dismissed H-1B Case: Spice Wholesale

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Prevent clearly unwmtd 
invasion 0fper50naI privBCY 
U.S. Department of Homeland Security 
20 Massachusetts Ave. N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
PUBLIC COPY 
FILE: WAC 04 239 52063 Office: CALIFORNIA SERVICE CENTER Date: HAR 2 7 2006 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section lOl(a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 5 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. 
" Administrative ~ppea(ls Office 
WAC 04 239 52063 
Page 2 
DISCUSSION: The nonimmigrant visa petition was denied by the Director, California Service Center, and is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. The petition will 
be denied. 
The petitioner engages in the importation and wholesale of exotic spices common to Indian, Middle Eastern and 
Asian cuisine. It desires to employ the beneficiary temporarily in the United States as an in-house accountant, at 
$36,500 per year, for three years. The director determined that the proffered position did not meet any of the 
criteria for classification as a specialty occupation and denied the petition. 
On appeal, counsel states that the petitioner has submitted ample evidence to describe the duties and 
responsibilities of the position. Counsel also states that these duties and responsibilities are consistent with the 
position of a management or in-house accountant. 
Section lOl(a)( 15)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1 101(a)(15)(H)(i)(b), 
defines an H-l(b) temporary worker as: 
an alien . . . who is coming temporarily to the United States to perform services in a specialty 
occupation described in section 214(i)(l) . . . and with respect to whom the Secretary of Labor 
determines and certifies to the Attorney General that the intending employer has filed with the 
Secretary an application under section 212(n)( 1). . . . 
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. 
Similarly, the regulation at 8 C.F.R. 5 214.2(h)(4)(ii) provides that: 
Specialty occupation means 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. 
The regulation at 8 C.F.R. 5 214.2(h)(4)(iii)(A) establishes four standards, one of which an occupation must 
meet to qualify as a specialty occupation: 
(1) 
 A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
WAC 04 239 52063 
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(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) interpret the term "degree7' 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 I-290B and supporting documentation; (2) the 
director's denial letter; (3) the director's request for additional evidence (4) the petitioner's response to the 
director's requests; and (5) Form 1-129 and supporting documentation. The AAO reviewed the record in its 
entirety before issuing the decision. 
The petitioner is seeking the beneficiary's services as an in-house accountant. In determining whether a 
position qualifies as a "specialty occupation" for purposes of nonirnrnigrant H-1B visa, CIS will examine 
whether there is a general requirement of specialized study for the position, coupled with whether the position 
has complex and discretionary duties normally associated with the position. Shanti, Inc. v. Reno, 36 F. Supp. 
2d 1151, 1165 (D. Minn. 1999). 
The Petition for a Nonimmigrant Worker (Form 1-129) was filed on August 27, 2004. On September 2,2004, 
CIS requested the petitioner to provide a more detailed description of the beneficiary's specific job duties. In its 
response dated September 28, 2004, counsel for the petitioner submitted an explanation of the beneficiary's 
proposed duties. Counsel states that 40 percent of the beneficiary's time will be devoted to execution of plans, 
such as designing and implementing various control procedures which would be helpful in establishing an 
efficient accounting department; preparing and finalizing the company's monthly and annual financial statements 
for management; directing the personnel in the accounts department; submitting the company's annual tax return; 
day-today accounting of the company's business transactions; managing the accounts receivable and payable; 
preparing the daily cash flow position, product pricing index and issuing sales invoices, debit or credit notes. 
Counsel states that 20 percent of the beneficiary's time will be spent on planning, such as, preparing the monthly 
and annual budget, variances and marketing reports and various forecasts; planning of stock, overseas and funds 
procurement and procurement from the local market; preparing the annual audit plan with the help of external 
auditors and preparing various business strategies. Counsel also states that 10 percent of the beneficiary's time 
will be spent on controls, such as analyzing and controlling credit terms and expenses; designing and developing 
a system of checks and balances; appraising various progress reports and maintaining a healthy cash flow and 
working capital. Counsel also states that the other 30 percent of the beneficiary's time will be spent on other 
functions including human resources, IT development and its implementation, corporate and other statutory 
requirements, negotiating terms with lenders and bankers, hiring and firing staff working in the accounts 
department, formulating and executing advertising and marketing or promotional campaigns and maintaining 
internal and external relationships. 
