remanded H-1B Case: Accounting

U.S. Citizenship 
and Immigration 
Services 
In Re : 8779892 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : WL Y 8, 2020 
The Petitioner, a wholesale clothing company, seeks to temporarily employ the Beneficiary as an 
"accountant" under the H-lB nonimmigrant classification for specialty occupations. See Immigration 
and Nationality Act (the Act) section 10l(a)(15)(H)(i)(b), 8 U.S.C . § l 10l(a)(15)(H)(i)(b) . 
The Vermont Service Center Director approved the petition, but later revoked the approval after 
serving a notice of her intent to revoke (NOIR) it. In the revocation notice, the Director concluded 
based on a review of the record, including material provided by the Petitioner in conjunction with an 
administrative site visit by USCIS officers to the Petitioner's offices subsequent to the approval of the 
petition, that the Petitioner had violated the terms and conditions of the approved petition . 1 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence . 
Section 291 of the Act; Matter of Chawathe, 25 I&N Dec . 369, 375 (AAO 2010) . We review the 
questions in this matter de nova. See Matter of Christo 's Inc., 26 I&N Dec. 537,537 n.2 (AAO 2015). 
Upon de nova review, the Director's decision to revoke the approval of the petition is withdrawn. The 
matter will be remanded to the Director for further consideration and action. 
I. REVOCATION AUTHORITY 
U.S. Citizenship and Immigration Services (USCIS) may revoke the approval of an H-lB petition 
pursuant to 8 C.F.R . § 214 .2(h)(l l)(iii), which states the following: 
(A) Grounds for revocation. The director shall send to the petitioner a notice of 
intent to revoke the petition in relevant part if he or she finds that: 
(I) The beneficiary is no longer employed by the petitioner in the capacity 
specified in the petition; or 
(2) The statement of facts contained in the petition ... was not true and 
correct, inaccurate, fraudulent , or misrepresented a material fact; or 
1 See 8 C.F.R. § 214.2(h)(ll)(iii)(A)(3) . 
(3) The petitioner violated terms and conditions of the approved petition; or 
( 4) The petitioner violated requirements of section 101 (a)( 15)(H) of the Act 
or paragraph (h) of this section; or 
(5) The approval of the petition violated paragraph (h) of this section or 
involved gross error. 
(B) Notice and decision. The notice of intent to revoke shall contain a detailed 
statement of the grounds for the revocation and the time period allowed for the 
petitioner's rebuttal. The petitioner may submit evidence in rebuttal within 30 
days of receipt of the notice. The director shall consider all relevant evidence 
presented in deciding whether to revoke the petition in whole or in part .... 
The Director's statements in the NOIR noting deficiencies in the record at the time of filing were 
adequate to notify the Petitioner of her intention to revoke the approval of the petition in accordance 
with the provisions at 8 C.F.R. § 214.2(h)(l l)(iii). The Director cited to the ground for revocation at 
8 C.F.R. § 214.2(h)(l l)(iii)(A)(3) and discussed her reasons for concluding, based upon a review of 
the record and new information that was unavailable at the time of the July 2018 petition approval, 
that the Petitioner had violated the terms and conditions of the approved petition. 
In her August 2019 revocation notice she concluded that (1) the initially submitted labor condition 
application (LCA) does not correspond to the working conditions at the Petitioner's location as the 
wages paid to the Beneficiary after the approval of the petition did not meet or exceed the prevailing 
wage determination in the LCA, and (2) that the claimed duties of the proffered position do not 
correspond to the occupation designated in the LCA. However, as we will explain, the Director should 
first consider whether the approval of the petition violated 8 C.F.R. § 214.2(h) or involved gross error, 
in light of the Petitioner's impermissible and material changes to critical aspects of the proffered 
position prior to the petition's approval. 2 
On the LCA initially submitted in support of the H-lB petition, the Petitioner designated the proffered 
position under the occupational category "Accountants and Auditors" corresponding to (SOC) code 
13-2011. 3 The Director issued an August 201 7 request for evidence (RFE), asking the Petitioner for 
evidence that the Level I wage level and the occupation designated in the LCA corresponds to the 
