remanded H-1B Case: Accounting

(b)(6)
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Service 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington. DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: FEB 1 1 2015 OFFICE: CALIFORNIA SERVICE CENTER FILE: 
IN RE: Petitioner: 
Beneficiary: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised 
that any further inquiry that you might have concerning your case must be made to that office. 
� Ron Rosenberg 
Chief, Administrative Appeals Office 
www .uscis.gov 
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DISCUSSION: The service center director (hereinafter "director") initially approved the 
nonimmigrant visa petition. Upon subsequent review of the record, the director issued a notice of 
intent to revoke (NOIR) the approval of the petition, and ultimately did revoke the approval of the 
petition. The matter is now before the Administrative Appeals Office on appeal. 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decision to revoke the approval of the petition is withdrawn.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. 
On the Petition for a Nonimmigrant Worker (Form I-129), the petitioner indicated that it is a 
company established in t In order to employ the beneficiary in what it 
designates as an "Accountant" position, the petitioner seeks to classify him as a nonimmigrant 
worker in a specialty occupation pursuant to section 101(a)(15)(H)(i)(b) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(H)(i)(b). 
The director initially approved the petition on December 13, 2012. Subsequent to the petition's 
approval, the United States Embassy in New Delhi, India, returned the petition to the director for 
review. The director reviewed the information from the Embassy and issued the petitioner a NOIR 
on January 21, 2014. The petitioner did not respond to the NOIR within the time allotted. On 
March 26, 2014, USCIS revoked the approval of the petition. 
The petitioner filed an appeal contesting the director's grounds for revocation. We subsequently 
issued a Request for Additional and Missing Evidence (RFE), to which the petitioner responded. 
We will now address the merits of the petitioner's appeal. 
Upon review of the entire record of proceeding, we find that the petitioner has overcome the director's 
grounds for revoking the approval of the petition. Beyond the director's decision, however, we have 
identified material discrepancies and deficiencies in the record which preclude us from reaffirming the 
approval of the petition. Accordingly, we will remand the matter to the director for further 
consideration and action. 
I. FACTUAL AND PROCEDURAL HISTORY 
As noted above, the petitioner indicated on the Form I -129 petition that it is a 
company established in On the Form I-129, the petitioner listed its business address as 
The petitioner further indicated that it would employ the 
beneficiary as an accountant at the same address. The petitioner listed its gross annual income as 
The Labor Condition Application (LCA) submitted to support the visa petition states that the 
proffered position is an "Accountant," and that it corresponds to Standard Occupational 
Classification (SOC) code and title "13-2011.00, Accountants and Auditors" from the Occupatio nal 
1 The petitioner did not provide a description for its type of business on the Form 1-129. Although the 
petitioner indicated on the Form 1-129 that it was established in the petitioner now asserts that it was 
first established in 
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Information Network (O*NET). The LCA further states that the proffered position is a Level I, 
entry-level, position. 
In a letter dated April 6, 2012 submitted with the petition, counsel for the petitioner described the 
nature of the petitioner's business as having been "established for the purpose of overseeing and 
managing franchises." Counsel stated that the petitioner provides "such services as 
accounting (quarter! y and annual sales comparison sheets, managing finances), provide 
management training, conduct meetings with employees, monitor compliance for each location to 
rules and regulations, human resources and marketing." 
With regards to the proffered position, counsel asserted that the beneficiary's duties as an accountant 
will include the following: 
• Prepare profit and loss statements for specified accounting periods; 
• Prepare balance sheets, management operation reports, budgets and cash flow 
projections for the information of the management regarding each location; 
• Prepare the information for the tax returns for each location; 
• Plan tax strategies to minimize the tax liability and ensure compliance with federal 
and state tax laws; 
In support of the petition, the petitioner submitted, inter alia, an evaluation of the beneficiary's 
academic credentials concluding that the beneficiary possesses the equivalent of a Bachelor of 
Business Administration degree from an accredited institution of higher education in the United 
States. 
