dismissed H-1B Case: Finance

MATTER OF E-C-0- T-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY31,2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an online charter school, seeks to temporarily employ the Beneficiary as a "financial 
reporting specialist" under the H-1 B nonimmigrant classification for specialty occupations. See 
Immigration and Nationality Act (the Act) section 10l(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, California Service Center, denied the petition. The Director concluded that the 
proffered position is not a specialty occupation. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that the Director erred in finding that the proffered position is not a specialty occupation. 
Upon de novo review, we will dismiss the appeal. 
I. SPECIALTY OCCUPATION 
A. Legal Framework 
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. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates this statutory definition, but adds a non­
exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered position 
must meet one of the following criteria to qualify as a specialty occupation: 
Matter of E-C-0- T-
(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. 
8 C.F.R. § 214.2(h)(4)(iii)(A). U.S. Citizenship and Immigration Services (USClS) has consistently. 
interpreted 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 proposed 
position. See Royal Siam Corp. v. Chertoff, 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"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
B. Analysis 
Upon review of the record in its totality and for the reasons set out below, we determine that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 
Specifically, the record contains unresolved inconsistencies that undermine the Petitioner's claims 
regarding the nature and scope of the proffered position. 1 
The Petitioner listed the job title on the Form I-129, Petition for a Nonimmigrant Worker, as a 
"financial reporting specialist." The labor condition application (LCA) submitted with the petition 
classified the proffered position under SOC code 43-3031, which is the occupational code for 
"Bookkeeping, Accounting, and Auditing Clerks."2 
1 The Petitioner submitted documentation to support the H-1 B petition, including evidence regarding the proffered 
position and its business operations. While we may not discuss every document submitted, we have reviewed and 
considered each one. 
2 The Petitioner classified the proffered position at a Level II wage (the second lowest of four assignable wage levels). 
We will consider this selection in our analysis of the position. The "Prevailing Wage Detennination Policy Guidance" 
issued by the DOL provides a description of the wage levels. A Level II wage rate is generally appropriate for positions 
for which the Petitioner expects the Beneficiary to have a good understanding of the occupation. This wage rate 
indicates that the Beneficiary will perform moderately complex tasks that require limited judgment. U.S. Dep't of 
Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs 
(rev. Nov. 2009), available at http://flcdatacenter.com/download/NPWHC _Guidance_ Revised _11_2009.pdf. A 
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However, the proffered duties and mmtmum requirements for the position are not consistent 
throughout the record. For example, in its support letter dated March 27, 2015, the Petitioner 
describes the Beneficiary's day-to-day responsibilities as follows: 
• Takes the lead in preparation of studies, reports, and analysis of budgets, 
forecasts, financial plans, governmental requirements, statistical reports, cash 
flow projects, and business forecasts for federal funds; 
• Prepares financial reports that provide senior management with information on 
primarily a monthly basis but could be requested at other times as well, such as 
the balances by grant; 
• Keeps supervisor and senior management aware of financial issues that could 
affect [the Petitioner] and provide financial data that 
illustrates the challenges; 
• Works with the accounting department to correct any discrepancies, changes, or 
errors that are discovered when analyzing financial data; 
• Provides assistance with the creation of Purchasing Request Forms and 
reimbursements with federal funds; 
• Assists in the reconciliation of accounts, i.e. purchase order issued and checks 
paid; 
• Assists in providing proper USAS coding to [the Petitioner's] employees and 
purchases when requested; 
• Assists the Director of Federal Programs in the completion of grant applications, 
such as the CCIP, as needed; 
• Assists the Director of Federal Programs in identifying cost savings; and 
• Performs other financial analysis work as directed by the Director of Federal 
Programs. 
