sustained H-1B Case: Accounting

u.s.Department of Homeland Security
20 Mass. Ave. N.W., Rm. 3000
Washington, DC 20529
WAC 04 060 50573 Office: CALIFORNIA SERVICE CENTER Date:
u.s.Citizenship
and Immigration
Services. " datade\etedtoidentIfying warranted
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PUBLIC COpy
FILE:
INRE: 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:
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to
the office that originally decided your case. Any further inquiry must be made to that office.
Robert P. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
WAC 04 060 50573
Page 2
DISCUSSION: The service center director denied the nonimmigrant visa petition and the Administrative
Appeals Office (AAO) dismissed a subsequent appeal. The matter is presently before the AAO on a motion to
reopen and reconsider its decision. The motion is granted. The decision of the AAO is withdrawn. The appeal
will be sustained, and the petition will be approved.
The petitioner is a wholesale and retail warehouse for candy, grocery, and tobacco sales that seeks to employ
the beneficiary as a full-time accountant. The petitioner endeavors to classify the beneficiary as a
nonimmigrant worker in a specialty occupation pursuant to section 101(a)(15)(H)(i)(b) of the Immigration and
Nationality Act (Act), 8 U.S.C. § 1101(a)(15)(H)(i)(b).
The director denied the petition on the basis that the petitioner did not establish that the proffered position is a
specialty occupation under any of the criteria set forth in the regulation at 8 C.F.R. § 214.2(h)(4)(iii)(A). On
comparing the evidence of record with the information on the accountant occupation in the Department of
Labor's Occupational Outlook Handbook (Handbook), the director found that petitioner had not established that
it had the "organizational complexity" to require the services of an "in-house or private accountant." In
particular, the director found that the petitioner's organizational structure and the educational credentials of its
executive decision-making team were not compatible with the management accountant occupation as described in
the Handbook. Also, the director determined that the beneficiary's duties amounted only to those of a
bookkeeping or accounting clerk. As noted on appeal, the director did not address the three-page letter from a
Certified Public Accountant (CPA) that opined that the petitioner's business operations required the services of an
in-house "accountant with a Bachelor's degree to effectively direct accounting activities as described in the
job description for this position."
The AAO dismissed the appeal on the following grounds: inconsistency between the proffered position and
the Handbook's descriptions of management accountants and public accountants; discrepancy between the
number of employees stated on the Form 1-129 and listed on a quarterly wage and withholding report; and a
lack of clarity with regard to the supervisory relationship between the petitioner's accountant and a person
that the organizational chart identifies as holding two positions in the petitioner's hierarchy, one above and
one below the accountant. The AAO discounted the CPA's opinion for lack of supporting evidence. The
petitioner filed a motion to reopen and reconsider with supporting evidence. The motion is granted.
The issue before the AAO is whether the proffered position qualifies as a specialty occupation. To meet its
burden of proof in this regard, the petitioner must establish that the job it is offering to the beneficiary meets
the following statutory and regulatory requirements.
Section 214(i)(1) of the Act, 8 U.S.C. § 1184(i)(1), 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 for entry into the occupation in the United States.
WAC 04 060 50573
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The term "specialty occupation" is further defined at 8 C.F.R. § 214.2(h)(4)(ii) as:
An occupation which [1] requires theoretical and practical application of a body of highly
specialized knowledge in fields of human endeavor including, but not limited to, architecture,
engineering, mathematics, physical sciences, social sciences, medicine and health, education,
business specialties, accounting, law, theology, and the arts, and which [2] requires the
attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, as a
minimum for entry into the occupation in the United States.
Pursuant to 8 C.F.R. § 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, the position must meet one of
the following criteria:
(l) A baccalaureate or higher degree or its equivalent is normally 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 particular
position is so complex or unique that it can be performed only by an individual with a
degree;
(3) The employer normally requires a degree or its equivalent for the position; or
(4) The nature of the specific duties is so specialized and complex that knowledge
required to perform the duties is usually associated with the attainment of a
baccalaureate or higher degree.
