dismissed H-1B Case: Education

MATTER OF M-C-S-
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 8, 2015 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a public school system, seeks to continue to employ the Beneficiary as a French 
teacher and to classify her as a nonimmigrant worker in a specialty occupation. See Immigration and 
Nationality Act (the Act) § 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). The Director, 
Vermont Service Center, denied the petition. The matter is now before us on appeal. The appeal 
will be dismissed. 
The Director denied the petition, finding the evidence insufficient to establish that the Beneficiary is 
eligible for an extension of H-lB nonimmigrant status under section 106(a) of the "American 
Competitiveness in the Twenty-First Century Act" (AC21) as amended by the "Twenty-First 
Century Department of Justice Appropriations Authorization Act" (DOJ21 ). 
The record of proceeding before us contains: (1) the Form I-129 and the supporting documentation; 
(2) the Director's request for additional evidence (RFE); (3) the Petitioner's response to the RFE; (4) 
the Director's denial letter; and (5) the Form I-290B, Notice of Appeal or Motion, and the 
Petitioner's submissions on appeal. We reviewed the record in its entirety before issuing our 
decision. 1 
I. LEGAL FRAMEWORK 
A. Stay in H-lB Status Limited to Six Years 
A foreign national who will perform services in a specialty occupation may be admitted to the 
United States as an H-lB nonimmigrant. See section 101(a)(l5)(H)(i)(B) of the Act. A specialty 
occupation is defined as an occupation that requires (1) theoretical and practical application of a 
body of highly specialized knowledge, and (2) the attainment of a bachelor's or higher degree in the 
specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States. 
See section 214(i)(l) ofthe Act, 8 U.S.C. § 1184(i)(l). The total number ofbeneficiaries who may be 
issued H-lB visas or otherwise accorded H-lB status in a fiscal year may not exceed 65,000. See 
section 214(g)(l)(A)(vii) of the Act,§ 8 U.S.C. 1184(g)(l)(A)(vii). 
1 We conduct appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). 
Matter of M-C-S-
Under the Act, H-lB admission is limited to six years. See section 214(g)(4) of the Act, 8 U.S.C. 
§ 1184(g)(4). Generally, an H-1B petition may not be approved on behalf of a beneficiary who has 
spent the maximum allowable stay as an H-1B nonimmigrant in the United States, unless he/she has 
resided and been physically present outside the United States for the immediate prior year. See 
8 C.F.R. § 214.2(h)(13)(iii)(A). Specific limits on what is regarded as a temporary period of stay in 
all H classifications are included in the regulations to reflect the temporary nature of these 
classifications and to achieve consistency in the processing of requests for extensions of stay. 
However, as will be discussed, section 1 04( c) and section 1 06( a) of AC21 as amended by DOJ21 
removes the six-year limitation on the authorized period of stay in H-1B classification for 
beneficiaries under certain conditions. 
B. Exemption for Beneficiaries with Approved Immigration Petition 
More specifically, section 104(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. 
Under 1 04( c) of AC21, a foreign national who is subject to a per-country limitation and who is a 
beneficiary of an approved immigrant petition under section 203(b)(l), (2), or (3) of the Act, 
8 U.S.C. 1153(b)(l), (2), or (3), is eligible for H-1B approval beyond the statutory six-year 
maximum. See Pub. Law 106-313, 114 Stat. at 1252-1253. The H-1B Petitioner must demonstrate 
that an immigrant visa is not available to the Beneficiary at the time the H-1 B petition is filed. 
C. Exemption for Beneficiaries with Pending Labor Certifications or Immigrant Petitions 
Likewise, section 106(a) of AC21 as amended by DOJ21 removes the six-year limitation on the 
authorized period of stay in H -1 B visa status for certain beneficiaries whose labor certifications or 
immigrant petitions remain undecided due to lengthy adjudication delays and broadens the class of 
H-1B nonimmigrants who may avail themselves of this provision. 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). 
