dismissed H-1B Case: Benefits Management

identifiingdatsdcladtb 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
FILE: EAC 03 266 50728 Office: VERMONT SERVICE CENTER Date: MAR 2 2 20Ub 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 l (a)(l 5)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 5 1 101 (a)(l S)(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. 
@c(d7* 
$ Robert P. Wiemann, Directo 
Administrative Appeals 0f6e 
EAC 03 266 50728 
Page 2 
DISCUSSION: The director of the service center 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 a luxury hotel that seeks to employ the beneficiary as a benefits manager. The petitioner, 
therefore, endeavors to classify the beneficiary as a nonirnrnigrant worker in a specialty occupation pursuant to 
section 10 1 (a)(l 5)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. $ 1 101 (a)(lS)(H)(i)(b). 
The director denied the petition because the petitioner sought to extend the validity of the beneficiary's 
petition and period of stay in the H-1B classification beyond the maximum six-year period of stay in the 
United States. On appeal, counsel asserts that the director erroneously denied the petition. 
Pursuant to 8 C.F.R. 9 214.2@)(13)(iii)(A), the validity of petitions and periods of stay in the United States for 
aliens in a specialty occupation is limited to six years. Furthermore, an alien may not seek extension, change of 
status, or be readmitted to the United States under section 101(a)(15)(H) or (L), 8 U.S.C. 9 1101 (a)(15)(H) or 
(L), unless the alien has been physically present outside the United States - except for brief trips for business 
or pleasure - for the immediate prior year. 
The petitioner seeks the beneficiary's services as a benefits manager, and wishes to continue the beneficiary's 
previously approved employment without change, and to extend or amend the stay of the beneficiary in the 
United States. The petitioner indicates on the petition that it seeks to extend the beneficiary's H-1B status 
from November 29,2003 to November 29,2004. 
The director denied the petition, finding that because the beneficiary had already been employed in the United 
States since December 17, 1997 in H-1B andlor L-1 status, she had reached the maximum six-year period of 
stay in the United States. The director stated that counsel sought to qualify the beneficiary for benefits under 
the American Competitiveness in the 21" Century Act (the AC21) by stating that there is a pending motion to 
reconsider or to reopen regarding the November 15,2001 denial of the beneficiary's Form 1-140. According 
to the director, a denial is considered a final decision regardless of a pending appeal or motion to reopen. The 
director concluded that since the beneficiary did not have a pending Form 1-140, the beneficiary was 
ineligible for an extension of stay beyond six years under the provisions of section 106(a) of the AC21 or the 
2 1" Century DOJ Appropriations Act. 
On appeal, counsel states that on October 1, 2002, a timely motion to reconsider or reopen the denial of the 
beneficiary's Form 1-140 was filed and is currently pending. Counsel asserts that regulatory language and 
CIS memoranda support the beneficiary's entitlement to a seventh year extension based on the pending 
motion to reconsider or to reopen. Counsel references the regulation at 8 C.F.R. $ 214.2(k)(ll)(vi), the 
regulation at 8 C.F.R. $ 274a.12(~)(9), the Child Status Protection Act (CSPA), and the CIS memorandum fi-om 
William Yates, Acting Associate Director for Operations, dated April 24,2003 in support of his claim. 
Upon review of the evidence in the record, the AAO finds that the beneficiary is not eligible to derive benefits 
under the provisions of section 106(a) of the AC21 or the amendment to section 106(a) of the AC21 by the 
21" Century DOJ Appropriations Act. 
EAC 03 266 50728 
Page 3 
The record of proceeding before the AAO contains: (1) the Form 1-129 filed on September 29, 2003; (2) the 
filing receipt (with the notice date of December 19, 2000) for the Form 1-140 (EAC-01-062-543 18) that was 
filed on behalf of the beneficiary; (3) the director's January 29, 2002 letter denying the Form 1-140; (4) the 
director's July 9, 2004 letter denying the 1-129 filed on September 29, 2003; (5) the Form I-290B (receipt 
number EAC 03-005-53019) appealing the denial of the Form 1-140 and the Internet printout relating to this; 
and (6) the Form I-290B appealing the denial for the H-1B petition and supporting documentation. 
To extend or amend the beneficiary's stay in the United States to November 29, 2004 in the H-1B 
classification, the petitioner needed to prove that the beneficiary qualifies for benefits under section 106(a) of 
the AC2 1 or under the 21" Century DOJ Appropriations Act. 
