dismissed H-1B Case: Restaurants

U.S. Department of Homeland Security 
20 Mass Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
PETITION: Petition for a Nonimrnigrmt Worker Pursuant to Section 10 1 (a)(l S)(N)(i)(b) of the 
Immigration and Nationallity Act, 8 U.S.C. $ 1 10 l(a)(lS)(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 
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DISCUSSION: The director of the 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 operates a chain of fast food restaurants and indicated in the initial petition that it had six 
employees. It seeks to extend the emplc~yment of the beneficiary as a full-time accountant. The petitioner, 
therefore, endeavors to classify the beneficiary as a nonirnrnigrant worker in a specialty occupation pursuant to 
section 10 l(a)(l S)(N)(i)(b) of the Irnmigr,ation and Nationality Act (the Act), 8 U.S.C. 5 1 101 (a)(lS)(H)(i)(b). 
The director denied the petition because the proffered position is not a specialty occupation. On appeal, 
counsel subinits a brief and supporting documents. 
Section 214(i)(l) of the Act, 8 U.S.C. 5 I 184(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. $ 214.2(h)(4)(iii)(A), lto 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 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. 
§ 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 AACI 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 and supporting documentation. The AAO reviewed the record in its 
entirety before issuing its decision. 
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The petitioner is seeking the beneficiary's services as a full-time accountant. Evidence of the beneficiary's 
duties includes: the Form 1-129; the attachments accompanying the Form 1-129; the company support letter; 
and counsel's response to the director's request for evidence. According to this evidence, the beneficiary 
would perform duties that entail (4) pr~eparing the company's balance sheets, profit and loss statements, 
necessary checks, payroll, tax remittances, and other reports to summarize the company's current and 
projected financial position; meeting with external auditors and discussing accounting matters concerning the 
restaurant business (40% of time); (2) preparing company's general ledger, monthly and yearly financial 
reports; compiling and analyzing financial information to prepare entries to the company's accounts (20% of 
time); (3) detailing company's assets, liabilities and capital; advising and making recommendations to 
management regarding tax strategies; advising restaurant business on the advantages and disadvantages of 
certain business decisions or transactions (1 5% of time); (4) maintaining inventory of the restaurant supplies; 
maintaining a financial system that will help the company ensure a systematic and smooth inventory 
procedure (10% of time); (5) modifying and coordinating accounting procedures; monitoring the budget, 
performance evaluation and cost and asset management (10% of time) (6) preparing business letter 
correspondences with the existing suppliers and corporate accounts regarding certain transactions, financing 
and billing statements; implementing a system that will be available to other accountants at the conclusion of 
his period of stay (5% of time). The petitioner indicated that a bachelor's degree in accounting or its 
equivalent was required for the position. 
The director requested additional evidence, specifically that the proffered position meets a criterion to be a 
specialty occupation. The director requested evidence that the beneficiary is qualified to perform in the 
claimed specialty occupation. The director requested copies of the petitioner's federal incomes taxes, 
quarterly wage reports and an organizational chart. 
In response, the petitioner noted that it indicated it operated three restaurants in the initial petition in error but 
it actually has five restaurants and 23 employees. The petitioner submitted Form 1120s Federal Income Tax 
Return indicating $281,287 in gross receipts or sales for year 2000. The petitioner stated that the beneficiary 
is working out of one location but is rnanaging the accounting for all five restaurants. The petitioner 
submitted DE-6 forms for one location wl-ich indicated five employees. The organization chart listed the five 
employees of one location. The petitioner included several internet job postings for accountants. 
Additionally, the petitioner submitted a letter from a professor of finance discussing the beneficiary's 
qualifications and that the duties of the proffered position require a bachelor's degree. 
The director determined that the proffered position was not a specialty occupation. The director indicated that 
some of the duties of the position described by the petitioner appear to reflect many of those performed by 
accountants as listed under Accountants and Auditors in the Department of Labor's Occupational Outlook 
Handbook (Handbook). The director indicated that sole reliance on a list of duties resembling those of an 
accountant taken from the Handbook  ID establish that the proffered position was an accountant was 
misplaced. 
The director found the evidence failed to establish that the petitioner engages in the type of business that 
would require an accountant on a regular fuli-time basis, for any significant length of time. The director 
concluded that there is no reasonable expectation that the petitioner's business would utilize the beneficiary 
solely in the capacity as an accountant 01- auditor exclusively in the review, analysis, and reporting of the 
petitioner's accounting records. The director found that the duties of the proffered position are more those of 
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a bookkeeper or accounting clerk or auditing clerk. The director determined that the petitioner failed to 
establishthat the proffered position requires a baccalaureate or higher degree or its equivalent. 
