dismissed H-1B Case: Tax Technology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF P-T-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: DEC. 22, 2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129. PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner. a software development and design company. seeks to temporarily employ the 
Beneficiary as a ··senior analyst - tax technology .. under the H-1 B nonimmigrant classification tor 
specialty occupations. See Immigration and Nationality Act (the Act) section 
101(a)(l5)(H)(i)(b), 8U.S.C. § 1101(a)(15)(H)(i)(b). The H-18 program allows a U.S. employer to 
temporarily employ a qualified foreign worker in a position that requires both (a) the theoretical and 
practical application of a body of highly specialized knowledge and (b) the attainment of a 
bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum prerequisite for 
entry into the position. 
The Director of the California Service Center denied the petition. concluding that the Petitioner did 
not (1) submit a valid labor condition application (LCA). and (2) establish that the proffered position 
qualifies as a specialty occupation. The Director reatlirmed the denial of the petition on a 
subsequent motion to reopen and reconsider. 
On appeaL the Petitioner asserts that the Director's decision was in error. 
Upon de novo review, we will dismiss the appeal. 
I. SPECIALTY OCCUPATION 
A. Legal Framework 
Section 214(i)(l) of the Act 8 U.S.C. § 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 tor entry into the occupation in the United States. 
.
Matter (if P- T-
The regulation at 8 C.F.R. ~ 214.2(h)(4)(ii) largely restates this statutory definition. but adds a non­
exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered position 
must meet one of the following criteria to qualify as a specialty occupation: 
(1) A baccalaureate or higher degre e or its equivalent is norm ally 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 
pariicular position is so complex or unique that it can be performed only by an 
individu al with a degree: 
(3) The employer normally requires a degree or its equivalent for the position: or 
( 4) The nature of the specific duties [isl so specialized and complex that 
knowledge required to perform the duties is usuall y associated with the 
attainment of a baccalaureate or higher degree. 
8 C.F.R. § 214.2(h)(4)(iii)(A). We have consistently interpreted the term "degree'' to mean not just 
any baccalaureate or higher degree, but one in a specific specialty that is directly related to the 
proposed position. See Royal Siam C'orp. v. Chertoff; 484 F.3d 139, 147 (l st Cir. 2007) (describing 
"a degree requirement in a specific specialty" as ''one that relate s directly to the duties and 
responsibilities of a particular position"); Defensor v. Meissner, 201 F.3d 384.387 (5th Cir. 2000). 
B. Proffered Position 
The Petitioner seeks to employ the Beneficiary as a senior analyst - tax technology at its offices in 
California. On the LCA submitted in support of the H-1 B petition, the Petitioner designated 
the proffered position under the occupational category ''Accountants and Auditors" corresponding to 
the Standard Occupational Classification (SOC) code 13-2011. 1 
Although the Director issued a request for evidence (RFE) specifically asking for ''a more detailed 
description of the beneficiar y's work ... [to] [i]nclude specific job duti es, the percentage of time to 
be spent on each duty, . .. and the minimum education. training and ex perience necessar y to th e 
job ... the Petitioner provided the same duties as submitted with the initial petition, as follow s, in pati: 
1 
The Petitioner is required to submit a certified LCA to USC IS to demonstrate that it will pay an H-1 B worker the 
higher of either the prevailing wage for the occupational classification in the "area of employment" or the actual wage 
paid by the employer to other employees with similar experience and qualifications who are performing the same 
services. See A1afler qj'Simeio Solutions , LLC 26 l&N Dec. 542, 545-546 (AAO 20 15 ). 
2 
.
Matter ofP-T-
• Support team with a variety of data analytic tasks including: data collection/retrieval from 
source systems, data loading/normalization, testing for accuracy/completeness, 
analysis/modeling, and reporting/communicating results; 
• Manage large data sets including data in unusual formats, transforming data into a usable 
form, and aggregating data as needed using a variety of tools; 
• Assist in developing custom data analysis solutions to address client specific problems 
and provide meaningful insight; 
• Prepare documentation and analytical reports that effectively summarize and present 
procedures, assumptions, and conclusions: 
• Lead a team. interact directly with clients and other resources to obtain relevant data and 
documents in formats consistent with project objectives and deadlines. review project 
deliverables, and resolve project issues[.] 
