dismissed H-1B Case: Computer Software

(b)(6)
DATE: JUN 0 5 2015 
IN RE: Petitioner: 
Beneficiary: 
PETITION RECEIPT#: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section lOl(a)(lS)(H)(i)(b) of the 
lmmigration and Nationality Act, 8 U.S.C. § 1101(a)(l5)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
NO REPRESENTATIVE OF RECORD 
Enclosed is the non-precedent decision of the Administrative Appeals Office (AAO) for your case. 
If you believe we incorrectly decided your case, you may file a motion requesting us to reconsider our 
decision and/or reopen the proceeding. The requirements for motions are located at 8 C.F.R. § 103.5. 
Motions must be filed on a Notice of Appeal or Motion (Form 1-2908) within 33 days of the date of this 
decision. The Form l-290B web page (www.uscis.gov/i-290b) contains the latest information on fee, filing 
location, and other requirements. Please do not mail any motions directly to the AAO. 
REV 3/2015 www.uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
DISCUS SION: The Director, Vermont Service Center, denied the nonimmigrant visa petition. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
I. PRO CEDURAL HISTORY 
On the Petition for a Nonimmigrant Worker (Form I-129), the petitioner states that it is engaged in 
"Custom Computer Software Design, Development, Integration, Migration and other IT related 
services." In order to employ the beneficiary in what it designates as a software developer position, 
the petitioner seeks to classify him as a nonimmigrant worker in a specialty occupation pursuant to 
section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U. S. C. 
§ 1101(a)(15)(H)(i)(b). The Director denied the petition, concluding that the beneficiary had 
exhausted his period of authorized stay in H -1 B classification. 
The record of proceeding before us contains: (1) the Form I -129 and supporting documentation; (2) 
the Director's request for evidence (RFE); (3) the petitioner's n;sponse to the RFE; ( 4) the notice of 
decision; and (5) the Notice of Appeal or Motion (Form I-290B) accompanied by a letter from the 
petitioner. 
Upon review of the entire record of proceeding, we find that the petitioner has not overcome the 
Director's grounds for denying this petition. Accordingly, the appeal will be dismissed and the petition 
will remain denied. 
II. STANDARD OF PROOF 
As a preliminary matter, and in light of the petitioner's rekrences to the requirement that the 
"preponderance of the evidence" standard be applied in this matter, we affirm that, in the exercise of 
our appellate review in this matter, we follow the preponderance of the evidence standard as 
specified in the controlling precedent decision, Matter of Chawathe, 25 I&N Dec. 369, 375-376 
(AAO 201 0). In pert ine nt pa11, i:hat decision siates the following: 
Except where a different standard is specified by law, a petitioner or applicant in 
administrative immigration proceedings must prove by a preponderance of 
evidence that he cr she is eligible for the beneftt sought. 
* * * 
The "preponderance of the evidence" standard requires that the evidence 
demonstrate that the applicant's claim is "probably true," where the determination 
of "truth" is made based on the factual circumstances of each individual case. 
* * * 
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NON-PRECEDE NT DEC§JON 
Thus, in adjudicating the application pursuant to the preponderance of the 
evidence standard, the director must examine each piece of evidence for 
relevance, probative value, and credibility, both individually and within the 
context of the totality of the evidence, to determine whether the fact to be proven 
is probably true. 
Even if the director has some doubt as to the truth, if the petitioner submits 
relevant, probative, and credible evidence that leads the director to believe that the 
claim is "more likely than not" or "probably" true, the applicant or petitioner has 
satisfied the standard of proof. See INS v. Cardoza-Foncesca, 480 U.S. 421, 431 
(1987) (discussing "more likely than not" as a greater than 50% chance of an 
occurrence taking place). If the director can articulate a material doubt, it is 
appropriate for the director to either request additional evidence or, if that doubt 
leads the director to believe that the claim is probably not true, deny the 
application or petition. 
Applying the preponderance of the evidence standard as stated in Matter of Chawathe, we conclude 
that the petitioner has not establish�d eligibility for the benefit sought. 
HI. LEGAL FRAMEWORl( 
Section 214(g)(4) of the Act, 8 U. S.C. § 1184(g)(4). provides that "[t]he period of authorized 
admission [of an H-lB nonimmigrant] may not exceed 6 yec:n:." 
