dismissed H-1B Case: Architecture

identifyingdatadeletedto
preventclearlyunw~ted
invasionofpersonalpnvaq
PUBLIC COpy
U.S. Department of Homeland Security
20 Mass Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
FILE: LIN 06 008 51192 Office: NEBRASKA SERVICE CENTER Date: SiP 10 2001
INRE: Petitioner:
Beneficiary:
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l5)(H)(i)(b) of the
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(l5)(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
LIN 06 00851192
Page 2
DISCUSSION: The service center director 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 an architecture and design firm that employs the beneficiary as an architectural drafter. It
seeks continuation of the beneficiary's previously approved H-1B employment without change. 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 (the Act), 8 U.S.C. § 1101(a)(l5)(H)(i)(b).
The director denied the petition because, after the beneficiary had completed six full years allowed under the
H-1B classification, he had not maintained a valid H-IB status, and, therefore, did not satisfy the
requirements for an extension of stay under the "American Competitiveness in the Twenty-First Century
Act," (AC21) and the Twenty-First Century Department of Justice Appropriations Authorization Act" (21 st
Century DOJ Appropriations Authorization Act). The director determined that, as the beneficiary's status was
changed from H-1B to B-2 visitor for pleasure, he was no longer maintaining status as an H nonimmigrant
and therefore not entitled to be employed for a seventh year under the provisions of AC21.
On appeal, counsel submits a brief.
The beneficiary in the instant case has been the beneficiary of a series of approved H-1B petitions, valid from
June 22, 1999 to January 24, 2002, from January 13, 2001 to November 1, 2003, and from November 19,
2003 to June 21, 2005. Another H-1B petition approved on behalf of the beneficiary, valid from October 17,
2005 to August 31, 2006, was revoked because, as of the date of its filing on July 20, 2005, the beneficiary's
H-1B status had expired. It is noted that on June 22, 2005, the beneficiary filed a Form 1-539, Application to
Extend/Change Nonimmigrant Status, from H-1B to B-2 visitor for pleasure, which was approved, valid from
October 19, 2005 to December 1, 2005. In a letter dated January 12, 2005, the Illinois Department of
Employment Security (IDES) confirmed that the petitioner filed an alien labor certification application for the
beneficiary on August 30, 2004. The record also reflects that the instant petition was filed on October 11,
2005, and denied by the director on February 23, 2006. On appeal, counsel states that the director's decision
was inconsistent with the law as written, which does not require the alien to maintain H-1B status. Counsel
states that for this reason, the petition should be approved.
In general, section 214(g)(4) of the Act, 8 U.S.C. § 1184(g)(4) provides that: "[T]he period of authorized
admission of [an H-1B nonimmigrant] shall not exceed 6 years." However, AC21 removes the six-year
limitation on the authorized period of stay in H-1B visa status for certain aliens whose labor certifications or
immigrant 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 § II030(A)(a) of the 21 st Century DOJ Appropriations Authorization Act, § I06(a) of AC2I
reads:
(a) EXEMPTION FROM LIMITATION. -- The limitation contained in section 2I4(g)(4) of
the Immigration and Nationality Act (8 U.S.C. § 1184(g)( 4)) with respect to the duration of
LIN 06 008 51192
Page 3
authorized stay shall not apply to any nonimmigrant alien previously issued a visa or
otherwise provided nonimmigrant status under section 101(a)(15)(H)(i)(b) of such Act (8
U.S.C. § 1101(a)(15)(H)(i)(b)), if365 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. § 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 11030(A)(b) of the 21st Century DOJ Appropriations Authorization Act amended § 106(a) of AC21 to
read:
(b) EXTENSION OF H-IB 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)(1), 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.
The instant petition for an extension of the beneficiary's previously approved H-IB employment was filed on
October 11,2005, after the expiration of the original H-IB petition on June 21,2005. 8 C.F.R. § 214.2(h)(14)
states that a "petition extension" must be filed prior to the expiration of "the original [H-IB] petition." The
beneficiary was no longer in H-l B status at the time that 365 days from filing the labor certification or immigrant
petition had run. Therefore, the beneficiary was not eligible for an exemption from the six-year limitation on his
H-IB classification under AC21 section 106(a), and an extension of his H-IB status for a seventh year under
AC21 section 106(b), at the time his 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-IB nonimmigrant to six years, the
extension petition must be denied. Accordingly, the appeal will be dismissed, and the petition will be denied.
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 not sustained that burden.
ORDER: The appeal is dismissed. The petition is denied.