dismissed H-1B Case: Accounting

i- data deleted to 
prevent clearly lmwm 
hvasion of- privclcy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: EAC 04 254 5 1341 Office: VERMONT SERVICE CENTER Date: AUG 2 9 2006 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l 5)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 5 1 lOl(a)(lS)(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 
EAC 04 254 5 1341 
Page 2 
DISCUSSION: The director of the Vermont Service Center denied the nonimmigrant visa petition and the 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. The 
petition will be denied. 
The petitioner is a pharmacy with six employees. It seeks extend its employment of the beneficiary as an 
accountant under section lOl(a)(lS)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1 10 1 (a>( 15)(H)(i)(b). 
The director denied the petition because the beneficiary is not eligible for extension of H-IB nonimmigrant 
status under the American Competitiveness in the Twenty-First Century Act (AC21)' as amended by the 
Twenty-First Century Department of Justice Appropriations Authorization Act (21S' Century DOJ 
Appropriations Act). The director determined that the record did not establish that the proffered position 
qualified as a specialty occupation or that a labor certification application benefiting the beneficiary had been 
pending for at least 365 days. 
The record of proceeding before the AAO contains: (1) Form 1-129 and supporting documentation; (2) the 
director's request for evidence; (3) counsel's response to the director's request; (4) the director's denial letter; 
and (5) the Form I-290B, with a letter from counsel and additional documentation. The AAO reviewed the 
record in its entirety before issuing its decision. 
In general, section 214(g)(4) of the Act, 8 U.S.C. $1 184(g)(4) provides that: "[Tlhe period of authorized 
admission of [an H-1B nonimmigrant] shall not exceed 6 years." However, AC21, as amended by the 21'' 
Century DOJ Appropriations Act, removes the six-year limitation on the authorized period of stay in H-IB 
visa status for certain aliens whose labor certifications or immigrant visa petitions remain undecided due to 
lengthy adjudication delays, and broadens the class of H-1B nonimmigrants who may avail themselves of this 
provision. 
As amended by section 11030(A)(a) of the 21" Century DOJ Appropriations Act, section 106(a) of AC21 
reads: 
(a) EXEMPTION FROM LIMITATION. -- The limitation contained in section 214(g)(4) of 
the Immigration and Nationality Act (8 U.S.C. $ 11 84(g)(4)) with respect to the duration of 
authorized stay shall not apply to any nonimmigrant alien previously issued a visa or 
otherwise provided nonimmigrant status under section IOl(a)(lS)(H)(i)(b) of such Act (8 
U.S.C. $ 1 lOl(a)(l S)(H)(i)(b)), if 365 days or more have elapsed since the filing of any of the 
following: 
(1) Any application for labor certification under section 212(a)(5)(A) of such Act (8 
U.S.C. $ 11 82(a)(5)(A)), in a case in which certification is required or used by the 
alien to obtain status under section 203(b) of such Act (8 U.S.C. $ 1153(b)). 
(2) A petition described in section 204(b) of such Act (8 U.S.C. $ 1154(b)) to 
accord the alien a status under section 203(b) of such Act. 
Section 1 1030(A)(b) of the 2 1" Century DOJ Appropriations Act amended $ 106(a) of AC-2 1 to read: 
EAC 04 254 51341 
Page 3 
(b) EXTENSION OF H-1B WORKER STATUS--The Attorney General shall extend the stay 
of an alien who qualifies for an exemption under subsection (a) in one-year increments until 
such time as a final decision is made- 
(1) to deny the application described in subsection (a)(l), or, in a case in which 
such application is granted, to deny a petition described in subsection (a)(2) filed on 
behalf of the alien pursuant to such grant; 
(2) to deny the petition described in subsection (a)(2); or 
(3) to grant or deny the alien's application for an immigrant visa or for adjustment 
of status to that of an alien lawfully admitted for permanent residence. 
CIS has issued guidance indicating that extensions of H-1B status should be granted beyond the sixth year if a 
pending or approved labor certification application had been filed at least 365 days prior to the requested 
employment start date on the H-1B petition and the beneficiary would still be in H-1B status 365 days from 
that filing. See Memorandum from William R. Yates, Associate Director for Operations, Citizenship and 
Immigration Services, Department of Homeland Security, Interim Guidance Regarding the Impact of the 
Department of Labor's (DOL) PERM Rule on Determining Labor CertrJication Validity, Priority Dates for 
Employment-Based Form 1-140 Petitions, Duplicate Labor Certification Requests and Requests for Extension of 
H-IB Status Beyond the 6th Year, HQPRD 7016.2.8 (September 23,2005). 