The petitioner also submitted its business plan. In pertinent part, Part 3.1 of the business plan, 
"O rganizational Structure," contained an organizational chart depicting the petitioner as employing, 
among others: an Accountant, who also provides Customer Service; a Human 
Resources provider, and a Human Resources Assistant, The same chart 
also depicts the petitioner as separately employing a CPA, as well as an 
unidentified Financial Planner. Part 3.2 of the business plan, "Job Descriptions," listed several 
administrative positions within the organization including an "Accountant/CPA" position, but 
provided no actual job descriptions. 
The director determined the submitted evidence to be insufficient, and issued a Request for 
Evidence (RFE). 
In response to the RFE, counsel submitted a letter dated December 5, 2012 in which it described the 
petitioner as a "holding company" that "owns and operates stores in Southern California 
and these stores generate of [sic] annually." Later in the same letter, counsel stated that the 
petitioner "grosses over annually." With respect to the proffered position, counsel stated: 
The petitioner will not use the beneficiary as a book keeper because the petitioner 
uses a point of sale system which acts as their book keeper for each store and this 
system collects, organizes and reconciles the income for each store with the bank 
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accounts. Furthermore, the petitioner has a Human Resources person who is 
responsible for handling the payroll for each store and the company as well as an 
accounts receivable person who handles the review of the reconciliations as well as 
the billing. 
* * 
Per the job description provided by the petitioner, the majority of the beneficiary's 
duties do not fall under [bookkeeping duties] as the petitioner has an accounts 
receivable person who handles supplier data, invoices and AR. In fact, the majority 
of the stated duties require the beneficiary to create financial reports and operation 
reports for management. 
The petitioner submitted a letter dated October 26, 2012 in which it stated, for the first time, that the 
minimum educational requirement for the proffered position is "a bachelor's degree in accounting or 
closely-related field." In the same letter, the petitioner acknowledged that it currently has an 
"outside CPA" that assists with creating and amending the petitioner's annual budget for each of its 
stores. The petitioner asserted that the proffered position will "take over" the CPA's role with 
respect to the petitioner's budgets. The petitioner indicated that the proffered position will be 
responsible for preparing the petitioner's tax returns, although the CPA will continue to review these 
tax returns. 
The petitioner submitted a separate job description for the proffered position, which described the 
proffered position as "responsible for highly complex accounting activities .. . [and] the completion 
of difficult Accounting assignments." The job description listed numerous job responsibilities 
relating to preparing financial reports and providing financial advice to management, such as: 
• Prepare and examine financial statements; 
• Analyze financial reports and records, making recommendations relative to the 
accounting of reserves, assets and expenditures; 
• Analyze business operations, trends, costs, revenues and financial commitments to 
project future revenues and expenses and provide advice; 
• Prepare periodic reports and break even projections for all locations; 
• Consolidate results of multiple business units and provide business partners and 
management with actual-to-budget variance analysis and to identify causes and 
resolution of variances; and 
• Assist identifying areas for efficiencies, establish process improvements, and assist 
with continuous development of policies and procedures. 
The same job description also contained numerous job duties relating to preparing tax documents 
and providing tax advice, such as: 
• Prepare information for computation of taxes and preparation of returns for each 
location and make sure that the taxes are paid in timely manner; 
• Plan tax strategies for minimize the tax liability and ensure compliance with federal 
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and state tax laws; and 
• Handle all sales and use tax inquiries and audits. 
The petitioner submitted a letter from CPA, of 
CPA's, opining that the duties of the proffered position "contain complex and advanced accounting 
duties which require a bachelor's degree in accounting or a closely-related field." The letter further 
concluded that the proffered position "does not fall under a bookkeeper position and is more in-line 
with an Accounting Manager." 
