U.S. Citizenship and Immigration Services

MATTER OF W-D-M- LLC

APPEAL OF VERMONT SERVICE CENTER DECISION

Non-Precedent Decision of the Administrative Appeals Office

DATE: JAN.ll,2018

PETITION: FORM I-129. PETITION FOR A NONIMMIGRANT WORKER

The Petitioner, a research and development laboratory, seeks to temporarily employ the Beneficiary as a "staff accountant" under the H-1 B nonimmigrant classification for specialty occupations. See Immigration and Nationality Act (the Act) section IOI(a)(IS)(H)(i)(b), 8 U.S.C. § 110l(a)(l5)(H)(i)(b). 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 Director of the Vermont Service Center denied the petition, concluding the Petitioner and a related company violated the general prohibition on filing multiple H-1 B petitions for the same Beneficiary under 8 C.F.R. § 214.2(h)(2)(i)(G). The Director also found that the Petitioner had not demonstrated that it will employ the Beneficiary in a specialty occupation position.

The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and asserts that the evidence of record satisfies all evidentiary requirements.

Upon de novo review, we will dismiss the appeal.

I. MULTIPLE H-1 B FILINGS

A. Legal Framework

Pursuant to section 214(g)(l )(A) of the Act, the total number of H-1 B visas issued per fiscal year generally may not exceed 65,000. 1 Section 214(g)(5) of the Act provides a separate numerical limit of 20,000 for nonimmigrants who have earned a master's or higher degree from a United States institution of higher education.2 This overall numerical limitation on H-1 B visas is commonly known as "the cap.''

1 The 65,000 cap has been increased in various years. 2 Section 214(g)(5) of the Act also provides exemptions for certain non immigrants from the general numerical limits.

Matter o{W-D-M- LLC

U.S. Citizenship and Immigration Services (USCIS) processes H-lB petitions under the cap in the order in which they are filed, until the numerical limitation has been reached. 8 C.F.R. § 214.2(h)(8)(ii)(B). When the demand for H-lB visas exceeds the total number of H-1B visas available per fiscal year, USCJS utilizes a random lottery selection system to choose which petitions are processed. !d. Petitions which are not selected for processing under this lottery system are rejected. !d.

To ensure the fair and orderly allocation of cap numbers, id.. the regulation at 8 C.F.R. § 214.2(h)(2)(i)(G) prohibits multiple H-1B petitions from being tiled in the same fiscal year for the same beneficiary by "an employer," or, under certain circumstances, by "related entities." 8 C.F.R. § 214.2(h)(2)(i)(G) states, in pertinent part:

An employer may not file, in the same fiscal year, more than one H-1 B petition on behalf of the same alien if the alien is subject to the numerical limitations of section 214(g)(l)(A) of the Act or is exempt from those limitations under section 214(g)(5)(C) of the Act. If an H-IB petition is denied, on a basis other than fraud or misrepresentation, the employer may file a subsequent H-lB petition on behalf of the same alien in the same fiscal year, provided that the numerical limitation has not been reached or if the filing qualifies as exempt from the numerical limitation. Otherwise. filing more than one H-1 B petition by an employer on behalf of the same alien in the same fiscal year will result in the denial or revocation of all such petitions. If USC IS believes that related entities (such as a parent company, subsidiary, or affiliate) may not have a legitimate business need to file more than one H -1 B petition on behalf of the same alien subject to the numerical limitations of section 214(g)(l )(A) of the Act or otherwise eligible for an exemption under section 214(g)(5)(C) of the Act, USC IS may issue a request for additional evidence or notice of intent to deny, or notice of intent to revoke each petition. If any of the related entities fail to demonstrate a legitimate business need to tile an H-1 B petition on behalf of the same alien. all petitions filed on that alien's behalf by the related entities will be denied or revoked.

B. Background

In the Form I-129, Petition for a Nonimmigrant Worker, and the supporting documentation. the Petitioner described itself as a research and development laboratory. The Petitioner seeks to employ the Beneficiary as a "staff accountant" on a full-time basis.