In addition, section 214(g)(7) of the Act, 8 U.S .C . § 118 4(g)(7), provides in relevant part (emphasis 
added): 
Any alien who has already been counted, within the six years prior to the approval of 
a petition described in subsection (c), toward the numerical limitations of paragraph 
(1 )(A) shall net again be counted toward those limitatiom; unless the alien would be 
eligible for a full six years of aut hor ized admission at the time the petition was filed. 
The regulation at 8 C.f.R. § 214.2(h)(13)(i)(B) stares, in peninent part, the following: 
When an alien in an H classification has spent the rr1aximum allowable period of stay 
in the United States, a new petition under sections 10l(a)(15)(H) or (L) of the Act 
may not be approved unless that alien has resided and been physically present outside 
of the United Staces, except for brief trips for business or pleasure, for the time limit 
imposed on the particular H classification.. Hrief trips to the United States for 
business or pleasure during the required time abroad are not interruptive, but do not 
count towards fultillment of the required time abroad. 
Further, the regulation at 8 C.F.R. § 214.2(h)(13)(iii)(A) states me following (emphasis added): 
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NON-PRECEDENT DEC§ION 
An H -1 B 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. 
Section 101(a)(13)(A) of the Act, 8 U. S. C. § 1101(a)(13)(A), states the following: 
The 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. 
Accordingly, the statute and the regulations state that the six--year period accrues only during periods 
when the individual is lawfully admitted and physically present in the United States in H or L status. 
This conclusion is funher supported and explained in a policy rnemorandum issued by United States 
Citizenship and Immigration Services (U SCIS). See Memorandum from Michael Aytes, Associate 
Director for Domestic Operations, CIS, Department of Homeland Security, Guidance on 
Determining Periods of Admission for Aliens Previouslv in H-4 or L-2 Status; Aliens Applying for 
Additional Periods of Admission beyond rhe H-1 B Six Year ivfaximum; and Aliens Who Have Not 
Exhausted the Six-Year Maximum Bw Who Have Been Absent from the United States for Over One 
Year. AFM Update 06-29 (December 5, 2006) (hereinafter "Aytes Memo"). 
The December 5, 2006 Aytes Memo summarizes as follows the time limitations on stay in the 
United States in H-1 B or L-1 status: 
An alien may be admitted to the United States in H-1 B status for a maximum period 
of six years and in L-1 status for a maximum period of five (specialized knowledge 
workers) or seven ye(.".rs (managers and executives). See INA 214(g)(4) and 
214(c)(2)(D) of the Immigration and Nationality Ace ("fNA'' or "Act"). At the end of 
the maximum period, the alien must either change to a different status (other than 
from H to L or from L to H) or depart the Uniteci States. US CIS regulations provide 
that an alien who has been outside the United States for at least one year may be 
eligible for a new six·-year period of admission !n H-·1B status or a new five-year or 
seven-year period in L-1 status. See 8 CFR 214.2(h)(13)(iii)(A) and 214. 2.(1)(1 2). 
Moreover, part II. C, ·'H-lB 'Remainder Opti o n"' of the Aytes Memo opens with a review of the 
limitation on stay in H-lB status in the United States: 
Section 214(g)({1 of INA provides that "the period oi' authorized admission as [an 
H-1 B] nonimmigrant may not exceed 6 years." INA section 214(g)(7) provides, in 
pertinent part, as tallows: 
(b)(6)
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NON-P RECED.l!.n1T DECISION 
Any alien who has already been counted within the 6 years prior to the 
approval of a petition described in subsection (c), toward the numerical 
limitations of paragraph (l)(A) shall not again be counted toward those 
limitations unless the alien would be eligible for a full 6 years of 
authorized admission at the time the petition is filed. Where multiple 
petitions are approved for 1 alien, that alien shall be counted only once. 
In AAO Adopted Decision 06-0001, USC IS has confirmed that the six-year period of 
maximum authorized admission accrues only dming periods when the alien is 
lawfully admitted and physically present in the United States. 
The H-lB Remainder Option section provides that when an individual has reached the maximum 
period of admission, a new petition may be approved only if the individual has remained outside the 
United States for one year. The section then observes: "The statute, regulations, and current polic y 
guidance, however, do not clearly address situations where an alien did not exhaust his or her 
maximum six-year period of admission.'� The H-lB Remainder Option policy is then stated as 
follows: 
There have been instances w�'lere an alien who was previously admined to the United 
States in H-lB status, bEt did not exhaust his or her en15re period of admission, seeks 
readmission to the United States in H -1 B status for the "remainder" of his or her 
initial six-year period of maximum admission, rather than seeking a new six-year 
period of admission. Pend]ng the AC21 regulations, USCIS for now will allow an 
alien in the situation described above to eiect either ( 1) to be re--admitted for the 
·�remainder'� of the iniria) six-year admission period without being subject to the H- lB 
cap if previously counted or (2) seek to be admitted as a "new" H-lB alien subject to 
the H-lB cap. 