WAC 04 239 52063 
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Upon review of the record, the petitioner has established none of the four criteria outlined in 8 C.F.R. 
fj 2 14.2(h)(4)(iii)(A). 
The AAO turns first to the criteria at 8 C.F.R. fj 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 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 
fms 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 HirdIBlaker Corp. v. Sava, 712 F. 
Supp. 1095, 1 102 (S.D.N.Y. 1989)). 
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. Counsel states, in his 
brief in support of the appeal, that the definition of management accountants listed in the Handbook is 
consistent with the position offered to the beneficiary. 
According to the Handbook, 2006-07 edition, there are four major fields of accounting: public, management, 
government, and internal auditors. The Handbook, 2006-07 edition, reveals that the specific job duties vary 
widely among the four major fields and confirms that the proffered position is not that of an accountant. The 
Handbook, 2006-07 edition, sets forth the following descriptions of the duties of the four major fields of 
accounting: 
Management accountants - also called cost, managerial, industrial, corporate, or private 
accountants - record 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. Usually, management accountants are part of executive 
teams involved in strategic planning or the development of new products. 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. 
Government accountants and auditors work in the public sector, maintaining and examining the 
records of government agencies and auditing private businesses and individuals whose activities 
are subject to government regulations or taxation. Accountants employed by Federal, State, and 
local governments guarantee that revenues are received and expenditures are made in accordance 
with laws and regulations. Those who are employed by the Federal Government may work as 
Internal Revenue Service agents or in financial management, financial institution examination, 
or budget analysis and administration. 
Public accountants perform a broad range of accounting, auditing, tax, and consulting activities 
for their clients, who may be corporations, governments, nonprofit organizations, or individuals. 
For example, some public accountants concentrate on tax matters, such as advising companies of 
WAC 04 239 52063 
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the tax advantages and disadvantages of certain business decisions and preparing individual 
income tax returns. Others offer advice in areas such as compensation or employee healthcare 
benefits, the design of accounting and data-processing systems, and the selection of controls to 
safeguard assets. Still others audit clients' financial statements and report to investors and 
authorities that the statements have been correctly prepared and reported. Public accountants, 
many of whom are Certified Public Accountants (CPAs), generally have their own businesses or 
work for public accounting firms. 
Some public accountants specialize in forensic accounting - investigating and interpreting white- 
collar crimes such as securities fraud and embezzlement, bankruptcies and contract disputes, and 
other complex and possibly criminal financial transactions, including money laundering by 
organized criminals. Forensic accountants combine their knowledge of accounting and finance 
with law and investigative techniques in order to determine whether an activity is illegal. Many 
forensic accountants work closely with law enforcement personnel and lawyers during 
investigations and often appear as expert witnesses during trials. 
In response to recent accounting scandals, new Federal legislation restricts the nonauditing 
services that public accountants can provide to clients. If an accounting firm audits a client's 
financial statements, that same fm cannot provide advice on human resources, technology, 
investment banking, or legal matters, although accountants may still advise on tax issues, such as 
establishing a tax shelter. Accountants may still advise other clients in these areas or may 
provide advice within their own firm. 
Internal auditors verify the accuracy of their organization's internal records and check 
mismanagement, waste, or fraud. Internal auditing is an increasingly important area of 
accounting and auditing. Intemal auditors examine and evaluate their fm' financial and 
information systems, management procedures, and internal controls to ensure that records are 
accurate and controls are adequate to protect against fraud and waste. They also review company 
operations-evaluating their efficiency, effectiveness, and compliance with corporate policies and 
procedures, laws, and government regulations. There are many of highly specialized auditors, 
such as electronic data-processing, environmental, engineering, legal, insurance premium, bank, 
and healthcare auditors. As computer systems make information timelier, internal auditors help 
managers to base their decisions on actual data, rather than personal observation. Internal 
auditors also may recommend controls for their organization's computer system to ensure the 
reliability of the system and the integrity of the data. 
