dismissed H-1B Case: Finance

WdQiqg data deleted to 
went clearly umramntcd 
invasion of personal privacy 
U.S. Department of Homeland Security 
20 Massachusetts Ave. NW, Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
PUBLIC COPY 
FILE: EAC 03 141 50464 Office: VERMONT SERVICE CENTER Date: JUN O 5 2006 
PETITION: Petition for a Nonirnrnigrant Worker Pursuant to Section lOl(a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 8 1 lOl(a)(lS)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All materials have been returned 
to the office that originally decided your case. Any further inquiry must be made to that office. 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
EAC 03 141 50464 
Page 2 
DISCUSSION: The service center director denied the nonimmigrant visa petition. The matter is now on 
appeal before the Administrative Appeals Office (AAO). The appeal will be dismissed. The petition will be 
denied. 
The petitioner is an international investment firm that employs the beneficiary as a financial analyst. The 
petitioner seeks to extend the beneficiary's classification as a nonimmigrant worker in a specialty 
occupation (H-1B status) pursuant to section lOl(a)(lS)(H)(i)(b) of the Immigration and Nationality Act 
(the Act), 8 U.S.C. 5 1 lOl(a)(lS)(H)(i)(b). 
The director denied the petition on the ground that the beneficiary did not qualify for a one-year extension 
on his H-1B status under the provisions of the American Competitiveness in the 21" Century Act 
("AC21"). The director also determined that the beneficiary could not recapture an additional 91 days for 
brief trips outside the United States, and extend his H-1B by that amount of time, because the trips were 
not of sufficient duration as to interrupt his continuous residence in the United States. 
In general, section 214(g)(4) of the Act, 8 U.S.C. 5 1184(g)(4), provides that "[tlhe period of authorized 
admission [of an H-1B nonimmigrant] may not exceed 6 years." However, the amended American 
Competitiveness in the Twenty-First Century Act ("AC21") removes the six-year limitation on the 
authorized period of stay in H-1B status for certain aliens whose labor certification applications or 
employment-based immigrant petitions remain undecided due to lengthy adjudication delays and 
broadens the class of H-1B nonimmigrants who may avail themselves of this provision. 
Section 106 of AC21, as amended by section 11030(A)(a) and (b) of the 21" Century Department of 
Justice Appropriations Act, reads as follows: 
. 
(a) EXEMPTION FROM LIMITATION - The limitation contained in section 214(g)(4) of the 
Immigration and Nationality Act (8 U.S.C. 5 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 lOl(a)(lS)(H)(i)(B) of such Act 
(8 U.S.C. 5 1101 (a)(lS)(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 U.S.C. 5 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 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. 
(b) EXTENSION OF H-1B 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 - 
(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 behalf of 
the alien pursuant to such grant; 
EAC 03 141 50464 
Page 3 
(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 of status 
to that of an alien lawfully admitted for permanent residence. 
The regulation at 8 C.F.R. 5 214.2(h)(14) further provides that: "A request for a petition extension may be 
filed only if the validity of the original petition has not expired." 
The record of proceeding before the AAO includes (1) Form 1-129 and supporting documentation; (2) the 
director's request for evidence (RFE); (3) the petitioner's response to the RFE with additional documentation; 
(4) the notice of decision; and (5) Form I-290B, an appeal brief, and supporting materials. 
The record shows that the beneficiary was in H-1B status continuously for six years, from June 15, 1997 ' to 
June 14, 2003; that the petitioner filed an application for labor certification (Form ETA-750) on behalf of the 
beneficiary on August 13,2002; and that the petitioner filed the instant petition (Form 1-129) on April 4,2003 
for an extension of the beneficiary's H-1B status from June 15, 2003 until September 12, 2004. Noting that 
365 days had not passed from the filing of the labor certification application to the filing of the one-year 
extension petition under AC21, the director ruled that the beneficiary was not eligible for an extension of stay 
under section 106 of AC21. The director also ruled that the beneficiary could not recapture 91 days he spent 
outside the United States - and extend his H-1B status for an additional three months - because the trips were 
of short duration and thus did not interrupt his U.S. residence. 
