remanded H-1B Case: Accounting

U.S. Department of Homeland Securitv 
20  ass. Ave., N.W., Rrn. A3042 
Washington, DC 20529 
- - . R . -...I" 
FILE: WAC 04 039 53308 Office: CALIFORNIA SERVICE CENTER Date: OCT 2 8 ZO@t 
IN RE: 
PETITION: Petition for a Nonirnmigrant Worker Pursuant to Section lOl(a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § 1 10l(a)( lS)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Attached is a request for evidence relating to the above proceeding. Pursuant to federal regulations at 
8 C.F.R. 3 103.2(b)(8), you are allowed 12 weeks from the date of this notice to respond to the above address. 
This same regulatory section states that additional time may not be granted. All evidence submitted in 
response to a request for evidence must be submitted at one time. The submission of only some of the 
requested evidence will be considered a request for a decision based on the record. 8 C.F.R. § 103.2(b)(11). 
Failure to respond to this notice will be considered to be an abandonment of the petition. 8 C.F.R. 
§ 103.2(b)(13). 
Robert P. Wiemann, Director 
Administrative Appeals Ofice 
WAC 04 039 53308 
Request for Evidence 
Page 2 
DISCUSSION: On November 26,2003, the petitioner filed a Form 1-129 seeking to employ the beneficiary 
as an accountant pursuant to section lOl(a)(lS)(H)(i)(b) of the Immigration and Nationality Act (the Act), 
8 U.S.C. 5 1 lOl(a)(lS)(H)(i)(b). The director of the California Service Center denied the petition on March 
16, 2004 and the petitioner appealed his decision to the Administrative Appeals Office (AAO) on April 16, 
2004. The AAO dismissed the appeal on June 15, 2005. Subsequently, the petitioner filed a complaint in the 
U.S. District Court for the Central District of California seeking declaratory and injunctive relief requiring 
Citizenship and Immigration Services (CIS) to approve the beneficiary's H-1B petition. Sison See & Sun 
Continental v. Donald Neufeld, et al, CV-05-5970 ABC (CWX) (filed August 16, 2005). Under agreement 
with the petitioner's counsel, the AAO will reopen this matter and, accordingly, issues this notice and request 
for evidence. 
In reviewing the record of proceeding, the AAO has identified several areas in which additional information is 
required for the petition to be given further consideration. The purpose of this letter is to advise the petitioner 
of those issues that must be addressed and to afford it an opportunity to provide additional information prior 
to the AAO's issuance of a new decision. 
Nature of the Occupation 
As noted in the AAO's June 15, 2005 decision, the petitidner previously provided a largely generic 
description of the proffered position's duties, one that the AAO concluded more appropriately described the 
occupation of bookkeepers, accounting and financial clerks and did not impose a degree requirement or its 
equivalent on the beneficiary, as required to establish the proffered position as a specialty occupation under 
the first criterion at 8 C.F.R. 5 214.2(h)(4)(iii)(A). The petitioner's generalized description of the proffered 
position also undermined its ability to establish the duties listed as being so specialized and complex that they 
would normally be associated with the attainment of a baccalaureate or higher degree, the requirements of the 
fourth criterion at 8 C.F.R. 5 214.2(h)(4)(A). 
To ensure a full understanding of the nature of the duties to be performed by the beneficiary in the proffered 
position, the AAO requests the following: 
A description of the tasks routinely performed by the petitioner's accounting clerk, 
employment to be supervised by the beneficiary; 
A description of the tasks, specific to the petitioner's freight business, that the 
beneficiary would perform in auditing air cargo contracts, orders, and vouchers; in 
documenting and assisting in the implementation of accounting systems and 
accounting controls; in auditing receipts, accounts payable, and employee 
compensation time and attendance deductions; and in making recommendations 
regarding the accounting of assets and expenditures; 
Further definition of the type and scope of the analysis to be performed by the 
beneficiary specific to the petitioner's freight business in compiling and analyzing the 
petitioner's financial information using software solutions for documenting business 
transactions, logistics expenses, and over viewing entries to accounts such as the 
general ledger; in analyzing financial information detailing assets, liabilities, and 
capital for the preparation of balance sheets, profit and loss statements, and other 
WAC 04 039 53308 
Request for Evidence 
Page 3 
reports; and in interpreting the petitioner's current and projected financial position for 
1 management. 
Certain questions regarding the tasks to be performed by the beneficiary also rise from the descriptions of the 
proffered position provided subsequent to filing: 
Initially, the petitioner did not indicate that the preparation of the petitioner's tax 
returns would be one of the duties to be performed by the beneficiary. However, this 
duty is included in the listing of the proffered position's duties provided in response 
to the director's request for evidence. The AAO asks that the petitioner clarify the 
exact role the beneficiary will perform in the preparation of the company's tax 
returns. 