The petitioner submitted another organizational chart which differs significantly from that found in 
the petitioner's business plan. More specifically, this organizational chart depicted an Accounting 
Department consisting of: (1) the beneficiary in the position of "Staff Accountant;" (2) 
CPA; and (3) . AP Clerk and HR Assistant.2 Notably, the beneficiary is 
depicted as directly overseeing 
The director initially approved the petition. Subsequent to the petition's approval, the United States 
Embassy in New Delhi, India, returned the petition to the director for review. The director 
reviewed the information from the Embassy and issued the petitioner a NOIR. In the NOIR the 
director observed that the petitioner's stated business address of 
appeared to be a residence. The director thus questioned the petitioner's ability to 
employ the beneficiary in a specialty occupation at the stated address, along with the petitioner's 
other employees. The director afforded the petitioner thirty days, plus three days for notice 
by mail, in which to respond to the N.OIR. The petitioner did not respond to the NOIR within the 
time allotted. Consequently, the director revoked the approval of the petition. 
The petitioner filed an appeal contesting the director's grounds for revocation. On appeal, and in 
response to our RFE, the petitioner asserted that it is authorized and able to conduct business at the 
residential address of The petitioner explained that this 
"residential home [is] dedicated to the operation of the business, to own and manage 
restaurant locations." The petitioner supplemented the record with, inter alia, a new organizational 
chart that is different from the previously provided versions. This new organizational chart does not 
depict an Accounting Department or any accounting-related positions such as the CPA, nor does it 
depict the proffered position. 
II. REGULATORY FRAMEWORK FOR REVOCATIONS 
USCIS may revoke the approval of an H-lB petition pursuant to 8 C.P.R. § 214.2(h)(ll)(iii), which 
states the following: 
2 
(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: 
is also depicted under the Human Resources Department in the role of HR Assistant. 
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(1) The beneficiary is no longer employed by the petitiOner in the capacity 
specified in the petition, or if the beneficiary is no longer receiving training as 
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 
(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. If the 
petition is revoked in part, the remainder of the petition shall remain approved 
and a revised approval notice shall be sent to the petitioner with the revocation 
notice. 
III. DISCUSSION 
To comply with the notice requirements of 8 C.F.R . § 214.2(h)(11)(iii), a director's decision to 
revoke a previously approved petition must be preceded by a NOIR which "shall contain a detailed 
statement of the grounds for the revocation." In the instant case, the director issued a NOIR calling 
into question the proffered position's eligibility as a specialty occupation. However, the only factual 
basis for revocation articulated in the NOIR was that the petitioner's business address was a 
residence. The director did not articulate any other factual basis to support the revocation. 
Upon review of the record, we find that the petitioner has submitted sufficient evidence overcoming 
the director's sole ground for revoking the approval of the petition, i.e., that the petitioner would not be 
able to provide specialty occupation work for the beneficiary to perfom1 at that residence. However, 
we have identified material discrepancies and deficiencies in the record which preclude us from 
reaffirming the approval of the petition. In particular, there are significant discrepancies and 
deficiencies with regards to the petitioner's descriptions of the proffered position within the context of 
the petitioner's organizational structure. 
The petitioner has provided inconsistent descriptions and evidence regarding the proffered position and 
its constituent duties. For instance, the petitioner initially listed the job duties of the proffered position 
as including: prepare profit and loss statements for specified accounting periods; prepare balance 
sheets, management operation reports, budgets and cash flow projections for the information of the 
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management regarding each location; prepare the information for the tax returns for each location; 
and plan tax strategies to minimize the tax liability and ensure compliance with federal and state tax 
laws. In response to the director's RFE, however, the petitioner greatly expanded upon the duties 
and responsibilities of the proffered position to include higher-level duties such as providing 
financial advice to management and developing policies and procedures. The petitioner's initial 
description of the proffered position did not contain any such duties. At most, the petitioner's initial 
description indicated that the beneficiary would simply "(p]repare" various types of financial reports 
"for the information of the management." In sum, the petitioner's initial description appeared to 
have the beneficiary performing more bookkeeping work, while the second and subsequent 
iterations of the job have the beneficiary performing higher-level accounting work. 