Another company, which we will refer to as Company T, located on the same f1oor of the same building as the Petitioner, also tiled a Form I-129 seeking to employ the Beneficiary as a full-time "staff accountant" during approximately the same time period. Company T utilized the same attorney as the Petitioner to file its petition for the Beneficiary.

The Director issued a notice of intent to deny (NOID), finding that the Petitioner and Company Tare related entities that tiled multiple H-1 B petitions for the same Beneficiary in violation of 8 C.F.R.

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§ 214.2(h)(2)(i)(G). In response to the NOID, the Petitioner asserted that it is not a related entity to Company T. The Petitioner pointed out that, even though it and Company T have three common shareholders, the shareholders do not own the same percentage of shares in each company and thus the companies not affiliates. The Petitioner further asserts that it and Company T each has a separate and distinct need to file a petition on behalf of the Beneficiary. The Petitioner highlighted its prior employment of a staff accountant who left the company at the end of her H-1 B visa in 2015, and Company T' s prior employment of its own staff accountant the Beneficiary.

The Director denied the petition. The Director observed that the petitions were filed for the Beneficiary to work in the same position, and that in each petition. the position descriptions and supporting documentation were "identical.'' The Director also observed that both entities share common shareholders and work location. On appeal, the Petitioner generally reiterates the same assertions made in its NOID response.

C. Analysis

Upon review, we conclude that the Petitioner and Company Tare "related entities."'

To say that an entity is "related" to another, under the ordinary meaning of the word, is to say that a reasonable connection exists between the two.3 The regulation at 8 C.F.R. § 214.2(h)(2)(i)(G) does not limit the meaning of "related entities" to a parent company, subsidiary. or affiliate; instead. by using "such as" before those terms, it indicates that "related entities" can include, but are not limited to, those enumerated relationships. We expansively interpret the types of "related entities" encompassed by 8 C.F.R. § 214.2(h)(2)(i)(G) in order to effectuate this provision's remedial purposes. 8 C.F.R. § 214.2(h)(8)(ii)(B) (addressing "the fair and orderly allocation of numbers" under the H-1 B visa lottery); Petitions Filed on Behalf of H-1 B Temporary Workers Subject to or Exempt from the Annual Numerical Limitation, 73 Fed. Reg. 15389-95. 15391-93 (Mar. 24. 2008) (discussing the practice of petitioners who exploit the system by attempting to increase their chances of being selected for cap numbers). See. e.g. Gomez v. Toledo. 446 U.S. 635, 639 (1980) (a remedial statute should be construed generously to further its primary purpose) (citing Whirlpool Corp. v. Marshall, 445 lJ .S. L 12-13 ( 1980) ).

In this matter, the Petitioner and Company T are both requesting full-time work for the Beneficiary to work as a "staff accountant" during essentially the same period of time. They utilized the same attorney to file their petitions, which contained similar job duties for the Beneficiary. Furthern1ore. the Petitioner and Company T are physically located next to each other, and combined, occupy the entire second floor of the same office building. They also have some common shareholders and individuals in high ranking positions within the company. These factors are sufficient to support the

3 For example, Merriam-Webster Online Dictionarv defines the word "related'' as "connected by reason of an established

or discoverable relation.'' Merriam- Webster Online Dictionary, https:l/www.merriam-webster.com/dictionary/related (last visited Jan. I 0, 20 18).

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conclusion that the Petitioner is "related" to Company T within the context of 8 C.F.R. §214.2(h)(2)(i)(G), a conclusion which the Petitioner does not contest on appeal.

We also conclude that the Petitioner has not demonstrated a ''legitimate business need" to file a multiple petition tor the Beneficiary.