SpecificaJly, The "remainder" period of the initial six -y.;>ar admission period refers to 
the full six-year period of admission minus the period of time that the alien previously 
spent in the TJnired States jn vahd H-lB status. for exam ple , an alien who spent five 
years in the UEited St::tes in H-LB status (frorn January 1, 1999- December 31, 
2004), and then remained o uts ide the U nited States for all of 2005, could seck to be 
admitted in January 2006 :fbr the nremainder" ofr he 1nitial six-year period, i.e. atotal 
of one year. If the alien was previously countrd toward the H-lB numerical 
limitations in relation to the time that has accrued against the six-year maximum 
period of admission, the alien would not be subject to the H-lB cap. If the alien was 
not previously cmmted against the H-lB numeric<�! limitations (i.e. because cap­
ex empt), the ahen will be counted against the H-I B cap unless he or she is eligible for 
another exemptio:-1. 
ln the alternative, admission as a '1new·" H-lB alien retl;;:cs w a petition iiled on behalf 
of an H- ·IB aiien who seeks to qualify for a new six -year admission period (without 
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NON-PRECEDENT DEC§ION 
regard to the alien's eligibility for any "remaining'' admission period ) after having 
been outside the United States for more than one year. For example, the alien who 
spent five years in the United States in H-I B status (from January 1, 1999 - December 
31, 2004), and then remained outside the United States for all of 2005, is eligible to 
apply for a "new" period of H -1 B status based on his or her absence of at least one 
year from the United States. Most petitioners electing this option will seek a 
three-year H -1 B petition approval, allowing for the possibility of later seeking a 
three-year H-lB extension. "New" H-lB aliens are subject to the H-1B numerical 
limitations w1less they qualify for an exemption. See INA§§ 214(g)(l) and (g)(5). 
Moreover, the Aytes memo stares the following: 
The burden of proof rests with the alien to show that he or she has been outside the 
United States for one year or more and is eligible for a new six-year period, or that he 
or she held H-i B status in the past and is eligible to appiy for admission for the H-1 B 
"remainder" time. Petitions shouid be submitted w�Ih documentary evidence of 
previous H-lB status such as Form 1-94 aiTival-depmture records, l-797 Approval 
notices and/or H- _i B visa stamps. 
IV. SIX YEAR PERIOD 
USCIS records show that the petitioner previously petitioned for H-1B classification on behalf of the 
beneficiary. The petiti,;ner states that during that the beneficiary was outside the United States from 
May 5, 2011 until March 4, 201::3. 
On January 25, 2013, the petitioner filed a petition for new employment with the Vermont Service 
Center . see1dng to recapture the period of time the beneficiary had spent outside 
the Uni1:ed States. USCtS approved the petition on February 1, 2013, and the petition was valid from 
February 1, 2013 until June 30, 2014. The record includes a copy of the beneficiary's U.S Customs 
and Border Protection F.:mn I-94, Departure/Admission record, with an admission stmnp showing 
the beneficiary was admitted into the United States in H-lB status on March 4, 2013 in a stay 
authorized until June 31J., 20 i 4. 
The petitioner filed the instant Form 1-129 on April 1 <·, 20 lLl·, s�:ekiEg new H-1 B employment for the 
beneficiary from October 1, 2014 until September 30, 2017? The Director determined that when the 
2 We note that the petili<mer initially che\:ked oox "b" in Pa112, Section 4 of the petition , which requested a 
change in the beneficiary's status and extension of his stay since he was currently in the United States in 
another status. The Director q uestioned this selection in the R.FE, aoting that the record demonstrated that the 
beneficiary was currern:ly m H-1 B smws (the same status th.- petitioner was current ly seeking for the 
beneficiary) a·L the time ·�he petition was filed. Th e petitioner acknov.·ledged that box "a" in this section, which 
requests consular notificmicr1 so the beneticiary could obtain a visa or be admitted, should have been checked 
based on the circumstances of the beneficiary at the time of fiJing. 
