remanded H-1B Case: Finance

U.S. Citizenship 
and Immigration 
Services 
In Re: 10095718 
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 16, 2020 
The Petitioner, an investment firm, seeks to extend the Beneficiary's temporary employment as a "deputy 
CFO" under the H-lB nonimmigrant classification for specialty occupations.1 The H-lB 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 Vermont Service Center Director denied the Form 1-129, Petition for a Nonimmigrant Worker, 
concluding that the record did not establish that the proffered position qualified as a specialty 
occupation. The matter is now before us on appeal. The Petitioner bears the burden of proof to 
demonstrate eligibility by a preponderance of the evidence. 2 We review the questions in this matter 
de nova. 3 While we conduct de nova review on appeal, we conclude that a remand is warranted in this 
case because the record appears insufficient for review. 
As noted, the Director determined that the proffered position was not a specialty occupation. However, 
we conclude that the Petitioner has demonstrated eligibility for this classification by a preponderance 
of the evidence. The Petitioner 's position description, when reviewed within the broader context of 
its operations, depicts one that includes duties sufficiently complex that a qualifying degree would be 
required to perform them. In particular, the Petitioner has devised duties that comprise a position in 
which the Beneficiary will provide advanced financial advice relating to the organization's financial 
activities. 
When viewed in its totality, the record establishes, that more likely than not, the nature of the specific 
duties is so specialized and complex that the knowledge required to perform them is usually associated 
with the attainment of a baccalaureate or higher degree in a specific specialty, or its equivalent. The 
record is also sufficient to establish that the position proffered here requires the theoretical and 
practical application of a body of highly specialized knowledge and the attainment of a baccalaureate 
or higher degree in a specific specialty as the minimum for entry into the occupation as required by 
1 See Immigration and Nationality Act (the Act) section 10l(a)(l5)(H)(i)(b) , 8 U.S.C. § l 101(a)(l5)(H)(i)(b). 
2 Section 291 of the Act; Matter ofCha wathe, 25 I&N Dec. 369, 375 (AAO 2010). 
3 See Matter of Christo 's Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015) . 
the Act. Further, the Beneficiary is academically qualified to perform the duties of the specialty 
occupation. 
Nevertheless, we are unable to determine whether the Petitioner paid the correct fees when it filed the 
petition. The American Competitiveness and Workforce Improvement Act (ACWIA) of 1998 was 
enacted to, among other things, provide protections in the H-lB process against the displacement of 
United States workers. Section 214(c)(9)(A) of the Act generally requires every petitioner, unless 
specifically exempted, to pay the ACWIA fee for each H-lB petition that it files.4 Section 
214( c )(9)(B) of the Act sets the ACWIA fee at $1,500, but permits a petitioner with "not more than 
25 full-time equivalent employees who are employed in the United States ( determined by including 
any affiliate or subsidiary of such employer)" to pay a lower fee of $750. 
When the Petitioner filed this petition, it claimed eligibility for and paid the lower ACWIA fee of 
$750. The Petitioner indicated on the petition that it had 19 current employees in the United States, 
and on the H-lB and H-lBl Data Collection and Filing Fee Exemption Supplement, the Petitioner 
answered "Yes" to the question "Do you currently employ a total of 25 or fewer full-time equivalent 
employees in the United States, including all affiliates or subsidiaries of this company/organization?" 
Even though the Petitioner indicated it only employed 19 personnel in the United States, the initial 
filing reflected that the petitioning organization is one of many subsidiaries of a parent company. It 
also indicated that the petitioning organization controls the entire stakes of two real estate holding 
companies located within the United States. However, the Petitioner did not specify the total number 
of employees within any of its affiliate or subsidiary entities within the United States. Based on the 
current record it is unclear whether the Petitioner has demonstrated its eligibility to pay the $750 
ACWIA fee, as it may have more than 25 full-time employees considering its status as a subsidiary 
and its U.S. affiliates. 
Further, the Petitioner does not appear eligible for an exemption from paying the ACWIA fee relating 
to the present petition under the regulatory provision at 8 C.F .R. § 2 l 4.2(h)(l 9)(iii) describing exempt 
types of entities. Nor does it appear eligible for an exemption at 8 C.F.R. § 214.2(h)(19)(v) for 
situational exemptions as this petition was not filed as an "amended H-1 B petition," to correct "a 
Service error," or as "the second or subsequent request for an extension of stay." We note that USCIS 
guidance provides that the "ACWIA fee generally applies to ... a petition requesting to change H-1 B 
employers, and the first petition requesting an extension of stay in H-1 B status filed by the same 
petitioner filing for the same beneficiary." 5 As the Petitioner filed "a petition requesting to change 
H-lB employers" in 2016 and subsequently filed this petition in 2019, the present petition is the 
organization's "first petition requesting an extension of stay in H-1 B status filed by the same petitioner 
filing for the same beneficiary." It therefore appeared subject to paying the higher ACWIA fee. 
Accordingly, the matter will be remanded to the Director to consider the ACWIA fee issue and enter 
a new decision. The Director may request any additional evidence considered pertinent to the new 
4 Certain filing situations and certain employers are exempt from the ACWIA fee. See generally section 214(c)(9)(A). 
None of these exemptions apply here. 
5 See USCIS Policy Memorandum PM-602-0147, supra, at 2. 
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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. 
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