2 See 8 C.F.R. § 214.2(h)(l l)(iii)(A)(5). 
3 The Petitioner classified the proffered position at a Level I wage (the lowest of four assignable wage levels). We will 
consider this selection in our analysis of the position. The ·'Prevailing Wage Determination Policy Guidance" issued by 
the DOL provides a description of the wage levels. A Level I wage rate is generally appropriate for positions for which 
the Petitioner expects the Beneficiary to have a basic understanding of the occupation. This wage rate indicates: (1) that 
the Beneficiary will be expected to perform routine tasks that require limited, if any, exercise of judgment; (2) that she will 
be closely supervised and his work closely monitored and reviewed for accuracy; and (3) that she will receive specific 
instmctions on required tasks and expected results. 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.doleta.gov/pdf/NPWHC _Guidance_ Revised_ 11 _ 2009 .pdf 
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petition. 4 In response, the Petitioner submitted evidence that it had filed an amended petition 5 on the 
Beneficiary's behalf supported by an LCA which designated the proffered position therein as a Level 
II accountant position within the "Accountants and Auditors" corresponding to the Standard 
Occupational Classification (SOC) code 13-2011. 6 It submitted a copy of the amended petition in 
which the Petitioner noted in part 9: 
The [P]etitioner is filing an amended petition because of material changes in the 
[B]eneficiary's employment, which consist of a significant change in salary to a Level 
II wage which is adequate to the duties described in the original petition as well as the 
amended petition. The new wage level is also reflected in the LCA attached to the 
amended petition. 
The Petitioner further asserted in its letter submitted in the RFE response that the petitioner filed the 
amended petition "with the accompanying new certified LCA containing a new wage level II to notify 
USCIS of a significant increase in the [B]eneficiary's annual salary from $55,515 to a salary of 
$69,930, which is a level II salary adequate to the complexity of the duties of the proffered position. 
Based on the above, it appears that by the Petitioner's own admission it impermissibly and materially 
changed the nature of the proffered position after the filing of this petition. 
In response to an RFE or thereafter, the Petitioner cannot offer a new position to the Beneficiary, or 
materially change aspects of the proffered position including changes to the LCA submitted in support 
of the petition. The Petitioner must establish eligibility at the time of filing the nonimmigrant visa 
petition. 8 C.F.R. § 103.2(b )(1 ). A petitioner may not make material changes to a petition in an effort 
to make a deficient petition conform to USCIS requirements. See Matter of Izummi, 22 I&N Dec. 169, 
176 (Assoc. Comm'r 1998). For this reason, the Director should consider whether the approval of the 
petition based on facts that materially changed after the filing of the petition violated 8 C.F.R. 
§ 214.2(h) or involved gross error in accordance with 8 C.F.R. § 214.2(h)(l l)(iii)(5). 
Moreover, the Director should also consider whether the Beneficiary's proposed tasks and job 
responsibilities as presented in the evidence submitted prior to the approval of the petition were 
sufficient to support the Petitioner's claim that the proffered position was a specialty occupation at the 
time of the approval of the petition. 
Section 10l(a)(l5)(H)(i)(b) of the Act defines an H-lB nonimmigrant as a foreign national "who is 
coming temporarily to the United States to perform services ... in a specialty occupation described in 
section 214(i)(l) ... "(emphasis added). Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the 
term "specialty occupation" as an occupation that requires "theoretical and practical application of a 
4 A petitioner submits the LCA to the U.S. Depaitment of Labor (DOL) to demonstrate that it will pay an H-lB 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 duties, experience, and qualifications. Section 212(n)(l) of the Act; 
20 C.F.R. § 655.73l(a). 
5 See EAC 18 019 52035. USCIS records show that the Director denied the Petitioner's amended petition in December 
2018, concluding that the proffered position therein was not a specialty occupation. 
6 This new LCA was cettified by DOL in October 2017 after the filing of the instant petition, and was submitted in suppott 
of the amended petition. A copy of this LCA was also included in the Petitioner's November 2017 RFE response. 
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body of highly specialized knowledge, and 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." The 
regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates section 214(i)(l) of the Act, but adds a non­
exhaustive list of fields of endeavor. In addition, 8 C.F.R. § 214.2(h)(4)(iii)(A) provides that the 
proffered position must meet one of four criteria to qualify as a specialty occupation position. 7 Lastly, 
8 C.F.R. § 214.2(h)(4)(i)(A)(]) states that an H-lB classification may be granted to a foreign national 
who "will perform services in a specialty occupation ... " ( emphasis added). 
Accordingly, to determine whether the Beneficiary will be employed in a specialty occupation, we 
look to the record to ascertain the services the Beneficiary will perform and whether such services 
require the theoretical and practical application of a body of highly specialized knowledge attained 
through at least a bachelor's degree or higher in a specific specialty or its equivalent. Without 
sufficient evidence regarding the duties the Beneficiary will perform, we are unable to determine whether 
the Beneficiary will be employed in an occupation that meets the statutory and regulatory definitions of 
a specialty occupation and a position that also satisfies at least one of the criteria at 8 C.F.R. 
