dismissed H-1B Case: Education

(b)(6)
MATTER OF 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 15, 2017 
APPEAL OF CALIFORNIA 
SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an institution of higher education, seeks to extend the Beneficiary's temporary 
employment as an "ESL & general academics instructor" under the H-1 B noninunigrant classification 
for specialty occupations. See Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 
8 U.S.C. § llOl(a)(lS)(H)(i)(b). The H-lB 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, California Service Center, denied the petition. The Director concluded that the 
Beneficiary had been in H-lB status for the maximum time generally permitted and the Beneficiary 
does not qualify for an extension. 
The matter is now before us on appeal. In its appeal , the Petitioner asserts that the Beneficiary 
qualifies for an extension ofH-lB status pursuant to section 106(a) ofthe American Competitiveness 
in the Twenty-First Century Act of2000 (AC21). 1 
I 
Upon de novo review , we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
In general, section 214(g)(4) of the Act, 8 U.S.C. §1184(g)(4) provides that: "[T]he period of 
authorized admission of [an H-1B nonimmigrant] shall not exceed 6 years." However , AC21 
removes the 6-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. , 
1 American Competitivenes s in the Twenty-First Century Act of 2000, Pub. L. No . I 06-313 , 114 Stat. 1251 (2000) , as 
amended by Twenty-First Century Department of Justice Appropriations Authorization Act (DOJ21 ), Pub. L. No . 107-
273, §11030A, 116 Stat. 1758, 1836-37 (2002). 
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Matter of 
Section 106 of AC21 states (emphasis added to identify sections amended by DOJ21 ): 
(a) EXEMPTION FROM LIMITATION. --The limitation contained in section 
214(g)(4) ofthe 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 USC 
§ 11 OJ (a)(l5)(H)(i)(b)) , if 365 days or more have elapsed since the .filing q{ 
any of the following: 
(1) Any application for labor certffication under section 212(a)(5)(A) qf 
such Act (8 U.S C. § 1182(a)(5)(A)). in a case in which cerl(fication is 
required or used by the alien to obtain status under section 203 (b) q{ 
such Act (8 USC§ 1153(b)). 
(2) A petition described in section 204(b) qfsuch Act (8 US C. § 1154(b)) 
to accord the alien a status under section 203(b) of such Act. 
(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 behalfqf 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 qf status to that of an alien la'vl;(itlly admitted for 
permanent residence . 
II. ANALYSIS 
The Beneficiary does not quality for an extension of H-1 B status. The record shows that the 
Beneficiary was approved for H-IB status from October 1, 2009, to September 30, 2012, and from 
October 1, 2012, to September 30,2015, for a total of6 years. The Petitioner filed the instant petition to 
extend the Beneficiary's H-lB status from October I, 2015, to September 30,2018. The Petitioner has 
subsequently amended that request for a 1-year extension. 
The record indicates that the Petitioner filed a labor certification on behalf of the Beneficiary on March 
9, 2015. On appeal, the Petitioner summarizes its position as follows: 
2 
(b)(6)
Matter of 
Here, there is no dispute that the [labor certification] has not been pending for 365 
days at the time of the filing of the visa petition extension. However, the [labor 
certification] has been pending for more than 365 days as of the date of the Director's 
decision, because an appeal was filed with [BALCA ], which is still pending 
adjudication. 
As noted, the labor certification had not been pending for at least 365 days before the 6-year 
limitation was reached. While we acknowledge the Petitioner's assertion that the labor certification 
had been pending for more than 365 days at the time the Director denied the petition, it is not 
persuasive. Because the labor certification had not been pending for 365 days before the 6-year 
limitation was reached, it is irrelevant whether or not the labor certification remains "pending" at the 
time of the Director's decision? 
The Petitioner must establish eligibility at the time of filing the nonimmigrant visa petition and must 
continue to be eligible for the benefit through adjudication. 8 C.F .R. § 103 .2(b )(1 ). As the labor 
certification had not been pending for 365 days or more before reaching the 6-year limitation, the 
Beneficiary does not qualify for an extension under section 106(a) ofAC21. 3 
III. 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. Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter of ID# 163969 (AAO Feb. 15, 2017) 
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2 Notably, the labor certification was denied, and a subsequent request for reconsideration was also denied. The 
Petitioner claims to have appealed that decision, and contends that the labor certification remains "pending" because its 
appeal of the denial is still pending. 
3 Since the identified basis is dispositive of the Petitioner's appeal, we will not address other grounds of ineligibility we 
observe in the record of proceedings including whether or not the proffered position qualifies as a specialty occupation. 
3