dismissed H-1B Case: Business

U.S. Citizenship 
and Immigration 
Services 
In Re: 21549628 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for Nonimrnigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: SEP. 02, 2022 
The Petitioner seeks to extend the Beneficiary's temporary employment under the H-lB nonirnrnigrant 
classification for specialty occupations. See Immigration and Nationality Act (the Act) section 
101(a)(15)(H)(i)(b), 8 U.S.C . § 1101(a)(15)(H)(i)(b) . The H-lB program allows a U.S . employer to 
temporarily employ a qualified foreign worker in a position that requires both: (a) the theoretical and 
practical application of a body of highly specialized knowledge; and (b) the attainment of a bachelor's 
or higher degree in the specific specialty (or its equivalent) as a minimum prerequisite for entry into 
the position. 
The Vermont Service Center Director initially approved the Form 1-129, Petition for a Nonirnrnigrant 
Worker, but shortened the petition's requested validity period. The Petitioner appealed that decision 
and we remanded the matter for the Director to reconsider the petition's validity period. On remand, 
the Director again approved the petition for a shorter than requested tirneframe . The matter is now 
before us on appeal. The Petitioner bears the burden of proof to demonstrate eligibility by a 
preponderance of the evidence. Section 291 of the Act; Matter of Chawathe, 25 I&N Dec. 369, 375 
(AAO 2010). We review the questions in this matter de novo. Matter of Christo 's Inc., 26 I&N Dec . 
537, 537 n.2 (AAO 2015). Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
A beneficiary's stay in H-lB status is generally limited to six years. Section 214(g)(4) of the Act, 
8 U.S .C. § 1184(g)(4), states "[i]n the case of a[n] [H-lB] nonirnrnigrant described in section 
101(a)(15)(H)(i)(b), the period of authorized admission as such a nonimmigrant may not exceed 
6 years." Pursuant to 8 C.F.R. § 214.2(h)(13)(iii)(A) , 
An H-IB 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 alien has resided and been physically present outside the United States, 
except for brief trips for business or pleasure, for the immediate prior year. 
However, "[t]he statute, regulations, and current policy guidance, [] do not clearly address situations 
where an alien did not exhaust his or her maximum six-year period of admission." See 2 USCIS Policy 
Manual H.31.3(g)(l5), https://www.uscis.gov/policy-manual. U.S. Citizenship and Immigration 
Services (USCIS) will therefore "allow an alien in the situation described above to elect either to: be 
re-admitted for the 'remainder' of the initial six-year admission period without being subject to the 
H-lB cap if previously counted; or seek to be admitted as a 'new' H-lB alien subject to the H-lB 
cap." Id. 
II. ANALYSIS 
According to USCIS records, a different employer filed a petition on the Beneficiary's behalf that 
USCIS approved on November 24, 2010. A subsequent petition-also from a different employer­
amended the first filing and was approved with validity dates spanning August 16, 2011, to October 
31, 2013. USCIS revoked the second petition's approval on June 26, 2012. The Beneficiary entered 
and departed the United States in 2011 and 2012 but did not exhaust his maximum period of admission. 
In 2014, the Petitioner filed the third H-1 B petition resulting in an approval with a validity period from 
November 5, 2014, to July 30, 2017. The Beneficiary entered the United States on February 12, 2015. 
The Petitioner then filed this petition in December 2019 seeking an extension of the Beneficiary's 
status. The Director approved the petition and included the Beneficiary's 2011 to 2012 time in H-lB 
status when calculating the maximum period available to the Beneficiary. The Director's reasoning 
for considering the Beneficiary's entrance in 2015 as a continuation of his six-year admission period 
was not clear when they approved this petition the first time around in June 2020. Presumably, the 
Director interpreted the Beneficiary's 2015 entrance as a re-admission for the remainder of the initial 
six-year admission period. Within that same decision, the Director then considered time that could be 
recaptured pursuant to 8 C.F.R. § 214.2(h)(l 3)(iii)( e) in the decision. 
In the first appeal, the Petitioner argued the current petition did not include a request to recapture any 
of the Beneficiary's time spent outside the United States. The Petitioner explained that the Beneficiary 
entered as a new H-1 B nonimmigrant in 2015 because he spent more than one year outside the country 
and reset his six-year H-1 B status time limit. In our first appellate decision in May of 2021, because 
we were unable to determine whether the third H-lB petition-the first petition this Petitioner filed­
was filed subject to the H-lB cap in 2014, we remanded the matter for the Director to make that 
determination and to request any evidence necessary to make that decision. 
