dismissed H-1B Case: Education

U.S. Department of Homeland Security 
20 Mass Ave., N.W., Rm. A3042 
Washington, DC 20529 
US. Citizenship 
md Immigration 
EAC 03 282 53034 Office: VERMONT SERVICE CENTER 
9"RS Date: o@r 2 4 i'L1.- 
PETITION: Perition for a Noni grant Worker Pursuant to Section IOl (a)(] S)(H)(i)(b) of the 
immigration and Nationality Act, 8 U.S.C. 5 I IOl(a)(IS)(H)(i)(b) 
OK; PETBTTONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. AIB documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
EAC 03 202 53034 
Page 2 
DISCUSSION: The acting director of the Vermont Service Center denied the noni grant visa petition and 
the matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petition will be denied. 
The petitioner is a school serving visually impaired students, with 38 employees. It seeks to extend its 
employment of the beneficiary as a teacher under section 101(a)(15)(M)(i)(b) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 5 I BOB(a)(1S)(H)(i)(b). 
The acting director denied the petition because the beneficiary is not eligible for extension of H-1B 
grant status under the American Competitiveness in the Twenty-First Century Act (AC2I), as 
amended by the Twenty-First Century Department of Justice Appropriations Authorization Act (21" Century 
DO3 Appropriations Act). The acting director determined that, ah the time of filing, the beneficiary was not in 
valid H-1B status. 
The record of proceeding before the AAO contains: (1) Form 1-129 and supporting documentation; (2) the 
director's denial letter; and (3) Form I-290B, with additional supporting documentation. The AAO reviewed 
the record in its entirety before issuing its decision. 
Hn general, section 214(g)(4) of the Act, 8 U.S.C. $1184(g)(4) provides that: "[Tlhe period of authorized 
admission of [an M-IB noni grant] shall not exceed 6 years." However, AC21, as amended by the 2Ist 
Century DOJ Appropriations Ace, removes the six-year limitation on the authorized period of stay in H-EB 
visa status for certain aliens whose labor certifications or i grant visa petitions remain undecided due to 
lengthy adjudication delays, and broadens the class of H-PB nonimmigrants who my avail themselves of this 
provision. 
As amended by section 11030(A)(a) of the 21" Century DO9 Appropriations Act, section IO6(a) of AC21 
reads: 
(a) EXEMPTION FROM LMITATION. -- The Pimitation contained in section 2BLE(g)(4) of 
gration and Nationality Act (8 U.S.C. 5 1184(g)44)) with respect to the duration of 
d stay shall not apply to any noni grant alien previously issued a visa or 
otherwise provided noni grant status under section IOl(a)(95)(H)(i)(b) of such Act (8 
U.S.C. 5 1 lOl(a)(1S)(H)(i)(b)). if 365 days or more have elapsed since the filing of any of the 
following: 
(I) Any application fa labor certification under section 212(a)(5)(A) of such Act (8 
U.S.C. 8 B 182(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 U.S.C. 5 1153(b)). 
(2) A petition described in section 204(b) of such Act (8 U.S.C. 5 1154(b)) to 
accord the alien a status under section 203(b) of such Act. 
Section I1030(A)(b) of the 21" Century DOJ Appropriations Act amended 5 B06(a) of AC-24 to read: 
EAC 03 202 53834 
Page 3 
(b) EXTENSION OF H-IB WORKER STATUS--The Attorney General 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- 
(19 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)@) filed on 
behalf of the alien pursuant to such grant; 
(2) to deny the petition described in subsection (a)(2); or 
(IS) to grant or deny the alien's application for an i grant visa or for adjustment 
of status to that of an alien lawfully admitted for permanent residence. 
The beneficiary has resided in the United States in H-IBB classification since November 1, 1996, having once 
previously had his authorized period of stay extended by CIS. Subsequently, the petitioner has twice applied 
to extend the beneficiary's H-1B stay beyond the six-year limit. CIS denied the first petition, filed October 
31, 2002, on July 29, 2003. The second petition, which is now before the MO, was filed on June 26, 2003 
and denied on December 3, 2003. CIS records reflect that a Form 1-140 eqioyment-based i 
petition was filed on behalf of the beneficiary on October 28,2002 and denied on September 16,2804, 
On appeal, counsel does not address the basis for the acting director's denial, but, instead, asserts that the 
beneficiary qualifies fm a one-year extension of stay under AC21 as the Form 1-140 just noted had been 
pending more than one year. He states that a Form 1-797 showing CIS receipt of the Form 1-140 accompanies 
the appeal. 