2 
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Matter of M-C-S-
According to the text of section 1 06(b) of AC21, the beneficiaries 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§ 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)(15)(H)(i)(b) of such Act (8 USC§ JJOJ(a)(l5)(H)(i)(b)), if365 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. § lJ 82(a)(5)(A)), in a case in which cert?fication 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) o.f such Act. 
Section 11030A(b) ofDOJ21 amended section 106(b) of AC21 to read: 
(b) EXTENSION OF H-1B 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 beha(f o.f 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 ofstatus to that ofan alien lawfully admitted for permanent residence. 
Pub. L. No. 106-313, § 106(a) and (b), 114 Stat. 1251, 1253-54 (2000); Pub. L. No. 107-273, 
§ 11030A, 116 Stat. 1836, 1836-37 (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 petition under section 203(b) of the Act is considered a lengthy 
adjudication delay for purposes ofthis exemption. See Pub. Law No. 107-273, 116 Stat. at 1836. 
3 
Matter of M-C-S-
II. FACTUAL BACKGROUND 
According to the Form I-129, Supplement H, the Beneficiary was in the United States in H-1B status 
from October 1, 2007, through September 30, 2014, which is also the date the present petition and 
request for extension was filed. The Petitioner requested that the Beneficiary's H-1 B status be 
extended beyond the sixth year expiration of her H-1B status, from October 1, 2014, through 
September 30, 2015, under AC21. 
The Director issued an RFE on November 18, 2014, requesting evidence that the Beneficiary was 
eligible for an H-1B extension under AC21. In response, the Petitioner submitted a copy of the U.S. 
Department of Labor (DOL)'s ETA Form 9141, "Application for Prevailing Wage Determination" 
valid from January 2, 2014, to June 30, 2014. 
The Director denied the petition, finding that the Petitioner did not demonstrate that the Beneficiary 
is eligible for an H-1B extension under AC21. We note that the Director mistakenly referred to the 
Petitioner's "Application for Prevailing Wage Determination" as an approved permanent labor 
certification application "valid from January 02, 2014 to June 30, 2014." The Director then 
erroneously determined that because the present petition was filed on September 30, 2014, the labor 
certification application expired prior to the date the petition was filed, thereby rendering the 
Beneficiary ineligible for an H-1 B extension under AC21. However, despite the Director's error in 
referring to the Prevailing Wage Determination as a permanent labor certification application, the 
Director's ultimate conclusion, that the Beneficiary is not eligible for an H-1B extension under 
AC21, is correct for the reasons we discuss below. 
III. ANALYSIS 
In this matter, the Petitioner submitted the Form I-129 on September 30, 2014. The Petitioner did 
not provide evidence that at the time- of filing the Form I-129, the Beneficiary had an approved 
immigrant petition but was subject to per-country limitations. Thus, the Beneficiary does not qualify 
for an extension of stay under section 1 04( c) of AC21. 
Further, the Petitioner has not demonstrated that, at the time offi1ing the Form I-129, there had been 
a delay of 365 days or more in the final adjudication of a filed labor certification application or 
employment based petition. Specifically, the Petitioner has not established that a labor certification 
application or an employment based immigrant petition has been filed on behalf of the Beneficiary. 
Therefore, the Petitioner has not established that the Beneficiary is eligible to extend her H -1 B 
classification based on section 1 06(b) of AC21. 
On appeal, the Petitioner asserts that the Beneficiary is eligible for an extension under section 1 06(b) 
of AC21. Specifically, the Petitioner claims that 365 days or more have passed since filing the ETA 
Form 9141 or the "Application for Prevailing Wage Determination." The Petitioner asserts that 
filing the application for prevailing wage determination meets the requirements of section 1 06(a) of 
AC21. In support, the Petitioner submits (1) a printout from DOL's iCERT Visa Portal System to 
4 
Matter of M-C-S-
establish that its previously submitted ETA Form 9141 was submitted on October 30, 2013; and (2) 
another ETA Form 9141 that was valid from August 31,2012 to June 30,2013. 