In determining a petitioner's "legitimate business need," it is the nature of the need that is controlling. Cf Matter of Artee Corp., 18 I&N Dec. 366 (Comm 'r 1982). Therefore. we must examine the underlying job opportunity made by each petitioner. Each job opportunity must actually exist and be available to the beneficiary.4 Moreover, each job opportunity must be materially distinct. 5 The related petitioners cannot simply be offering the same job opportunity to the beneficiary. To justify the use of two cap numbers under the lottery system, and consistent with the statutory and regulatory provisions allowing for concurrent employment, there must be two separate, bona fide positions available to the beneficiary. See section 214(g)(7) of the Act. 8 U.S.C. § 1184(g)(7); 8 C.F.R. § 214.2(h)(2)(i)(C). 6

Here, however, the Petitioner and Company T are both offering to the Beneficiary a single job opportunity to the exclusion of the other. At the time of filing Forms I -129 and thereafter. the Petitioner and Company T requested new full-time employment for the Beneficiary, did not submit an itinerar/, and did not otherwise indicate that she will provide services for any other company or at any other location during the requested validity period.

On appeal, the Petitioner asserts that it and Company T "are separately and independently operated two entities with distinct business operations.'' Therefore, the Petitioner reasons that both companies have the legitimate business need to tile separate petitions on behalf of the Beneficiary. While we agree that the Petitioner and Company A have separate and independent business operations. we do not agree that this is enough to demonstrate their legitimate business need.

4 The H-1 B program does not permit speculative employment. Petitioning Requirements for the H Nonimmigrant Classification, 63 Fed. Reg. 30,419, 30,419-20 (proposed June 4, 1998)(to be codified at 8 C.F.R. pt. 214 ). ' The tem1 "materially distinct" does not necessarily exclude positions with the same title and similar job duties. 6 In promulgating 8 C.F.R. § 214.2(h)(2)(i)(G), the agency acknowledged the "unusual situation" where an employer or related employers would need to file more than one petition for the same beneficiary. 73 Fed. Reg. at 15392. In the case of the same employer, the federal register specifically instructed petitioners to file one initial petition. and then if accepted under the cap, file an amended or new petition for concurrent employment. !d. In the case of related employers as we have here, the agency provided the example of two subsidiary companies that "are each in need of the services of a Chief Financial Officer." We interpret this example to mean that the Chief Financial Officer would serve both subsidiary companies concurrently.

While our decision is consistent with the practice of concurrent employment, we need not determine at this time whether a beneficiary's valid, concurrent employment would always constitute a legitimate business need. Conversely. we need not determine at this time whether employment on a non-concurrent basis would always preclude a petitioner from demonstrating a legitimate business need. 7

8 C.F.R. § 214.2(h)(2)(i)(B) requires the submission of an itinerary when the Beneficiary will be providing services in more than one location.

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Under the Petitioner's reasoning, any two companies with separate business operations could still act in concert to file duplicate petitions under the guise of "legitimate business need.'' Such a broad interpretation of "legitimate business need" would not sufficiently close the loophole through which employers could exploit and undermine the purpose of the random lottery process. As noted above. the intent behind prohibiting multiple filings is to curb the practice of petitioners who file multiple petitions to increase their chances of being selected. 73 Fed. Reg. at 15391-93. In order to effectuate this provision's remedial purposes, we must first expansively interpret the types of "related entities" encompassed by 8 C.F.R. § 214.2(h)(2)(i)(G). and second, we must narrowly interpret what may constitute a "legitimate business need."

We believe the Petitioner's interpretation of "legitimate business need'' is too broad to be consistent with the purpose of 8 C.F.R. § 214.2(h)(2)(i)(G). Without more. we conclude that the Petitioner has not demonstrated its legitimate business need to file this multiple petition on behalf of the Beneficiary.

II. SPECIALTY OCCUPATION

We also conclude that the Petitioner has not demonstrated that the proffered position qualities as a specialty occupation.

A. Legal Framework

Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), 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.

The regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates this statutory definition. but adds a non­exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered position must meet one of the following criteria to qualify as a specialty occupation:

(1) 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;

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(J) 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.

8 C.F.R. § 214.2(h)( 4)(iii)(A). US CIS has consistently interpreted 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"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000).