The AAO first turns to the basis for the acting director's denial - the beneficiary was not in lawful H-1B 
status at the time the instant petition was filed. As previously indicated, the instant petition is the second to be 
fled by the petitioner seeking to extend the beneficiary's stay beyond the six-year limit, which ended on 
October 3 1,2802. While the first extension request appears to have been filed within the beneficiary's period 
of authorized stay, that period had expired at the time the petitioner filed the instant petition on June 26,2003. 
K an alien is not otherwise eligible for an extension of H-IB status, then CIS will not approve a request for 
extension of H-IB status. The request for an extension of status must establish that the beneficiary is in valid 
H-IB status at the time the Form 1-129 is filed. See Memorandum from William R. Yates, Acting Associate 
Director for Operations. Citizenship and Immigration Services, Department of Homeland Security, Guidance 
fir Processing H-IB Petitions as AfSected by the Twenty-First Century Department oflustice Appropriations 
Authorizatiorz Act (Public Law 107-273): Adjudicator's Field Manual Update ,4003-09. HQBCIS 7016.2.8-43 
(April 24. 2003). "An extension of stay may not be approved for an applicant who failed to maintain the 
previously accorded status or where such status expired before the application or petition was filed." 8 C.F.R. 
8 2E4.B(c)(4). There are exceptions to this rule. but none of them apply to the instant petition. The 
regulations also state, "A request for a petition extension may be filed only if the validity of the original 
petition has not expired." 8 C.F.R. 8 214.2(h)(14). The petition in this case was filed approximately eight 
months following the expiration of the original petition and, therefore, cannot be approved. 
The A40 now turns to counsel's assertions regarding the Form I-P40 pending at the time the petitioner filed 
EAC 03 202 53034 
Page 4 
the instant petition. As previously noted, statutory language allows for the extension of an H-9B worker's 
maximum period of stay in cases where a petitioner establishes that the worker is the beneficiary of a labor 
certification or an employment-based immigrant visa petition pending ifor at least 365 days at the time of 
filing. Regulations governing applications and petitions filed with CIS require that eligibility for an 
gration benefit be established at the time of Cling. See 8 C.F.R. 5 103.2(b)(12). 
As previously noted, CIS records indicate a Fom 1-140 for the beneficiary was filed on October 28, 2002, 
approximately eight months prior to the June 26, 2003 filing of the Form 1-129. While counsel states that he is 
submitting a copy of the CIS receipt for this petition as proof of the length of time it has been pending, the 
documentation submitted by counsel is not the receipt notice for the Fom 1-140, but for the Form 1-129 filed 
by the petitioner on October 3 1, 2002. Accordingly, neither the record, nor CIS databases, establish that the 
Horn I-140 filed on behalf of the beneficiary had been pending for more than 365 days at the time the instant 
petition was filed. FOP this reason, as well, the beneficiary is ineligible for a further extension of his M-BB 
stay in the United States. See Memormdum from William R. Yates, Associate Director for Operations, 
gration Services, Department of Homeland Secu&y. Interim Guidancefor Processing firm 
1-140 Employment-Based hmigrant Petitions and Fom 6-485 and H-IB Petitions Aflected by American 
Competitiveness in the Twenty First Century Act of 2200 (i%C2I)(P~ibEic Law 104-313). HQPRD 7016.2.8-P 
(May 12,2005). 
For the reasons previously discussed, the petitioner has failed to establish that the beneficiary meets the 
requirements of section IOb(a) of AC21, as amended, for an extension of his H-BB stay. Accordingly, the 
AAO will not disturb the acting director's denial of the petition. 
The burden of pmof in these proceedings rests solely with the petitioner. Section 291 ofthe Act, 8 U.S.C. Q 136 h. 
The petitioner has not sustained that burden. 
OmER: The appeal is dismissed. The petition is denied.