The Handbook also states that, increasingly, accountants "not only provide clients with accounting and tax help, 
but also help them develop personal budgets, manage assets and investments, plan for retirement, and recognize 
and reduce exposure to risks." 
Upon review of the beneficiary's job description on Form 1-129 and the duties listed in the response to the 
director's request for evidence, the AAO finds that the evidence of record does not convey any details about 
the financial information the beneficiary will be in charge of managing and analyzing for the petitioning 
entity, and the level of accounting knowledge required to address these matters. For instance, there is no 
documentary evidence or information about the specific nature of the petitioner's operations, the complexity 
involved in overseeing and managing the accounts payables and receivable departments, the types and 
volume of transactions, the kinds of presentations and/or reports the beneficiary is required to make, the 
nature of the petitioner's financial reports andlor statements, the spectrum of costs to be managed and audited, 
the extent of the petitioner's financial dealings, the range of the petitioner's financial records, the specific 
types of data which the beneficiary would analyze, the size of the petitioner's budget, the number of the 
WAC 04 239 52063 
Page 6 
petitioner's budget elements, or the nature of the budgetlexpenses variance issues and trends. Therefore, there 
is no factual basis for the AAO to determine the proffered position is one that normally would require at least 
a bachelor's degree, or its equivalent, in accounting or a related specialty. 
The Handbook's subsection "Sources of Additional Information" refers the reader to the Internet site for the 
Accreditation Council for Accountancy and Taxation (ACAT), the professional organization that provides the 
credentials Accredited Business Accountant@/Accredited Business Advisors@ (ABA).' That Internet site 
reveals that a degree in accounting or a related specialty is not required for ABA accreditation. Eligibility for 
the eight-hour comprehensive examination for the ABA credential requires three years of "verifiable 
experience in accounting, taxation, financial services, or other field requiring a practical and theoretical 
knowledge of the subject matter covered on the ACAT Comprehensive ~xamination."~ "Up to two" of the 
required years of work experience "may be satisfied through college credit." 
Many of the duties listed under each specialized field of an accountant and described in the Handbook do not 
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 nonmanagement groups such as stockholders, creditors, regulatory 
agencies, and tax authorities. 
The petitioning entity's organization chart shows four employees, the president and CEO, a secretary, the 
proffered position and a business manager of a branch office shown to be located in the mid-west. Form 1-129 
indicates that the petitioning entity has three employees. The petitioning entity's 2003 U.S. Corporation 
Income Tax Return indicates $19,200 was paid to the president and CEO and $31,212 was paid in salaries and 
wages. The tax return shows that no expenses were paid to outside labor. The 2003 tax return reflects 
$1,037,755 in gross income. 
Counsel states that with the petitioning entity's expansion of soon to be three business locations, the petitioner 
made a business decision to employ an in-house accountant to assume responsibility for and coordinate all 
financial matters. However, there is no documentary evidence to support counsel's assertions of an established 
branch located in Ohio, an accounting department in the California office, or that the petitioner plans to open a 
branch in Florida or another Southern state. Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of SofJici, 22 I&N Dec. 
158, 165 (Comrn. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comrn. 1972)). 
I 
 At its Internet site (http://www.nsacct.org/acat.asp), the National Society of Accountants describes ACAT 
as follows: 
The Accreditation Council for Accountancy and Taxation (ACAT) is an independent 
accrediting and monitoring organization affiliated with the National Society of Accountants. 
ACAT accredits professionals in independent practice who have demonstrated measurable 
knowledge of the principles, practices, and ethical standards of accounting, taxation, 
information technology and related financial services. 
