dismissed H-1B Case: Gymnastics

(b)(6)
DATE: 
IN RE: 
FEB 0 3 2Gi5 
Petitioner: 
Beneficiary: 
OFFICE: VERMONT SERVICE CENTER 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Service: 
Administrative Appeals Ollice (/\i\0) 
20 Massachusetts Ave .. N.W .. MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section lOl (a)(IS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § 1 101 (a)(l5)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish 
agency policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or 
policy to your case or if you seek to present new facts for consideration, you may file a motion to reconsider 
or a motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form 
1-290B) within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § I 03.5. Do not file a motion directly with the AAO. 
www.uscis.gov 
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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. 
I. PROCEDURAL BA CKGROUND 
The petitioner submitted a Petition for a Nonimmigrant Worker (Form I-129) to the Vermont 
Service Center. In the Form I-129 visa petition, the petitioner describes itself as a gymnastics 
school that was established in In order to continue to employ the beneficiary in what it 
designates as an upper level gymnastics coach position, the petitioner seeks to extend his 
classification as a nonimmigrant worker m a specialty occupation pursuant to section 
101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1101 ( a)(15)(H)(i)(b ). 
The director reviewed the information and determined that the petitiOner failed to establish 
eligibility for the benefit sought. The director denied the petition, finding that the petitioner did not 
establish that the beneficiary is eligible for an extension of stay beyond the six years under section 
104(c) and 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 ). On appeal, counsel asserts that the director's basis for denial of the 
petition was erroneous and contends that the petitioner satisfied all evidentiary requirements. 
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 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 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, and the petition will be denied. 
II. LAW 
A. Stay in H-lB Status Limited to Six Years 
An alien who will perform services in a specialty occupation may be admitted to the United States 
as an H-lB nonimmigrant. See section 10 l (a)(l5)(H)(i)(B) of the Act. A specialty occupation is 
defined as an occupation that requires (1) theoretical and practical application of a body of highly 
specialized knowledge, and (2) the attainment of a bachelor's or higher degree in the specific 
specialty (or its equivalent) as a minimum for entry into the occupation in the United States. See 
section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l). The total number of aliens who may be issued 
1 We conduct appellate review on a de novo basis. See Soltane v. DOJ, 3 8 1 F.3d 143, 145 (3d Cir. 2004). 
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H-1B visas or otherwise accorded H-1B status in a fiscal year may not exceed 65,000. See section 
214(g)(l)( A)(vii) of the Act, § 8 U.S.C. 1184(g)(l )(A)(vii). 
Under the Act, H-IB admission is limited to six years. See section 214(g)(4) of the Act, 8 U.S.C. 
§ 1184(g)( 4). Generally, an H-IB petition may not be approved on behalf of a beneficiary who has 
spent the maximum allowable stay as an H-IB nonimmigrant in the United States, unless he/she has 
resided and been physically present outside the United States for the immediate prior year. See 
8 C.F.R. § 214.2(h)(l 3)(iii)(A). 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. 
However, as will be discussed, section 1 04( c) and section 1 06( 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) removes the six-year limitation on the 
authorized period of stay in H -1 B classification for aliens under certain conditions. 
B. Exemption for Beneficiaries with Approved Immigration Petition 
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, 
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, § 104(c), 114 Stat. at 1253. 
Under 104(c) of AC21, an alien who is subject to a per-country limitation and who is the 
beneficiary of an approved immigrant petition under section 203(b )(l ), (2), or (3) of the Act, 
8 U.S.C. 1153(b )(l), (2), or (3), is eligible for H-1B approval beyond the statutory six-year 
maximum. See Pub. Law 106-313, 114 Stat. at 1252-1253. The H-IB petitioner must demonstrate 
that an immigrant visa is not available to the alien at the time the H-1B petition is filed. 
C. Exemption for Beneficiaries with Pending Labor Certifications or Immigrant Petitions 
Likewise, section 106(a) of AC21 as amended by DOJ21 removes the six-year limitation on the 
authorized period of stay in H-IB visa status for certain aliens whose labor certifications or 
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immigrant petitions remain undecided due to lengthy adjudication delays and broadens the class of 
H-lB nonimmigrants who may avail themselves of this provision. 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 1 06(b) of AC21, aliens may have their "stay" extended in 
the United States in one-year increments pursuant to an exemption under section 1 06(a) of AC21. 