The purpose of the request for evidence is to elicit further information that clarifies whether 
eligibility for the benefit sought has been established. 8 C.P.R. § 103.2(b)(8). When responding to a 
request for evidence, a petitioner cannot offer a new position to the beneficiary, or materially 
change a position's title, its level of authority within the organizational hierarchy, or its associated 
job responsibilities. The petitioner must establish that the position offered to the beneficiary when 
the petition was filed merits classification for the benefit sought. Matter of Michelin Tire Corp., 17 
I&N Dec. 248, 249 (Reg. Comm'r 1978). If significant changes are made to the initial request for 
approval, the petitioner must file a new petition rather than seek approval of a petition that is not 
supported by the facts in the record. The information provided by the petitioner in its response to 
the director's request for further evidence did not clarify or provide more specificity to the original 
duties of the position, but rather added new, higher-level duties to the job description. 
Furthermore, it is important to note that the petitioner designated the proffered position as a Level I, 
entry-level, position on the LCA.3 The wage levels are defined in DOL's "Prevailing Wage 
Determination Policy Guidance. "4 A Level I wage rate is described as follows: 
Level I (entry) wage rates are assigned to job offers for beginning level employees 
who have only a basic understanding of the occupation. These employees perform 
routine tasks that require limited, if any, exercise of judgment. The tasks provide 
experience and familiarization with the employer's methods, practices, and programs. 
3 Wage levels should be determined only after selecting the most relevant O*NET 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, including tasks, knowledge, 
skills, and specific vocational preparation (education, training and experience) generally required for 
acceptable performance in that occupation. 
4 Prevailing wage determinations start with a Level I (entry) and progress to a wage that is commensurate 
with that of a Level II (qualified), Level III (experienced), or Level IV (fully competent) after considering the 
job requirements, experience, education, special skills/other requirements and supervisory duties. Factors to 
be considered when determining the prevailing wage level for a position include the complexity of the job 
duties, the level of judgment, the amount and level of supervision, and the level of understanding required to 
perform the job duties. DOL emphasizes that these guidelines should not be implemented in a mechanical 
fashion and that the wage level should be commensurate with the complexity of the tasks, independent 
judgment required, and amount of close supervision received. 
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The employees may perform higher level work for training and developmental 
purposes. These employees work under close supervision and receive specific 
instructions on required tasks and results expected. Their work is closely monitored 
and reviewed for accuracy. Statements that the job offer is for a research fellow, a 
worker in training, or an internship are indicators that a Level I wage should be 
considered. 
See 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. 
Thus, in designating the proffered position at a Level I wage, the petitioner has indicated that the 
proffered position is a comparatively low, entry-level position relative to others within the 
occupation. That is, in accordance with the relevant DOL explanatory information on wage levels, 
this wage rate indicates that the beneficiary is only required to have a basic understanding of the 
occupation and carries expectations that the beneficiary perform routine tasks that require limited, if 
any, exercise of judgment; that he would be closely supervised; that his work would be closely 
monitored and reviewed for accuracy; and that he would receive specific instructions on required 
tasks and expected results. 
In contrast to the position's Level I wage designation, the petitioner alternatively characterized the 
proffered position as having "highly complex" and "difficult" accounting activities. The petitioner 
further supported such claims with a letter from CPA, opining that the duties of the 
proffered position "contain complex and advanced accounting duties .. . [that are] more in-line with 
an Accounting Manager [position]." The petitioner's claims of the "highly complex" and 
"advanced" nature of the duties of the proffered position are contradictory to the proffered position's 
Level I wage designation. 
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). 
In addition, we observe significant discrepancies and deficiencies regarding the petitioner's 
organizational structure. The organizational chart found in the petitioner's business plan depicted 
the petitioner as employing, among others: an Accountant, a CPA, 
and an unidentified Financial Planner. However, the petitioner's organizational chart 
submitted in response to the RFE depicted an Accounting Department consisting of: (1) the 
beneficiary in the position of "Staff Accountant;" (2) CPA; and (3) 
AP Clerk and HR Assistant. The petitioner did not explain the discrepancies between the two 
charts, such as why the second organizational chart omitted the Financial Advisor position or the 
employment status of the individuals previously depicted as the petitioner's Accountant and CPA 
(i.e., and respectively). Notably, the second organizational 
chart depicts the beneficiary as directly overseeing which again is at odds with the 
petitioner's designation of the proffered position as a Level I, entry-level, position. Further, the 
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petitioner's third organizational chart submitted on appeal is also inconsistent, as it does not depict 
an Accounting Department, any accounting-related positions, or even the proffered position. 