The ACAT Internet site (http://www.acatcredentials.org/index.htrnl) states that the examination tests 
"proficiency in financial accounting, reporting, statement preparation, taxation, business consulting services, 
business law, and ethics." 
WAC 04 239 52063 .* 
Page 7 
Based on the evidence of record, the scope and complexity of the beneficiary's duties do not rise to the level of 
an accountant. Accordingly, the petitioner has not established that the proffered position requires at least a 
baccalaureate degree or higher degree, or its equivalent in a specific field of study for entry into the 
occupation. 
While the size of the petitioner is generally not a factor in determining whether a position is a specialty 
occupation, the petitioner's level of income, number of employees, complexity and volume of business 
transactions have a direct and substantial bearing on the scope and depth of the beneficiary's proposed duties. 
Absent evidence of some of these factors, the petitioner has not shown that the proffered duties are so complex 
and specialized that the position requires a person with at least a baccalaureate level of education to perform 
the tasks. The petitioner does not demonstrate that the beneficiary would apply at least a baccalaureate level of 
highly specialized accounting knowledge in order to perform these duties. The duties of the proposed position 
do not rise to the level of those of an accountant. Thus, the information contained in the record of proceeding 
does not establish that the position is a specialty occupation under the first criterion at 8 C.F.R. 5 
2 14.2(h)(4)(iii)(A). 
The record does not include any submissions from firms, individuals, or a professional association in the 
petitioner's industry attesting to the petitioner's recruitment and hiring practices. Consequently, the petitioner 
has not established that a degree requirement is common to the industry in parallel positions among similar 
organizations. Thus, the petitioner has not established that the position is a specialty occupation under the first 
alternative prong of 8 C.F.R. 5 214.2(h)(4)(iii)(A)(2). 
The petitioner has not satisfied the second alternative prong of 8 C.F.R. 3 214.2(h)(4)(iii)(A)(2). The evidence 
of record does not establish that the position is so complex or unique that it can be performed only by an 
individual with at least a bachelor's degree in a specific specialty. 
The petitioner does not assert that it normally requires an individual with a degree in a specific specialty for 
entry into the proffered position, and offers no evidence concerning the petitioner's past hiring history with 
regards to this position. Counsel states on appeal that the financial matters associated with the petitioning 
entity were primarily handled by the president, with use of outside accounting firms prior to making the 
decision to employ an in-house accountant. Consequently, the petitioner has not established the third 
criterion at 8 C.F.R. 9 214.2(h)(4)(iii)(A). 
Finally, the duties of the proffered position are not so specialized and complex that the knowledge required to 
perform the duties is usually associated with' the attainment of a baccalaureate or higher degree in a specific 
specialty. The petitioner has not demonstrated with documentary evidence its expansion plans that include an 
in-house commercial department, the establishment of a fully computerized accounting department, stores, 
and a warehousing and marketing department. The petitioner has not shown that the financial matters 
associated with its business have expanded and the petitioning entity has two, and soon to be three, business 
locations which requires, due to the complex nature of the position, an accountant that possesses a bachelor's 
degree in accounting or a related field. No evidence to support these assertions has been presented. Simply 
going on record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings. Matter of SofSici at 165. Therefore, the petitioner has not established the 
fourth criterion of 8 C.F.R. 5 214.2(h)(4)(iii)(A). 
WAC 04 239 52063 
Page 8 
The petitioner lists incidental duties such as human resources and marketing. The Handbook does not 
establish that either human resources managers or marketing managers require a degree in a specialty. Thus, 
these incidental duties do not establish the position as a specialty occupation. 
As related in the discussion above, the petitioner has not established the proffered position is a specialty 
occupation. Accordingly, the decision of the director shall not be disturbed. 
The petitioner has not established that the proffered position qualifies as a specialty occupation. Thus, the 
beneficiary's qualifications are immaterial. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Lmmigration and 
Nationality Act, 8 U.S.C. 5 1361. Here, the petitioner has not met that burden. 
ORDER: 
 The appeal is dismissed. The petition is denied.