Section 214(g)(4) of the Act, 8 U.S.C. 91 184(g)(4) provides that: "[Tlhe period of authorized admission of 
[an H-IB nonimmigrant] shall not exceed 6 years." However, the AC21, as amended by the 21" Century DOJ 
Appropriations Act, 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 fj 11030(A)(a) of the 21" Century DOJ Appropriations Act, 5 106(a) of the 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 101 (a)(l S)(H)(i)(b) of such Act (8 
U.S.C. 5 1 lOl(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. 5 1153(b)). 
(2) A petition described in section 204(b) of such Act (8 U.S.C. 9 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 5 106(a) of AC2 1 to read: 
(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; 
EAC 03 266 50728 
Page 4 
(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. 
Section 106(a) of the AC21 allowed an H-IB nonimmigrant to obtain an extension of H-1B status beyond the 
six year maximum period when: (1) the alien was the beneficiary of a Form 1-140 or an application for 
adjustment of status; and (2) 365 days or more had passed since the filing of the labor certification that is 
required for the alien to obtain status as an employment-based immigrant, or 365 days or more had passed 
since the filing of the Form I- 140. 
On November 2, 2002, the 21" Century DOJ Appropriations Act was signed into law. It amended section 
106(a) of the AC21 by broadening the class of H-1B nonimmigrants who may avail themselves of its 
provisions. The amendment to section 106(a) of the AC21 permits an H-1B nonimmigrant to obtain an 
extension of H-1B status beyond the six-year limit when: (1) 365 days or more have passed since the filing of 
any labor certification that is required or used by the alien to obtain status as an employment-based 
immigrant; or (2) 365 days or more have passed since the filing of the Form 1-140. 
The memorandum entitled "Interim Guidance for Processing Form 1-140 Employment-Based Immigrant 
Petitions and Form 1-485 and H-IB Petitions Affected by the American Competitiveness in the Twenty-First 
Century Act of 2000 (AC21) (Public Law 106-313)," signed by William Yates, CIS Associate Director for 
Operations, on May 12, 2005, is relevant here. In the memorandum Mr. Yates states that "there are cases 
where an alien, who has been granted an H-1B extension beyond the 6th year, will nonetheless only be 
allowed to remain for the 6-year maximum period of stay." Mr. Yates further states: 
As addressed in the April 24, 2003 guidance memorandum, USCIS is required to grant the 
extension of stay request made under section 106(a) of AC21, in one-year increments, until 
such time as a final decision has been made to: 
A. Deny the application for labor certification, or, if the labor certification is approved, to 
deny the EB immigrant petition that was filed pursuant to the approved labor certification; 
B. Deny the EB immigrant petition, or 
C. Grant or deny the alien's application for an immigrant visa or for adjustment of status. 
If at any time before or after the filing of the single (combined) extension request a final 
decision is made on the above-stated grounds, the beneficiary of the extension request will 
not be entitled to an extension beyond the time remaining on his or her 6-year maximum stay 
unless another basis for exceeding the maximum applies. 
EAC 03 266 50728 
Page 5 
The memorandum conveys that a timely and non-frivolous 1-140 appeal pending at the AAO will allow an 
alien to request an H-1B extension beyond the 6-year limit, and that this is: 
Subject to regulatory modification, as long as a decision may be reversed on direct appeal or 
certification to the Administrative Appeals Office (AAO), USCIS will not consider that 
decision final for this purpose. 
Based on the memorandum's information, a timely and non-frivolous 1-140 appeal pending at the MO will 
allow an alien to request an H-1B extension beyond the 6-year limit. 
Counsel states that a timely motion to reconsider or reopen the denial of the Form 1-140 was filed and is 
currently pending. CIS records reflect that the petitioner appealed the denial of the Form 1-140 petition 
(receipt number EAC 02 122 52508) and that the appeal was dismissed on September 4,2002. The petitioner 
filed a subsequent motion to reopen and reconsider the AA07s dismissal of the appeal, which was also 
dismissed by the MO on July 13, 2005. No subsequent motion was filed, and the Form 1-140 petition is 
denied. As there is no longer a pending Form 1-140 petition, the beneficiary fails to qualify for benefits under 
section 106(a) or 106(b) of the AC2 1 as amended by the 2 1" Century DOJ Appropriations Act. 
As related in the discussion above, the petitioner has not established that the beneficiary is eligible to extend 
her stay in the H-1B classification beyond the six-year maximum period. 
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.