B. The Proffered Position

In the H-1 B petition, the Petitioner stated that the Beneficiary will serve as a "staff accountant." In a letter provided with the H-1 B petition, the Petitioner provided descriptions of accountant duties taken from the U.S. Department of Labor's Occupational Outlook Handbook (Handbook) and from the Occupational Information Network (O*NET) website. The Petitioner also provided the following table describing the duties of the proffered position:8

Job Descriptions Percentages of Time

1 Examining account books and monthly financial statements; 8% Comparing budgeted costs to actual costs; 3% monitoring risks and fraud; 3% managing LLC compliance filings; 3% reporting to management 3%

2 Analyzing on business operations including revenue and expenditure trends, 15% financial commitments and future revenues; Give advice on these issues 5%

3 Ensuring financial records are maintained m compliance with accepted 10% policies and procedures; resolving accounting discrepancies and irregularities; 10%

4 Analyzing financial information to recommend or develop efficient use of I O'Yo resources and procedures;; providing strategic recommendations on sales, promotion activities. and 10% solutions to business and financial problems

5 Establishing and monitoring the implantation of accounting control 5%

8 The table of duties shown also contained a column headed, "'OOH and ONET Job Function," in which the Petitioner sought to show that the duties of the proffered position mark it is an accountant position, based on their similarities to descriptions in the U.S. Department of Labor's Occupational Outlook Handbook (Handbook) and in the Occupational Information Network (O*NET) website. We have not included that column.

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procedures; ensure accuracy and all financial reporting deadlines are met; 5%

6 Interfacing with private wealth management organizations on financial 10% matters.

Total: 100%

The Petitioner also stated: "In accordance with the [Handbook], a bachelor's degree in accounting or a related field is generally required for entering the occupation of accountant."

C. Analysis

Upon review of the record in its totality and for the reasons set out below, we determine that the Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation.9

Specifically, the record (1) does not describe the position's duties with sut1icient detail: and (2) does not establish that the job duties require an educational background, or its equivalent, commensurate with a specialty occupation. 10

1. First Criterion

We tum first to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(/), which requires that a baccalaureate or higher degree in a specific specialty, or its equivalent, is normally the minimum requirement for entry into the particular position. To inform this inquiry, we recognize the U.S. Department of Labor's (DOL) Occupational Outlook Handbook (Handbook), cited by the Petitioner, as an authoritative source on the duties and educational requirements of the wide variety of occupations that it addresses. 11

On the labor condition application (LCA) submitted in support of the H-1 B petition, the Petitioner designated the proffered position under the occupational category "Accountants and Auditors" corresponding to the Standard Occupational Classification code 13-20 II. The LCA further states that the proffered position is a wage Level I, entry-level, position.

9 Although some aspects of the regulatory criteria may overlap. we will address each of the criteria individually. 10 The Petitioner submitted documentation to support the H-1 8 petition. including evidence regarding the proffered position and its business operations. While we may not discuss every document submitted. we have reviewed and considered each one. 11 All of our references are to the 2016-2017 edition of the Handbook, which may be accessed at the Internet site http://www.bls.gov/ooh/. We do not, however, maintain that the Handbook is the exclusive source of relevant information. That is, the occupational category designated by the Petitioner is considered as an aspect in establishing the general tasks and responsibilities of a proffered position, and USC IS regularly reviews the Handbook on the duties and educational requirements of the wide variety of occupations that it addresses. To satisfy the first criterion, however. the burden of proof remains on the Petitioner to submit sufficient evidence to support a finding that its particular position would normally have a minimum, specialty degree requirement, or its equivalent, for entry.