Citizenship and Immigration Services (CIS) consistently interprets the term "degree" in the above criteria to
mean not just any baccalaureate or higher degree, but one in a specific specialty that is directly related to the
proffered position.
To determine whether a particular job qualifies as a specialty occupation, CIS does not simply rely on a
position's title. The specific duties of the proffered position, combined with the nature of the petitioning
entity's business operations, are factors to be considered. CIS must examine the ultimate employment of the
alien, and determine whether the position qualifies as a specialty occupation. Cf Defensor v. Meissner, 201
F. 3d 384 (5 th Cir. 2000). The critical element is not the title of the position nor an employer's self-imposed
standards, but whether the position actually requires the theoretical and practical application of a body of
highly specialized knowledge, and the attainment of a baccalaureate or higher degree in the specific specialty
as the minimum for entry into the occupation, as required by the Act.
In this regard, it is erroneous to assume that a petitioner establishes a specialty occupation by merely showing
that the proffered position requires the application of accounting knowledge. The information on accounting
related occupations presented in the 2006-2007 Handbook sections on accountants and auditors (pages 70-74)
and bookkeeping, accounting, and auditing clerks (pages 434-435), establishes that there are many related
WAC 04 060 50573
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positions that require knowledge and application of accounting principles, but not on a level attained by at
least a bachelor's degree, or its equivalent, in accounting or a related field. Examples in the Handbook are
bookkeepers, full-charge bookkeepers, accounting clerks, auditing clerks, junior accountants, and accountant
positions performed by persons without a bachelor's degree. If an H-IB petition asserts that the proffered
position is that of an accountant, the supporting evidence must establish that the level of specialized
knowledge necessary to perform the position is at least a bachelor's degree in accounting or a related
specialty.
The record copies of the petitioner's IRS Form 1120-S (U.S. Income Tax for an S Corporation) for the years
2001 and 2002 show, respectively, gross sales of $18,400,841 and $15,916,455, and gross annual profits of
$922,131 and $982,489, respectively. Among the matters submitted on motion is a three-page letter from a
professor of finance at an accredited U.S. university, which endorses the previously submitted CPA opinion
and opines that the proffered position requires a bachelor's degree.
The AAO fmds that the petitioner has overcome the director's grounds for denial of the petition. The
petitioner has also overcome the grounds upon which the AAO dismissed the appeal. While the evidence of
record does not conform exactly to the description of Handbook's description of management accountants,
that description is not meant to encompass all in-house accountant positions . The petitioner has adequately
addressed the number-of-employees discrepancy between the Form 1-129 and quarterly wage and withholding
report. The petitioner has sufficiently clarified its supervisory relationships to show that the beneficiary's
work would not be controlled by the person serving as both assistant manager and accounts receivable clerk.
The opinions of the CPA and the fmance professor are probative, as their letters establish that the opinions are
based upon the application of expert knowledge to relevant information about the requirements of the
proffered position in the context of the petitioner's operations.
As supplemented on the motion for reconsideration, the totality of the evidence about the proposed duties and
the accounting requirements for the petitioner's business operations is sufficient to establish that the proffered
position is one that normally requires at least a U.S bachelor's degree, or the equivalent, in accounting or a
related specialty. Therefore, the petitioner has satisfied the first criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A): a
baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into this particular
position. Accordingly, the AAO's decision will be withdrawn. The appeal will be sustained, and the petition will
be approved.
As the evidence of record also establishes that the beneficiary holds the equivalent of a U.S. bachelor's degree in
business administration and accounting, with a specialization in accounting, which is a degree directly related to
the pertinent specialty occupation, the beneficiary is qualified to serve in that occupation as required by the
regulation at 8 C.F.R. §§ 214.2(h)(4)(iii)(C) and (D).
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C.
§ 1361. The petitioner has sustained that burden. Accordingly, the appeal will be sustained.
ORDER: The AAO's decision of August 9, 2005 is withdrawn. The appeal is sustained. The petition
is approved.