As amended by section 11030A(a) of DOJ21, section 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. § 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 
10l (a)(15)(H)(i)(b) of such Act (8 USC § 1101(a)(I5)(H)(i)(b)), if 365 days or 
more have elapsed since the filing of any of the following: 
(1) Any application for labor cert�fication under section 212 ( a)(5 )(A) of such Act 
(8 USC. § I I82(a)(5)(A)), in a case in which certifzcation is required or used by 
the alien to obtain status under section 203(b) of such Act (8 U.S C. § 1 I 53 (b)). 
(2) A petition described in section 204(b) of such Act (8 US C. §I I 54(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-lB 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 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 beha(f of 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 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 
00121). A delay of 365 days or more in the final adjudication of a filed labor certification 
application or employment based 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. 
Ill. FACTUAL BACKGROUND 
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In this matter, the petitioner submitted the Form I-129 petition on January 27, 2014. The petitioner 
claimed that the beneficiary was exempt from the six year limitation in H-lB classification. 
Upon review of the record of proceeding, we note the following: 
• The petitioner indicates that the beneficiary has been in the United States in 
H-lB classification from December 2002 to the present (without 
interruption). 
• The petitioner filed an Application for Permanent Employment (Form ETA 
9089) on December 13, 2006 (case number It was certified 
by the U.S. Department of Labor (DOL) on January 9, 2009. 
• The petitioner filed a Form I -140 (Petition for Immigrant Worker) on 
February 24, 2009 (receipt number . It was denied on 
September 1, 2009. The petitioner filed an appeal on September 28, 2009, 
which was dismissed on November 14, 2012. The petitioner then filed a 
motion to reconsider, which was dismissed on May 22, 2013. 
• On June 10, 2013, the petitioner filed an Application for Permanent 
Employment (Form ETA 9089) (case number 
• On January 27, 2014, the petitioner filed the instant H-1B petition. 
• On January 31, 2014, an Application for Permanent Employment, ETA Case 
Number was certified by DOL. 
• On May 8, 2014, the petitioner filed a Form I-140 petition (receipt number 
_j, which is pending. 
IV. ANALYSIS 
In this matter, the petitioner submitted the Form I-129 petition on January 27, 2014. The petitioner 
did not provide probative evidence that when the H-1 B petition was filed, the beneficiary had an 
approved immigrant petition but was subject to per-country limitations. Thus, the beneficiary does 
not qualify for an extension of stay under section 1 04( c) of AC21. 
Further, the petitioner has not demonstrated that, at the time of filing this H-1B petition, there had 
been a delay of 365 days or more in the final adjudication of a filed labor certification application or 
employment based petition. Therefore, the petitioner did not establish that the beneficiary is eligible 
to extend his H-lB classification based on 106(b) of AC21. 
The petitioner and its counsel claim that according to the Adjudicator's Field Manual (AFM) at 
section 31.3(g)(8), "[w]here an LC is re-filed under PERM, the filing date of the original ETA 
750/9089 will be used ... (2) where DOL does not permit the original filing date to be used but the 
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petitioner demonstrates that the elements relating to the job opportunity and the alien beneficiary on 
the new LC are not 'materially different' from those specified on the former ETA-750/9089." 
Counsel continues by comparing the position as described in the Form ETA 9089 that was filed in 
2006 (case number , and the position as described in the Form ETA 9089 that was 
filed in 2013 (case number ·. We note, however, that the petitioner and its 
counsel have not provided an accurate quotation of the AFM, and their analysis is misapplied here? 
More specifically, the statement referenced above deals with labor certifications filed with DOL 
prior to March 28, 2005 using the Form ETA-750 (Application for Alien Employment 
Certification). On March 28, 2005, DOL implemented a new permanent labor certification system 
(PERM), and the labor certification application Form ETA-750 was replaced by the Form 
ETA-9089 on that date. 20 C.F.R. § 656.17. 
