dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 8657284 
Appeal of California Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JUN. 7, 2021 
Form 1-129, Petition for Non immigrant Worker (H-lB) 
The Petitioner, a ______ ~company, seeks to temporarily employ the Beneficiary as a 
"principal system architect" under the H-lB nonimmigrant classification for specialty occupations. 
Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(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 of the California Service Center denied the petition, concluding that the requested 
employment period exceeded the six-year limit afforded to H-lB workers and that the record did not 
establish that the Beneficiary was eligible for exemption of the limit because he had never held H-lB 
status. The matter is now before us on appeal. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Section 291 of the Act; Matter of Chawathe, 25 l&N Dec. 369,375 (AAO 2010). We review the 
questions in this matter de nova. See Matter of Christo 's Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). 
Upon de nova review, we will dismiss the appeal. 
I. PROCEDURALANDFACTUALBACKGROUND 
The Beneficiary was admitted into the United States as a managerial or executive employee and asserts 
that he has the following periods of stay in L-lA status in the United States.1 
FROM TO 
May 14, 2013 Present 
March 19, 2012 April 2, 2012 
January 17, 2012 January 27, 2012 
April 26, 2010 February 28, 2011 
1 The Beneficiary reached his maximum period of stay permitted in L-lAclassification and doesnotassert that he has any 
days to recapture. See section 214(c)(2)(D) of the Act, 8 U.S.C. § 1184(c)(2)(D); 8 C.F.R. § 214.1(1)(12). 
In May 2016, a prior petitioner filed a Form 1-140, Immigrant Petition for Alien Worker, on behalf of 
the Beneficiary, which was approved in June 2016, with an October 5, 2015, priority date. On April 
1, 2019, the Petitioner filed the instant petition requesting that the Beneficiary's status be changed on 
October 1, 2019, from L-lA non immigrant classification to H-lB non immigrant classification and 
that his stay in the United States be extended through September 10, 2022. In particular, the Petitioner 
requests that the Beneficiary's stay be extended beyond the six-year limitation contained in section 
214(g)(4) of the Act, 8 U.S.C. § 1184(g)(4), pursuant to section 104(c) of the "American 
Competitiveness in the Twenty-First Century Act" (AC21). See Pub. L. No. 106-313, §§ 104(c) and 
106(a), (b), 114 Stat.1251, 1253-54 (2000); Pub. L. No.107-273, § 11030A(a), 116Stat.1836 (2002). 
The Petitioner submitted evidence confirming that the Form 1-140 filed by the prior petitioner on the 
Benet iciary's behalf was approved, and that there were no eligible visa numbers for the Beneficiary's 
immigrantvisa category and country of birth when the instant petition wast iled. Thus, the Beneficiary 
reached the maximum allowed time in "H or L" status pursuant to the regulation at 8 C.F.R. 
§ 214.2(h)(13)(iii)(A) prior to the requested start date of October 1, 2019. The record does not show 
that, at the time the instant petition was filed, the Beneficiary had been present outside the United 
States for the immediate prior year. 
11. LEGAL FRAMEWORK 
Section 214(g)(4) of the Act, 8 U.S.C. § 1184(g)(4) provides: "In the case of a nonimmigrant 
described in section 101(a)(15)(H)(i)(b), the period of authorized admission as such a non immigrant 
may not exceed 6 years." Section 106(a) and 104(c) of the AC21 as amended by the "Twenty-First 
Century Department of Justice Appropriations Authorization Act" (DOJ21) temporarily removes the 
six-year limitation on the authorized period of stay in H-lB classification for foreign nationals under 
certain conditions. 
More specifically, an exemption is available under section 106(a) of AC21 for certain foreign nationals 
whose labor certif icationsor immigrant petitions remain undecided due to lengthy adjudication delays. 
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 106(b) of AC21, foreign nationals may have 
their "stay" extended in the United States in one-year increments pursuant to an exemption under 
section 106(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 
101(a)(15)(H)(i)(b) of such Act (8 U.S.C. § 1101(a)(15)(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. § 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. § 1153(b)). 
2 
(2) A petition described in section 204(b) of such Act (8 U.S.C. § 1154(b)) to 
accord the alien a status under section 203(b) of such Act. 
Section 11030A(b) of DOJ21 amended section 106(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-
(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; 
(2) to deny the petition described in subsection (a)(2); or 
(3) to grant or deny the alien's application for an immigrant visa orfor 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 DOJ21). 
A delay of 365 days or more in the final adjudication of a filed labor certification application or 
employment-based immigrant 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. 
111. ANALYSIS 
Upon review of the record of proceeding, we conclude that the Petitioner has not established that the 
Benet iciary is eligible for an extension of stay in the United States pursuant to section 104(c) of AC21. 
