dismissed H-1B Case: Accounting

U.S. Department of Homeland Security 
20 Massachusetts Ave. NW, Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
FILE: EAC 03 192 5 1666 Office: VERMONT SERVICE CENTER Date: , -i . 1, 
PETITION: Petition for a Nonirnmigrant Worker Pursuant to Section lOl(a)(lS)(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. A11 materials have been returned 
to the office that originally decided your case. Any further inquiry must be made to that office. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
EAC 03 192 5 1666 
Page 2 
DISCUSSION: The service center director denied the nonimrnigrant visa petition. The matter is now on 
appeal before the Administrative Appeals Office (AAO). The appeal will be dismissed. The petition will be 
denied. 
The petitioner is an accounting firm that employs the beneficiary as an interpreter/translator. The 
petitioner seeks to extend for a seventh year the beneficiary's classification as a nonimrnigrant worker in a 
specialty occupation (H-1B status) pursuant to section lOl(a)(lS)(H)(i)(b) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. Q 1 lOl(a)(lS)(H)(i)(b). 
The director denied the petition on the ground that the beneficiary does not qualify for an exemption from 
the normal six-year limit on H-1B status. 
In general, section 214(g)(4) of the Act, 8 U.S.C. Q 1184(g)(4), provides that "[tlhe period of authorized 
admission [of an H-1B nonimmigrant] may not exceed 6 years." However, the amended American 
Competitiveness in the Twenty-First Century Act ("AC21") removes the six-year limitation on the 
authorized period of stay in H-1B status for certain aliens whose labor certification applications or 
employment-based immigrant petitions remain undecided due to lengthy adjudication delays and 
broadens the class of H-1B nonimrnigrants who may avail themselves of this provision. 
Section 106 of AC21, as amended by section 11030(A)(a) and (b) of the 21" Century Department of 
Justice Appropriations Act, reads as follows: 
(a) EXEMPTION FROM LIMITATION - The limitation contained in section 214(g)(4) of the 
Immigration and Nationality Act (8 U.S.C. $ 1184(g)(4)) with respect to the duration of 
authorized stay shall not apply to any nonimrnigrant 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. S, 1101 (a)(lS)(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. 1182(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. Q 1 153(b)). 
(2) A petition described in section 204(b) of such Act (8 U.S.C. 5 1154(b)) to accord the 
alien a status under section 203(b) of such Act. 
(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 
EAC 03 192 5 1666 
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(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. 
The record of proceeding before the AAO includes (1) Form 1-129 and supporting documentation for a 
seventh year extension; (2) the director's decision; and (3) Form I-290B, an appeal brief, and supporting 
materials. 
The record shows that the beneficiary resided in the United States with H-1 B classification for six years 
between 1997 and 2003. The beneficiary's H-I B classification expired on June 16, 2003. As the director 
noted in his decision, the petitioner filed a labor certification application (Form ETA-750, Application for 
Alien Employment Certification) on behalf of the beneficiary on February 4, 2003, followed by the 
instant petition (Form 1-129) on June 16, 2003 to extend the beneficiary's H-1B status by one year. Since 
365 days had not passed from the filing of the Form ETA-750 to the expiration of the beneficiary's H-lB 
status and filing of the extension of status petition, the director concluded that the beneficiary was 
ineligible for exemption from the six-year limitation on H-1B classification and an extension of her H-1 B 
status under AC2 1. 
On appeal counsel asserts that the beneficiary received ineffective assistance from her previous attorney. 
According to counsel the beneficiary contacted an attorney in February 2002 - four months before the fifth 
year anniversary of her H-I B classification - about filing a seventh year extension application under AC21. 
Despite promising to file such an application, counsel explains, the attorney failed to do so by the AC21 
deadline of June 16,2002, was discharged by the beneficiary in October 2002 without taking any action, and 
was replaced by present counsel. The petitioner subsequently filed a labor certification application on behalf 
of the beneficiary on February 4, 2003, too late for AC2 1 purposes. Counsel contends that the failure of the 
previous attorney(s) to properly advise the beneficiary constitutes a reasonable cause and an exceptional 
circumstance of the failure to file a timely labor certification application. Counsel cites a decision by the 
Board of Immigration Appeals, Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), stating that for a claim 
based on ineffective assistance of counsel to succeed (a) the motion (or appeal) must be supported by an 
affidavit from the claimant attesting to the relevant facts; (b) the former attorney must be informed of the 
allegations, given the opportunity to respond, and the response or a report of the failure to respond must be 
submitted with the motion (or appeal); and (c) the motion (or appeal) should reflect whether a complaint 
against the former counsel was filed with appropriate disciplinary authorities, and if not, why. 
Accompanying the appeal counsel has submitted a "certification" from the beneficiary of the relevant facts; a 
message from present counsel to the former attorney advising that the beneficiary had filed a complaint that 
day (April 29, 2004) with the Disciplinary Committee in New York City and requesting a reply; as well as 
complaints filed by the beneficiary with disciplinary authorities in New York City and Trenton, New Jersey, 
also on April 29,2004, against her former attorney and another individual who provided legal advice. 
The appeal is meritless. Counsel overlooks the fact that the employer, who is the petitioner in this case, filed 
the application for labor certification with the Department of Labor, and not the alien beneficiary. The 
beneficiary could hire an attorney, but could not file the labor certification application at any time with the 
local labor office. Thus, the petitioner, not the beneficiary, is the appropriate party to complain of the late 
filing of the labor certification application. The petitioner has not asserted any claim of ineffective assistance 
of counsel in this petition. All of the documentation submitted in support of the ineffective counsel claim 
comes from the beneficiary. Accordingly, Matter of Lozadu does not apply in this appeal. No further reasons 
are stated for the appeal. 
EAC 03 192 5 1666 
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The record shows that the petition for extension of H-IB status for a seventh year was filed on June 16, 2003, 
which was less than 365 days after the filing of the labor certification application on February 4, 2003. 
Therefore, the beneficiary was not eligible for an exemption from the six-year limitation on her H-1B 
classification under AC21 section 106(a), and an extension of her H-1B status for a seventh year under AC21 
section 106(b), at the time her extension petition was filed. In accordance with section 214(g)(4) of the Act, 
8 U.S.C. $ 1184(g)(4), limiting the authorized period of admission for an H-1B nonirnmigrant to six years, 
the extension petition must be denied. 
The petitioner bears the burden of proof in these proceedings. See section 291 of the Act, 8 U.S.C. 5 1361. 
The petitioner has not sustained that burden. Accordingly, the AAO will not disturb the director's decision 
denying the petition. 
ORDER: The appeal is dismissed. The petition is denied.