is the focus of criterion 
1; (2) industry positions which are parallel to the proffered position and thus appropriate for review 
for a common degree requirement, under the first alternate prong of criterion 2; (3) the level of 
complexity or uniqueness of the proffered position, which is the focus of the second alternate prong 
of criterion 2; (4) the factual justification for a petitioner nmmally requiring a degree or its equivalent, 
when that is an issue under criterion 3; and (5) the degree of specialization and complexity of the 
specific duties, which is the focus of criterion 4. 8 C.F.R. § 214.2(h)(4)(iii)(A). 
By regulation, the Director is charged with determining whether the petition involves a specialty 
occupation as defined in section 214(i)(l) of the Act. 8 C.F.R. § 214.2(h)(4)(i)(B)(2). The Director 
may request additional evidence in the course of making this determination. 8 C .F .R. § 103 .2(b )(8). 
In addition, a petitioner must establish eligibility at the time of filing the petition and must continue to 
be eligible through adjudication. 8 C.F.R. § 103.2(6)(1). 
II. THE PROFFERED POSITION 
The Petitioner, established in 2017, is a marketing consultation company. The Petitioner states that it 
helps "American trade companies explore their business opportunities in China" and assists "Chinese 
students (mainly high school students) in assimilating into American campuses and mainstreams [sic] 
culture." The Petitioner seeks to employ the Beneficiary as a "financial specialist" on a part-time 
basis. On the labor condition application (LCA) submitted in support of the H- IB petition, the 
Petitioner designated the proffered position under the occupational category "Financial Specialists, 
All Other" corresponding to the Standard Occupational Classification (SOC) code 13-2099, at a Level 
II wage. 2 The Petitioner provided the following job duties (verbatim): 
• Collect, consolidate and analyze financial data (budgets, income statement, etc), 
taking into account our organization goals, financial standing, marketing and 
pricing. (3hr/wk) 
baccalaureate or higher degree. but one in a specific specialty that is directly related to the proposed position. See Royal 
Siam Corp. v. Chertojf, 484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in a specific specialty" as 
"one that relates directly to the duties and responsibilities of a particular position"). 
2 A petitioner submits the LCA to the U.S. Department of Labor to demonstrate that it will pay an H-lB worker the higher 
of either the prevailing wage for the occupational classification in the area of employment or the actual wage paid by the 
employer to other employees with similar duties, experience, and qualifications. Section 212(n)(l) of the Act; 20 C.F.R. 
§ 655.73l(a). 
2 
• Review, revise and establish our organizations accounting/finance and record 
keeping procedure/requirements. (2hr/wk) 
• Assemble and summarize data to structure sophisticated reports on our company's 
financial status, taking into consideration of trending and risks in our industry. For 
instance, how will the trade disputes between China and the U.S[.] affect our 
business. (3hr/wk) 
• Conduct research on our past, cmTent and future perf mmance, utilizing 
forecasting/analysis methodology. (3hr/wk) 
• Provide creative alternatives recommendation to reduce cost, improve the financial 
performance and evaluate tax liability. (2hr/wk) 
• Consult with management for relevant issues. (lhr/wk) 
• Others as assigned by management. (lhr/wk) 
On appeal, the Petitioner provided an expanded version of these duties. For the sake of brevity, we 
will not quote the version submitted on appeal; however, we have closely reviewed and considered 
the duties. 
The Petitioner requires a "bachelor's or higher degree in finance or accounting related fields" for the 
proffered position. 
III. ANALYSIS 
Upon review of the record in its totality, we conclude that the Petitioner has not sufficiently established 
the services in a specialty occupation that the Beneficiary would perform during the requested period 
of employment, which precludes a determination of whether the proffered position qualifies as a 
specialty occupation under sections 101(a)(15)(H)(i)(b), 214(i)(l) of the Act; 8 C.F.R. 
§ 214.2(h)(4)(i)(A)(l), 8 C.F.R. § 214.2(h)(4)(ii) and (iii)(A).3 Specifically, the record contains 
inconsistent and insufiicient evidence regarding the Petitioner's business operations and the services 
the Beneficiary will provide. 
