dismissed H-1B Case: Dentistry

MATTER OF P-D-W-, D.D.S., P.A. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 28, 2016 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a dental office, seeks to temporarily extend the Beneficiary's employment as an 
"associate general dentist" under the H-1B nonimmigrant classification for specialty occupations. See 
Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). 
, The H-1B program allows a U.S. employer to temporarily employ a qualified foreign 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. 
The Director, Vermont Service Center, denied the petition. The Director concluded that the Beneficiary 
is not eligible for an exemption from the six-year limitation on H-1B status contained in section 
214(g)(4) of the Act, 8 U.S.C. § 1184(g)(4), because a final decision was made on the Beneficiary's 
Form I-485, Application to Register Permanent Residence or Adjust Status. 
The Petitioner subsequently filed an appeal. The Petitioner asserts that the Beneficiary is eligible for 
an extension ofH-1B classification pursuant to the "American Competitiveness in the Twenty First 
Century Act" (AC21). Although the Petitioner marked Box 1(b) in Part 3 of the Form I-290B, 
indicating that a brief and/or additional evidence would be submitted within 30 days, there is no 
evidence that the record has been supplemented with any additional submissions. Accordingly, the 
record will be considered complete as presently constituted. 
Upon de novo review, we will dismiss the appeal. 
I. H-lB CLASSIFICATION- TIME LIMITS 
Upon review, we find that the record does not establish that the Beneficiary is exempt from the six­
year limitation contained in section 214(g)(4) of the Act, 8 U.S.C. § 1184(g)(4) pursuant to section 
106(a) and 104(c) of AC21 as amended by the "Twenty-First Century Department of Justice 
Appropriations Authorization Act" (DOJ21 ). 
. '\ 
Section 214(g)(4) of the Act, 8 U.S.C. § 1184(g)(4) provides: "In the case of a nonimmigrant 
described in section 101 ( a)(15)(H)(i)(b ), the period of authorized admission as such a nonimmigrant 
may not exceed 6 years." Section 106(a) and 104(c) of AC21 as amended by DOJ21 temporarily 
Matter of P-D-W-, D.D.S, P.A. 
removes the six-year limitation on the authorized period of stay in H-lB classification for foreign 
nationals under certain conditions. 
More specifically, an exemption is available under section 106(a) of AC21 for certain foreign 
nationals whose labor certifications or immigrant petitions remain undecided due to lengthy 
adjudication delays. See Pub. L. No. 106-313, § 106(a), 114 Stat. 1251, 1253-54 (2000); Pub. L. No. 
107-273, § 11030A(a), 116 Stat. 1836 (2002). According to the text of section 106(b) of AC21, 
foreign nationals may have their "stay" extended in the United States in one-year increments 
pursuant to an exemption under section 106(a) of AC21. 
As amended by section 11030A(a) ofDOJ21, section 106(a) of AC21 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 
101(a)(l5)(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 212(a)(5)(A) of such 
Act (8 US. C. § 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 US. C. 
§ 1153(b)). 
(2) A petition described in section 204(b) of such Act (8 US. C. § 1154(b)) to 
accord the alien a status under section 203 (b) of such Act. 
Section 11030A(b) ofDOJ21 amended section 106(b) of AC21 to read: 
(b) EXTENSION OF H-IB WORKER STATUS--The [Secretary of Homeland 
Security] 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-
" 
(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; 
(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. 
2 
(b)(6)
Matter of P-D- W-, D.D.S., P.A. 
Pub . L. No. 106-313, § 106(a) and (b), 114 Stat. 1251, 1253-54 (2000); Pub. L. No. 107-273, 
§ 11 030A, 116 Stat. 1836, 1836-3 7 (2002) (emphasis added to identify sections amended by 
DOJ21). A delay of 365 days or more in the final adjudication of a filed labor certification 
application or employment based immigrant petition under section 203(b) ofthe Act is considered "a 
lengthy adjudication delay" for purposes of this exemption. See Pub. Law No. 107-273, 116 Stat. at 
1836. 
U.S. Citizenship and Immigration Services (USCIS) records show, and the Petitioner does not 
dispute , that the Beheficiary has reached the six-year limitation for H-IB classification. 
The Petitioner submitted an approval notice for a Form 1-140, Immigrant Petition for Alien Worker, 
filed on behalf of the Beneficiary. USC IS records further indicate that the Beneficiary subsequently 
filed two Form I-1485s which were both denied before the instant H-1B petition was filed. 1 
An exemption from the six-year period is permitted for individuals until such time as a final decision 
is made on the relevant application or petition. As final decisions were made to deny the adjustment 
of status applications prior to the filing of the instant H-1 B petition , the Beneficiary does not qualify 
for an exemption under section 106(a) of AC21. 
We now tum to section 1 04( c) of AC21 regarding the exemption to the limited period of authorized 
admission under section 214(g)( 4) of the Act. More specifically, section 1 04( c) of AC21 reads in, 
pertinent part, as follows: 
Notwithstanding section 214(g)(4) of the Immigration and Nationality Act (8 U.S.C. 
1184(g)(4)), any alien who-
(1) is the beneficiary of a petition filed under section 204(a) of that Act [8 
U.S.C. § 1154(a)] for a preference status under paragraph (1), (2), or (3) of 
section 203(b) of that Act [8 U.S.C. § 1153(b)]; and 
(2) is . eligible to be granted that status but for application of the per country 
limitations applicable to immigrants under those paragraphs, 
may apply for, and the Attorney General may grant, an extension of such 
nonimmigrant status until the alien's application for adjustment of status has been 
processed and a decision made thereon. 
Pub. L. No. 106-313, § 104(c), 114 Stat. at 1253. 
1 
The Beneficiary's Form 1-485, filed on April 24, 2007 1 was denied on November 27, 2007. Her 
subsequent Form I-485, filed November 4, 2008 at the same time that an I-140 was filed on her behalf, 
was denied on August 21, 2009. A third Form 1-485, filed April4 , 2016 three days subsequent to this 
appeal, was denied on September 10, 2016. 
3 
(b)(6)
,· · . . 
Matter of P-D-W-, D.D.S., P.A. 
Section 1 04( c) of AC21 is applicable when a foreign national, who is a beneficiary of a Form I -140, 
is eligible to be granted lawful permanent resident status but for the application of a per country 
limitation to which that foreign national is subject or, alternatively, if the immigrant preference 
category applicable to that foreign national is, as a whole, "unavailable." 
Upon review, we find that the Petitioner has not established that the Beneficiary qualifies for an 
exemption under 104(c) of AC21 as the record of proceedings does not establish that the Beneficiary 
is eligible to be granted lawful permanent resident status but is subject to a per country or worldwide 
visa limitation in accordance with her immigrant visa "priority date." Rather, the Beneficiary 
applied to adjust her status but that application was denied.2 The denial of her 
application for adjustment of status is evidence that USCIS has completed its processes. Nothing in 
the AC21 or DOJ21 legislative history serves to suggest that Congress intended that petitioners on 
behalf of individuals retain the ability to have those individuals remain in the United States 
indefinitely, e.g., for twenty or thirty years, on the basis of a denied application. The legislative 
intent reflects a desire to shield individuals from the
1 
inequities of government bureaucratic 
inefficiency, and does not include a mandate for an infinite extension of stay in a nonimmigrant 
status. 
II. CONCLUSION 
The burden is on the Petitioner to show eligibility for the immigration benefit sought. Section 291 of 
the Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden 
has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter of P-D-W-, D.D.S., P.A., ID# 12554 (AAO Oct. 28, 2016) 
2 As noted above, all three of the Beneficiary's Fonn I-485s were denied. 
4