The Petitioner also provided a number of skills necessary to perform the position. 
In response to the Director's RFE, the Petitioner stated that the position requires a bachelor's degree 
as a mtmmum requirement. In addition, the submitted job posting indicated that this position 
requires a bachelor's degree or higher, and that the individual '·[s]hould have [a] minimum [of] 5+ 
years of experience," and "8 +''years of total experience. 
The Petitioner's briefs on motion and appeal amended the duties as follows. in part: 
• Support team with a variety of data analytic tasks including: data collection /retrieval from 
source systems , data loading /normalization. testing for accuracy /completeness in the 
-Tax preparation software . 
• Manage large data sets including data in unusual formats from accounting system. 
transforming data into a usable form, and aggregating data as needed using MS Excel. 
• Assist in Technology Initiatives for the Tax Department. 
• Prepare documentation and analytical reports that etlectively summarize and [p ]resent 
procedures, assumptions, and conclusions for Consolidated Federal Tax return. state and 
local income and Franchise Tax Returns. 
• Lead a team, interact directly with clients and other resources to obtain relevant data and 
documents in formats consistent with Accounting principles and to meet Tax deadline . 
The Petitioner's brief on motion also added the following duties: 
• The administration of our tax compliance software, as well as vanous 
tax compliance related systems; 
• Perform the installation, rollover, and set up of each year's application, related 
testing and SOX documentation, adding and deleting users, tracking entity changes 
(acquisitions. mergers, etc[.]), setting up new companies and divisions. and supporting all 
of the above in Regular and Tax audits: 
Matter of P-T-
• This role will also be responsible for importing trial balances, customizing federal and 
state extension requests and federal and state returns for all entities: 
• E-filing consolidated federal tax return includes obtaining, documenting. and attaching all 
required elections and statements as prepared by the Tax Counsel and International 
groups and working with both federal and international groups to clear all edits that 
would prevent a successful e-filing with the IRS.; 
• The position may also be responsible for the administration of compliance related 
[One ]Source modules as well as overseeing and assigning licenses for our tax research 
services[.] 
C. Analysis 
Upon review of the entire record and for the reasons set out below. we determine that the Petitioner 
has not demonstrated that the proffered position qualifies as a specialty occupation. 2 
As a preliminary matter, the Petitioner"s claim that a bachelor's degree or equivalent is a sufficient 
minimum requirement for entry into the proffered position is inadequate to establish that the 
proposed position qualities as a specialty occupation. A petitioner must demonstrate that the 
proffered position requires a precise and specific course of study that relates directly and closely to 
the position in question. There must be a close correlation between the required specialized studies 
and the position; thus, the mere requirement of a degree. without further specification, does not 
establish the position as a specialty occupation. (f' Matter r?l Michael Hertz Assoc.•;., 19 I&N Dec. 
558, 560 (Comm 'r 1988) ('"The mere requirement of a college degree for the sake of general 
education, or to obtain what an employer perceives to be a higher caliber employee, also does not 
establish eligibility."). While a general-purpose bachelor's degree may be a legitimate prerequisite 
for a particular position, requiring such a degree. without more, will not justify a finding that a 
particular position qualities for classification as a specialty occupation. Royal Siam Corp., 484 F.3d 
at 147. 
As the Petitioner asserts that its minimum requirement for the proffered position is only a bachelor's 
degree without requiring that the degree be in any specific specialty. this statement alone indicates 
that the proffered position is not in fact a specialty occupation. 
Further, in order to establish that the position qualifies as a specialty occupation, the description 
must sufficiently communicate the actual work the Beneficiary will perform, especially in the 
context of any project on which he will work. the complexity, uniqueness, or specialization of the 
tasks. and the correlation between that work and the need for a particular level of knowledge in a 
specific specialty. See Defensor, 201 F.3d at 387 (a ··common sense reading .. of the regulations 
indicates an intention to fully implement the definition of ··specialty occupation .. ); see generally 8 
C.F.R. § 214.2(h)(4)(i)(A)(l ), (iii)(B)(2). and (iv)(A). 
2 While we may not discuss every document submitted, we have reviewed and considered each one. 
4 
.