On appeal, the petitioner asserts that the director made no mention of the submitted opinion letter. The 
petitioner contends that the opinion letter and the Handbook support its assertion that the proffered position is 
a specialty occupation. The petitioner notes that the director referred to the petitioner as an importer of 
plumbing fixtures and surmises that the "entire analysis and conclusions of the [decision] are but built on an 
artificial foundation." 
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 prof-Sered position is not a specialty occupation. 
The AAO first considers the criteria at 8 C.F.R. $5 214.2(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. Factors often 
considered by CIS when determining fhese criteria include: whether the 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 affida.vits 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. Suva, 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989)). 
In determining whether a position qualifies as a specialty occupation, CIS looks beyond the title of the 
position and determines, from a review of the duties of the position and any supporting evidence, whether the 
position actually requires the theoretical and practical application of a body of highly specialized knowledge, 
and the attainment of a baccalaureate degree in a specific specialty as the minimum for entry into the 
occupation as required by the Act. The AAO routinely consults the Handbook for its information about the 
duties and educational requirements of particular occupations. 
A review of the Handbook reveals that specific job duties vary widely among the four major fields of 
accounting: public, management, government, and internal. The closest category to the proffered position is 
the management accountant. In the Handbook, management accountants - also called cost, managerial, 
industrial, corporate, or private accountants - record and analyze the financial information of the companies 
for which they work. Other responsibilities include budgeting, performance evaluation, cost management, and 
asset management. Usually, management accountants are part of executive teams involved in strategic 
planning or new-product development. They analyze and interpret the financial information that corporate 
executives need to make sound business decisions. They also prepare financial reports for nonmanagement 
groups, including stockholders, creditors, regulatory agencies, and tax authorities. Within accounting 
departments, they may work in various areas, including financial analysis, planning and budgeting, and cost 
accounting. 
Very few of the duties described in the Handbook apply to the proffered position. According to the 
Handbook, accountants prepare financial reports for nonmanagement groups, including stockholders, 
creditors, regulatory agencies, and tax authorities, and usually, they are part of executive teams. The 
beneficiary will not be part of an executive team. Nor will the beneficiary prepare financial reports for 
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nonmanagement groups such as stockholders, creditors, regulatory agencies, and tax authorities; or be 
involved in budgeting, performance evaluation, cost management, and asset management. Given this 
significant dissimilarity, the scope and complexity of the beneficiary's duties and responsibilities do not rise 
to the level of an accountant. Consequently, a bachelor's degree in accounting or a related field - which the 
DOL states is required for a management accountant - would not be required for the proffered position. 
While it is true that not all accountants are part of an executive team, the Handbook's delineation of a 
management accountant as part of an executive team involved in strategic planning or new-product 
development illustrates the scope and complexity of a management accountant's responsibilities. Likewise, 
the role of the accountant to prepare financial reports for nonmanagement groups, including stockholders, 
creditors, regulatory agencies, and tax authorities also illustrates the level of a management accountant's 
responsibilities. Because the beneficiary will not be part of an executive team and will not prepare financial 
reports for nonmanagement groups, including stockholders, creditors, regulatory agencies, and tax authorities, 
this indicates that the beneficiary's duties do not rise to the same level as a management accountant. 
The Handbook states: 
Accountants and auditors held about 1.1 million jobs in 2002. They worked throughout 
private industry and government, but 1 out of 5 wage and salary accountants worked for 
accounting, tax preparation, bookkeeping, and payroll services firms. Approximately 1 out of 
10 accountants or auditors were self-employed. 
Many accountants and auditors are unlicensed management accountants, internal auditors, or 
government accountants and auditors; however, a large number are licensed Certified Public 
Accountants. Most accountants and auditors work in urban areas, where public accounting 
firms and central or regional offices of businesses are concentrated. 
The petitioner originally indicated that it had five employees and three restaurants. The petitioner's 
organizational chart indicates that its employees include a presidentlstore manager, accountant, cooklkitchen 
head, cashier, and server. In response to the director's request for evidence, the petitioner indicated that it had 
five restaurants and 23 workers and that the beneficiary performed accounting duties for all locations. The 
only DE-6 forms submitted in response to the director's request for evidence were those for one location, 
totaling five employees; the 2002 tax return of record indicates total wages paid in that year of $45,420. In 
the appeal brief, the petitioner stated both that it had three locations and five locations. It is incumbent upon 
the petitioner to resolve any inconsistencies in the record by independent objective evidence. Any attempt to 
explain or reconcile such inconsistencies will not suffice unless the petitioner submits competent objective 
evidence pointing to where the truth lies. .Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 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. Matter of Ho. 