When determining whether a position is a specialty occupation, we look at the nature of the business 
offering the employment and the description of the specific duties of the position as it relates to the 
performance of those duties within the context of that particular employer's business operations. To 
ascertain the salient aspects of the proposed employment, we look to the Form 1-129, Petition for a 
Nonimmigrant Worker, and the documents filed in support of the petition. A crucial aspect of this 
matter is whether the Petitioner has sufficiently and consistently described its business operations and 
the duties of the proffered position such that we may discern the nature of the position and whether 
the position actually requires the theoretical and practical application of a body of highly specialized 
knowledge attained through at least a baccalaureate degree in a specific discipline. 
First, we note that the Petitioner provided inconsistent position titles for the proffered position. While 
the Petitioner stated on the petition, the LCA, and in some of the supporting documents that the 
3 The Petitioner submitted documentation to support the H-1B petition, including evidence regarding the proffered position 
and its business operations. Although we may not discuss every document submitted, we have reviewed and considered 
each one. 
3 
Beneficiary will be hired as a financial specialist, in the letter it initially submitted in support of the 
petition, the Petitioner stated that it is "in need of the professional service of management analyst." 
The Petitioner provided no explanation for this inconsistency. 
The record also contains inconsistencies regarding the Petitioner's business address. On the petition 
and the LCA, the Petitioner stated that it is located in I IN ew York and also indicated that 
this is where the Beneficiary will work at. In its response to the Director's request for evidence (RFE), 
the Petitioner stated that it has moved to a new address in~ _______ ___. and submitted a 
sublease for the claimed new address. A page entitled "Exhibit 1 to Sublease" described this office 
space as "100 square feet" (emphasis omitted). Notably, the sublease does not contain page numbers, 
the signature of the leasing agent is illegible, and the agent who signed on behalf of the leasing 
company is not identified by name. The document states that the sublease "shall commence on 
November 1, 2018 ... , and shall expire on October 31. 2019." The Petitioner also submitted three 
photographs of the outside of the building in which the new office is located, as well as a copy of a 
letter from the~ Department of Finance" dated "February 12, 2019," showing it was mailed to 
the Petitioner' si::==Taddress. The sublease was signed on October 8, 2018, which is over five months 
prior to the LCA' s certification and the petition's filing. 4 The Petitioner does not explain why it 
provided an address in I INY, on the petition and the LCA for its place of business if it was 
leasing an office space in I ~ at the time the forms were filed. 5 Nor does the Petitioner 
explain the reason for providing different addresses for its place of business to various government 
agencies. Moreover, after stating in its RFE response that it had moved to a location itj I and 
submitted supporting evidence to demonstrate its I I address, the Petitioner again provided the 
location atl I NY, on the Form I-290B, Notice of Appeal or Motion for its address. The 
Petitioner, again, does not provide any explanation for the inconsistencies regarding its business 
address.6 
The Petitioner must resolve the inconsistencies in the record with independent, objective evidence 
pointing to where the truth lies. Matter of Ho, 19 l&N Dec. 582, 591-92 (BIA 1988). Unresolved 
material inconsistencies may lead us to reevaluate the reliability and sufficiency of other evidence 
submitted in support of the requested immigration benefit. Id. An inaccurate statement anywhere on 
the Form 1-129 or in the evidence submitted in connection with the petition mandates its denial. See 
8 C.F.R. § 214.2(h)(10)(ii); see also id. § 103.2(b)(l). 
Aside from the issues noted above, the record does not contain a sufficiently detailed description of 
the Petitioner's business operations. According to the Petitioner, it "has been engaged in consultation 
service[s] for business[es] such as trading companies as well as educational institutions." The 
Petitioner states that it helps "American trade companies explore their business opportunities in China" 
and '"assist[s] Chinese students (mainly high school students) in assimilating into American campuses 
4 The LCA and the petition were signed by the Petitioner's president on March 26, 2019. 
5 Since the identified basis for denial is dispositive of the Petitioner's appeal, we decline to reach and hereby reserve the 
right regarding whether the LCA corresponds to the petition. 20 C.F.R. § 655. 705(b ). See INS v. Bagamasbad, 429 U.S. 
24, 25 (1976) ("courts and agencies are not required to make findings on issues the decision of which is unnecessary to the 
results they reach"); see also Matter ofL-A-C-, 26 I&N Dec. 516, 526 n. 7 (BIA 2015) (declining to reach alternative issues 
on appeal where an applicant is otherwise ineligible). 
