dismissed H-1B Case: Banking

U.S. Department of Homeland Security 
20 Massachusetts Avenue, NVJ, Rm.A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigratiorl 
aamb Services 
!.don of penma1 privacy PUBLIC copy 
FILE: SRC 03 21 1 53606 Office: TEXAS SERVICE CENTER Date: OCT 0 4 tm5 
\ 
PETITION: Petition for a Nonirnrnigrant Worker Pursuant to Section lOl(a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. $ 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, Director 
Administrative Appeals Office 
SRC 03 21 1 53606 
Page 2 
DISCUSSION: The service center director denied the nonirnrnigrant 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 international banking company that seeks to extend the employment of the beneficiary as 
a sales officer. The petitioner endeavors to classify the beneficiary as a nonirnmigrant worker in a specialty 
occupation pursuant to section lOl(a)(lS)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1 101(a)(l5)(H)(i)(b). 
The director denied the petition because the beneficiary had already remained in the United States in H-1B 
status for six years, the regulatory limit on the classification. On appeal, counsel submits a brief. 
Pursuant to 8 C.F.R. § 214.2(h)(l3)(iii)(A): 
An H-1B alien in a specialty occupation . . . who has spent six years in the United States 
under section 101(a)(15)(H) and/or (L) of the Act may not seek extension, change status or be 
readmitted to the United States under section 101(a)(15)(H) or (L) of the Act unless the aliein 
has resided and been physically present outside the United States, except for brief trips for 
business or pleasure, for the immediate prior year. 
The record of proceeding before the AAO contains: (1) Form 1-129 and supporting documentation; (2) the 
director's request for additional evidence; (3) the petitioner's response to the director's request; (4) the 
director's denial letter; and (3) Form I-290B and supporting documentation. The AAO reviewed the record in 
its entirety before issuing its decision. 
The beneficiary in this proceeding was in H-1B status from August 1, 1997 through July 31,2003, a period of six 
years, which is the maximum allowed by the regulations. At the time the instant petition was filed, counsel 
submitted a copy of the beneficiary's passport establishing that the beneficiary had been outside the United States 
during the six years in H-1B status. Counsel stated that the beneficiary's H-1B status should be extended by the 
same number of days that she was outside the country. The director determined that time spent outside the 
country during the validity period of a petition must be counted towards the alien's maximum stay in the United 
States, and that the time cannot be reclaimed for purposes of extending the six-year limit. The AAO disagrees 
with the director. 
The regulation states, "An H-1B alien . . . who has spent six years in the United States under section 
101(a)(15)(H) andlor (L) of the Act may not seek extension." 8 C.F.R. 9 214.2(h)(13)(iii). Section :?14(g)(4) 
of the Act states, "In the case of a nonimmigrant described in section 10l(a)(lS)(H)(i)(b), the period of 
authorized admission as such a nonimmigrant may not exceed 6 years." Section 101(a)(13)(A) of the Act 
states, "The terms 'admission' and 'admitted' mean, with respect to an alien, the lawful entry pf the alien in 
the United States after inspection and authorization by an immigration officer." The plain language of the 
statute and the regulations indicates that the six-year period accrues after admission into the United States. 
This premise is further supported and explicated by a federal district court in Nair v. Coultice, 162 F.Supp.2d 
1209 (S.D. Cal. 2001). 
SRC 03 2 1 1 53606 
Page 3 
The time a beneficiary spends in the United States is dependent on the period(s) of lawful admission. The 
beneficiary was admitted to the United States each time she returned from outside the country. The total period 
for which she could have been in lawful H-1B status in the United States was six years. When she was outside 
the country, the beneficiary was not in any status for U.S. immigration purposes. By virtue of depiuting the 
country, the beneficiary broke the period that she was in H-1B status, and renewed that status with each 
readmission to the United States. The director should have determined that the petitioner was allowed an 
extension of the beneficiary's H-1B status for the total number of days that it proved the beneficiary was out of 
the country. 
The petition still may not be approved, however. The AAO notes that the petitioner is in the best position to 
organize and submit proof of the beneficiary's departures from and reentry into the United States. Copies of 
passport stamps or Form 1-94 arrival-departure records, without an accompanying statement or chart of dates 
the beneficiary spent outside the country, could be subject to error in interpretation, might not be considered 
probative, and may be rejected. Similarly, a statement of dates spent outside of the country must be 
accompanied by consistent, clear and corroborating proof of departures from and reentries into the United 
States. The petitioner must submit supporting documentary evidence to meet his burden of proof. See Matter 
of Sofici, 22 I&N Dec. 158, 165 (Cornm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 
190 (Reg. Comm. 1972)). 
There is no statement or chart of dates regarding the time the beneficiary spent outside the country. Her 
passport stamps indicate multiple admissions to the United States, but there is no evidence regairding her 
departures or the exact time spent outside the country. The petitioner must establish the exact number of days 
the beneficiary spent outside the United States in order for the beneficiary to be entitled to an aidditional 
period of time in H-1B classification. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. fj 1361. 
The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed. The petition is denied.