The petitioner's 2002 income tax return indicated gross receipt or sales of $281,287. The petitioner's level of 
income has a direct and substantial bearing on the scope and depth of the beneficiary's proposed duties. The 
petitioner has not provided evidence that supports its contention that due to the size and complexity of its 
business the proffered duties are so complex and specialized that it is an accounting position requiring a 
baccalaureate level of education in a specialty occupation. 
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The Handbook reveals that many of the beneficia~y's duties are performed by bookkeeping, accounting, 
auditing and financial clerks: 
Bookkeeping, accounting, and auditing clerks are an organization's financial record keepers. 
They update and maintain one or more accounting records, including those that tabulate 
expenditures, receipts, accounts payable and receivable, and profit and loss. . . . post debits and 
credits, produce financial statements, and prepare reports and summaries for supervisors and 
managers. . . . handle the payroll, make purchases, prepare invoices, and keep track of 
overdue accounts. 
More advanced accounting clerks may total, balance, and reconcile billing vouchers; ensure 
completeness and accuracy of data on account. . . . They may also review invoices and 
statements to ensure that all information is accurate and complete. . . . Auditing clerks verify 
records of transactions posted by other work ers. 
Financial clerks . . . record all amounts coming into or leaving an organization . . . keep track 
of a store's inventory. . . . 
Auditing clerks verify records of transactions posted by other workers. They check figures, 
postings, and documents to ensure that they are correct, mathematically accurate, and properly 
coded. 
The petitioner stated that the beneficiary would perform preparing the company's balance sheets, profit and 
loss statements, necessary checks, payroll, tax remittances, and other reports to summarize the company's 
current payroll, tax remittances and other reports to summarize the company's current and projected financial 
position. As shown in the Handbook, bookkeeping, accounting, and auditing clerks produce financial 
statements and prepare reports and summe~ries for supervisors and managers, which would be used by them to 
make sound business decisions. Further, the Handbook reports that employers require most financial clerks to 
have at least a high school dipioma, and for bookkeepers and accounting clerks, they often require an 
1 associate's degree in business or accounting. 
Based on the above discussion regarding the Handbook's information about management accountants and 
bookkeeping, accounting, auditing and financial clerks, the evidence in the record is insufficient to establish 
the regulation at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(I): that a baccalaureate or higher degree or its equivalent is the 
According to the website for Skyline College, a community college located in San Mateo, California, 
(www.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 using tools such as QuickBooks, QuickBooks Pro, or Peachtree, 
an integrated commercial accounting software package that is used to review, differentiate, and interpret 
accounting concepts and data in a multitude of business situations. Thus, an associate's degree would provide 
knowledge about the GAAP and accounting techniques which serve the needs of management and facilitate 
decision-making. 
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normal minimum requirement for entry into the particular position. The petitioner contends that the opinion 
letter from a professor of finance establislhes that the proffered position requires an individual with a degree in 
accounting. The author of the letter stated that he reviewed the duties of the proffered position yet he did not 
ir~dicate if he reviewed the duties in relation to the scope and nature of the petitioner's business. As the duties 
of the position have not been substantiated by the facts of record, the AAO will accord less weight to the 
testimony of the expert submitted by the petitioner. The AAO may, in its discretion, use as advisory opinion 
statements submitted as expert testimony. However, where an opinion is not in accord with other information 
or is in any way questionable, the AAO is not required to accept or may give less weight to that evidence. 
Matter of Caron International, 19 I&N Dlec. 79 1 (Comm. 1988). 
To establish the second criterion - that a specific degree requirement is common to the industry in parallel 
positions among similar organizations - counsel submits various internet postings for the position of 
accountant from various companies. However, the duties of the proffered position are not for those of an 
accountant, as discussed above. 
No evidence in the record establishes the regulation at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(2) which requires the 
petitioner to establish that a specific degree requirement is common to the industry in parallel positions 
among similar organizations. Nor can the petitioner establish that the particular position is so complex or 
unique that it can be performed only b:y an individual with a degree. As already discussed above, the 
Handbook reveals that many of the beneficiary's duties are performed by bookkeeping, accounting, and 
auditing clerks, occupations that do not require a bachelor's degree. 
Nor is there evidence in the record to establish the third criterion at 8 C.F.R. 5 214.2(h)(4)(iii)(A): that the 
petitioner normally requires a degree or its equivalent for the position. 
