dismissed H-1B Case: Computer Consulting

PUBLIC COPY 
U.S. Department of Homeland Security 
20 Massachusetts Ave. NW, Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
'b 
FILE: EAC 04 252 52540 Office: VERMONT SERVICE CENTER Date: 
IN RE: Petitioner: 
Beneficiary: 
PETITION: 
 Petition for a Nonirnmigrant Worker Pursuant to Section lOl(a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 5 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 materials have been returned 
to the office that originally decided your case. Any further inquiry must be made to that office. 
Robert P. Wieman 
Administrative ~~~k& Office 
EAC 04 252 52540 
Page 2 
DISCUSSION: The service center director denied the nonirnmigrant visa petition. The matter is now on 
appeal before the Administrative Appeals Office (AAO). The appeal will be dismissed. The petition will be 
denied. 
The petitioner is a computer consulting services company. 
 It seeks to employ the beneficiary as a 
principal consultant and extend for one year his classification as a nonimmigrant worker in a specialty 
occupation (H-1B status) pursuant to section lOl(a)(lS)(H)(i)(b) of the Immigration and Nationality Act 
(the Act), 8 U.S.C. 5 1 lOl(a)(lS)(H)(i)(b). 
The director denied the petition on the grounds that the beneficiary, who had already spent six years in the 
United States in H-1B status, did not qualify for an exemption from the statutory six-year limit because he 
had not maintained valid H-1B status at the time the instant petition was filed and did not submit 
persuasive documentary evidence that he had a pending labor certification application (Form ETA-750). 
In general, section 214(g)(4) of the Act, 8 U.S.C. 5 1184(g)(4), provides that "[tlhe period of authorized 
admission [of an H-IB nonimmigrant] may not exceed 6 years." However, the amended American 
Competitiveness in the Twenty-First Century Act ("AC217') removes the six-year limitation on the 
authorized period of stay in H-1B 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 nonirnmigrants who may avail themselves of this provision. 
Section 106 of AC21, as amended by section 11030(A)(a) and (b) of the 21" Century Department of 
Justice Appropriations Act, reads as follows: 
(a) EXEMPTION FROM LIMITATION - The limitation contained in section 214(g)(4) of the 
Immigration and Nationality Act (8 U.S.C. 5 1184(g)(4)) with respect to the duration of 
authorized stay shall not apply to any nonirnmigrant alien previously issued a visa or 
otherwise provided nonimmigrant status under section lOl(a)(l5)(H)(i)(B) of such Act 
(8 U.S.C. 5 1101 (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. 5 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. 9 1153(b)). 
(2) A petition described in section 204(b) of such Act (8 U.S.C. 5 1154(b)) to accord the 
alien a status under section 203(b) of such Act. 
(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 finak 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 04 252 52540 
Page 3 
(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 record of proceeding before the AAO includes (1) Form 1-129 and supporting documentation; (2) the 
director's decision; and (3) Form I-290B, an appeal brief, and supporting materials. 
In her decision the director indicated that the beneficiary first entered the United States in H-1B status on 
July 1, 1997. The record includes a photocopy of the latest approval notice issued to the petitioner, which 
granted the beneficiary H-1B status from August 30,2001 to August 29,2004. The instant petition seeks 
to extend the beneficiary's H-1B status under AC21 for an additional year - from August 30, 2004 to 
August 30, 2005. As noted in the director's decision, however, the instant petition was not filed until 
September 7, 2004, at which time the beneficiary was no longer in valid H-1B status. Absent any 
explanation from the petitioner of why the filing was delayed, the director found that the beneficiary was 
ineligible for the requested one-year extension of stay in H-1B status. The director also noted that the 
copy of the ETA-750 application in the record was unsupported by any documentation confirming that it 
had actually been filed by the petitioner and was currently pending with the appropriate government 
office, as required for the beneficiary to be eligible for a one-year extension of H-1B status under AC21. 