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The Handbook states that '"[ m ]ost accountant and auditor positions require at least a bachelor's degree in accounting or a related field." 12 It also states that, "[i]n some cases, those with associate's degrees, as well as bookkeepers and accounting clerks who meet the education and experience requirements set by their employers, get junior accounting positions and advance to accountant positions by showing their accounting skills on the job." 13

Although the Handbook states that most accountant and auditor positions require a bachelor's degree in accounting or a related field, it also reports that some people with associates' degrees. as well as bookkeepers and accounting clerks meeting education and experience requirements set by employers, can advance to accountant positions by demonstrating their accounting skills. That is. the Handbook reports that individuals who have less than a bachelor's degree in a specific specialty. or its equivalent, can obtain junior accounting positions and then advance to accountant positions. The Handbook does not state that this education and experience must be equivalent to at least a bachelor's degree in a specific specialty. The Handbook does not indicate, therefore, that at least a bachelor's degree in a specific specialty or its equivalent is normally the minimum requirement for entry into this occupation. Rather, the occupation accommodates individuals with less than a bachelor's degree in a specific specialty.

When reviewing the Handbook, we must consider the Petitioner's designation of the proffered position as a Level I (entry level) position on the LCA. In designating the proffered position at a Level I wage, the Petitioner has indicated that the proffered position is a comparatively low. entry­level position relative to others within the occupation. 14 Thus, the proffered position appears to be a junior accounting position for which the Handbook indicates can be minimally tilled hy an individual with less than a bachelor's degree in a specitic specialty. Also supporting our conclusion that the protlered position is more of a junior accountant position is the resume of the Petitioner's former "staff accountant," on which she listed her own title with the Petitioner as "junior accountant."

In addition, the Petitioner cited O*NET to support the proposition that the proffered position is a specialty occupation. However, we note that O*NET does not state a requirement of a bachelor's degree in a specific specialty for such positions. Rather, it assigns accountant positions a Job Zone "Four" rating. which groups them among occupations of which most. hut not all, require a four-year

"Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Hand hook, Accountants and Auditors (20 16-17 ed.). ]) !d. 14 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: (I) 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 her work closely monitored and reviewed for accuracy; and (3) that she will receive specific instructions 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~ II ~2009.pdf A prevailing wage determination starts with an entry level wage and progresses to a higher wage level after considering the experience, education. and skill requirements of the Petitioner's job opportunity. I d.

Matter of W-D-M- LLC

bachelor's degree. Further, O*NET does not indicate that the four-year bachelor"s degrees must be in a specific specialty closely related to the requirements of that occupation. Therefore, the O*NET information is not sufficiently probative of the proffered position's qualification as a specialty occupation.

The Petitioner has not provided evidence from the Handbook or another authoritative source demonstrating that at least a bachelor's degree in a specific specialty, or its equivalent, is normally the minimum requirement for entry into an accountant positon. Thus. the Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(J).

2. Second Criterion

The second criterion presents two alternative prongs: '"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[.]" 8 C.F.R. ~ 214.2(h)( 4)(iii)(A)(2) (emphasis added). The first prong casts its gaze upon the common industry practice. while the alternative prong narrows its focus to the Petitioner's specific position.

a. First Prong

To satisfy this first prong of the second criterion, the Petitioner must establish that the ·'degree requirement'" (i.e., a requirement of a bachelor's or higher degree in a specific specialty, or its equivalent) is common to the industry in parallel positions among similar organizations.

In determining whether there is such a common degree requirement. factors often considered by USC IS include: whether the Handbook reports that the industry requires a degree: whether the industry's professional association has made a degree a minimum entry requirement and whether letters or affidavits from firms or individuals in the industry attest that such firms "routinely employ and recruit only degreed individuals." See .%anti, Inc. v. Reno, 36 F. Supp. 2d 1151. If 65 (D. Minn 1999) (quoting Hird!Blaker Corp. v. Sava. 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989)).

Here and as already discussed, the Petitioner has not established that its proffered position is one for which the Handbook. or another independent, authoritative source. reports an industry-wide requirement for at least a bachelor's degree in a specific specialty or its equivalent. We incorporate by reference the previous discussion on the matter. Also, there are no submissions from the industry's professional association indicating that it has made a degree a minimum entry requirement. Furthermore, the Petitioner did not submit any letters or affidavits from similar firms or individuals in the Petitioner's industry attesting that such firms ·'routinely employ and recruit only degreed individuals.''