6 We further note that a search of public records on the Internet revealed that the real estate located irl INY, is 
a 700 square foot, one-bedroom and one-bathroom residential apa1iment. 
4 
and mainstreams [sic] culture." However, the Petitioner does not offer details regarding the trading 
companies and the educational institutions it assists, specifics of the consultation services it provides, 
and how it accomplishes the consultation services it claims to provide. Furthermore, it does not 
provide clarity regarding the difference between the consultation services it provides to the trading 
companies and the consultation services it provides to the educational institutions. For example, the 
Petitioner does not explain how it assists trading companies explore opportunities in China; whether 
it has offices in China; whether it has partnered with other Chinese companies; and whether its services 
are based on online research alone. It also does not provide details regarding the type of consultation 
services the educational institutions need and how it assists them to achieve their goals. The Petitioner 
also does not sufficiently explain how it assists Chinese students to assimilate to the U.S. culture. 
Moreover, the Petitioner does not sufficiently explain the Beneficiary's position within the context of 
its business operations. The Petitioner claims having five employees "(3 full-time equivalent)." 
However, the Petitioner did not submit an organizational chart depicting the various positions within 
the organization and the Beneficiary's position within the Petitioner's overall organizational hierarchy. 
The record also does not contain a sufficiently detailed description of the Beneficiary's duties to 
establish that the position requires the theoretical and practical application of a body of highly 
specialized knowledge, and the attainment of a baccalaureate or higher degree in the specific specialty, 
or its equivalent. The duties such as "[c]ollect, consolidate and analyze financial data," "[a]ssemble 
and summarize data to structure sophisticated reports," and "[p ]rovide creative alternatives 
recommendation to reduce cost, improve the financial performance and evaluate tax liability" do not 
illuminate the substantive application of knowledge involved or any particular educational 
requirement associated with such duties. Even the expanded version of the duties provided on appeal 
do not offer sufficient details regarding the duties, but instead, create further ambiguity regarding the 
Petitioner's operations and the Beneficiary's duties. For example, the Petitioner states that the duty to 
"[r]eview, revise and establish [its] organization[']s accounting/finance and record keeping 
procedure/requirements" demands the Beneficiary to monitor and track its "finance/accounting 
records such as customers, sales, and inventory on a daily basis." However, the Petitioner does not 
explain who these customers are, what inventory the services it provides require, and the specifics of 
the sales to provide context for the Beneficiary's duties. The duties as described do not communicate 
(1) the actual work that the Beneficiary would perform, (2) the complexity, uniqueness and/or 
specialization of the tasks, and/or (3) the correlation between that work and a need for a particular level 
education of highly specialized knowledge in a specific specialty. 
We also question the proposed tasks to "consult with management for relevant issues" and "others 
assigned by management." The Petitioner elaborated on these duties by stating that the duties require 
the Beneficiary to provide "information to supervisors 7 by telephone, in written form, e-mail , or in 
person" and to prepare Power Point presentations. The Petitioner, however, did not establish how 
these duties require an individual with a bachelor's or higher degree in a specific specialty, or its 
equivalent. While the position may require that the Beneficiary possess some skills and technical 
knowledge in order to perform these duties, the Petitioner has not sufficiently explained how these tasks 
require the theoretical and practical application of a body of highly specialized knowledge, and the 
7 The Petitioner does not provide information regarding these supervisors, their specialty, staff they supervise, and their 
overall role within the context of its operations. 
5 
attainment of a bachelor's or higher degree in the specific specialty ( or its equivalent) as a minimum for 
entry into the occupation. 
The Petitioner also did not sufficiently explain whether the Beneficiary would be assigned any 
non-qualifying duties. As noted above, the Petitioner stated the Beneficiary will have other duties as 
"assigned by management" but did not elaborate on these duties other than assisting in "preparing for 
presentation including gathering supporting infmmation and making Power[ Point] slides for 
presentation." However, there is no mention in the record of any administrative or support staff 
working for the petitioning enterprise. We reiterate that the Petitioner claimed having five employees 
"(3 full-time equivalent)" and did not submit an organizational chart depicting the various positions 
within the organization. Collectively, this brings into question how much of the Beneficiary's time 
can actually be devoted to financial specialist duties. 
