dismissed H-1B Case: Finance

U.S. Department of Homeland Security 
20 Massachusetts Avenue, NW, Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
FILE: WAC 03 078 53799 Office: CALIFORNIA SERVICE CENTER Date: O~T 1 4 ~05 
PETITION: Petition for a Nonirnrnigrant Worker Pursuant to Section lOl(a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. $ 1 lOl(a)(lS)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
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. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
WAC 03 078 53799 
Page 2 
DISCUSSION: The service center director denied the nonirnmigrant 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 staffing company that seeks to employ the beneficiary as a financial analyst. The petitioner 
endeavors to classify the beneficiary as a nonirnrnigrant worker in a specialty occupation pursuant to section 
101 (a)(lS)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 8 1 lOl(a)(lS)(H)(i)(b). 
The director denied the petition because the proffered position is not a specialty occupation. The director also 
found that the petitioner had not complied with the terms of its previously approved petitions. On appeal, the 
petitioner submits a letter. 
Section 214(i)(l) of the Immigration and Nationality Act (the Act), 8 U.S.C. 8 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. 8 214.2(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. 
!j 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. 
The record of proceeding before the AAO contains: (1) Form 1-129 and supporting documentation; (2) the 
director's request for additional evidence; (3) the petitioner's response to the director's request; (4) the 
director's denial letter; and (5) Form I-290B and supporting documentation. The AAO reviewed the record in 
its entirety before issuing its decision. 
WAC 03 078 53799 
Page 3 
The petitioner is seeking the beneficiary's services as a financial analyst. Evidence of the beneficiary's duties 
includes: the 1-129 petition; the petitioner's December 23, 2002 letter in support of the petition; and the 
petitioner's response to the director's request for evidence. According to this evidence, the beneficiary would 
perform duties that entail: analyzing financial markets; directing and coordinating all account activities of the 
business; preparing management operation reports, budget and cash flow projections; and preparing reports 
that outline the financial position in areas of income, expenses, and earnings. The petitioner indicated that a 
qualified candidate for the job would possess a bachelor's degree in business administration, with a 
concentration in economics, management, or banking and finance. 
The director found that the proffered position was not a specialty occupation. The director also stated that the 
petitioner did not establish that it would actually be employing the beneficiary. The director found further that 
the petitioner failed to establish any of the criteria found at 8 C.F.R. 5 214.2(h)(4)(iii)(A). 
On appeal, the petitioner states that it would be the actual employer of the beneficiary. The petitioner also 
states that its record of filing numerous petitions relates to its business of staffing other organizations, and that 
it has a high turnover rate. The petitioner asserts that previous petitions, which were identical to the current 
petition, were approved. 
Upon review of the record, the petitioner has established none of the four criteria outlined in 8 C.F.R. 
5 214.2(h)(4)(iii)(A). Therefore, the proffered position is not a specialty occupation. 
The AAO turns first to the criteria at 8 C.F.R. § 214.2 (h)(4)(iii)(A)(l) 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. 
The AAO routinely consults the Department of Labor's Occupational Outlook Handbook (Handbook) for its 
information about the duties and educational requirements of particular occupations. The Handbook describes a 
financial analyst as providing investment advice to either companies or individuals. There is no indication in the 
position description or by the information provided about the petitioner's client's company that the position 
offered is a financial analyst. The duties of the position are what determine whether an occupation is a specialty 
occupation, not the title. The duties in the position description are vague and do not appear to match any other 
position in the Handbook and, therefore, must be assessed without the Handbook's guidance. 
Although the record contains a staffing agreement between the petitioner and its client, the site where the 
beneficiary will actually work, the record does not contain a comprehensive description of the beneficiary's 
proposed duties from an authorized representative of the client. Without such a description, the petitioner has 
not demonstrated that the work that the beneficiary will perform for the client will qualify as a specialty 
occupation, nor what the client's requirements are for an individual filling the proffered position. The 
petitioner has not established that a baccalaureate or higher degree is the minimum entry requirement for the 
position. In Defensor v. Meissner, 201 F. 3d 384 (5" Cir. 2000), the court found that the degree requirement 
should originate with the entity ultimately employing the alien beneficiaries, not with the employment agency 
placing the alien beneficiaries in the position. 