On appeal counsel asserts that the director erred in finding that the beneficiary was not entitled to recapture 
91 days spent outside the United States between 1997 and 2003, and extend his H-1B status by that amount 
of time, because the applicable standard is not whether the beneficiary's U.S. residence or H-1B employment 
was interrupted, but whether his continuous physical presence in the United States was interrupted. Every 
day the beneficiary was not physically present in the United States, counsel contends, he was not in H-1B 
status. Counsel also asserts that there was no policy at the time the instant petition was filed that prohibited 
the filing of a seventh year extension petition under AC21 if the application for labor certification had not 
been pending for 365 days, and that if the petitioner had only requested the recapture of 91 days in its petition 
- which would extend the beneficiary's H-1B period to September 13, 2003 and past the 365day threshold 
of a pending labor certification application - the beneficiary would have fallen out of status before the 
director's decision was issued on January 14,2004, and therefore been ineligible for a seventh year extension 
under AC2 1. 
Citizenship and Immigration Services (CIS) issued a policy memorandum from William R. Yates, Associate 
Director of Domestic Operations, dated May 12,2005, entitled "Interim Guidance for Processing Form 1-140 
Employment-Based Immigrant Petitions and Form 1-485 and H-IB Petitions Aflected by the American 
Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313)." According to this 
I The petitioner asserts that the beneficiary first entered the United States on July 13, 1997, and that his 
period in H-1B status should be measured from that date. The immigration stamp cited as evidence by 
the petitioner, however, is illegible. Thus, the record does not support the petitioner's claim. 
This guidance has been subsequently affirmed by CIS in two policy memoranda from William R. Yates, 
EAC 03 141 50464 
Page 4 
CIS interim guidance, a beneficiary is entitled to an exemption from the six-year limitation on H-1B 
classification and an extension of stay in one-year increments beyond the six-year limit under AC 21 if 365 
days have elapsed between the filing of a Form ETA-750 (labor certification) application or a Form 1-140 
(immigrant) petition and the starting date of the one-year employment period requested in the H-1B extension 
petition. In the instant petition, the Form ETA-750 application was filed on August 13,2002, and the starting 
date of the one-year extension period sought for the beneficiary was June 15, 2003. Thus, the labor 
certification application had not been pending for 365 days on the starting date of the employment period 
sought in the Form 1-129 extension petition. Accordingly, the beneficiary is not entitled to an exemption 
from the six-year limitation on H-1B classification and a one-year extension of his classification under AC21. 
The petitioner asserts that the beneficiary took nine trips outside the United States, totaling 91 days, 
during his period of H-1B status between June 15, 1997 and June 14,2003. They are listed as follows: 
1. August 8-16, 1997 (8 days) - to Canada - on work-related business. 
2. January 24-February 8, 1998 (15 days) - to Canada - on work-related business. 
3. March 23-April 11, 1999 (19 days) - to Canada and Bangladesh - on personal business. 
4. January 8-28,2000 (20 days) - to Canada and Bangladesh - on personal business. 
5. January 19-30, 2002 (1 1 days) - to Canada - on work-related business. 
6. February 6-8,2002 (2 days) - to Canada - on work-related business. 
7. March 18-23.2002 (5 days) - to Canada - on work-related business. 
8. September 1-4,2002 (3 days) -to Canada - on work-related business. 
9. January 8-16, 2003 (8 days) - to Canada - on work-related business. 
With respect to the petitioner's claim that the beneficiary is entitled to recapture the days he was outside 
the United States and extend his H-1B status by that amount of time, the AAO looks first to the regulation 
at 8 C.F.R. 5 214.2 (h)(l3)(iii)(A), which contains the following pertinent language: 
An H-1B alien in a specialty occupation . . . who has spent six years in the United States 
under section 101(a)(15)(H) andlor (L) of the Act may not seek extension, change status 
or be readmitted to the United States under section lOl(a)(15)(H) or (L) of the Act unless 
. . . . [emphasis added]. 
Section 101(a)(13)(A) of the Act states that "[tlhe terms 'admission' and 'admitted' mean, with respect to 
an alien, the lawful entry of the alien in the United States after inspection and authorization by an 
dated September 23, 2005 and December 27, 2005, both of which are entitled "Interim Guidance for 
Processing Form 1-140 Employment-Based Immigrant Petitions and Form 1-485 and H-IB Petitions Affected 
by the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313)." 
EAC 03 141 50464 
Page 5 
immigration officer." The plain language of the statute and the regulation indicates that the six-year 
period accrues only during periods when the alien is lawfully admitted and physically present in the 
United States. This conclusion is further 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: http://uscis.gov/grz~phics/lawreas/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-1 
Nonimmigrants. AFM Update AD 05-21 (October 21,2005). 
