dismissed H-1B Case: Computer Science

identeing data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
U.S. Department of Homeland Security 
20 Massachusetts Ave. NW, Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
puBcIC COPY 
FILE: LIN 04 127 52240 Office: NEBRASKA SERVICE CENTER Date: JUN 0 1 2006 
IN RE: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(l 5)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 5 1 10 1 (a)(l 5)(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 ofice that originally decided your case. Any firther inquiry must be made to that office. 
V 
Administrative Appeals Office 
LIN 04 127 52240 
Page 2 
DISCUSSION: The service center director denied the nonimmigrant visa petition and the matter was 
appealed to the Administrative Appeals Office (AAO). The appeal will be dismissed. The petition will be 
denied. 
The petitioner is a private venture capital concern that participates in the founding and development of a wide 
range of business activities. It seeks to extend the employment of the beneficiary as a computer programmer 
and to classify him as a nonimmigrant worker in a specialty occupation pursuant to section 
101 (a)(l 5)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 8 1 101 (a)(l 5)(H)(i)(b). 
The director found that the beneficiary had reached the six-year maximum authorized period of admission as 
an H-1B nonimmigrant and denied the petition. On appeal, counsel asserts that the beneficiary is entitled to 
recapture "at least 7 months" he spent outside the United States during the validity of his H-1B petition. 
In general, section 214(g)(4) of the Act, 8 U.S.C. tj 1184(g)(4), provides that "[tlhe period of authorized 
admission [of an H-1B nonimmigrant] may not exceed 6 years." [Emphasis added.] The regulation at 
8 C.F.R. 3 214.2 (h)(l3)(iii)(A) states, in pertinent part, that: 
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 . . . . 
[emphasis added]. 
Pursuant to 8 C.F.R. 8 214.2(h)(l3)(iii)(A): 
An H-1B alien in a specialty occupation . . . who has spent six years in the United States 
under section 10 1 (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. 
The regulation states, "[aln H-1B alien. . . 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." 8 C.F.R. 8 214.2(h)(13)(iii). Section 214(g)(4) 
of the Act states, "[iln the case of a nonimmigrant described in section lOl(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 that "[tlhe terms 'admission' and 'admitted' mean, with respect to an alien, the lawful entry of the alien 
in the United States after inspection and authorization by an immigration officer." The plain language of the 
statute and the regulations indicate that the six-year period accrues only during periods when the alien is 
lawfully admitted and physically present in the United States. This conclusion is supported and explained by 
the court in Nair v. Coultice, 162 F. Supp. 2d 1209 (S.D. Cal. 2001). It is further supported by a policy 
memorandum issued by the United States Citizenship and Immigration Services (USCIS) that adopts Matter 
of I-, USCIS Adopted Decision 06-0001 (AAO, October 18, 2005), available at: 
htt~://uscis.rrov/gra~hics/lawreas/decisions.htm, as formal policy. See Memorandum from Michael Aytes, 
Acting Associate Director for Domestic Operations, Citizenship and Immigration Services, Department of 
Homeland Security, Procedures for Calculating Maximum Period of Stay Regarding the Limitations on 
Admission for H-IB and L-I Nonimmigrants. AFM Update AD 05-21 (October 21,2005). 
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 
LIN 04 127 52240 
Page 3 
documentary evidence to meet its burden of proof. See Matter of Soffci, 22 I&N Dec. 158, 165 (Comm. 
1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
The AAO finds that the time that counts toward the maximum six-year period of authorized stay is time that 
the beneficiary spends in the United States after lawful admission in H-1B status. In this case, the beneficiary 
would have been admitted to the United States in H-1B status each time he may have returned from outside 
the country. The total period for which he could have been in lawhl H-1B status in the United States was six 
years. If he was outside the country, the beneficiary was not in any status for U.S. immigration purposes. By 
virtue of departing the country, the beneficiary would stop the period that he was in H-1B status, and renew 
that status with each readmission to the United States. An extension of the beneficiary's H-IB status would 
be justified for the total number of days that the petitioner proves the beneficiary was out of the country. 
Counsel has prevailed on his contention that any of the beneficiary's time outside the United States during the 
periods of approved H-1B petitions would not count toward the maximum period of stay in H or L status. 
One issue remains, namely, how much time, if any, should be credited to the beneficiary as established 
time-out-of-the-country. This is an evidentiary question to be decided by the evidence of record. For reasons 
discussed below, the AAO finds that the petitioner has failed to establish the basis of its extension petition, 
namely, that the beneficiary should be credited for "at least 7 months" and that his time in H-1B status and 
authorized stay should be extended by that amount of time. 
In the present case, the petitioner states that the beneficiary was out-of-the-country in excess of nine months 
from May of 1997 through August of 2003. In support of that assertion, the petitioner submitted copies of 
some pages of the beneficiary's passport which appear to date back to 1999. The beneficiary submits no 
evidence to support the claimed time of absence from the United States prior to 1999. The evidence 
submitted is not sufficient to support the petitioner's claim. As stated previously, copies of a passport or 
Form 1-94 without explanatory information is not sufficient for meeting the burden of proof in these 
proceedings. Moreover, the passport copies submitted without supporting documentation do not support the 
petitioner's assertions because the entry and exit dates in the passport copies are, for the most part, illegible. 
The burden of proof in these proceedings rests solely with the petitioner. See Section 291 of the Act, 8 U.S.C. 
9 1361. The petitioner has failed to sustain that burden. 
ORDER: 
 The appeal is dismissed. The petition is denied.