Matter of P- T-
In this matter, we find that there are a number of inconsistencies in the record which preclude us 
from finding that the position is a specialty occupation, as we are unable to determine exactly what 
the Beneficiary will be doing and for whom. 
As stated above, the Petitioner classified the posttton under the occupational category of 
'·Accountants and Auditors.'' The Foreign Labor Cet1ification Data Center Online Wage Library. 
upon which the Petitioner relied to complete its LCA, and the Occupational Information Network 
(O*NET) generally describe this occupation as follows: "Examine, analyze , and interpret accounting 
records to prepare financial statements, give advice, or audit and evaluate statements prepared by 
others. Install or advise on systems of recordings costs or other financial and budgetary data. "3 As 
raised by the Director in her RFE, the provided job duties of the proffered position do not appear to 
be consistent with the duties of accountants and auditors. In response, rather than addressing the 
Director's concerns, the Petitioner simply stated that ''the proffered position in this matter is Sr. 
Analyst- Tax Technology (O*NET 13-2011 )." ln addition, as noted above , the Petitioner did not 
provide a more detailed job description , even though the Director specifically requested one. 
Instead, the Petitioner amended the job duties in its briefs on motion and on appeal but did not 
provide any explanation for the changes. For example. the Petitioner changed "obtain relevant data 
and documents in formats consistent with project objective and deadlines, review project 
deliverables, and resolve project issues" to "obtain relevant data and documents in formats consistent 
with Accounting principles and to meet Tax deadline.·· Similarly, the Petitioner changed ''[a]ssist in 
developing custom data analysis solutions to address client specific problems and provide 
meaningful insight " to "(a]ssist in Technology Initiatives for the Tax Department."' These changes 
are significant because they change the focus and scope of the Beneficiary's duties from client 
project-related duties to internal tax-related duties for the Petitioner. 
The Beneficiary's client project-related duties are also demonstrated in the Petitioner's employment 
documents with him. According to the Beneficiary's offer letter which was submitted with the 
initial petition, his "services will be utilized in developing/maintaining application/system, which 
will change from time to time in our office in CA and/or project site.'' Similarly. the 
"Employment Agreement" indicates that "[t]he duties of employee shall be: Developing /Maintaining 
Applications /System at [the Petitioner] and/or at client site,'' and discusses work performed for 
clients . For example , it states that the Petitioner "may require the Employee to work directly for the 
Associate , or post the Employee to one of the [Petitioner] or Associate's client sites. or subcontract 
the Employee to another Company" and that the ·'Employee may also be required to relocate from 
one city to another depending upon where the projects are based.'' These documents not only 
indicate that the Beneficiary will be performing duties for clients at client sites, but they include 
duties which are inconsistent with those of ''Accountants and Auditors." Notably. neither the LCA, 
nor the itinerary, include any client locations . 
. ~ Foreign Labor Certification Data Center Online Wage Library. http://www.tlcdatacenter.com /OesQuickResults .aspx? 
code = l3-2011&area ~ &year= 16&source= 1 (last visited Dec. 22, 2017): O*NET Summary Report for 
·'Accountants and Auditors," https://www.onetonline.org/link/surnmary/ 13-2011.00 (last visited Dec. 22, 20 17). 
.
Matter of P-T-
Further, as recognized by the court in Defensor, where the work is to be performed for entities other 
than the petitioner, evidence of the client companies' job requirements is critical. See Def"ensor, 201 
F.3d at 387-88. The court held that the t(xmer Immigration and Naturalization Service had 
reasonably interpreted the statute and regulations as requiring the petitioner to produce evidence that 
a profTered position qualifies as a specialty occupation on the basis o(the requirements imposed hy 
the entities using the beneficiary's servic es (emphasis added). !d. In other words , as the 
beneficiaries in that case would provide services to the end-client hospitals , and not to the petitioning 
staffing company , the job duties and requirements to perform those duties provided by the 
petitioning company were insufficient for a specialty occupation determination. See id. Therefore , 
if the Petitioner's clients will be utilizing the services of the Beneficiary , it is the client who must 
provide sufficiently detailed information regarding the proposed job duties and the minimum 
educational requirements necessary to perform those duties. The Petitioner has not submitted any 
client documentation. 
