dismissed H-1B Case: Computer Systems

U.S. Citizenship 
and Immigration 
Services 
In Re : 25629863 
Appeal of Nebraska Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR . 13, 2023 
The Petitioner seeks to temporarily employ the Beneficiary under the H-B nonimmigrant classification 
for specialty occupations . See Immigration and Nationality Act (the Act) section 10l(a)(15)(H)(i)(b), 
8 U.S .C. 1101(a)(15)(H)(i)(b) . The H-lB program allows a U .S. employer to temporarily employ a 
qualified noncitizen worker in a position that requires both: (a) the theoretical and practical application 
of a body of highly specialized knowledge; and (b) the attainment of a bachelor's or higher degree in 
the specific specialty (or its equivalent) as a minimum prerequisite for entry into the position . 
While the Director of the Nebraska Service Center approved the petition, they did so for a shorter 
period than the Petitioner requested. The matter is now before us on appeal. 8 C.F.R. § 103.3 . 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence . 
Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. APPLICABILITY OF THE LENGTHY ADJUDICATION EXEMPTIONS 
Section 214(g)(4) of the Act, 8 U.S.C . § 1184(g)(4), sets a six-year limitation on the period of 
authorized admission or stay for an H-lB nonimmigrant. See also 8 C.F.R. § 214.2(h)(13)(iii)(A) 
(requiring residence and physical presence outside of the United States for the immediate prior year 
before seeking to resume H-lB status after exhausting the six-year period). Exemptions from the six­
year limitation are present in the regulations to ameliorate delays from lengthy adjudication or per­
country limitations of certain employment-based immigrant visas for those H-lB nonimmigrants 
pursuing employment based lawful permanent resident status in the United States . H-lB noncitizens 
who are the beneficiaries of a labor certification filed with the Department of Labor or an employment­
based immigrant petition under 203(b) of the Act pending greater than 365 days may seek a one-year 
extension of their status for relief from lengthy adjudication delays. See 8 C.F.R. 
§ 214.2(h)(13)(iii)(D)(l)-(10). H-lB noncitizens who are the principal beneficiaries of employment­
based immigrant petitions under 203(b) of the Act but prevented from obtaining immigrant status due 
to per country limitations may apply for a three-year extension of H-lB status. See 8 C .F.R. 
§ 214.2(h)( 13 )(iii)(E)(I)-( 6). A Petitioner must demonstrate eligibility for the exemptions at the time 
of filing. See 8 C.F.R. § 103.2(b)(l) ("An applicant or petitioner must establish that he or she is 
eligible for the requested benefit at the time of filing the benefit request and must continue to be 
eligible through adjudication."). 
The Petitioner, a lodging company, filed this petition on September 23, 2016 to employ the Beneficiary 
as a computer systems analyst for the period October 25, 2016 to October 25, 2017. The Director 
approved the petition on October 21, 2020 but issued a limited validity notice because the approved 
petition's period of validity was shorter than that requested by the Petitioner. The Director noted that 
the Beneficiary commenced their H-lB period of stay in the United States on May 6, 2011. So the 
Beneficiary's six-year period of admission would conclude on May 5, 2017 unless the Petitioner 
demonstrated that the Beneficiary could recapture time spent outside the United States pursuant to 8 
C.F.R. § 214.2(h)(13)(iii)(C), or was exempt from the six-year maximum period of stay or admission 
due to lengthy adjudication delays or per-country limitations. The Petitioner did not submit any 
evidence of the Beneficiary's eligibility for recapture time and could not demonstrate eligibility due 
to a lengthy adjudication delay or per-country limitations to applying for permanent resident status 
based on the Beneficiary's country of birth. 
Since October 21, 2020, the Petitioner has submitted three successive substantially similar motions to 
reopen and/or reconsider the Director's decision, as well as this appeal. The Director has made the 
same legal conclusion and dismissed all three motions, including the one before us today on appeal. 
The Director's reasons for dismissal were correct and the limited validity notice remains undisturbed 
for the following reasons. 
The Beneficiary was not eligible for a three-year extension ofH-lB status at the time the petition was 
filed on September 23, 2016. The Petitioner would like us to conclude that the Beneficiary is eligible 
for a three-year extension beyond the six-year maximum because he has become the beneficiary of a 
Form I-140 subject to the per-country limitations in the period since the petition was filed. We do not 
agree. 
The fact that a Form I-140 subject to the per-country limitations was filed and approved on behalf of 
the Beneficiary after the Form 1-129 was filed does not change the outcome here. The Petitioner must 
demonstrate eligibility on the date of filing. 8 C.F .R. § 103 .2(b )(1 ). The labor certification and the 
Form 1-140 were not in existence on September 23, 2016 when this petition was filed. The record 
reflects that the Beneficiary's labor certification was filed on September 27, 2017. That was over a 
year after the Form 1-129 was filed. The Form 1-140 was approved on January 7, 2019. That was 
more than two years after the Form 1-129 was filed. The very foundation upon which the Petitioner 
rests their eligibility for H-1 B time beyond the statutory and regulatory maximum materialized more 
than two years after the Petitioner filed this petition on the Beneficiary's behalf We cannot consider 
facts that only came into existence after the filing of the petition. Matter of Izummi, 22 l&N Dec. 169, 
175 (Comm'r 1988). So there is no basis in law, regulation, or policy for the Petitioner's desired 
outcome here. 
We are also without authority to entertain the Petitioner's request for the benefit of equitable estoppel 
to support a longer validity of the petition nunc pro tune. See Matter of Hernandez-Puente, 20 l&N 
Dec. 335, 338-339 (BIA 1991). Estoppel is a form of equitable relief available only through the courts. 
There is no delegation of authority, statute, regulation, or policy that permits us to apply this doctrine 
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to the matter before us. See 8 C.F.R. § 2.1 (2004); See also DHS Delegation Number 0151.1 (effective 
March 1, 2003). 
II. CONCLUSION 
The Petitioner should note that the filing of a motion to reopen or reconsider does not provide any 
interim benefits such as staying the execution of any decision or extending a previously set departure 
date. 8 C.F.R. § 103.5(a)(l)(iv). The Petitioner has not demonstrated that the Beneficiary was eligible 
for additional H-lB time beyond the statutory and regulatory six-year limitation. The record does not 
contain evidence of any time the Beneficiary was physically outside of the United States during the 
validity of an H-1 B petition that was approved on their behalf that could be recaptured as described in 
8 C.F.R. § 214.2(h)(l3(3)(C). So the last day of the Beneficiary's six-year period of H-lB validity 
was May 5, 2017. The Petitioner requested petition validity until October 25, 2017. The Petitioner's 
requested validity falls outside the maximum allowable time for the Beneficiary's presence in the 
United States in H-lB status. So the Director's limitation of the validity of this petition was correct 
and remains undisturbed. In visa petition proceedings, it is the Petitioner's burden to establish 
eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. The Petitioner 
has not met that burden. 
ORDER: The appeal is dismissed. 
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