dismissed H-1B Case: Finance

idemtifjling data deleted to 
pment clearly unwammted 
invasion of ped pivacy 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
FILE: WAC 04 253 53521 Office: CALIFORNIA SERVICE CENTER Date: AUG 0 1 2006 
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. fj 1 10 l(a)(l S)(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. 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
WAC 04 253 53521 
Page 2 
DISCUSSION: The service center director denied the nonimrnigrant visa petition and the matter is now before 
the Administrative ~p~eals Office (AAO) on appeal. The appeal will be dismissed. The petition will be denied. 
The petitioner manufactures prosthetic, orthotic, and pedorthic devices. It seeks to employ the beneficiary as a 
chief financial officer. The petitioner endeavors to classifL the beneficiary as a nonimmigrant worker in a 
specialty occupation pursuant to 5 lOl(a)(lS)(H)(i)(b) of the Immigration and Nationality Act (the Act), 
8 U.S.C. $ 1 lOl(a)(l5)(H)(i)(b). 
The director denied the petition because the proffered position is not a specialty occupation. On appeal, 
counsel submits a brief. 
Section 214(i)(l) of the Act, 8 U.S.C. 5 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. 5 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, the position must meet one of 
the following criteria: 
(1) 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. 5 214.2(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. 
The petitioner is seeking the beneficiary's services as a chief financial officer. Evidence of the beneficiary's 
duties includes: the 1-129 petition; the petitioner's September 15, 2004 letter in support of the petition; and the 
WAC 04 253 53521 
Page 3 
petitioner's response to the director's request for evidence. According to this evidence, the beneficiary would 
perform duties that entail: creating and implementing accounting-related policies and procedures; forecasting 
and establishing financial goals, objectives, and budgets; overseeing the maintenance and management of 
accounting databases; overseeing and directing all financial functions, including accounting, budget, credit, 
insurance, tax, and treasury; managing and preparing financial reports, including income statements, balance 
sheets, and cash-flow management; preparing and filing third-party reports and returns; managng and 
supervising the payroll; and directing and managing the accounting and administration functions. The 
petitioner indicated that the beneficiary is a qualified candidate for the job because he possesses a U.S. 
master's degree in business administration and a foreign bachelor's degree in economics. 
The director found that the proffered position was not a specialty occupation because the proposed duties are 
not so complex as to require a bachelor's degree in a specific specialty. The director found Wher that the 
petitioner failed to establish any of the criteria found at 8 C.F.R. 4 214.2(h)(4)(iii)(A). 
On appeal, counsel states, in part, that the petitioner has satisfied all of the criteria set forth at 
8 C.F.R. 4 214.2(h)(4)(iii)(A). Counsel states further that the petitioner recently launched a "national market 
campaign" to promote the "Kunzli orthopaedic ankle support boots," thereby necessitating the services of a 
chief financial officer "in order to position itself for the anticipated business growth and expansion." Counsel 
also states that the proposed duties are so specialized and complex as to require a bachelor's degree in 
business administration. 
Upon review of the record, the petitioner has established none of the four criteria outlined in 
8 C.F.R. 4 214.2(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)(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 Department of Labor's 
(DOL) Occupational Outlook Handbook (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 fms "routinely employ and recruit only 
degreed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1 15 1, 1 165 @. Minn. 1999)(quoting HirdIBlaker 
COT. v. Sava, 712 F. Supp. 1095,1102 (S.D.N.Y. 1989)). 
At the outset, the AAO notes inconsistencies regarding the number of people that the petitioner employs. 
Information on the petition that was signed by the petitioner's CEO on September 15, 2004, reflects that the 
petitioner was established in 1994, and has four employees and a gross annual income of $700,185. The 
petitioner's most recent quarterly wage report for the quarter that ended on June 30, 2004, which was 
submitted in response to the director's request for additional evidence, reflects only three employees. The 
petitioner's organizational chart reflects five employees. In view of these conflicting numbers, the petitioner's 
organizational hierarchy is not clear. It is also noted that the record contains no evidence of the petitioner's 
claimed gross annual income, such as federal income tax returns. Simply going on record without supporting 
documentary evidence is not sufftcient for the purpose of meeting the burden of proof in these proceedings. 
Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 
WAC 04 253 53521 
Page 4 
14 I&N Dec. 190 (Reg. Comm. 1972)). Further, although the proposed duties and the organizational chart 
reflect that the petitioner would supervise two employees, an administrative assistant and a network specialist, 
the network specialist position has not been filled. The petitioner must establish eligibility at the time of filing 
the nonimmigrant visa petition. A visa petition may not be approved at a future date after the petitioner or 
beneficiary becomes eligible under a new set of facts. Matter of Michelin Tire Coy., 17 I&N Dec. 248 (Reg. 
Comrn. 1978). 
The AAO routinely consults the Handbook for its information about the duties and educational requirements of 
particular occupations. The AAO does not concur with the petitioner that the proffered position is a specialty 
occupation. Counsel's assertion on appeal that the petitioner recently launched a "national market campaign" 
to promote the "Kunzli orthopaedic ankle support boots," thereby necessitating the services of a chief 
financial officer "in order to position itself for the anticipated business growth and expansion," is noted. There 
is no documentation of record, however, that current growth and expansion plans are underway. The record 
does not contain any evidence of the petitioner's recently launched "national market campaign" nor does the 
record contain any evidence that the duties that the beneficiary would perfom as a result of this campaign 
would require the theoretical and practical application of at least a bachelor's degree level of a highly 
specialized body of knowledge. Without documentary evidence to support the claim, the assertions of counsel 
will not satisfy the petitioner's burden of proof. The unsupported assertions of counsel do not constitute 
evidence. Matter of Obaigbena, 19 I&N Dec. 533,534 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 
1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503,506 (BIA 1980). In view of the foregoing, the proposed 
duties do not comprise a position that meets the first criterion of 8 C.F.R. 8 214.2(h)(4)(iii)(A), that is, one for 
which the normal minimum entry requirement is at least a bachelor's degree, or the equivalent, in a specific 
specialty. 
Regarding parallel positions in the petitioner's industry, the petitioner submitted copies of various 
publications, such as the Handbook, the DOL's O*Net, and the California Employment Development 
Department (EDD), to demonstrate that the degree requirement is common to the industry. The director did 
not state that the job of chief financial officer/financial manager is not a specialty occupation. The director 
concluded correctly that the proffered position is not one of a chief financial officerlfinancial manager and, 
therefore, it does not require a baccalaureate degree, or its equivalent, in a specific specialty. The petitioner, 
therefore, has not established the criteria set forth at 8 C.F.R. 8 214.2(h)(4)(iii)(A)(I) or (2). 
The AAO now turns to the criterion at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(3) - the employer normally requires a 
degree or its equivalent for the position. On appeal, counsel states that it is the petitioner's business practice to 
hire only individuals with at least a bachelor's degree or an equivalent thereof. The record, however, does not 
contain any evidence of the petitioner's past hiring practices and, therefore, the petitioner has not met its burden 
of proof in this regard. Going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of Soflci, 22 I&N Dec. 158, 165 
(Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
Finally, the AAO turns to the criterion at 8 C.F.R. 4 214.2(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, 
WAC 04 253 53521 
Page 5 
in a specific specialty. Therefore, the evidence does not establish that the proffered position is a specialty 
occupation under 8 C .F .R. $ 2 14.2(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. 
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.