In response to the request for evidence (RFE), the Petitioner expanded the duties and stated as 
follows: 
[a]s indicated in the foregoing job description and discussion, after the filing of [this] 
H~ 1 B petition, we increased the· position's scope of responsibilities to include 
forecasting, monitoring, arid analysis of not just federal "title" funds, but also of 
No other position [with the Petitioner] 
performs the same job duties at the same level as does the Financial Reporting 
Specialist. 
prevailing wage determination starts with an entry level wage and progresses to a higher wage level after considering the 
experience, education, and skill requirements ofthe Petitioner's job opportunity. /d. 
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Additionally, on appeal, the Petitioner submits a position description for the proffered position that 
changes the title from "financial reporting specialist" to "financial and compliance specialist" and 
describes the proffered duties as follows: 
• Intermediate math functions, sometimes supporting outputs with written 
equations; 
• Transfer mathematical understanding to Excel or similar worksheet presentations 
for analysis and to communicate complex information clearly; 
• Study financial statements, monthly transactions and other data; 
• Be able to perform funding and expense forecasts and create budgets based on 
those forecasts, such as salary and benefit budgeting; develop Excel models to 
keep track of business metrics, monitor and predict business growth, cash flow 
position and use of money; 
• Find, understand, and apply laws that govern educational reporting outputs often 
gained through reading the Ohio Revised Code and state and federal guidelines 
surrounding financial and educational reports; 
• Analyze large amounts of financial data that require knowing where to start with 
the analysis and being able to decipher what is pertinent versus what is noise; 
• Present financial and business findings in summary format where the presentation 
involves making large amounts of data meaningful in a few bullet points. 
On appeal, the Petitioner also submits an expert opinion letter from at the 
describes the proffered position as being principally 
responsible "for conducting financial analytics, financial reporting, forecasting and budgeting, and 
process improvements." He also writes, "[t]he position should be viewed as a specialty occupation 
in the larger field of financial analysis, specializing in the particular sub-disciplines of financial 
reporting, budgeting, and accounting" and concludes that a "[b]achelor' s 
[ d]egree is thus a standard 
minimum educational requirement for most financial and accounting analyst positions, such as the 
Financial Reporting Specialist at [the Petitioner]." In other words, states that the 
proffered position is one of financial and accounting analyst positions. 
It therefore appears that the proffered position has changed from the time of filing. As further 
evidence that the position no longer resembles the position initially proffered in this petition; we 
note that the advertisements submitted in support of the Petitioner's claims that the advertised 
positions are similar to the one proffered here, are for "budget analysts" and "financial analysts." 
The Petitioner, therefore, appears to assert on appeal that the proffered position should actually be 
classified ;lS a financial or budget analyst, rather than a bookkeeping, accounting, and auditing clerk, 
as was indicated on the LCA. 
If the Petitioner wants to revise the proffered position so that it is classified as a financial or business 
analyst, then it must file a new H-1 B petition with a corresponding LCA. USC IS regulations 
affirmatively require a petitioner to establish eligibility for the benefit it is seeking at the time the 
petition is filed. Further, on appeal, a petitioner cannot offer a new position to the beneficiary, or 
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(b)(6)
Matter of E-C-0-T-
materially change a position's title, its level of authority within the organizational hierarchy, the 
associated job responsibilities, or the requirements of the position. See 8 C.F.R. § 103.2(b)(1). A 
visa petition may not be approved based on speculation of future eligibility or after the Petitioner or 
Beneficiary becomes eligible under a new set of facts. See Matter of Michelin Tire Corp., 17 I&N 
Dec. 248, 249 (Reg' I Comm'r 1978). A petitioner may not make material changes to a petition in an 
effort to make a deficient petition conform to USCIS requirements. See Matter oflzummi, 22 I&N 
Dec. 169, 176 (Assoc. Comm'r 1998). 