The petitioner has not explained and reconciled these inconsistent depictions of its organizational 
structure. Again, 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. 
I d. 
Based on the differing organizational charts, it is unclear whether the petitioner employs a separate 
Accountant, CPA, and/or a Financial Planner, in addition to the proffered position. The lack of 
clarity regarding the petitioner's staffing and organizational structure precludes any meaningful 
understanding of the duties and role of the proffered position within the context of the petitioner's 
business operations. For example, we note that counsel stated in its April 6, 2012 letter that the 
petitioner currently provides "such services as accounting (quarterly and annual sales comparison 
sheets, managing finances)." However, the petitioner has not clarified who is currently providing 
these services, and why the petitioner would seek to employ the beneficiary to perform the same 
services. In addition, we note that the petitioner indicated in response to the RFE that it will 
continue to utilize "an outside CPA" to review tax returns that will be prerared by the beneficiary, 
but the second organizational chart suggests that the CPA position � is an internal 
position within the petitioner's Accounting department. Furthermore, the petitioner has not 
explained why it would need to utilize "an outside CPA" to review its internally-prepared tax 
returns. We further note that while Part 3.2 of the business plan was entitled "Job Description s," the 
business plan did not actually provide any job descriptions. 
The petitioner has made other varying claims regarding its business operations that further 
undermine its overall credibility. The petitioner has not submitted any explanation for these 
discrepancies. For instance, the petitioner has claimed its gross annual income as over 
, and The petitioner has claimed that it owns and manages restaurants. 
Even with respect to the petitioner's true and correct name and year of establishment, the petitioner 
initially claimed its name is 
_ 
and that it was established in , but then later 
attested in response to our RFE that its true and correct name is and that it was 
established in Overall, the numerous discrepancies in the record cast doubt on the credibility 
of the petitioner's statements and evidence. 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. Id. at 591. 
Considering the above discrepancies and deficiencies, we cannot find that the petitioner has 
established the substantive nature of the work to be performed by the beneficiary. The failure to 
establish the substantive nature of the proffered position precludes a finding that the proffered 
position satisfies any 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 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 
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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. 
As the evidence does not satisfy any of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), it cannot be 
found that the proffered position qualifies as a specialty occupation. Accordingly, the director's 
initial approval of the petition constituted gross error, and serves as proper grounds for revocation 
pursuant to 8 C.P.R. § 214.2(h)(ll)(iii)(5). 
Finally, we will briefly note that even if the petitioner were able to establish that the proffered 
position qualifies as a specialty occupation, the petition still could not be approved due to the lack 
of evidence that the beneficiary is qualified to perform the duties of the proffered position.5 
Specifically, the petitioner states that the minimum educational requirement for the proffered 
position is "a bachelor's degree in accounting or closely-related field." The beneficiary here, 
however, possesses the equivalent of a U.S. Bachelor of Business Administration degree. The 
petitioner has not explained and documented how a bachelor's degree in Business Administration is 
equivalent to "a bachelor's degree in accounting or closely-related field." For this additional reason, 
the director's initial approval of the petition constituted gross error, and serves as proper grounds for 
revocation pursuant to 8 C.F.R. § 214.2(h)(ll)(iii)(5). 
IV. CONCLUSION AND ORDER 
In the instant case, to properly analyze the issues of whether the proffered position qualifies as a 
specialty occupation, and if necessary, the beneficiary's qualifications (as well as any other issues 
that are material to the case), the petition will be remanded to the director for review and to 
contemplate the issuance of a new NOIR in accordance with the applicable statutory and regulatory 
provisions. 
ORDER: The director's decision to revoke the approval of the petition is withdrawn. The 
matter is remanded for further action in accordance with the foregoing and entry of a 
new decision. 
5 In general, USCIS does not need to examine the issue of the beneficiary's qualifications where the 
petitioner has not provided sufficient evidence to demonstrate that the proffered position is a specialty 
occupation. In other words, the beneficiary's credentials to perform a particular job are relevant only when 
the job is found to be a specialty occupation.