§ 2 l 4.2(h)( 4)(iii)(A). The services the Beneficiary will perform in the position determine: (1) the normal 
minimum educational requirement for entry into the particular position, which is the focus of 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. 8 C.F.R. § 214.2(h)(4)(iii)(A). 
As discussed, on the LCA submitted in support of the H-lB petition, the Petitioner designated the 
proffered position under the occupational category "Accountants and Auditors" corresponding to 
(SOC) code 13-2011. According to DOL's Occupational Information Network (O*NET), the core 
duties of accountants include "[ a ]nalyze financial information and prepare financial reports to 
determine or maintain record of assets, liabilities, profit and loss, tax liability, or other financial 
activities within an organization." 8 The Petitioner initially provided a set of eight job functions with 
the relative percentage of time the Beneficiary will devote the job functions, as follows (verbatim): 9 
1. Financial Accounting (15% to 20%) 
• Prepare month-end close entries and reporting. 
• Perform cost center reviews. 
• Perform account analysis as needed. 
• Assist with preparing various financial reporting presentations including 
budgets, plans and forecasts. 
7 8 C.F.R. § 214.2(h)(4)(iii)(A) must be read with the statutory and regulatory definitions ofa specialty occupation under 
section 214(i)(l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). We construe 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 Corp. v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in a specific specialty" as 
"one that relates directly to the duties and responsibilities of a particular position"). 
8 O*NET Summary Report for "Accountants," https://www.onetonline.org/link/summary/13-2011.0l (last visited July 7, 
2020). 
9 The Petitioner noted "as the [Beneficiary's] day-to-day duties will not be static you will find that the following 
percentages add up to more than 100% of time will vary (sic) depending on the project to which she is assigned." 
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• Compute taxes owed and prepare tax returns, ensunng compliance with 
payment, reporting, or other tax requirements. 
• IRS audits prevention and compliance. 
2. Process and Update of Daily Sales Transactions for Retail Stores (25%) 
• Process and update sales as well as releasing updated sales to the retail reporting 
system. 
• Run reports monthly for the updated sales and post to the general ledger in the 
retail reporting system. 
3. Sales Audit Functions of Daily Transactions for Retail Stores (25%) 
• Run sales audit reports on a daily basis. 
• Work with store managers to resolve problems, fix errors, and investigate 
unusual and/or unauthorized activity at the transaction level. 
• Ensure all credit card depositions have been settled and work with managers to 
correct any issues. 
• Work closely with store managers on financial policies and procedures. 
4. Sales Audit Functions of Daily Transactions for E-commerce (25%) 
• Review orders shipped. 
• Research discrepancies in E-commerce transactions. 
• Research unusual and/or unauthorized activity at the transaction level. 
• Work with managers to ensure all transactions are handled correctly. 
5. Month-end and Year-end Close Reporting for Retail Stores (20%) 
• Review orders shipped. 
• Research discrepancies in E-commerce transactions. 
• Research unusual and/or unauthorized activity at the transaction level. 
• Work with managers to ensure that all transactions are handled correctly. 
6. Maintain Inventory Integrity for Retail Stores (20%) 
• Prepare weekly cycle counts or additional counts as needed to ensure accurate 
inventory levels at all stores. 
• Make adjustments based on variances of cycle counts after approval by 
management. 
• Assist in the year-end physical counts at the retail stores and the accurate 
updating of the book inventory to reflect the results of the physical inventory 
for all locations. 
7. Prepare Retail Reporting for Annual Audit (10%) 
• Work as internal auditor to provide necessary retail reporting documentation, 
as well as walk through detail. 
8. Budgeting (10%) 
• Review budgets for accuracy and completeness. 
• Assisting with updating budget templates. 
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The Petitioner initially provided a broad range of duties for the proffered position, including some 
duties that fall within the typical duties for an accountant within the "Accountants and Auditors" 
occupational category corresponding to the (SOC) code 13-2011. However, many of the proffered 
position's job duties appear to in line with the general duties of the occupational category 
"Bookkeeping, Accounting, and Auditing Clerks" corresponding to the SOC code 43-3031. 
