dismissed H-1B Case: Computer Science

identifyingdatadeletedto
preventclearlyunwarranted
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PUBLICCOpy
U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington,DC 20529
U.S.Citizenship
and Immigration
Services
FILE: EAC 06 081 50707 Office: VERMONT SERVICE CENTER Date: (D 04 2007
IN RE: Petitioner:
Beneficiary:
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(H)(i)(b) of the
Immigration and Nationality Act, 8 U.S.c. § 1101(a)(15)(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.
Robert P. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
EAC 06 081 50707
Page 2
DISCUSSION: The Director, Vennont Service Center, denied the nonimmigrant visa petition. The matter is
now before the AAO. The appeal will be dismissed. The petition will be denied.
The petitioner provides computer science consulting services. It seeks to extend the employment of the
beneficiary as a database administrator. Accordingly, the petitioner endeavors to classify the beneficiary as a
nonimmigrant pursuant to section 10I(a)(l5)(H)(i)(b) of the Immigration and Nationality Act (the Act),
8 U.S.C. § I 10I(a)(l5)(H)(i)(b).
The director denied the petition because the beneficiary had remained in the United States in H-IB status for
six years and the petitioner had not satisfied the requirements for an extension of stay under the "American
Competitiveness in the Twenty-First Century Act," (AC2I) and the "Twenty-First Century Department of
Justice Appropriations Authorization Act" (2pt Century DOJ Appropriations Authorization Act). The
director noted that to be eligible for an extension of stay under these acts, 365 days or more must have elapsed
since the filing of the Fonn 1-140, Immigrant Petition for Alien Worker or the filing of the Department of
Labor's (DOL) Fonn 750, Labor Condition Application (LCA). The director determined that the Form 1-140
filed on behalf of the beneficiary was no longer pending.
On appeal, counsel for the petitioner asserts that the Form 1-140 filed on behalf of the beneficiary is pending
as of June 8, 2006.
Upon review of Citizenship and Immigration Services (CIS) records, the AAO finds that a Form 1-140
(EAC 02 281 50995) was filed on behalf of the beneficiary on September 11, 2002 and was denied on May
11,2005. A subsequent appeal (EAC 05 182 50808) was administratively closed on August 24, 2005. The
appeal was reopened and the AAO ultimately dismissed the matter on March 28, 2007.
In general, section 2I4(g)(4) of the Act, 8 U.S.C. §II84(g)(4) provides that: "[T]he period of authorized
admission of [an H-IB nonimmigrant] shall not exceed 6 years." However, AC-2I removes the six-year
limitation on the authorized period of stay in H-lB visa status for certain aliens whose labor certifications or
immigrant petitions remain undecided due to lengthy adjudication delays, and broadens the class of H-IB
nonimmigrants who may avail themselves of this provision.
As amended by § 1I030(A)(a) of the DOJ Authorization Act, § 106(a) of AC-2I reads:
(a) EXEMPTION FROM LIMITATION. -- The limitation contained in section 214(g)(4) of
the Immigration and Nationality Act (8 U.S.C. § 1184(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 10I(a)(15)(H)(i)(b) of such Act
(8 U.S.C. § 1101(a)(15)(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 2I2(a)(S)(A) of such Act
(8 U.S.C. § 1182(a)(5)(A», in a case in which certification is required or used by
EAC 06 081 50707
Page 3
the alien to obtain status under section 203(b) of such Act (8 U.S.c. § 1153(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.
Section 11030(A)(b) of the DO] Authorization Act amended § 106(a) of AC-21 to read:
(b) EXTENSION OF H-lB 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-
(I) 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.
Section 106(b)(3) of AC-2l indicates that the Attorney General [now Secretary, Department of Homeland
Security] shall extend the stay of an eligible alien under Section 106(a) until such time as a final decision is
made to grant or deny the alien's application for an immigrant visa or for adjustment of status. As the
underlying Form 1-140 was denied and the appeal was dismissed, the beneficiary is not entitled to an
extension of stay in one-year increments under AC-21. For this reason, the petition must be denied.
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
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