The Petitioner did provide vacancy announcements placed by other compames to satisfy this criterion. They are for jobs entitled '"staff accountant.,.

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The Petitioner describes itself as a research and development company with 12 employees. A company that placed one of those vacancy announcements describes itself as a ·'professional services and investment management'" tirm. Another describes itself as a "digital data marketing solutions provider." Another states that it "engineers hyperscale computer and storage solutions.·· Another is a "biopharmaceutical company." Another still is a "full service dental laboratory." The Petitioner has not sufficiently shown that the companies that placed those vacancy announcements are in the Petitioner's industry. There is also insufficient evidence to demonstrate that these companies. most of which operate multiple otlices in the United States or even worldwide, are similar to the Petitioner in terms of their operations. Without additional evidence that they were placed by similar organizations in the Petitioner's industry, these vacancy announcements are generally outside the scope of the first prong of8 C.F.R. § 214.2(h)(4)(iii)(A)(2).

Further, one of the vacancy announcements states that the "ideal candidate" for the position would have a bachelor's degree in accounting. Another states that a bachelor's degree in accounting is "preferred" for the position announced. But a preference is not a minimum requirement. Similarly. the attributes of an ·'ideal candidate" are not necessarily minimum requirements tor a position. Those vacancy announcements do not state a requirement of a minimum of a bachelor's degree in a specific specialty or its equivalent.

Thus, the evidence of record does not establish that a requirement of a bachelor's or higher degree in a specific specialty, or its equivalent, is common to parallel positions with organizations that are in the Petitioner's industry and otherwise similar to the Petitioner. 15 The Petitioner has not satisfied the criterion of the tirst alternative prong of 8 C.F .R. § 214.2(h)( 4 )(iii )(A)(2).

b. Second Prong

We will next consider the second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2). which is satisfied if the Petitioner shows that its particular position is so complex or unique that it can be performed only by an individual with at least a bachelor's degree in a specific specialty. or its equivalent.

The Petitioner does not expressly assert eligibility under this prong of the criterion. Nevertheless, we observe that the duties of the proffered position, such as analyzing business operations. ensuring the correct maintenance of financial records, and reconciling accounting discrepancies, contain insufficient indication of a nature so complex or unique that they can only be performed by someone with at least a bachelor's degree in a specific specialty or its equivalent.

15 We also observe that the Petitioner has not demonstrated what statistically valid inferences, if any. could be drawn from the submitted announcements with regard to the common educational requirements for entry into parallel positions in similar organizations. See generally Earl Babbie, The Practice of Social Research 186-228 ( 1995). Because of these deficiencies, we will not further address each and every deficit we have noted in the submitted advertisements.

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In other words, the proposed duties have not been described with sufficient specificity to show that they are more specialized and complex than junior accountant positions that do not require at least a bachelor's degree in a specific specialty or its equivalent. We refer to our earlier comments and findings with regard to the implication ofthe Petitioner's designation of the proffered position in the LCA as a Level I wage (the lowest of four assignable levels). Again, the Level I wage designation is indicative of a low, entry-level position relative to others within the occupational category, and hence, one not likely distinguishable by relatively complex or unique duties. 16 The record lacks sufficiently detailed information to distinguish the proffered position as more complex or unique from other positions that can be performed by persons without at least a bachelor's degree m a specific specialty, or its equivalent.

Overall, the evidence of record is insufficient to satisfy the second alternative prong of 8 C.F.R. § 214.2(h)( 4)(iii)(A)(2).

3. Third Criterion

The third criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A) entails an employer demonstrating that it normally requires a bachelor's degree in a specific specialty, or its equivalent. for the position.

The Petitioner asserts that it previously employed another individual in the proffered position since October 2012, and that this individual is now leaving the position. The Petitioner provided evidence that this individual has a master's degree in accounting, and asserts that this demonstrates that the Petitioner normally requires a minimum of a bachelor's degree in a specific specialty or its equivalent for the proffered position.