CIS has once previously extended the H-IB status of the beneficiary, who reached the maximum six-year 
limit on his H-1B classification on June 15, 2003. The petitioner has applied to extend the beneficiary's H-1B 
status for a second year. The director denied the extension, finding that the record did not demonstrate that a 
labor certification application benefiting the beneficiary was pending with the U.S. Labor Department. The 
director noted that the record contained a copy of a DOL notice indicating the agency's intent to deny the 
previously-filed labor certification application as of September 18, 2003, unless it received a response to its 
findings that the job duties provided in connection with the application were "not normally combined" and 
that the description of certain duties was vague. He found the petitioner to have submitted no evidence to 
establish that the labor certification application referenced in the DOL notice was still pending and that Labor 
had not acted on its intention to deny the application. The director also found the record to contain no 
evidence documenting the petitioner's filing of a second labor certification application on behalf of the 
beneficiary, as claimed by counsel in response to the request for evidence. 
On appeal, counsel submits a copy of the new labor certification application (Form ETA-750) benefiting the 
beneficiary, which he asserts was filed with the New York State Department of Labor on June 10,2004.' As 
proof of the date of filing, counsel offers copies of a certified mail receipt and an electronic confirmation of 
-- - - 
1 In response to the director's request for evidence, counsel stated that he had responded to the DOL notice 
prior to the September 18, 2003 deadline. However, the petitioner in the instant case did not file the ETA-750 
referenced in the DOL notice. The employer addressed by the notice is Lowitt Labs Pharmacy, Inc. of 
Jackson Heights, New York. On appeal, counsel indicates only that he filed the petitioner's new labor 
certification application on behalf of the beneficiary. 
EAC 04 254 5 1341 
Page 4 
delivery from the U.S. Postal Service. The evidence does not, however, establish that the submitted labor 
certification application is pending with the Department of Labor. 
The certified mail receipt and the electronic delivery confirmation do not indicate what was delivered to the 
New York State Department of Labor on June 10, 2004, nor confirm that it was mailed by the petitioner. 
Going on record without supporting documentation is not sufficient to meet the petitioner's burden of proof in 
these proceedings. The assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 
533, 534 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N 
Dec. 503, 506 (BIA 1980). Therefore, the record does not establish that a labor certification application for 
the beneficiary is pending with the U.S. Department of Labor. Moreover, the period between the claimed 
filing date of June 10, 2004 and the August 5, 2004 employment start date indicated on the Form 1-129 falls 
far short of the 365 days required to satisfy the requirements of section 106(a) of AC21. As previously 
discussed, to exempt a beneficiary from the six-year limit on H-1B status, a labor certification application 
benefiting him or her must have been pending 365 or more days on the date the H-I B petition identifies as the 
start of the proffered employment. Accordingly, as the record does not demonstrate that a labor certification 
application filed on behalf of the beneficiary has been pending 365 or more days, it does not provide a basis 
for again exempting him from the limits imposed by section 214(g)(4) of the Act, 8 U.S.C. 11 84(g)(4), on H- 
1 B admissions to the United States. 
The AAO notes that the director also found that the record did not establish the proffered position as a 
specialty occupation based on his determination that the job title and description listed on the Form 1-129 are 
substantially different from that provided in connection with the Form ETA-750, even though the petitioner 
stated that its extension request would continue the beneficiary's previously approved employment without 
change. In his denial, the director stated that the petitioner had failed to explain these differences. 
On appeal, counsel attributes the differences between the information provided by the Form ETA-750 and the 
petitioner's Form 1-129 submission to errors made by previous counsel. However, the AAO notes that the 
Form ETA 750 referred to by the director was filed on behalf of the beneficiary by an employer other than the 
petitioner. The job title and duties listed on the previously filed Form ETA 750 by this employer do not, 
therefore, contradict the petitioner's statement at filing that it wished to continue its employment of the 
beneficiary without change. Accordingly, the AAO withdraws the director's finding that the differences in 
the employment described in the Forms ETA-750 and 1-129 provide a basis for determining that the proffered 
position does not qualify as a specialty occupation. 
Nevertheless, for the reasons previously discussed, the AAO will not disturb the director's denial of the 
petition. The petitioner has failed to establish that the beneficiary qualifies for another exemption from the 
six-year limit on H-1 B admission under section 106(a) of AC2 1, as amended. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. 
The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed. The petition is denied.