dismissed H-1B Case: Chemistry

identifying data 
prevent clear1 y unwarranw 
invasion of personal pnv- 
U.S. Department of Homeland Security 
20 Mass. Ave., NW, Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
PUBLIC COPY 
FILE: EAC 04 265 52072 Office: VERMONT SERVICE CENTER Date: 4UL f 4 2006 
Immigration and Nationality Act, 8 U.S.C. 5 1 1 Ol(a)(l 5)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
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 
EAC 04 265 52072 
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 a community college that seeks to employ the beneficiary as an assistant professor of 
chemistry. The petitioner endeavors to classify the beneficiary as a nonimmigrant worker in a specialty 
occupation pursuant to section 10 l(a)(lS)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1 10 1 (a)(] 5)(H)(i)(b). 
The director denied the petition because the beneficiary had remained in the United States in H-1B status for 
longer than six years and was not eligible for a further extension of the H-IB visa. The director also noted 
that the petition was filed after the beneficiary's authorized period of stay in H-1B status had expired. 
On appeal, the petitioner submits a statement. 
The record of proceeding before the AAO includes: (1) Form 1-129 and supporting documentation, (2) 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 record indicates that the beneficiary was admitted to the United States in H-1B status on August 4, 1996. 
CIS records reflect that the beneficiary maintained continuous H-1B visa status until August 16, 2004. There 
is no evidence in the record to indicate that the beneficiary has left the United States since her entry in August 
1996. The instant petition for a visa extension was initially rejected for lack of fee on September 28, 2004, 
but accepted as properly filed on November 12,2004. 
In general, section 214(g)(4) of the Act, 8 U.S.C. 3 ll84(g)(4), provides that "[tlhe period of authorized 
admission [of an H-1B nonimmigrant] may not exceed 6 years." 8 C.F.R. fj 214.2(h)(14) provides, in part, that 
"[a] request for a petition extension may be filed only if the validity of the original petition has not expired." 8 
C.F.R. 9 214.2(h)(15) provides, in part, that "[wlhen the total period of stay in an H classification has been 
reached, no further extensions may be granted." The record reflects both that the request for extension was filed 
after the expiration of the validity of the original petition, and that the maximum period of stay in H-1B 
classification has been reached. Thus, the director properly denied the petition. 
The petitioner states on appeal that the beneficiary is eligible for an exemption to the maximum six-year period of 
stay because she meets the requirements for an extension of stay under the "American Competitiveness in the 
Twenty-First Century Act," (AC-21) as amended by the Twenty-First Century Department of Justice 
Appropriations Authorization Act" (DOJ Authorization Act). 
AC-21 removes the six-year limitation on the authorized period of stay in H-IB 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 nonimmigrants who may avail themselves of this provision. 
Section 106 of AC-21, as amended by section 11030(A)(a) and (b) of the 21St Century Department of Justice 
Appropriations Act, reads as follows: 
(a) EXEMPTION FROM LIMITATION - The limitation contained in section 21 4(g)(4) of the 
Immigration and Nationality Act (8 U.S.C. 3 1184(g)(4)) with respect to the duration of 
EAC 04 265 52072 
Page 3 
authorized stay shall not apply to any nonimmigrant alien previously issued a visa or 
otherwise provided nonimmigrant status under section I0 1 (a)(l 5)(H)(i)(B) of such Act (8 
U.S.C. $ 1101 (a)(l 5)(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. $ 1 153(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. 
(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)(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 
(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. 
There is no evidence in the record to show that the petitioner has filed a labor certification application or 
employment-based immigrant petition on the beneficiary's behalf. Indeed, the petitioner indicates in its 
statement that it "anticipat[es] filing an 1-140 application and/or making application under Program Electronic 
Review Management (PERM) for [the beneficiary]," but has not done so to date. Not having made such a 
filing, the petitioner cannot benefit from the provisions of AC-21. Without evidence showing that the 
beneficiary's authorized stay in H-1B status did not exceed 6 years as indicated in the record, the beneficiary 
does not qualify for an extension of H-1B status pursuant to section 214(g)(4) of the Act. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. 
The petitioner has not sustained that burden. 
ORDER: 
 The appeal is dismissed. The petition is denied.