Section 106 of AC21 states that the six-year limitation does not apply to an H-IB nonimmigrant if 
365 days or more have elapsed since filing any of the following: (1) a labor certification and/or (2) 
an employment based immigrant petition. In other words, section 1 06( a) of AC21 requiresfzling of 
a labor certification or an employment based immigrant petition. 2 
Even if we assume arguendo that an application for prevailing wage determination meets the 
requirements under section 106(a) of AC21, and that the Beneficiary qualifies for an exemption from 
the six-year limitation, we find that the Beneficiary would not qualify for an extension under section 
1 06(b) of AC21. In this matter, there is no evidence in the record of proceeding that a labor 
certification application has ever been filed or certified on behalf of the Beneficiary. Further, there 
is no evidence that an employment based immigrant petition has been filed on behalf of the 
Beneficiary or that the Beneficiary has filed for an adjustment of status. Therefore, the Petitioner 
2 U.S. Citizenship and Immigration Services (USCIS) provides the following guidance regarding section 106 of AC21: 
USClS' policy is to grant the 1 06(a) extension of stay in one-year increments, unless a final 
decision is made to: 
(i) Deny the application for labor certification; 
(ii) If the labor certification is approved, to revoke the approved labor certification; 
(iii) Deny the EB immigrant petition; or 
(iv) Grant or deny the alien application for an immigrant visa or for adjustment of status. 
* * * 
USC IS adjudicators may grant an extension of stay under AC21 I 06(a) if evidence is 
provided that: 
• Labor certification is unexpired at the time of filing of the Form I-129 H-1 B extension 
petition; and 
• The labor certification was filed with DOL or the 1-140 petition was filed with USCIS at least 
365 days prior to the date the alien beneficiary will have exhausted 6 years of H-1 B status in 
the United States pursuant to 214(g)(4); and 
• The extension and 1-129 petition are otherwise approvable. 
Memorandum from Donald Neufeld, Acting Associate Director, Domestic Operations, USCIS, HQPRD 70/6.2 .. 
Supplemental Guidance Relating to Procf'ssing Forms 1-140 Employment-Based Immigrant Petitions and 1- I 29 H-1 B 
Petitions. and Form 1--185 Adjustment Applications AfFected by the American Competitivenf'SS in thf' 7\t>f'n(v-f'irst 
Cenlurv Act of2000 (.~IC2!) (Public Law I 06-3/3) as amended. and the American Competitiveness and Workforce 
Improvement Act of 1998 (ACWlA), Title IV of Div. C. of Public Law 105-277 (May 30, 2008), 
http://www.uscis.gov/sites/defau It/files/USC! S/Laws/Memorancla/Static _Files Memoranda/ Archives%20 l998-
2008/2008/ac2130may08.pdf. 
Matter of M-C-S-
has not submitted sufficient documentation that the Beneficiary is eligible for an H-1 B extension 
under section 106(b) of AC21.3 
IV. CONCLUSION 
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; 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 M-C-S-, ID# 14599 (AAO Oct. 8, 2015) 
3 On appeal, the Petitioner also claims that "[t]here have been instances in the past where the prevailing wage 
determination and/or the state job order have been used as the 'priority date."' However, we note that the priority date 
for AC21 determination should be the date that DOL accepted the labor certification application for processing. 8 C.F.R. 
§ 204.5(d) states: 
(d) Priority date. The priority date of any petition filed for classification under section 203(b) 
of the Act which is accompanied by an individual labor certification from the Department of Labor 
shall be the date the request for certification was acceptedfor processing by any office within the 
employment service system of the Department of Labor. ... 
(Emphasis added.) Therefore, we disagree with the Petitioner's argument that the date of submission ofthe Application 
for Prevailing Wage Determination or the date of filing of a job order with the State Workforce Agency should 
determine the priority date as this would be contrary to the plain language of8 C.F.R. § 204.5(d).