In accordance with the foregoing authority, the AAO determines that the time the beneficiary spends in 
the United States after lawful admission in H-1B status is the time that counts toward the maximum six- 
year period of authorized stay. The beneficiary in this case was admitted to the United States in H-1B 
status each time he returned from outside the country. When he was outside the United States he was not 
in any status for U.S. immigration purposes. Thus, the beneficiary interrupted his period of H-1B status 
when he departed the country, and renewed his period of H-1B status each time he was readmitted to the 
United States. The evidence of record, however, does not clearly establish what days the beneficiary was 
outside the United States and does not corroborate the dates of any of the nine trips listed above. 
The AAO 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 arrival- 
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 its burden of proof. See Matter of Soflci, 22 I&N Dec. 
158, 165 (Comrn. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comrn. 
1972)). 
With respect to the first trip outside the country, a stamp in the beneficiary's passport shows that he was 
admitted into the United States on August 16, 1997. But there is no evidence in the record as to when the 
beneficiary departed the United States. Accordingly, the record does not confirm the beneficiary's claim 
that he was outside the country for 8 days - from August 8 to 16, 1997. 
With respect to the second trip outside the country, a stamp in the beneficiary's passport shows that he 
was admitted into the United States on February 8, 1998. But there is no evidence in the record as to 
when the beneficiary departed the United States. Accordingly, the record does not confirm the 
beneficiary's claim that he was outside the country for 15 days - from January 24 to February 8, 1998. 
With respect to the third trip outside the country, a stamp in the beneficiary's passport shows that he was 
admitted into the United States on April 11, 1999. But there is no evidence in the record as to when the 
beneficiary departed the United States. Accordingly, the record does not confirm the beneficiary's claim 
that he was outside the country for 19 days - from March 23 to April 11, 1999. 
EAC 03 141 50464 
Page 6 
With respect to the fourth trip outside the country, a stamp in the beneficiary's passport shows that he was 
admitted into the United States on January 28,2000. But there is no evidence in the record as to when the 
beneficiary departed the United States. Accordingly, the record does not confirm the beneficiary's claim 
that he was outside the country for 20 days - from January 8 to 28,2000. 
With respect to the fifth trip outside the country, the stamp on the beneficiary's Form 1-94 shows that he 
was admitted into the United States on January 30, 2002. But there is no documentary evidence as to 
when the beneficiary departed the United States. Accordingly, the record does not confirm the 
beneficiary's claim that he was outside the country for 11 days - from January 19 to 30,2002. 
With respect to the sixth trip outside the country, there is no documentary evidence as to when the 
beneficiary either departed or returned to the United States. Accordingly, the record does not confirm the 
beneficiary's claim that he was outside the country for 2 days - from February 6 to 8,2002. 
With respect to the seventh trip outside the country, an Air Canada ticket identifies the beneficiary as a 
passenger on a flight from Toronto to New York (LaGuardia Airport) on March 23,2002. But there is no 
documentary evidence as to when the beneficiary departed the United States. Accordingly, the record 
does not confirm the beneficiary's claim that he was outside the country for 5 days - from March 18 to 
23,2002. 
With respect to the eighth trip outside the country, there is evidence of a bank transaction in Toronto, 
Canada, on September 3, 2002, involving a bank card with the beneficiary's name on it. But there is no 
documentary evidence as to when the beneficiary departed the United States and when he returned to the 
United States. Accordingly, the record does not confirm the beneficiary's claim that he was outside the 
country for 3 days - from September 1 to 4,2002. 
With respect to the ninth trip outside the country, a boarding pass in the beneficiary's name identifies him 
as a passenger on an American Airlines flight from Toronto, Canada, to New York (LaGuardia Airport) 
on January 16, 2003, and the stamp on the beneficiary's Form 1-94 shows that he was admitted into the 
United States on that date. But there is no documentary evidence as to when the beneficiary departed the 
United States. Accordingly, the record does not confirm the beneficiary's claim that he was outside the 
country for 8 days - from January 8 to 16,2003. 
Thus, the record does not substantiate the petitioner's right to recapture any of the 91 days he claims to have 
spent outside the United States between June 15, 1997 and June 14,2003. 
The petitioner bears the burden of proof in these proceedings. See section 291 of the Act, 8 U.S.C. 5 1361. 
The petitioner has met not sustained that burden. Accordingly, the AAO will not disturb the director's 
decision denying the petition. 
ORDER: The appeal is dismissed. The petition is denied.