The regulation at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(4) requires that the petitioner establish that the nature of the 
specific duties is so specialized and complex that the knowledge required to perform the duties is usually 
associated with the attainment of a baccalaureate or higher degree. As discussed above, the petitioner has not 
established how many restaurants it operates or the number of current employees, upon which it bases the 
complexity of the duties of the position. Upon review of the record, the petitioner has not documented the 
duties of the proffered position in relation to the nature of its business and the positions of its current 
employees such as a presidentlstore manager, accountant, cooMutchen heads, cashier, and server. Many of 
the beneficiary's duties are performed by bookkeeping, accounting, auditing and financial clerks, occupations 
that do not require a bachelor's degree. The petitioner's strategy for expanding its business cannot substitute 
for a description of the specific duties to be performed by the beneficiary. The petitioner submits no 
documentation in support of its plans for future growth. Going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter ofSofici, 
22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Crafi of California, 14 I&N Dec. 190 (Reg. 
Comm. 1972)). The petitioner has not demonstrated that the duties of the proffered position meets the 
complexity or scope of responsibility normally required of an accountant. The petitioner therefore fails to 
establish 8 C.F.R. 5 214.2@)(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. 
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Counsel asserts that Citizenship and Immigration Sen~ices (CIS) has already determined that the proffered 
position is a specialty occupation since CIS has approved other, similar petitions in the past. This record of 
proceeding does not, however, contain all of the supporting evidence submitted to the service center in the 
prior case. In the absence of all of the corroborating evidence contained in that record of proceeding, the 
documents submitted by counsel are not sufficient to enable the AAO to determine whether the position 
offered in the prior case was similar to the position in the instant petition. 
Each nonimmigrant petition is a separate proceeding with a separate record. See 8 C.F.R. 5 103.8(d). In 
making a determination of statutory eligibility, CIS is limited to the information contained in tke record of 
proceeding. See 8 C.F.R. 5 103.2(b)(16)(ii). Although the AAO may attempt to hypothesize as to whether the 
prior case was similar to the proffered po,sition or was approved in error, no such determination may be made 
without review of the original record in its entirety. If the prior petition was approved based on evidence that 
was substantially similar to the evidence (contained in this record of proceeding, however, the approval of the 
prior petition would have been erroneous. Citizenship and Immigration Services (CIS) is not required to 
approve petitions where eligibility has not been demonstrated, merely because of prior approvals that may 
have been erroneous. See, e.g., Matter ojf Church Scientology International, 19 I&N Dec. 593, 597 (Comm. 
1988). Neither CIS nor any other 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). 
Beyond the decision of the director, the petitioner asserts that the beneficiary has received the equivalent of a 
bachelor's degree in accounting based on his experience and education. The petitioner relies on an opinion 
letter which indicated that the beneficiary had demonstrated 19 years of progressive experience and 1 % years 
of university credits. The AAO notes that the letter from the Office of the Provost, Seattle Pacific University 
is dated more than three years before the professor of finance's opinion letter. As such, the AAO cannot 
conclude that Seattle Pacific University currently has a program for granting credit based on an individual's 
training or work experience pursuant to 8 C.F.R. tj 214.2(h)(~)(1).~ Additionally, the petitioner submitted 
one educational evaluation that determined the beneficiary had the equivalent of two years of university-level 
credit in business administration. The petitioner submitted a second foreign educational evaluation which 
indicated that the beneficiary has the equivalent of 1% years of university level credit in business 
administration. It is not clear from the evidence submitted how many years of U.S. university equivalent 
credits the beneficiary has achieved. It is incumbent upon the petitioner to resolve any inconsistencies in the 
record by independent objective evidence. Any attempt to explain or reconcile such inconsistencies will not 
suffice unless the petitioner submits competent objective evidence pointing to where the truth lies. Matter of 
Ho, 19 I&N Dec. 582,591-92 (BIA 1988). 
Upon review of the experience letter from the beneficiary's previous employer, the duties have not been 
described with sufficient specificity in relation to the employer's business to establish that the alien's training 
and/or work experience included the theoretical and practical howledge required by the specialty occupation 
and that the beneficiary's experience was gained while working with supervisors, or subordinates who have a 
degree or its equivalent in the specialty occupation pursuant to 8 C.F.R. fj 214.2(h)(D)(5). 
Thus, the record does not establish that the beneficiary is qualified to perform services in the specialty 
occupation. For this additional reason, the petition may not be approved. 
2 The website for Seattle Pacific University does not reveal that is has such a program. 
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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. 
OIRDEW: The appeal is dismissed. The petition is denied.