The Petitioner submits a five-page document that is entitled "Industry Research and Prediction for [the 
Petitioner]" and has the Beneficiary's name below the title. The Petitioner claims that this document 
demonstrates the "actual job duties" of the position. The document provides general information 
regarding the industry outlook for consultation businesses, international education market, 
contribution to the U.S. economy, and business prediction. It also contains a couple of graphs and 
numerical figures in a table format. We note that other than having the Beneficiary's name under the 
title of the document, there is little evidence that this document was created by the Beneficiaiy. 
Moreover, the document does not sufficiently convey the Beneficiary's duties as a financial specialist 
and why the work requires specialized knowledge. Even if the document was representative of the 
type of work performed in the proffered position, it provides general information that cannot substitute 
for credible explanations from the Petitioner as to why the position is a specialty occupation. 
The Petitioner submits two opinion letters - one from I I and the other from ..... 1 _ ___, 
~------'I Both authors state that they are faculty members at the University! land have 
taught finance-related courses. The professors provide cursory information about the educational 
requirements for financial specialist positions; however, their analyses fall short of providing a 
meaningful discussion of what the Beneficiary will actually do in the proffered position and how those 
duties require the theoretical and practical application of a body of highly specialized knowledge. 
They do not demonstrate in-depth knowledge of the Petitioner's operations or how the duties of the 
position would actually be performed in the context of its business enterprise. As a result, we conclude 
that the Petitioner has not demonstrated that the professors possessed the requisite information to 
adequately assess the nature of the position and appropriately determine the educational requirements 
of the position, based upon the job duties and level ofresponsibilities. We may, in our discretion, use 
advisory opinion statements submitted as expert testimony. However, where an opinion is not in 
accord with other inf mmation or is in any way questionable, we are not required to accept or may give 
less weight to that evidence. Matter of Caron International, 19 I&N Dec. 791 (Cornrn'r 1988). As a 
reasonable exercise of our discretion, we discount the advisory opinion letter as not probative of any 
criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A). 
The Petitioner also identified a few courses which may be beneficial for certain duties; however, it has 
not demonstrated how an established curriculum of such courses leading to a baccalaureate or higher 
degree in a specific specialty, or its equivalent, is required to perform the duties of the proffered 
position. The Petitioner further claims that the Beneficiary is well qualified for the position, and 
6 
references her qualifications. However, the test to establish a position as a specialty occupation is not 
the education or experience of a proposed beneficiary, but whether the position itself requires at least 
a bachelor's degree in a specific specialty, or its equivalent. We are required to follow long-standing 
legal standards and determine first, whether the proffered position qualifies for classification as a 
specialty occupation, and second, whether the Beneficiary was qualified for the position at the time 
the nonimmigrant visa petition was filed. Cf Matter of Michael Hertz Assocs., 19 l&N Dec. 558, 560 
(Comm'r 1988) ("The facts of a beneficiaiy' s background only come at issue after it is found that the 
position in which the petitioner intends to employ him falls within [a specialty occupation]."). 
The record contains inconsistencies and insufficient evidence regarding the Petitioner's business 
operations and the proffered position. Therefore, we are unable to determine the substantive nature of the 
services the Beneficiary would perform. Consequently, we are unable to evaluate whether the proffered 
position satisfies any criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A), because it is the substantive nature of 
the Beneficiary's services that determine ( 1) the normal minimum educational requirement for entry into 
the particular position, which is the focus of criterion 1; (2) industry positions which are parallel to the 
proffered position and thus appropriate for review for a common degree requirement, under the first 
alternate prong of criterion 2; (3) the level of complexity or uniqueness of the proffered position, which 
is the focus of the second alternate prong of criterion 2; ( 4) the factual justification for a petitioner 
normally requiring a degree or its equivalent, when that is an issue under criterion 3; and (5) the degree 
of specialization and complexity of the specific duties, which is the focus of criterion 4. 
The Petitioner has not established that the proffered position is a specialty occupation. 8 
ORDER: The appeal is dismissed. 
8 As the lack of probative and consistent evidence in the record precludes a conclusion that the proffered position is a 
specialty occupation and is dispositive of the appeal, we will not further discuss the Petitioner's assertions on appeal 
regarding 8 C.F.R. § 214.2(h)(4)(iii)(A). 
7