The Director also requested "documentary examples of work product created or produced by the 
company's current accountant. Note: The materials must clearly substantiate the author and date 
created." The Petitioner provided printouts on which ·'Quickbooks: ' " Excel ," and ''System" were 
handwritten and do not indicate who created them. Regardless, the majority of the documents relate 
to tracking employee hours and other payroll matters; therefore, it is unclear whether an accountant, 
rather than a payroll clerk or bookkeeper for example, created them. 
In addition, although the Petitioner stated that the Beneficiary would "[l]ead a team" and "[a]ssist in 
Technology Initiatives for the Tax Department,'' the provided organization chart does not include 
any individuals under the Beneficiary and does not depict any ·Tax Department" or accounting­
related "team ." The organizational chart does depict a "corporate accountant 4: ' however this 
individual does not oversee the Beneficiary and is not within the Beneficiary's chain of command. 
Further, the Petitioner listed other duties which it has not explained within the context of its 34-
employee operations , such as "tracking entity changes (acquisitions, mergers, etc[.]), setting up new 
companies and divisions," and working with ''Tax Counsel and International groups and working 
with both federal and international groups.'' 5 The Petitioner must resolve these inconsistencies in the 
record with independent , objective evidence pointing to where the truth lies . Muller ol f-lo. 19 I&N 
Dec. 582, 591-92 (BIA 1998). 
For the reasons discussed above , without additional probative evidence. the Petitioner has not 
established the substantive nature of the work to be performed by the Beneficiary. We are , 
therefore, precluded from finding that the proffered position satisfies any of the criterion at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A), because it is the substantive nature of that work that determines (1) the normal 
minimum educational requirement for entry into the particular position. which is the focus of 
4 
This individual is not the outside certified public accountant who prepared the Petitioner' s 2015 tax return. 
5 These duties are identical to duties listed in the vacancy announcement posted by 
which is part of the (responsible for all US-based 
companies. which number more than 265). which the Petitioner submitted for the record. 
Matter ofP-T-
criterion 1; (2) industry positions which are parallel to the proffered position and thus appropriate for 
review for a common degree requirement, under the first alternate prong of criterion 2: (3) the level 
of complexity or uniqueness of the proffered position, which is the focus of the second alternate 
prong of criterion 2; ( 4) the factual justification for a petitioner normally requiring a degree or its 
equivalent, when that is an issue under criterion 3: and (5) the degree of specialization and 
complexity of the specific duties, which is the focus of criterion 4. 
The Petitioner, therefore. has not established that the proffered position is a specialty occupation. 
II. LCA 
The Petitioner also has not established that the LCA supports and correspond to the petition. While 
the U.S. Department of Labor (DOL) is the agency that certifies LCA applications before they are 
submitted to U.S. Citizenship and Immigration Services (USCIS), DOL regulations note that the 
Department of Homeland Security (DHS) (i.e., its immigration benefits branch, USCIS) is the 
department responsible for determining whether the content of an LCA tiled for a particular Form 
I-129, Petition for a Nonimmigrant Worker, actually supports that petition. S'ee 20 C.F.R. 
§ 655. 705(b ), which states, in pertinent part (emphasis added): 
For H-1 B visas ... DHS accepts the employer's petition (DHS Form 1-129) with the 
DOL-certified LCA attached. In doinK so. the DHS determines lrhether the petition 
is supported hy an LCA which corre.\p<mds with the petition, whether the occupation 
named in the [LCA] is a specialty occupation or whether the individual is a fashion 
model of distinguished merit and ability. and whether the qualifications of the 
nonimmigrant meet the statutory requirements for H-1 B visa classification. 
As noted above, the Petitioner designated the proffered position under the occupational category 
'·Accountants and Auditors.'' which corresponds to the SOC code 13-2011 at a Level II wage rate.(' 
In the job posting tor the position, the Petitioner also indicated that it requires a .. minimum [ ofl 5+ 
years of experience·· and ··s +'' years of total experience. 
Based upon the provided job duties, the Petitioner has not established that it selected the appropriate 
SOC code for the proffered position. In addition, evidence in the record indicates that the 
Beneficiary may work at client sites, but the LCA only lists the Petitioner's address. 
