dismissed H-1B Case: Fashion

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U.S. Department of Homeland Security 
20 Mass. Ave. NW Room A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: EAC 04 228 50804 Office: VERMONT SERVICE CENTER Date: APR 2 6 
PETITION: Petition for a Nonimrnigrant Worker Pursuant to Section 10 1 (a)(l 5)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 8 1 10 1 (a)(l 5)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS : 
This is the decision of the Administrative Appeals Office in your case. All 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 04 228 50804 
Page 2 
DISCUSSION: The director of the service center denied the nonimrnigrant 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 fashion manufacturer that seeks to extend the employment of the beneficiary as 
vice-president of international operations and to continue his classification as a nonimmigrant worker in a 
specialty occupation pursuant to section 10 1 (a)(l 5)(H)(i)(b) of the Immigration and Nationality Act (the 
Act), 8 U.S.C. 5 1 lOl(a)(l5)(H)(i)(b). The petitioner indicates on the petition that it seeks to extend the 
beneficiary's H-lB status from September 26,2004 to September 26,2005. 
The director denied the petition on the basis that the petitioner sought to extend the validity of the 
beneficiary's petition and period of stay in the H-1B classification beyond the maximum six-year period 
of stay in the United States. On appeal, counsel contends that the director erroneously denied the petition 
because the beneficiary is exempt from the six-year limitation in H-1B status pursuant to 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) and was thereby eligible 
for a one-year extension of stay under section 106(b) of AC21. 
As a general rule, section 214(g)(4) of the Act, 8 U.S.C. 5 1184(g)(4), provides that "the period of 
authorized admission as [an H-IB] nonimmigrant may not exceed 6 years." However, section 106(a) of 
AC2 1, as amended, removed the six-year limitation on the authorized duration of stay in H-1B visa status 
once 365 days or more had passed since the filing of a labor certification or immigrant petition on behalf 
of the alien. 
As amended by 5 1 1030A(a) of DOJ21,5 106(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. 5 11 84(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 10 1 (a)(l 5)(H)(i)(b) of such Act (8 
US. C. 6 I1 01 (a)(I5)(H)(i)(b)), if 365 days or more have elapsed since the filing of any of 
the followina: 
(I) Any a-u~ulication -for labor certification under section 212(a)(5)fA) of such Act 
(8 U.S.C. 6 1182(a)(5)(A)), in a case in which certification is required or used by 
the alien to obtain status under section 203/b) ofsuch Act (8 U.S.C. 6 1153fb)). 
(2) A petition described in section 204fb) of such Act (8 U.S.C. 6 1154fb)) to accord 
the alien a status under section 203fi) ofsuch Act. 
Section 1 1030A(b) of DOJ2 1 amended 5 106(b) of AC2 1 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 
(I) to deny the a~plication described in subsection fa)fl), or, in a case in which such 
EAC 04 228 50804 
Page 3 
auulication is granted, to deny a petition described in subsection (a)(2) filed on 
behalf of the alien pursuant to such grant; 
(2) to denv the petition described in subsection (aIf2); or 
(3) to grant or denv the alien's application_for an immigrant visa or for adjustment 
of status to that of an alien lawfullv admitted-for permanent residence. 
Pub. L. No. 107-273, $1 1030A, 116 Stat. 1836, 1836-37 (2002) (emphasis added to identify sections 
amended by DOJ2 1). 
CIS regulations also affirmatively require a petitioner to establish eligibility for the benefit it is seeking at 
the time the petition is filed. See 8 C.F.R. 5 103.2(b)(12). Thus, the statute under which the petitioner 
seeks to qualify the beneficiary for a seventh-year extension clearly requires that 365 days or more have 
elapsed since the filing of the application for labor certification at the time the maximum period of stay in 
H-1B visa status is reached. 
The record of proceeding before the AAO contains: (1) the Form 1-129 filed on July 29,2004; (2) a letter 
fiom the New York State Department of Labor, indicating that the labor certification was filed on 
September 29,2003; (3) the director's denial letter; and (4) Form I-290B with attached brief and exhibit. 
The director denied the petition, finding that because the beneficiary had already been employed in the 
United States since April 29, 1998 in H-1B andlor L-1 status, he had reached the maximum six-year 
period of stay in the United States. The director stated that counsel sought to qualifL the beneficiary for 
benefits under AC21 by submittin a letter acknowledging receipt of an application for alien employment 
certification, case number from the State of New York Department of Labor (NY DOL), 
on September 29, 2003. According to the director, prior to the filing of the instant petition, 365 days or 
more had not lapsed since the petitioner filed the labor certification application. As such, the director 
determined that the beneficiary was not eligible for benefits under AC2 1. 
