dismissed H-1B Case: Real Estate

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U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: WAC 04 070 50267 Office: CALIFORNIA SERVICE CENTER Date: OCT 0 3 2005 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(l 5)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 5 1 10 1 (a)(l 5)(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, Director 
Administrative Appeals Office 
WAC 04 070 50267 
Page 2 
DISCUSSION: The service center director 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 owns and operates a real estate broker business, and also operates an acting school and 
manages actors and actresses. It seeks to employ the beneficiary as a full-time financial analyst. The petitioner 
endeavors to classify the beneficiary as a nonimmigrant worker in a specialty occupation pursuant to 5 
10 1 (a)(l 5)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1 10 1 (a)( 1 5)(H)(i)(b). 
The director denied the petition because the proffered position is not a specialty occupation. 011 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: 
(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. 
5 2 14.2(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 documentatio~~; (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 full-time financial analyst. Evidence of the 
beneficiary's duties includes: the 1-129 petition; the petitioner's December 30, 2003 letter in support of the 
WAC 04 070 50267 
Page 3 
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 past and present earnings and expenses to project the 
petitioner's financial position; recommending appropriate management actions after collecting ,data and 
preparing reports and financial statements; preparing financial reports required by regulatory authorities; 
formulating and planning financial goals, objectives, and budget; analyzing credit information of clients to 
determine risk; analyzing market trends and performing ration and cost-benefit analyses; and establishing 
credit rating criteria and determining credit ceilings. The petitioner indicated that a qualified candidate for the 
job would possess a bachelor's degree in finance, economics, business administration, accounting, or a related 
field. 
The director found that the proffered position was not a specialty occupation because the job is not a financial 
analyst; it is an accounting clerk or bookkeeper position. The director found further that the petitioner failed 
to establish any of the criteria found at 8 C.F.R. 9 214.2(h)(4)(iii)(A). 
On appeal, counsel states, in part, that the proffered position is that of a financial analyst, and is not an 
accounting clerk or bookkeeper position. Counsel states further that the proposed duties are so co~nplicated 
and highly sophisticated as to require the appropriate training. Counsel also states: "The petitioner's 
operations have been growing through the years. At present, it feels the need to expand their business by 
intensifying their marketing campaign or adding additional branches. These moves will enable the company 
to establish itself in the market and build a more solid financial base. In implementing their expansion plans 
and programs, the petitioner is in need of a financial analyst." 
Upon review of the record, the petitioner has established none of the four criteria outlined in 8 C.F.R. 
$ 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 
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 firms "routinely employ and recruit only degreed individuals." 
See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1 15 1, 1 165 (D. Minn. 1999)(quoting Hird/Blaker Corp. v. Suva, 7 12 F. 
Supp. 1095, 1 102 (S.D.N.Y. 1989)). 
The AAO routinely consults the Handbook for its information about the duties and educational requirements of 
particular occupations. The AAO does not concur with counsel that the proffered position is that of a financial 
analyst. The Handbook, 2004-2005 edition, indicates that financial analysts assess the economic performance of 
companies and industries for firms and institutions with money to invest, and primarily work for: sec~~rities and 
commodity brokers, exchanges, and investment services firms; depository and non-depository institutions; 
insurance carriers; accounting, tax preparation, bookkeeping, and payroll services; and State and local 
government agencies. In this case, information on the petitioner's 2002 federal income tax return for the period 
beginning August 1, 2002, and ending July 3 1, 2003, reflects that the petitioner is a home loan business that was 
incorporated on July 14, 1983, with $152,791 in gross receipts or sales, no compensation of oficers, and no 
WAC 04 070 50267 
Page 4 
salaries and wages. Information on the petition also reflects that the petitioner has only one employee. The record 
contains no evidence to support counsel's assertion that the petitioner's operations have been growing through 
the years, that it will expand its business by intensifying its marketing campaign or adding additional 
branches, thereby requiring the services of a financial analyst. 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 Rarnirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 15'80). It is 
further noted that the record contains no evidence in support of the petitioner's claim that it also operates an 
acting school and manages actors and actresses. Going on record without supporting documentary e\ idence is 
not sufficient for purposes of meeting the burden of proof in these proceedings. Matter ofSoffici. 22 I&N 
Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 
1972)). A review of the Bookkeeping, Accounting, and Auditing Clerks job description in the tfandbook 
confirms the accuracy of the director's assessment to the effect that, the job duties parallel those responsibilities 
of an accounting clerk or bookkeeper. No evidence in the Handbook indicates that a baccalaureate or higher 
degree, or its equivalent, is required for these positions. 
The record does not include any evidence regarding parallel positions in the petitioner's industry. The record 
also does not include any evidence from professional associations regarding an industry standard, or 
documentation to support the complexity or uniqueness of the proffered position. The petitioner, ,therefore, 
has not established the criteria set forth at 8 C.F.R. 9 214.2(11)(4)(iii)(A)(l) or (2). 
The AAO now turns to the criterion at 8 C.F.R. $ 214.2(h)(4)(iii)(A)(3) - the employer normally requires a 
degree or its equivalent for the position. As counsel does not address this issue on appeal, it will not be discussed 
further. 
Finally, the AAO turns to the criterion at 8 C.F.R. 9 214.2(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. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.(3. 5 1361. 
The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed. The petition is denied.