dismissed H-1B Case: Finance

pUDLICCOPY
u.s.Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.S. Citizenship
and Immigration
Services
FILE: SRC 06 053 53132 Office: TEXAS SERVICE CENTER Date: SEP 1. 2001
INRE: Petitioner:
Beneficiary:
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l5)(H)(i)(b) of the
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(l5)(H)(i)(b)
ON BEHALF OF PETITIONER:
INSTRUCTIONS:
This is the decision 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, Chief
Administrative Appeals Office
www.uscis.gov
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DISCUSSION: The director of the Texas Service Center denied the nonimmigrant 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 an auto detailing business that specializes in the restoration, repair and specialty
enhancement services with three employees and $91,732 in gross income for the 2004 tax year. It seeks to
employ the beneficiary as its financial director pursuant to section 101(a)(15)(H)(i)(b) of the Immigration and
Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(H)(i)(b).
The record of proceeding before the AAO contains: (1) Form 1-129 and supporting documentation; (2) the
director's request for additional evidence; (3) counsel's response to the director's request; (4) the director's
denial letter; and (5) Form I-290B, with counsel's brief. The AAO reviewed the record in its entirety before
issuing its decision.
The issue before the AAO is whether the proffered position qualifies as a specialty occupation. To meet its
burden of proof in this regard, the petitioner must establish that the job it is offering to the beneficiary meets
the following statutory and regulatory requirements.
Section 214(i)(1) of the Act, 8 U.S.C. § 1184(i)(1), 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 term "specialty occupation" is further defined at 8 C.F.R. § 214.2(h)(4)(ii) as:
An occupation which 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 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.
Pursuant to 8 C.F.R. § 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, the position must meet one of the
following criteria:
(l) 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
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(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 above criteria to mean not just
any baccalaureate or higher degree, hut one in a specific specialty that is directly related to the proffered
position.
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. Cf Defensor v. Meissner, 201
F.3d 384 (5th Cir. 2000). The critical element is not the title of the position nor an employer's self-imposed
standards, but whether the position actually 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
as the minimum for entry into the occupation, as required by the Act.
The petitioner seeks the beneficiary's services as an accountant. Evidence of the beneficiary's duties includes
the Form 1-129 petition with attachment and the petitioner's response to the director's request for evidence.
According to this evidence the beneficiary would:
• Approve, reject, or coordinate the approval and rejection of personal and corporate credit lines;
• Oversee the flow of cash and financial instruments such as stocks and bonds;
• Develop and analyze financial information to assess the current and future financial status of the
corporation;
• Monitor and control the flow of cash receipts and disbursements to meet business needs;
• Evaluate financial data pertaining to costs in order to plan budgets accordingly;
• Evaluate financial reporting systems, accounting and collection procedures, and investment activities,
and make recommendations for changes to procedures, operating systems, budgets, and other
financial control functions; and
• Network within communities to find and attract new business.
The petitioner requires a minimum of a bachelor's degree in accounting for entry into the proffered position.
To make its determination whether the employment just described qualifies as a specialty occupation, the
AAO turns to the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A)(1) and (2): a baccalaureate or higher degree or its
equivalent is the normal minimum requirement for entry into the particular position; and 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 considered by the
AAO when determining these criteria include: whether the Department of Labor's Occupational Outlook
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Handbook (Handbook), on which the AAO routinely relies for the educational requirements of particular
occupations, reports 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 1151, 1165 (D. Minn. 1999) (quoting Hird/Blaker Corp. v. Sava, 712 F. Supp. 1095,
1102 (S.D.N.Y. 1989)).
In her denial, the director found the duties described by the petitioner to reflect many of those performed by
bookkeepers. While, as discussed below, the AAO does not find the record to demonstrate that the petitioner
would employ the beneficiary in a position requiring a degreed accountant, it has reached its conclusions on
grounds other than those relied upon by the director.