6 
A prevailing wage determination starts with an entry level wage and progresses to a higher wage level after considering 
the experience. education. and skill requirements of the Petitioner's job opportunity. See U.S. Dep't of Labor, Emp 't & 
Training Admin., Prevailing Wage Determination f'oli(l' Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), 
available at http://www.foreignlaborcert.doleta.gov/pdt/NPWHC_GuidanceRevised_ll_2009.pdf _ 11 __ 2009.pdf 
.
Matter of P-T-
Finally, even if we were to assume that the Petitioner did use the correct SOC code and that the 
Beneficiary would only work at the Petitioner's location, the Petitioner has not demonstrated that it 
selected the appropriate wage level. 
According to DOL guidance, 7 wage levels should be detennined only after selecting the most 
relevant occupational code classification. Then , a prevailing wage determination is made by 
selecting one of four wage levels for an occupation based on a comparison of the employer ' s job 
requirements to the occupational requirements provided by O*NET , including tasks. knowledge. 
skills, and the specific vocational preparation (SVP) (education, training and experience) generally 
required for acceptable performance in that occupation. It is through the wage level that the 
Petitioner reflects the job requirements, experience, education. special skills and other requirements. 
and supervisory duties. 
O*NET indicates that accountants and auditors fall under Job Zone Four, which groups it among 
occupations for which "most ... require a four-year bachelor's degree. but some do not." Further. 
this occupational category has an SVP range of 7 to < 8. An SVP rating of 7 to less than ('·<'") 8 
indicates that the occupation requires "over 2 years up to and including 4 years·· oftraining. 8 
DOL guidance provides that for a Job Zone Four position, the wage level, which stmis at Level 1 is 
increased by one level if the employer"s experience requirement is "[i]n the low end of the 
experience and SVP range,'' increased by two levels if it is "[i]n the high end of the experience and 
SVP range,'' and increased by three levels if it is '·[g]reater than the experience and SVP range." 9 As 
stated earlier, the Petitioner's job posting indicated that this "senior" position requires at least "5+ 
years of experience: ' and "8 +" years of total experience, which exceeds the SVP range and compels 
a wage level above the Level II wage selected. 
The Petitioner claims that this position is a '·senior" position and will lead a team. According to 
DOL guidance. however, the word "senior'' in a position's job title and supervisory-level duties are 
indicative that (at least) a Level lii wage should be considered. 1° Further, the Petitioner claims to 
require duties that are beyond the scope of normal duties for an '·Accountants and Auditors'' position 
as described in O*N ET. For example , not only will the Beneficiary need to have knowledge of 
various accounting software such as but he will also administer the actual software for the 
company. He will also manage "large data sets including data in unusual formats·· and assist in other 
"technology initiatives. " These technology-focused duties appear to represent special skills and 
other requirements , and consequently , should have resulted in further upward adjustments to the 
7 /d. 
R For additional information, see the O*NET Online Help webpage available at http://www.onetonline.org/help/online 
/svp (last visited Dec. 22, 20 17). 
9 
U.S. Dep't of Labor. Emp't & Training Admin., Prevailing Wage Determination Policy Guidance , Nonagric. 
Immigration Programs (rev. Nov. 2009), available at http://www. foreignlaborcert.dol eta.gov/pdt/N PWHC _Guidance 
_Revised_ ll_2009 .pdf 
10 !d. 
Matter ofP-T-
position's wage level. 11 The Petitioner's selection of a Level II wage. is, therefore. not supported by 
its own requirements. 
For these reasons. the petition must also be denied because the Petitioner has not established that it 
submitted a certified LCA that corresponds to the petition. 12 
III. CONCLUSION 
The Petitioner has not established that the proffered position qualifies as a specialty occupation. and 
that it has submitted a certified LCA which supports and corresponds with the petition. 
ORDER: The appeal is dismissed. 
Cite as Matter ofP-T-. ID# 739675 (AAO Dec. 22. 2017) 
II JJ. 
12 
To permit otherwise would result in a petitioner paying a wage lower than that required by section 212(n)( I )(A) of the 
Act. 8 U.S. C. § 1182(n)( I )(A). by allowing a petitioner to submit an LC A for a lower prevailing wage than is required. 
9