However, on the H-1 B petition, the Petitioner stated that it was established in 2002. and has 12 employees. 17 The Petitioner has not identified and demonstrated how many ''staff accountants" it currently employs and has previously employed, and what their educational qualifications are. 18

Therefore, the Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(J).

16 The Petitioner's designation of this position as a Level I. entry-level position undermines its claim that the position is particularly complex, specialized, or unique compared to other positions within the same occ:upation. Nevertheless. a Level I wage-designation does not preclude a proffered position from classification as a specialty occupation, just as a Level IV wage-designation does not definitively establish such a classification. In certain occupations (e.g., doctors or lawyers), a Level l, entry-level position would still require a minimum of a bachelor's degree in a specific specialty. or its equivalent, for entry. Similarly, however, a Level IV wage-designation would not reflect that an occupation qualities as a specialty occupation if that higher-level position does not have an entry requirement of at least a bachelor's degree in a specific specialty, or its equivalent That is, a position's wage level designation may be a relevant factor but is not itself conclusive evidence that a proffered position meets the requirements of section 214( i )(I) of the Act. 17 According to the Petitioner's Wikipedia page, the Petitioner was founded in 1994, and prior to 200 I had over I 00 employees. 18 While a petitioner may believe or otherwise assert that a proffered position requires a degree in a spccilic specialty, that opinion alone without corroborating evidence cannot establish the position as a specialty occupation. Were USCIS limited solely to reviewing a petitioner's claimed self-imposed requirements, then any individual with a bachelor's degree could be brought to the United States to perform any occupation as long as the employer artilicially created a

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4. Fourth Criterion

The fourth criterion at 8 C.P.R.§ 214.2(h)(4)(iii)(A) requires a petitioner to establish that 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.

We find that the Petitioner has not credibly demonstrated the duties the Beneficiary will be responsible for or perform on a day-to-day basis such that relative specialization and complexity can be established. Instead, the proffered job duties are described in abstract terms that generally mirror the typical job duties for accountants as stated in the Handhook and O*NET. This type of generalized description does not adequately convey the substantive work that the Beneficiary wilt perform within the Petitioner's particular business operations and, thus. is insufficient to demonstrate the duties attached to specific employment.

For example, the Petitioner stated that the Beneficiary will perform the duty of"[ e ]xamining account books and monthly financial statements," but did not elaborate upon the specific tasks she will perform. The Petitioner did not specify who among its 12 employees will prepare the company's account books and other routine financial documents which the Beneficiary will then examine. Nor did the Petitioner explain who will otherwise support the Beneficiary such that she will perform only accountant duties of specialty-occupation caliber.

The Petitioner referred to the work samples of its fonner "staff accountant" as evidence of the duties' specialization and complexity. But we again refer to this individual's resume, in which she identified her position with the Petitioner as a "junior accountant.'' Moreover, one of her work samples was a report entitled "Inventory Reconciliation Report;' in which she stated that she "spent about 2 months obtaining the purchase orders, various shipping and delivery slips and customs declarations" in order to reconcile the company's inventory records "to the inventory count performed by our auditors. '' However, performing inventory reconciliations and preparing such reports are not among the job duties listed for the Beneficiary. ln the report, the former employee also referenced the company's "auditors," and specifically stated that she was preparing the report separately from the auditors' actions. The Petitioner did not explain who these "auditors'' arc, their role within the company, and the proffered position's role and relationship to these "auditors·· within the context of the Petitioner's 12-person operations.

The Petitioner also provided an evaluation of the proffered position prepared by a professor and associate dean at the in Connecticut. This

token degree requirement, whereby all individuals employed in a particular position possessed a baccalaureate or higher degree in the specific specialty or its equivalent. See Defensor, 20 I F. 3d at 387. In other words, if a petitioner's degree requirement is only symbolic and the proffered position does not in fact require such a specialty degree or its equivalent to perform its duties, the occupation would not meet the statutory or regulatory definition of a specialty occupation. See section 214(i)(I) ofthe Act; 8 C.F.R. § 214.2(h)(4){ii) (defining the term ·'specialty occupation'").