Further, the Petitioner asserts throughout the record that the Beneficiary would have high-level, 
complex responsibilities, which appear inconsistent with the Level II (qualified) wage-level selected 
here. For example, the Petitioner claims that the Beneficiary will "take the lead in preparation of 
studies, reports, and analysis." In response to the RFE, the Petitioner stated that the financial reporting 
specialist "performs complex, specialized duties" "that are critical to its continued success." On 
appeal, states that the position is a "financial management position." However, in 
designating the proffered position at a Level II wage level, the Beneficiary is only expected to 
perform moderately complex tasks that require limited judgment. The Petitioner's designation of the 
proffered position as a Level II position is inconsistent with these and other stated duties and 
responsibilities, and raises questions regarding the substantive nature of the proffered position. 3 
There are other discrepancies throughout the petition. Specifically, the Petitioner has provided 
inconsistent information regarding the minimum educational requirement for the proffered position. 
For example, on appeal, the Petitioner's revised position description states "a bachelor's degree in 
Finance, Economics, or Statistics is highly preferred and necessary to adequately perform the job 
duties." However, the letter from states that a bachelor's degree in finance or 
accounting is a standard minimum requirement. We note that the Petitioner has added statistics to 
the degree fields relevant for this position and stated a "preference" rather than a "requirement" for a 
specific degree. No explanation for the variances was provided by the Petitioner. With the 
conflicting information provided regarding the minimum requirements, we cannot determine 
whether the proffered position requires at least a bachelor's degree in a specific specialty. 
Based on all of the above reasons, including the changes in position title, duties, and minimum 
requirements, we find that the evidence of record is insufficient to establish the substantive nature of 
the work to be performed by the Beneficiary. The inability to establish the substantive nature of the 
work to be performed by the Beneficiary, which should be consistent from the time the petition was 
3 The issue here is that the Petitioner's designation of this position as a Level II position undermines its claim that the 
position is relatively higher than other positions within the same occupation. Nevertheless, it is important to note that a 
Level II wage-designation does not preclude a proffered position from classification as a speCialty occupation. In certain 
occupations (doctors or· lawyers, for example), an entry-level position would still require a minimum of a bachelor's 
degree in a specific specialty, or its equivalent, for entry. Similarly, however, a Level IV wage-designation would not 
reflect that an occupation qualifies ·as a specialty occupation if that higher-level position does not have an entry 
requirement of at least a bachelor's degree in a specific specialty or its equivalent. That is, a position's wage level 
designation may be a consideration but is not a substitute for a detennination of whether a proffered position meets the 
requirements of section 214(i)(l) of the Act. 
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Matter of E-C-0-T-
filed throughout the adjudication process, consequently preclu~es a finding that the proffered 
position satisfies any criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A), because it is the substantive-nature 
of that work that determines: (1) the normal minimum educational requirement for 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. · 
Accordingly, as the Petitioner has not established that it has satisfied any of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A), it cannot be found that the proffered position qualifies as a specialty 
occupation. 
II. LCA DOES NOT CORRESPOND TO THE PETITION 
As the Petitioner did not demonstrate that the proffered position is a specialty occupation, we need 
not fully address other issues evident in the record. That said, we wish to identify an additional issue 
to inform the Petitioner that this issue should be addressed in any future proceedings.
4 
We find that the Petitioner has not submitted an LCA which corresponds to the petition. The LCA 
provided at the time of filing was certified for (1) a financial reporting specialist, (2) pursuant to 
SOC code 43-3031 for "Bookkeeping, Accounting, and Auditing Clerks," (3) within the 
metropolitan statistical area (MSA) in Ohio, and ( 4) at a Level II prevailing wage of $35,651 
per year. 
However, if the proffered position is in fact a financial analyst position, the prevailing wage for 
SOC code 13-2051, "Financial Analysts," within the MSA, at a Level II is $63,918 
per year. Although the LCA was certified for the proper MSA, it does not appear correspond to the 
Petitioner's claimed proffered position of a financial analyst. 
The LCA serves as the critical mechanism for enforcing section 212(n)(l) of the Act, 8 U.S.C. 
