dismissed H-1B Case: Education

U.S. Citizenship 
and Immigration 
Services 
MATTER OF E-B-R-P-S-S-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 6, 2015 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a nonprofit public school system, seeks to continue to employ the Beneficiary as an 
elementary teacher and to classify him as a nonimmigrant worker in a specialty occupation. See 
Immigration and Nationality Act (the Act)§ 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act 
(the Act), 8 U.S.C. § 1101(a)(l5)(H)(i)(b). The Director, California Service Center, denied the 
petition. The matter is now before us on appeal. The appeal will be dismissed. 
The Director reviewed the record of proceeding and determined that the Petitioner did not establish 
eligibility for the benefit sought. Specifically, the Director stated that the Petitioner had not 
established that the Beneficiary is entitled to a seventh-year H -1 B extension in accordance with the 
applicable statutory and regulatory provisions. The Director denied the petition. 
The record of proceeding contains: (1) the Petitioner's Form I-129 and supporting documentation; 
(2) the Director's request for evidence (RFE); (3) the Petitioner's response to the RFE; ( 4) the 
Director's decision; and (5) the Form I-290B, Notice of Appeal or Motion and supporting 
documentation. We reviewed the record in its entirety before issuing our decision. 1 
For the reasons that will be discussed below, we agree with the Director's decision that the Petitioner 
has not established eligibility for the benefit sought. Accordingly, the Director's decision will not be 
disturbed. The appeal will be dismissed. 
I. H-lB CLASSIFICATION- TIME LIMITS 
On the Form I-129, the Petitioner was asked to provide the Beneficiary's prior period of stay in H 
classification in the United States. The Petitioner was notified that it should list only those periods 
in which the Beneficiary was actually in the United States in an H classification. However, the 
Petitioner did not provide this information on the Form I-129. U.S. Citizenship and Immigration 
Services (USCIS) records indicate that the Beneficiary entered the United States in H-1 B on July 14, 
2008. 
1 
We conduct appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). 
Matter of E-B-R-P-S-S-
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)(l5)(H)(i)(b), the period of authorized admission as such a nonimmigrant 
may not exceed 6 years." Section 106(a) and 104(c) 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) temporarily removes the six-year limitation on the 
authorized period of stay in H-1B classification for foreign nationals under certain conditions. 
More specifically, an exemption is available under section 1 06(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 m 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 
1 01(a)(15)(H)(i)(b) of such Act (8 US C. § 11 OJ (a)(l5)(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 USC§ 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 USC § 1154(b)) to 
accord the alien a status under section 203 (b) of such Act. 
Section 11 030A(b) of DOJ21 amended section 1 06(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)(2J.filed 
on beha?f of the alien pursuant to such grant: 
(2) to deny the petition described in subsection (a)(2); or 
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Matter of E-B-R-P-S-S-
(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. 
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 immigrant petition under section 203(b) of the Act is considered "a 
lengthy adjudication delay" for purposes of this exemption. See Pub. Law No. 107-273, 116 Stat. at 
1836. 
The record shows that the ETA Form 9089, Application for Permanent Employment Certification, 
was filed on May 17, 2014. However, the instant H-1B extension petition was filed on August 4, 
2014, approximately 79 days after the ETA Form 9089 was filed. Therefore, 365 days or more had 
not elapsed since the filing of the ETA Form 9089 when the current H-1B petition extension was 
filed on August 4, 2014. 
On appeal, the Petitioner claims that the date it began the mandatory recruitment period for the labor 
certification process should be considered the filing date. The Petitioner further claims that since it 
began recruiting on February 10, 2014, 365 days had passed when USCIS made its decision. As 
discussed above, section 106(a) of AC21, as amended by DOJ21, removes the six-year limitation on 
the authorized period of stay in H-1B visa status for certain applicants if 365 days or more have 
elapsed since the filing of an application of labor certification. 
Upon a complete review of the record of proceeding, the Petitioner has not established that the 
Beneficiary qualifies for an exemption from the six-year limit and is thereby eligible for an 
extension of stay under section 106(a) of AC21. 
We now tum to section 104(c) of AC21 regarding the other exemption to the limited period of 
authorized admission under section 214(g)(4) ofthe Act. 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, 
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Matter of E-B-R-P-S-S-
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, § 1 04( c), 114 Stat. at 1253. 
Section 104(c) of AC21 is applicable when a foreign national, who is the beneficiary of a Form 
I -140 petition, 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." Thus, to 
establish eligibility under the exemption at 1 04( c) of AC21, the Petitioner must establish that at the 
time of filing for the extension of H-1B nonimmigrant status, the Beneficiary is not eligible to be 
granted lawful permanent resident status on the sole basis that he/she is subject to a per country or 
worldwide visa limitation in accordance with the his/her immigrant visa "priority date." However, 
the petitioner does not assert and there is no evidence to support an assertion that the Beneficiary 
here qualifies for an exemption under 1 04( c) of AC21. 
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. 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. 
II. CONCLUSION 
The Petitioner has not established eligibility for the benefit sought. 8 C.F .R. § 103 .2(b )(1 ). In visa 
petition proceedings, it is the Petitioner's burden to establish eligibility for the immigration benefit 
sought. Section 291 of the Act; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that 
burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter of E-B-R-P-S-S-, ID# 14212 (AAO Oct. 6, 2015) 
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