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Matter ofW-D-M- LLC

evaluation discusses the proffered position and concludes that the position is sufficiently complex so as to require a minimum of a bachelor's degree in accounting or a related area.

As an initial matter, the Petitioner has not demonstrated that can reasonably he considered an "expert" or is otherwise qualified to render an advisory opinion about the proffered position. describes his areas of knowledge as in unspecified "different areas of business, management, and information science." He does not assert, nor does the record reflect. that he is sufficiently knowledgeable in the field of accounting.

And although provides a description of the Petitioner's business, the record does not indicate that he possesses knowledge of the Petitioner's proffered position beyond that brief description. He simply reiterates the Petitioner's descriptions of its operations and the Beneficiary· s job duties, and does not discuss the proffered position in any additionaL substantive detail. l-Ie does not demonstrate or assert in-depth knowledge of the Petitioner's specific business operations or how the duties of the position will actually be performed in the context of the Petitioner's business enterprise. For instance, there is no evidence that visited the Petitioner's business. observed the Petitioner's employees, interviewed them about the nature of their work, or documented the knowledge that they apply on the job.

does not reference any supporting authority or any empirical basis for the opinion and ultimate conclusion. He does not relate his conclusion to specific, concrete aspects of the Petitioner's business operations to demonstrate a sound factual basis for the conclusion about the educational requirements for the particular position here at issue. Accordingly, the very fact that he attributes a degree requirement to such a generalized treatment of the proffered position undennincs the credibility of his opinion. 1

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Furthermore, there is no indication that the Petitioner advised of its characterization of the proffered position as an entry-level accountant position (as indicated by the Level I wage-level on the LCA), for a beginning employee who has only a basic understanding of the occupation relative to other positions within the occupational category. It appears that would have found this information relevant for his opinion letter. Without more. the Petitioner has not demonstrated that possessed the requisite information necessary to adequately assess the nature of the Petitioner's position and appropriately determine parallel positions based upon job duties and responsibilities. The conclusions reached by lack the requisite specificity and detail and are not supported by independent, objective evidence demonstrating the manner in which he reached such conclusions.

19 According to the Petitioner "is in the process of establishing an additional operating facility and requires the services a Staff Accountant ... to facilitate [the Petitioner's] overall continued success." The Petitioner, however, has not made such a claim. and does not further explain the basis for this statement.

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Matter of W-D-M- LLC

In summary, and for each and all of the reasons discussed above, we conclude that the opinion letter rendered by is not probative evidence to establish the proffered position qualities as a specialty occupation under 8 C.F.R. § 214.2(h)(4)(iii)(A)(4), or any other criteria 8 C.F.R. § 214.2(h)( 4)(iii)(A).

We may, in our discretion, use as advisory opinion statements submitted as expert testimony. However, where an opinion is not in accord with other information or is in any way questionable, we are not required to accept or may give less weight to that evidence. Matter ol Caron Jnt '/, 19 I&N Dec. 791 (Comm' r 1988). For etliciency's sake, we hereby incorporate the above discussion and analysis regarding the opinion letter into each of the bases in this decision for dismissing the appeal.

The Petitioner has not satisfied one of the criteria at 8 C.F.R. ~ 214.2(h)(4)(iii)(A), it has not demonstrated that the proffered position qualifies as a specialty occupation.

III. CONCLUSION

The Petitioner has not demonstrated that (1) it did not file a multiple H-1 B petition in violation of 8 C.F.R. § 214.2(h)(2)(i)(G), and (2) the proffered position qualifies as a specialty occupation.

ORDER: The appeal is dismissed.

Cite as Matter ofW-D-M- LLC, ID# 10372 (AAO Jan. 11, 2018)

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