At the time of filing, the petitioner stated that the beneficiary would review the 
activities and entries of the accounts receivable clerk, accounts payable clerk and 
accounting assistant. In response to the director's request for evidence, however, 
counsel indicated only that the beneficiary would review the work performed by the 
accounting clerk and submitted an organizational chart that shows only one 
individual, the accounting clerk, as being supervised by the beneficiary. The 
petitioner is asked to clarify the number of individuals whose work the beneficiary 
would review and identify these positions by title and incumbent. 
The petitioner's August 16, 2005 complaint states that the proffered position would 
require the beneficiary's "interaction with consolidators, customs brokerage, banking 
documentation and insurance coverage." While the AAO finds that the petitioner's 
initial description of the proffered position requires the beneficiary's involvement 
with banking documentation and insurance coverage, that description does not appear 
to require him to interact with outside entities. Accordingly, the AAO requests a 
description of the type and frequency of contact, if any, the beneficiary would have 
with consolidators and customs brokerage firms, and how such responsibilities relate 
to the duties previously listed to describe the proffered position. 
Degree Requirement within the Petitioner's Industry 
To establish its degree requirement as the norm within its industry under the first prong of the second criterion 
at 8 C.F.R. 5 214.2(h)(4)(iii)(A), the petitioner submitted five Internet job advertisements for accountant or 
accounting analyst positions. It did not, however, ~rovide any information as to whether the etitioner's sister 
ad International 
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1 home page, employ in-house accountants and 
1 The AAO notes that reference to the use of generally accepted accounting principles (GAAP) will not 
suffice as an explanation of the type of analysis to be performed by the beneficiary, nor will it establish the 
complexity and specialization of these duties for the purposes of these proceedings. As discussed in the 
AAO's June 15, 2005 decision, the knowledge of such principles may be acquired through an associate's 
degree in business or accounting. * 
WAC 04 039 53308 
Request for Evidence 
Page 4 
reauire those individuals to hold the minimum of a baccalaureate degree in accounting or a directlv related " 
field. As the record appears to indicate that the is composed of independent freight 
operators providing similar services in diverse of degreed accountants by these 
companies may serve to establish the proffered position as a specialty occupation under the requirements of 
the first prong - the degree requirement is common to the industry in parallel positions among similar 
organizations. Accordingly, the AAO asks that the petitioner provide evidence, if available, regarding the 
degree requirements, if any, imposed by these independent companies when hiring individuals in parallel 
accounting positions. Such evidence, if available, must include documentation of the companies' 
employment of these individuals, their job duties and the degrees they hold. 
Petitioner's Normal Hiring Practices 
Pursuant to 8 C.F.R. 9 214.2(h)(4)(iii)(A)(3), a petitioner may establish a proffered position as a specialty 
occupation if it has a history of hiring degreed individuals for the position. The record before the AAO offers 
no information as to the petitioner's normal hiring practices, nor does it indicate whether it has previously 
employed an in-house accountant. To allow the AAO to consider whether the proffered position may be 
established as a specialty occupation under the third criterion, it requests the following information: 
Evidence of the petitioner's previous employment of in-house accountants to perform 
the duties of the proffered position; and 
Evidence, as appropriate, that the petitioner required previous in-house accountants 
to hold baccalaureate degrees or their equivalent in a field directly related to 
accounting; evidence must include actual documentation of the degrees held by such 
individuals. 
If a required document, such as a degree certificate, does not exist or cannot be obtained, the petitioner must 
demonstrate this and submit secondary evidence pertinent to the facts at issue. If secondary evidence also 
does not exist or cannot be obtained, the petitioner must demonstrate the unavailability of both the required 
document and relevant secondary evidence, and must submit two or more affidavits, sworn to or affirmed by 
persons who are not party to the petition and who have direct personal knowledge of the event and/or 
circumstances that the evidence would have documented. Secondary evidence must overcome the 
unavailability of primary evidence, and affidavits must overcome the unavailability of both primary and 
secondary evidence. 8 C.F.R. 5 103.2(b)(2)(i). 
Pursuant to federal regulations at 8 C.F.R. 5 103.2(b)(8), the petitioner is allowed 12 weeks from the date of 
this notice to respond to the AAO and additional time may not be granted. All evidence submitted in 
response to a request for evidence must be submitted at one time. The submission of only some of the 
requested evidence will be considered a request for a decision based on the record. 8 C.F.R. 5 103.2(b)(ll). 
If the petitioner's response does not establish that the petition was approvable at the time it was filed, then the 
petition cannot be approved. 8 C.F.R. 9 103.2(b)(12). Failure to respond to this notice will be considered as 
an abandonment of the petition. 8 C.F.R. 5 103.2(b)(13). 
After the 12-week period, the AAO will prepare and issue a new appellate decision, taking into account all of 
the evidence of the record, including the new and additional evidence submitted in response to this notice.