On remand, the Director issued a request for evidence (RFE) in which they identified the two methods 
the Petitioner could show the petition warranted approval for the entire period requested. First, the 
Petitioner could demonstrate the Beneficiary's eligibility through recapturing his time outside the 
United States. Alternatively, they could establish that after his absence from the country for more than 
one year, the Petitioner filed the third H-1 B petition as being subject to the H-1 B numerically limited 
cap for that fiscal year. Within the RFE, the Director noted in both petitions this Petitioner filed, it 
requested the Beneficiary be considered as cap exempt, which required USCIS to count all of his 
previous time in H-1 B status and grant only the time left in his six-year period. 
After considering the Petitioner's response to the RFE, the Director reiterated the third petition 
reflected the Beneficiary was previously in the United States in H-1 B status and the Petitioner 
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requested he "be re-admitted as cap exempt and use the remainder of his 6 years of H-1 B status at this 
time." Moreover, the Director noted the following: 
[A] [r]eview of your petition and all supporting evidence that you filed on July 30, 
2014, [] shows that while you selected New Employment/Notify the Office in Part 4, 
you also marked on the Form I-129 H-lB Data Collection Supplement, Page 18, Part 
C, Number 1 ( d) CAP Exempt and on page 19 of the same form in Part C, you selected 
[option] g. [ which stated] "The beneficiary of this petition ... previously granted status 
as an H-lB ... is applying from abroad to reclaim the remaining portion of the six 
years ... or is seeking a 7th year extension based upon AC21 .... " 
The Director then stated: "Based upon these answers, USCIS approved that petition, not as a New 
Petition filed under the CAP numerical limitations but rather as a Cap Exempt [petition] because the 
beneficiary previously held H-1 status and was applying abroad to reclaim the remaining portion of 
the six years." The Director also noted the petitioning organization filed the current petition requesting 
the Beneficiary be exempt from the H-1 B cap. The Petitioner's requests for cap exemption on both of 
its petitions focused the Director's attention back on evaluating the issue of recapturing the 
Beneficiary's time spent outside the United States. 
The Director approved the petition for a limited validity period for a second time in December 2021. 
In the decision, the Director noted that despite the Petitioner's stated intention to file the third petition 
as being subject to the cap and as a new admission resetting his six-year period, by making multiple 
indications on the petition they were requesting the third petition be considered as cap exempt, those 
indicators ultimately superseded their newly-stated intentions. 
We agree with the Director. When the Petitioner filed the petition and selected the options for users 
to consider the third petition as exempt from the H-1 B cap, it retained and executed the choice it claims 
the Director failed to offer them. At that time, the Petitioner was afforded the choice to file as cap 
subject or cap exempt. When the Petitioner filed the petition as cap exempt, it chose to request that 
the Beneficiary "be re-admitted for the 'remainder' of the initial six-year admission period without 
being subject to the H-1 B cap if previously counted" as noted above in the policy. When it made the 
choice to file as cap exempt, the Beneficiary's admission as a new H-lB nonimmigrant was foreclosed 
and it exercised the option to have his new time in H-lB status to serve as a continuum of his previous 
accrued time in that same status. Although the referenced policy afforded employers the option for 
beneficiaries to be considered as cap subject or cap exempt, the Petitioner has not identified an 
authority requiring the Director to essentially second-guess the cap-exempt options it selected on the 
2014 petition. 
Moreover, and as the Director informed the Petitioner, when the Petitioner filed the third petition in 
July of 2014, users had already announced it would no longer accept petitions for inclusion in the 
H-1 B cap for that fiscal year (2015). Even if the Petitioner had filed the 2014 petition as being subject 
to the cap, users would have denied the petition. As the Petitioner's appeal brief reflects it is not 
arguing for the Beneficiary's time outside the United States to be recaptured, we will not provide any 
analysis on that topic. 
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The burden is on the Petitioner not only to establish eligibility, but also to properly complete the 
petition and to clearly establish in what manner it is filing. Here, it did so when it chose to file as 
exempt from the numerical limitations and it has not offered a persuasive alternative. The Petitioner 
signed the petition under the penalty of perjury, attesting the information on the form was correct. The 
Director therefore properly adjudicated the petition in the manner that it was filed. The Petitioner 
essentially requests USCIS allow it to make a material change to the petition that would result in a 
different type or manner of filing, and a different outcome. The Petitioner, however, identifies no 
legal authority to support that request. To the contrary, permitting such a change requested after 
receiving an adverse determination would be improper. Cf Matter of lzummi, 22 I&N Dec. 169, 176 
(Assoc. Comm'r 1998). 
We note the petition remains approved, as indicated in the Director's most recent decision, from 
January 5, 2020, through April 15, 2020. 
III. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. In visa petition proceedings, it is a petitioner's burden to establish 
eligibility for the immigration benefit sought. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
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