The relevant section of the AFM was chapter 33.3(g)(8) and stated the following: 
Effect of Withdrawn Form ETA-750 Labor Certifications and Re-Filing Under 
PERM During Transition: If a Form ETA-750 labor certification is withdrawn by 
DOL as part of the filing of a new Form ET A-9089, the filing date of the withdrawn 
Form ETA-750 labor certification may be deemed to be the filing date in order to 
determine if the labor certification was filed 365 days or more prior to the requested 
employment start date on the H-lB petition only in the following circumstances: 
I. If the elements relating to the job opportunity and the alien beneficiary on 
the newly filed Form ETA-9089 labor certification application are identical 
to the data elements specified on the previously filed Form ETA-750 (with 
the exception of the prevailing wage determination), then DOL will allow the 
employer to retain the original priority date which will be reflected in Section 
"0." of the Form ETA-9089. 
2. If DOL does not allow the employer to retain the priority date on the Form 
ETA-750 or if the Form ETA-9089 is still pending at the time of filing the H­
lB extension petition, if the elements relating to the job opportunity and the 
alien beneficiary on the new labor certification application are not materially 
different from the data elements specified on the previously filed Form ETA-
750 (with the exception of the prevailing wage determination). 
* * * 
[I]f the Form ETA-750 indicated that the minimum education requirement for entry 
2 It appears that the actual quotation states (emphasis added): "Where an LC is re-filed under PERM, the 
filing date of the original ETA-750 will be used: (1) where DOL allows the original filing date to be 
maintained by noting it in Section '0' of the ETA 9089; or (2) where DOL does not permit the original filing 
date to be used but the petitioner demonstrates that the elements relating to the job opportunity and the alien 
beneficiary on the new LC are not 'materially different' from those specified on the former ETA-750." Ira J. 
Kurzban, Kurzban's Immigration Law Sourcebook, 948 (141h ed. 2014-20 15). 
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NON-PRECEDENT DEC�ION 
into the position was a Bachelor's degree in Computer Science, but the Form ETA-
9089 indicated that the minimum education requirement for the position was a 
Master's degree in Computer Science, then the elements of the job opportunity 
would not be materially the same. In this instance, the filing date of the Form ETA-
750 could not be used to determine if the labor certification was filed 365 days or 
more prior to the requested employment start date as reflected on the Form I -129 
petition. 
There is no evidence in the record that the petitioner submitted a Form ETA 750 prior to March 28, 
2005, and then withdrew the form in order to refile under DOL's PERM system. Thus, the 
information cited by the petitioner and its counsel is not relevant to the issue here. We further note 
that section 106(b)(l) of AC21 specifically states that the one-year extension of stay should not be 
granted once a final decision is made to deny the Form I-140 immigrant petition filed pursuant to a 
labor certification. 
Neither the plain language of the statute nor the pertinent legislative history indicate that Congress 
intended to permit a beneficiary to extend his or her H-lB status indefinitely based on a prior, approved 
labor certification once the Form I-140 petition filed using that labor certification is denied. Upon 
review, the petitioner has not established that the beneficiary is eligible for H-1 B classification. 
V. BEYOND THE DIRECTOR'S DECISION 
Beyond the decision of the director, the record reflects that the petitioner did not file the petition for 
an extension within the required time frame. The regulation at 8 C.F.R. § 214. 2(h)(14) provides, in 
pertinent part, that a petition extension may be filed only if the validity of the original petition has 
not expired. In the present case, the prior H-lB petition expired on January 20, 2014. However, the 
instant petition extension was filed on January 27, 2014, seven days after the expiration of the 
petition it sought to extend. As the extension petition was not timely filed during the validity period 
of the prior petition, it must be denied for this additional reason.3 
VI. CONCLUSION AND ORDER 
An application or petition that fails to comply with the technical requirements of the law may be 
denied by the AAO even if the service center does not identify all of the grounds for denial in the 
initial decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1037 (E.D. 
Cal. 2001), a.ffd, 345 F.3d 683 (9th Cir. 2003); see also Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 
2004) (noting that the AAO conducts appellate review on a de novo basis). 
Moreover, when the AAO denies a petition on multiple alternative grounds, a plaintiff can succeed 
on a challenge only if it shows that the AAO abused its discretion with respect to all of the AAO's 
enumerated grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043, affd. 
345 F.3d 683. 
3 As the identified ground of ineligibility is dispositive of the petitioner's appeal, we need not address any the 
additional issues we have identified in the record of proceeding. 
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The petition will be denied and the appeal dismissed for the above stated reasons, with each 
considered as an independent and alternative basis for the decision. In visa petition proceedings, it 
is the petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of 
the Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden 
has not been met. 
ORDER: The appeal is dismissed. The petition is denied.