The regulation at 8 C.F.R. 5 214.1(~)(4) - Timelyfiling and maintenance of status - provides as follows: 
An extension of stay may not be approved for an applicant who failed to maintain the previously 
accorded status or where such status expired before the application or petition was filed, except 
that failure to file before the period of previously authorized status expired may be excused in the 
discretion of the Service and without separate application, with any extension granted from the 
date the previously authorized stay expired, where it is demonstrated at the time of filing that: 
(i) The delay was due to extraordinary circumstances beyond the control of the applicant 
or petitioner, and the Service finds the delay commensurate with the circumstances; 
(ii) The alien has not otherwise violated his or her nonirnmigrant status; 
(iii)The alien remains a bona fide nonirnmigrant; and 
(iv) The alien is not the subject of deportation proceedings under section 242 of the Act 
(prior to April 1997) or removal proceedings under section 240 of the Act. 
On the appeal form (Form I-290B) counsel asserts that the petitioner was unable to file the instant petition 
on time due to extraordinary circumstances within the contemplation of 8 C.F.R. 5 214.1(~)(4) - namely, 
a debilitating medical condition. In the appeal brief, however, counsel asserts that it was the beneficiary, 
not the petitioner, who was ill and bedridden - with nephrolithiasis, a kidney ailment - in late August and 
early September 2004. As supporting evidence counsel submits a medical certificate from an internal 
medicine specialist, dated December 7, 2004, stating that' was evaluated 
that day and that absolute bed rest under treatment was ordered from August 19 to September 4, 2004. 
The medical certificate appears to connate the names of the beneficiary, and the 
petitioner's vice president,- Moreover, the date of the medical certificate 
(December 7, 2004), which states that the patient was evaluated that day, postdates the bedrest order 
(August 19, 2004) by nearly four months. Counsel explains that the certificate is a duplicate because 
EAC 04 252 52540 
Page 4 
misplaced the original. but no other contemporaneous documentation has been submitted to 
show that the medical certificate was actually written in August 2004, and to whom it applies. It is 
incumbent upon a petitioner to resolve any inconsistencies in the record by independent objective 
evidence. Attempts to explain or reconcile such inconsistencies will not suffice without competent 
evidence pointing to where the truth lies. See Matter of Ho, 19 I&N Dec. 582, 591-92, (BIA 1988). No 
such competent evidence has been submitted by the petitioner to corroborate who had the kidney ailment, 
when the diagnosis was made, and when the bedrest was ordered. Furthermore, if it was the beneficiary 
who was ill and bedridden in late August and early September 2004, that would not be a ground for an 
extraordinary circumstances exception under 8 C.F.R. 3 214.1(~)(4) because the beneficiary is not a 
recognized party and does not have standing to file a petition for an extension of his H-1B classification. 
See 8 C.F.R. 5 103.2(a)(3). 
For the reasons discussed above, the petitioner has failed to overcome the director's finding that the 
beneficiary is ineligible for an extension of H-1B classification under AC21 because he was not in valid 
H-1B status at the time the instant petition was filed. The record shows that the beneficiary's H-1B status 
expired on August 29,2004, nine days before the extension petition was filed on September 7,2004. 
In addition, no further evidence has been submitted on appeal to show that the petitioner had a labor 
certification application (Form ETA-750) pending for 365 days or more as of the commencement date 
(August 30, 2004) of the one-year extension period sought in the petition filed on September 7,2004. In 
order to establish that a labor certification application has been pending for 365 days or more, the 
petitioner must submit either a document from the state agency that accepted the filing or from a DOL 
regional office. See Memorandum from William R. Yates, Guidance for Processing H-IB Petitions as 
Affected by the Twenty-First Century Department of Justice Appropriations Authorization Act (Public 
Law 107-273), HQBCIS 7016.2.8-P (April 24, 2003). Neither type of document has been submitted, and 
the only evidence of the labor certification application in the record is a copy of the application itself, 
which bears the date May 1, 2004. If that a true copy of the petitioner's application, it would not have 
been pending for 365 days or more before the beginning of the one-year employment period sought in the 
extension petition. For this reason as well, the instant appeal may not be approved. 
Based on the foregoing analysis, the AAO determines that the beneficiary is not eligible under AC21 for a 
one-year extension of stay in H-1B status. 
The petitioner bears the burden of proof in these proceedings. See section 291 of the Act, 8 U.S.C. 5 1361. 
The petitioner has not sustained that burden. Accordingly, the AAO will not disturb the director's decision 
denying the petition. 
ORDER: 
 The appeal is dismissed. The petition is denied.