(b)(6)
NON-PRECEDENT DECISION 
Page 7 
beneficiary returned to the Un i te d Stm:es on March 4, 2013, he chose to be re-admitted as an H-lB 
nonimmigrant using the remainder of his previously-approved admission period without being 
subject to the numerical H-1B cap. Accordin gly, the Director found that at the time the instant 
petition was filed, the beneficiary had not resided continually outside the United States for the 
immediate prior year and thus was not eligib le to seek admission as an H -1 B nonimmigrant for a 
new H-lB six-year admission period. Specifically, the Director stated: 
[A ]n alien who was previously admitted to the United States in H -1 B status and has 
remained outside the United States for 1 year or more, but did not exhaust his or her 
entire 6-year period of admission, may elect to: (1) seek admission as a "new" H-lB 
alien, be subjec t to the cap unless he or she qualifies for an exemption, and begin a 
new 6-year admission period, OR (2) be readmitTed for the "remainder" of the in itial 
6-year period without bei n g subject to the H-lB cap if previously counted. The 
beneficiary was readmitted for the remainder of nis imnal six-year period. As he did 
not seek admission as a "new" H-i B alien, he is nm: subject to the H-1 B cap and not 
qualified to begin a new six year perio d. 
On appeal, the petitioner asserts that since the beneficiary spent more than 365 consecutive days 
outside of the United States from May 5, 2011 until 1\tl<:rrch 4, 2013, the beneficiary meets the 
regulatory requireme2ts and is e ligibl o:: for 3 new six-year tJeriod of a dm i ssion in H-lB status under 
the instant petition. The petitioner's assertions, hovvever,, are mi•>plar:ed. 
The petitioner filed a petition for new employment � on January 25, 2013, 
seeking to recapture the peri o d of time that the benefic:iary had spent outside the United States. At 
the time that petition was filed, the beneficiary was o utside the United States and had been absent for 
more than one year. When the beneficiary return ed to the United States on March 4, 2013, he 
elected to recapture the remainder o f the initial six -ye2r :period. 
The petitioner acknowledges that the ben efi c iary had been adm�tted for the remainder of the six-year 
period under ·,:he petition and cont1nns thB.t when the current petition was filed 
on April 14, 2014, the D<�neficiary vvas present in the Unired s�ates and working for the petitioner in 
H-lB status. 
USCIS provides a choice of either recaptur:ng time speri in h-13 status or seeking a new six-year 
period of admission in H-!B status when a visa number oeca.me available. When the petitioner filed 
on January 25, 2013, ihe peti ti on er elecied to have the beneficiary re-admitted 
for the remainder of bis six-year period. i:-laving made tnat choice, the petitioner is now requesting 
that USCIS also permit the beneficia:;-y a new six-year p erio d c,f· authorized admission in H--1 B status 
(in three year increments). To approve this :cequest to err.ploy the beneficiary for ar1 additional three­
year period wo uld, m eilecr, nilovv the petitioner to circmrvent the six-year time limit set out in 
section 2l4(g)(4) of tne Act. .However, once the choice to recapture is made, a petitioner may not 
then seek a new six-year period of authorized admission u.rtlt.ss cFgibility D)r that benefit has been 
established. 
(b)(6)
NON-PRECEDENT DECISION 
Page 8 
It appears that the petitioner has misinterpreted the regulatory language by presumin g that being 
outside of the United States for more than one year, at any given time, will permit the beneficiary to 
petition for a new six .. year period of admission in H-lB status. The petitioner, however, must 
establish that the beneficiary was physically present and resided outside the United States for the 
immediate prior year. The Director properly reasoned that the beneficiary's stay in the United States 
in H-lB status in the year immediately prior to filing for the new s1x-year H-lB classification in the 
instant petition precludes the establishment of a residence a11d physical presence outside the United 
States for the imm edi2,te prior year. 
The beneficiary's admission into the United States on March 4, 2013 was to recapture H-1B 
authorized time in accordance with section 214(g)(4) of1:he Act and 8 C.F.R. § 214.2(h)(l3)(iii)(A). 
The beneficiary's admission on an I-i- j B visa to recapture time interrupts the beneficiary's residence 
and physical presence outside the United States for the immediate prior year. The petition cannot be 
approved, as the beneficiary was present in tl1e United States m H-1 B status for the year i mmediately 
prior to the fi lin g oft he instant petition. 
V. CONCLi_iSlON 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely 
with the petitioner. S�ction 29\ of-che AcL 8 U.�:.C. § 136t; A1atter ofOtiende, 26 I&N Dec. 127, 
128 (BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. The petition is denied.