WAC 03 078 53799 
Page 4 
Regarding parallel positions in the petitioner's industry, the petitioner submitted Internet job postings for 
financial analysts. There is no evidence, however, to show that the employers issuing those postings are 
similar to the petitioner, or that the advertised positions are parallel to the instant position. Thus, the 
advertisements have little relevance. The petitioner did not submit any evidence from professional 
associations regarding an industry standard, or documentation to support the complexity or uniqueness of the 
proffered position. The petitioner has, thus, not established the criteria set forth at 8 C.F.R. 
3 214.2(h)(4)(iii)(A)(l) or (2). 
The AAO now turns to the criterion at 8 C.F.R. 3 214.2(h)(4)(iii)(A)(3) - the employer normally requires a 
degree or its equivalent for the position. In its response to the director's request for evidence, the petitioner stated 
that it has had three previous fmancial analysts, all of whom had bachelor's degrees. The petitioner included 
copies of their degrees. The AAO notes that the Quarterly Wage and Withholding Reports submitted in response 
to the director's request for evidence do not include the individual who the petitioner indicates was working as a 
financial analyst during the time period covered by the reports. Doubt cast on any aspect of the petitioner's 
proof may, of course, lead to a reevaluation of the reliability and sufficiency of the remaining evidence 
offered in support of the visa petition. It is incumbent upon the petitioner to resolve any inconsistencies in the 
record by independent objective evidence, and attempts to explain or reconcile such inconsistencies, absent 
competent objective evidence pointing to where the truth, in fact, lies, will not suffice. Matter of Ho, 19 I&N 
Dec. 582, 59 1-92 (BIA 1988). Even if all three of these people had worked for the petitioner, there is no 
evidence of the duties that they performed. This evidence does not establish the petitioner's previous hiring 
practices for the proffered position. 
In addition, there is no evidence in the record regarding the petitioner's client's past hiring practices. As 
indicated above, in Defensor v. Meissner, the court held that the Immigration and Naturalization Service, now 
CIS, reasonably interpreted the statute and the regulations when it required the petitioner to show that the entities 
ultimately employing the alien beneficiaries require a bachelor's degree for all employees in that position. The 
court found that the degree requirement should not originate with the employment agency that brought the alien 
beneficiaries to the United States for employment with the agency's clients. 
Finally, the AAO turns to the criterion at 8 C.F.R. 3 214.2(h)(4)(iii)(A)(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. 
To the extent that they are depicted in the record, the duties do not appear so specialized and complex as to 
require the highly specialized knowledge associated with a baccalaureate or higher degree, or its equivalent, 
in a specific specialty. Therefore, the evidence does not establish that the proffered position is a specialty 
occupation under 8 C.F.R. $ 214.2(h)(4)(iii)(A)(4). 
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. 
WAC 03 078 53799 
Page 5 
Regarding the petitioner's assertion that identical petitions were previously approved, the record of proceeding 
does not contain copies of the visa petitions that the petitioner claims were approved. If the previous 
nonimrnigrant petitions were approved based on the same unsupported and contradictory assertions that are 
contained in the current record, the approval would constitute clear and gross error on the part of CIS. CIS is 
not required to approve applications or petitions where eligibility has not been demonstrated, merely because 
of prior approvals that may have been erroneous. See, e.g. Matter of Church Scientology International, 19 
I&N Dec. 593, 597 (Comm. 1988). It would be absurd to suggest that CIS or any agency must treat 
acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomery 825 F.2d 1084, 1090 (6th Cir. 
1987); cert. denied 485 U.S. 1008 (1988). 
Furthermore, the AAO's authority over the service centers is comparable to the relationship between the court of 
appeals and the district court. Even if a service center director had approved the nonimrnigrant petitions on 
behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service 
center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), afd 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 51 (2001). 
The director also found that the petitioner had not actually employed many of the individuals for whom it had 
previously received approval, and when it did employ them, they were frequently paid at a significantly lower 
rate than had been asserted on the Form 1-129 at the time of filing. The petitioner did not directly address this 
issue on appeal, and did not overcome the director's findings. 
An H-1B alien is coming temporarily to the United States to perform services in a specialty occupation. 
Section lOl(a)(l5)(H)(i)(b) of the Act, 8 U.S.C. 5 lOl(a)(lS)(H)(i)(b). 8 C.F.R. 5 214.2(h)(l)(ii)(B). In this 
case, the petitioner did not establish that the beneficiary would be coming to the United States to perform 
services in a specialty occupation. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. 
The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed. The petition is denied.