The petitioner has stated that the proffered position is that of a financial manager or controller. To determine
whether the duties of the proffered position support the petitioner's characterization of its employment, the
AAO turns to the 2006-2007 edition of the Handbook for its discussion of financial managers. The Handbook
states that controllers direct the preparation of financial reports that summarize and forecast the organization's
financial position, such as income statements, balance sheets, and analyses of future earnings and expenses.
They are in charge of preparing special reports required by regulatory authorities. Controllers often oversee
accounting, audit and budget departments. These are not the duties detailed by the petitioner which would be
performed by the beneficiary in the petitioner's business environment. The duties to be performed by the
beneficiary, though generally described by the petitioner, are more closely associated with those that would
be performed by accounting personnel. The category of accounting most closely aligned to the duties
described by the petitioner are those of a management accountant. As stated by the Handbook, management
accountants:
[r]ecord 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 . . .. 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.
The AAO finds the above discussion to be generally reflected in the petitioner's description of the duties of
the proffered position and agrees that the petitioner's employment would require the beneficiary to have an
understanding of accounting principles. However, not all accounting employment is performed by degreed
accountants. Therefore, the performance of duties requiring accounting knowledge does not establish the
proffered position would impose a degree requirement on the beneficiary. The question is not whether the
petitioner's position requires knowledge of accounting principles, which it does, but rather whether it is one
that normally requires the level of accounting knowledge that is signified by at least a bachelor's degree, or its
equivalent, in accounting.
The Handbook's discussion of the occupation of accountants clearly indicates that accounting positions may
be filled by individuals holding associate degrees or certificates, or who have acquired their accounting
expertise through experience:
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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 or business or 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.
It also notes in its description of the work performed by bookkeeping, accounting and auditing clerks that:
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.'
Further proof of the range of academic backgrounds that may prepare an individual for accounting
employment is provided by the credentialing practices of the Accreditation Council for Accountancy and
Taxation (ACAT), an independent accrediting and monitoring organization affiliated with the National
Society of Accountants. The ACAT does not require a degree in accounting or a related specialty to issue a
credential as an Accredited Business Accountant® /Accredited Business Advisor® (ABA). Eligibility for the
eight-hour comprehensive examination for the ABA credential requires only three years of "verifiable
experience in accounting, taxation, financial services, or other fields requiring a practical and theoretical
knowledge of the subject matter covered on the ACAT Comprehensive Examination." Up to two of the
required years of work experience may be satisfied through college credit.'
To determine whether the accounting knowledge required by the proffered position rises above that which
may be acquired through experience or an associate's degree in accounting,' the AAO turns to the record for
information regarding the nature of the petitioner's business operations. While the size of a petitioner's
business is normally not a factor in determining the nature of a proffered position, both its level of income and
the extent of its business operations are appropriately reviewed when a petitioner seeks to employ an H-I B
worker as an accountant. In cases where a petitioner's business is relatively small, like that in the instant
case, the AAO reviews the record for evidence that its operations, are, nevertheless, of sufficient scope and/or
complexity to indicate that it would employ the beneficiary in an accounting position requiring a level of
financial knowledge that may be obtained only through a baccalaureate degree in accounting or its equivalent.
1 Occupational Outlook Handbook, 2006-2007 Edition, at www.bls.gov/oco/ocos l-i-l.htm.
2 Information provided by the ACAT website (http://,,,,,vw.acatcredentials.org/index.html). The Handbook
identifies the ACAT website as one of several "Sources of Additional Information" at the end of its
discussion of the occupation of accountants.
3According to the website for Skyline College, a community college located in San Mateo, CA
(:w}~w.skylinecollege.net), 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 GAAP, forecasting, budgeting, cost accounting, break even analysis, developing and
operating a computerized accounting system. Thus, an associate's degree would provide knowledge about the
GAAP and accounting techniques that serve the needs of management and facilitate decision-making.