According to O*NET, the core duties of this category include "Compute, classify, and record 
numerical data to keep financial records complete. Perform any combination of routine calculating, 
posting, and verifying duties to obtain primary financial data for use in maintaining accounting 
records. May also check the accuracy of figures, calculations, and postings pertaining to business 
transactions recorded by other workers." 10 
The initially stated duties of the proffered position include tasks such as "[p ]rocess and update sales 
as well as releasing updated sales to the retail reporting system," "prepare weekly cycle counts or 
additional counts as needed to ensure accurate inventory levels at all stores,""[ a ]ssist in the year-end 
physical counts at the retail stores and the accurate updating of the book inventory to reflect the results 
of the physical inventory for all locations," "[e]nsure all credit card depositions have been settled and 
work with managers to correct any issues," "[r]eview orders shipped," and "[w]ork with store 
managers to resolve problems, fix errors, and investigate unusual and/or unauthorized activity at the 
transaction level." Based on the initially provided job duties, the position does not appear to require 
a bachelor's degree in a specific discipline, or the equivalent to perform the duties, it is not a specialty 
occupation. 
In response to the Director's January 2018 RFE, the Petitioner provided an updated description of the 
duties with differing estimates of the relative time percentages that the Beneficiary will devote to the 
position's job tasks; that also omitted mention of some of the initially presented job duties, but still 
included a wide range ofjob tasks that appear to be more in keeping with the tasks typically performed 
by "Bookkeeping, Accounting, and Auditing Clerks" corresponding to SOC code 43-3031, such as 
"[ a ]ssist in the year-end physical counts at the retail stores and the accurate updating of the book 
inventory to reflect the results of the physical inventory for all locations," "ensure all cc deposits 
settled," and "run sales audit reports on a daily basis." This material and other evidence in the record 
strongly suggests the Beneficiary's position includes non-qualifying duties inconsistent with those of 
a specialty-occupation caliber position. 
The Petitioner also newly claims that the Beneficiary is "managing [the Petitioner's new accounting 
software implementation] and heading up designer relationships, finance and general product and 
project development. 11 However, the record does not sufficiently illustrate what these duties actually 
10 O*NET Summary Report for "Bookkeeping, Accounting, and Auditing Clerks," 
https://www.onetonline.org/link/summary/43-303 l.OO (last visited July 7, 2020). We also observe that that the 
"Bookkeeping, Accounting, and Auditing Clerks" occupations are Job Zone Three occupations as described in the O*NET. 
The O*NET material about the education level for Job Zone Three states "[ m Jost occupations in this zone require training 
in vocational schools, related on-the-job experience, or an associate's degree." See O*NET Online Help, 
https://v.r,vw.onetonline.org/help/online/zones#zone3 (last visited July 7, 2020). According to the O*NET, these 
occupations do not require at least a bachelor's degree. 
11 Again, the Petitioner must establish that the position offered to the Beneficiary when the petition was filed merits 
classification for the benefit sought. See Matter of Michelin Tire Co1p., 17 l&N Dec. 248, 249 (Reg'l Comm'r 1978). A 
petitioner may not make material changes to a petition in an effort to make a deficient petition confcnm to USCIS 
requirements. See Matter of Izummi, 22 l&N Dec. 169, 176 (Assoc. Comm'r 1998). 
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entail. Here, the generalized descriptions, along with other evidence about the Petitioner's business 
operations included in the record prior to the petition's approval do not appear to adequately convey 
any particular detail regarding the demands, level of responsibilities, and requirements necessary for 
the performance of the duties. Thus, the Director should also determine whether the Petitioner 
adequately described the Beneficiary's job duties to establish a necessary correlation between any 
dimension of the proffered position and a need for a particular level of education, or educational 
equivalency, in a body of highly specialized knowledge in a specific specialty. 
In summary, while the evidence in the record suggests that the Petitioner violated the terms and 
conditions of the Beneficiary's approved employment, the Director should first consider whether the 
petition should have been approved to begin with, based on the initially submitted evidence, the 
Petitioner's August 201 7 RFE response, and evidence provided in response to her January 2018 RFE, 
in order to determine whether the petition's approval violated 8 C.F.R. § 214.2(h) or involved gross 
error. 12 The Director should then consider the job descriptions and other evidence the Petitioner 
provided in its initial filing, in response to her RFEs, her NOIR, in conjunction with the USCIS 
administrative site visit to the Petitioner's offices, and on appeal in order to ultimately determine 
whether (and upon what grounds) the petition should be revoked pursuant to 8 C.F.R. 
§ 214.2(h)(l l)(iii). 
Accordingly, the matter will be remanded to the Director for further consideration. The Director may 
request any additional evidence considered pertinent to the new determination and any other issue. As 
such, we express no opinion regarding the ultimate resolution of this case on remand. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for the entry of a 
new decision consistent with the foregoing analysis. 
12 See 8 C.F.R. § 214.2(h)(l l)(iii)(A)(5). 
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