§ 1182(n)(l ). See Labor Condition Applications and Requirements for Employers Using 
Nonimmigrants on H-1B Visas in Specialty Occupations and as Fashion Models; Labor Certification 
Process for Permanent Employment of Aliens in the United States, 65 Fed. Reg. 80,110, 80,110-11 
(proposed Dec. 20, 2000) (to be codified at 20 C.F.R. pts. 655-56) (indicating that the wage 
protections in the Act seek "to protect U.S. workers' wages and eliminate any economic incentive or 
advantage in hiring temporary foreign workers" and that this "process of protecting U.S. workers 
begins with [the filing of an LCA] with [DOL]."). According to section 212(n)(l)(A) ofthe Act, an 
employer must attest that it will pay a holder of an H-1B visa the higher of the prevailing wage in the 
4 In reviewing a matter de novo, we may identifY additional issues not addressed below in the Director's decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd, 345 F.3d 683 (9th Cir. 
2003) ("The AAO may deny an application or petition on a ground not identified by the Service Center."). 
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Matter of E-C-0- T-
"area of employment" or the amount paid to other employees with similar experience and 
qualifications who are performing the same services. See 20 C.F.R. § 655.73l(a); Venkatraman v. 
REI Sys., Inc., 417 F .3d 418, 422 & n.3 (4th Cir. 2005); Patel v. Boghra, 369 F. App'x 722, 723 (7th 
Cir. 2010); Michal Vojtisek-Lom & Adm 'r Wage & Hour Div. v. Clean Air Tech. Int'/, Inc., No. 07-
97,2009 WL 2371236, at *8 (Dep't of Labor Admin. Rev. Bd. July 30, 2009). To permit otherwise 
may result in a petitioner paying a wage lower than that required by section 212(n)(l)(A) of the Act, 
8 U.S.C. § 1182(n)(l)(A), by allowing that petitioner to submit an LCA for a different occupation 
and at a lower prevailing wage than the one being petitioned for. 
In this matter, the LCA certified for a Level II prevailing wage of $35,651 per year for a 
bookkeeping, accounting, and auditing clerk when a certified LCA should have been submitted for a 
financial analyst position with a Level II prevailing wage at that time of $63,918 per year. As such, 
the attested wage rate of $40,000 per year on the Form I-129 is below the prevailing wage required 
for the proffered position. 
While DOL is the agency that certifies LCA applications before they are submitted to USCIS, DOL 
regulations note that the Department of Homeland Security (DHS) (i.e., its immigration benefits 
branch, USCIS) is the department responsible for determining whether the content of an LCA filed 
for a particular Form I-129 actually supports that petition. See 20 C.F.R. § 655.705(b), which states, 
in pertinent part (emphasis added): 
For H-1B visas ... DHS accepts the employer's petition (DHS Form 1-129) with 
the DOL-certified LCA attached. In doing so, the DHS determines whether the 
petition is supported by an LCA which corre:.ponds with the petition, whether the 
occupation named in the [LCA) is a specialty occupation or whether the 
individual is a fashion model of distinguished merit and ability, and whether the 
qualifications of the nonimmigrant meet the statutory requirements for H-lB visa 
classification. 
The regulation at 20 C.F.R. § 655.705(b) requires that USCIS ensure that an LCA actually supports 
the H-1 B petition filed on behalf of the Beneficiary. Here, the Petitioner has not submitted a valid 
LCA that has been certified for the proper occupational classification, and the petition cannot be 
approved for this additional reason. 
III. CONCLUSION 
As discussed, the evidence of record does not demonstrate: (I) that the proffered position is a 
specialty occupation; and (2) that the LCA corresponds to the petition. Consequently, the appeal 
will be dismissed. 
In visa petition proceedings, it is the Petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter o[Otiende, 26 I&N Dec. 127, 128 
(BIA 20 13). Here, that burden has not been met. 
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Matter of E-C-0- T-
ORDER: The appeal is dismissed. 
Cite as Matter ofE-C-0-T-, 10# 17111 (AAO May 31, 2016) 
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