On appeal, counsel claims that the petitioner seeks to extend the beneficiary's H-1B status as of the date 
the beneficiary first entered the United States in H-1B status, September 26, 1998. Counsel asserts that 
the petitioner filed a labor certification application on behalf of the beneficiary with the New York 
Department of Labor on September 25, 2003 and that, therefore, the beneficiary's labor certification 
application was filed 365 days prior to the expiration of the beneficiary's authorized period of stay. 
Upon a thorough review of the evidence in the record, the AAO finds that the petitioner failed to establish its 
burden that the beneficiary is eligible to derive benefits from AC21, as amended by DOJ2 1. 
The record reflects that the beneficiary first obtained approval of a change of status request to H-1B status 
in the United States on April 29, 1998. Although the petitioner states that the beneficiary's first entry into 
the United States in H-1B status was on September 27, 1998, as reflected by a visa stamp in the 
beneficiary's passport, the change of status request was granted on April 29, 1998, and the record does 
not establish that the beneficiary was outside the United States on that date, or how much time the 
beneficiary spent outside the United States from April 29, 1998 until September 27, 1998. The AAO will 
accept, for purposes of this adjudication, that the beneficiary's maximum authorized period of stay in 
H-1B status expired on September 26, 2004, outside the validity date of the beneficiary's most recent 
H-1B approval notice. The instant petition was filed on July 29, 2004, with a requested start date of 
EAC 04 228 50804 
Page 4 
employment of September 26, 2004. Thus, at least 365 days must have passed between the filing of the 
labor certification application and September 26, 2004. The record reflects that the application for labor 
certification was filed on September 29,2003, which is less than 365 days prior to September 26,2004. 
On appeal, counsel asserts that the labor certification was filed on September 25,2003. Counsel submits 
a copy of a PS Form 381 1 indicating that the labor certification was mailed on September 25, 2003. 
Counsel asserts that the Department of Labor follows the "mailbox" rule in determining the date of filing 
of an application or petition. Counsel submits no evidence to support this assertion. Both the letter from 
the NY DOL and the PS form 381 1 indicate that the application for labor certification was filed on 
September 29, 2003. Regulations relating to the filing of petitions with CIS state that petitions are 
considered filed when received, not when mailed. 8 C.F.R. 4 103.2(a)(7). The unsupported statements of 
counsel on appeal are not evidence and thus are not entitled to any evidentiary weight. See INS v. 
Phinpathya, 464 U.S. 183, 188-89 n.6 (1984); Matter of Ramirez-Sanchez, 17 I&N Dec. 503 (BIA 1980). 
As the record does not establish that the requisite 365 days had passed between the filing of the labor 
certification application and the expiration of the beneficiary's authorized period of stay, the petitioner 
has not established that the beneficiary is eligible to extend his stay in the H-1B classification beyond the 
six-year maximum period. 
The AAO notes that, pursuant to 214(g)(4) of the Act, the beneficiary may be eligible to recapture any 
time he spent outside the United States during the six years he was in H-1B status. This conclusion is 
supported and explained by the court in Nair v. Coultice, 162 F. Supp. 2d 1209 (S.D. Cal. 2001). It is 
further supported by a policy memorandum issued by the United States Citizenship and Immigration 
Services (USCIS) that adopts Matter of I-, USCIS Adopted Decision 06-0001 (AAO, October 18, 2005), 
available at: htt~://uscis.~ov/maphics/lawre~s/decisions.htm, as formal policy. See Memorandum from 
Michael Aytes, Acting Associate Director for Domestic Operations, Citizenship and Immigration Services, 
Department of Homeland Security, Procedures for Calculating Maximum Period of Stay Regarding the 
Limitations on Admission for H-IB and L-I Nonimmigrants. AFM Update AD 05-21 (October 21,2005). 
The AAO further notes that the petitioner is in the best position to organize and submit proof of the 
beneficiary's departures from and reentry into the United States. Copies of passport stamps or Form 1-94 
amval-departure records, without an accompanying statement or chart of dates the beneficiary spent 
outside the country, could be subject to error in interpretation, might not be considered probative, and 
may be rejected. Similarly, a statement of dates spent outside of the country must be accompanied by 
consistent, clear and corroborating proof of departures from and reentries into the United States. The 
petitioner must submit supporting documentary evidence to meet his burden of proof. See Matter of 
SofJici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 
190 (Reg. Comm. 1972)). The petitioner submitted evidence that the beneficiary re-entered the United 
States twice but did not provide evidence of the beneficiary's departures and how much time he spent 
outside the United States. Thus, the record as presently constituted, does not establish that the beneficiary 
is entitled to recapture time spent outside the United States. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
5 136 1. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed. The petition is denied.