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The record does not establish that the duties of the proffered position are sufficiently complex to indicate that
the petitioner would employ the beneficiary as a management accountant. Instead, as listed and specifically
detailed in the petitioner's response to the director's request for evidence, they appear more closely aligned to
accounting responsibilities that may be performed by junior accountants, employment that does not impose a
baccalaureate degree requirement on those seeking entry-level employment. The duties include: monitoring
or establishing customer credit lines; overseeing cash flow; monitoring control of cash receipts and
disbursements; cost analysis and budget preparation; and monitoring the petitioner's financial reporting
system. These duties are routinely performed in organizations similar in nature and scope to that of the
petitioner by individuals with less than a baccalaureate level education. Therefore, the petitioner has not
established the proffered position as a specialty occupation under the first criterion at 8 C.F .R.
§ 214.2(h)(4)(A) - a baccalaureate or higher degree or its equivalent is normally the minimum requirement
for entry into the particular position.
To establish the proffered position as a specialty occupation under the second criterion at 8 C.F.R.
§ 214.2(h)(4)(A), a petitioner must prove that a specific degree requirement is common to its industry in
parallel positions among similar organizations or that the proffered position is so complex or unique that it
can be performed only by an individual with a degree. In the instant case, counsel refers to the Handbook's
discussion of the degree requirement for the occupation of financial managers to establish that the proffered
position is a specialty occupation under the criterion's first prong. The AAO does not agree.
In the context of the petitioner's business, an auto detailer with gross annual income of $91,732, $4,622 in
wages paid and $25,500 in compensation of officers in 2004, the proffered position is not that of a controller
or a financial manager. The record establishes the position as a junior accountant, employment that the
Handbook indicates may be performed by individuals who have associate's degrees in accounting or who
have an appropriate level of experience. Accordingly, the proffered position may not be established as a
specialty occupation under the first prong of the second criterion based on the Handbook's discussion of the
standard degree requirement for management, public and government accountants. As the petitioner has
submitted no evidence to prove that its degree requirement for the proffered position is common in parallel
positions among similar organizations, it has failed to establish the proffered position as a specialty
occupation based on the practices in its industry.
The AAO also concludes that the record before it does not establish that petitioner's position qualifies as a
specialty occupation under the second prong at 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) -- the position is so complex
or unique that it can be performed only by an individual with a degree. It finds no evidence that would
support such a finding. The evidence of record does not establish that the duties to be performed by the
beneficiary are any more complex or unique than accounting duties routinely performed in the industry by
accounting personnel having less than a baccalaureate level education. The duties described by the petitioner
lack sufficient detail to fully evaluate the level of complexity of the duties to be performed. Accordingly, the
petitioner has not established its position as a specialty occupation under either prong of the second criterion.
To determine whether a proffered position may be established as a specialty occupation under the third
criterion - the employer normally requires a degree or its equivalent for the position - the AAO usually
reviews the petitioner's past employment practices, as well as the histories, including names and dates of
employment, of those employees with degrees who previously held the position, and copies of those
employees' diplomas. In the instant case, the petitioner has submitted no evidence regarding its hiring
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practices and states that the position is new with the company. Accordingly, the record does not establish the
proffered position as a specialty occupation under the third criterion.
The fourth criterion requires a petitioner to establish that the nature of the specific duties of its position is so
specialized and complex that the knowledge required to perform these duties is usually associated with the
attainment of a baccalaureate or higher degree. The AAO, however, finds no evidence to indicate that the
beneficiary's duties would require greater knowledge or skill than that normally possessed by junior
accountants. The general recitation of duties in the record is not described in the context of the petitioner's
business or further broken down into daily tasks to be performed by the beneficiary, and does not establish the
need for a baccalaureate degree in a specific field. Further, the position, as described, does not appear to
represent a combination of jobs that would require the beneficiary to have a unique set of skills beyond those
of a junior accountant. As a result, the record fails to establish that the proffered position meets the
specialized and complex threshold of the fourth criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A).
For reasons related in the preceding discussion, the petitioner has failed to establish the proffered position as 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.
§ 1361. The petitioner has not sustained that burden.
ORDER: The appeal is dismissed. The petition is denied.