That is because section 104(c) of AC21 applies only to an individual described in section 214(g)(4) of 
the Act, i.e., an individual accorded H-lB status pursuantto section 101(a)(15)(H)(i)(b) of the Act. 
The Beneficiary is not an individual described in section 214(g)(4) of the Act, as he does not have and 
has never been accorded H-lB status. 
The Petitioner asserts that the intent behind the statute supports its conclusion that the AC21 exemption 
applies to the Beneficiary. Therefore, the starting point for our analysis is the language of the statute. 
Section 104(c) of AC21 begins by specifically referring to section 214(g)(4) of the Act, which in turn 
specifically refers to "a non immigrant described in section 101(a)(15)(H)(i)(b)." We interpret the 
specific reference to section 214(g)(4) of the Act as framing and limiting the applicability of section 
104(c) of AC21 to only to an individual described in section 214(g)(4) of the Act. Moreover, we 
interpret the specific reference to "a nonimmigrant described in section 101(a)(15)(H)(i)(b)" to 
determine that section 214(g)(4) of the Act refers exclusively to an H-lB nonimmigrant. 
The term "any alien" in section 104(c) is not broadly interpreted as including any individual in any 
nonimmigrantstatus. Here, the term "any alien" in section 104(c) must be read together with, and 
qualified by, the immediately preceding phrase of "[n]otwithstanding section 214(g)(4) of the 
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Immigration and Nationality Act." That is, the term "any alien" does not broadly refer to any 
individual in any non immigrant status, but rather, to any individual described in section 214(g)(4) of 
the Act, i.e., an individual in H-1B status. In addition, the term "any alien" in section 104(c) must be 
read together with the subsequent phrase "an extension of such non immigrant status." The word 
"such" would be rendered meaningless if we were to broadly interpret the term "any alien" to refer to 
any individual in any nonimmigrant status. The most reasonable reading of the word "such" is that it 
refers back to a non immigrant as described in section 214(g)(4) of the Act, i.e., an individual in H-1B 
status. In other words, section 104(c) must be read as stating that any individual described in section 
214(g)(4) of the Act may apply for, and be granted, an extension of such H-1B status. Further, an 
individual who is not in H-1B status could not reasonably be granted an extension of H-1B status under 
the ordinary meaning of the word "extension" (as opposed to, for example, a change of status). 
Statutory language must be given conclusive weight unless the legislature expresses an intention to 
the contrary. Int'! Bhd. of Elec. Workers, Local Union No. 474, AFL-CIO v. NLRB, 814 F.2d 697 
(D.C. Cir. 1987). The plain meaning of the statutory language should control except in rare cases in 
which a literal application of the statute will produce a result demonstrably at odds with the intent of 
its drafters, in which case it is the intention of the legislators, rather than the strict language, that 
controls. Samuels, Kramer & Co. v. CIR, 930 F.2d 975 (2d Cir. 1991). We are expected to give the 
words used in their ordinary meaning. See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc. 
467 U.S. 837 (1984). 
The Petitioner has not presented persuasive arguments or sufficient documentation demonstrating that 
Congress intended to extend the provisions of section 104(c) to any classification other than the H-1B 
classification. The Petitioner claims that "the purpose of the AC21 provision is to afford a transitional 
protection for foreign nationals to continue working with their U.S. employers without leaving the 
country .... " However, the legislative history indicates that AC21 was specifically intended to 
provide relief to H-1B nonimmigrants, not foreign nationals in general. The legislative history 
discussing section 104(c) of AC21 does not reference the Lor any classification other than the H-1B 
classification. Notably, the title of Public Law 106-313 begins as: "An Act: To amend the 
Immigration and Nationality Act with respect to H-1B nonimmigrant aliens." 2 We are to construe the 
language in question in harmony with the thrust of related provisions and with the statute as a whole. 
See K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (holding that construction of language 
which takes into accountthe design of the statute as a whole is preferred); see also COIT Independence 
Joint Venture v. Fed. Sav. and Loan Ins. Corp., 489 U.S. 561 (1989); Matter of W-F-, 21 l&N Dec. 
503 (BIA 1996). 
As previously noted, Section 104(c) of AC21 begins by specifically referring to section 214(g)(4) of 
the Act; it does not reference section 214(c)(2)(D) of the Act. The title of the statute and its specific 
reference to section 214(g)(4) of the Act, to the exclusion of section 214(c)(2)(D) of the Act, further 
undermines the Petitioner's position concerning the purpose of AC21. If Congress had specifically 
intended to include L non immigrants, other non immigrants, or all foreign nationals in section 104(c) 
of AC21, it could and would have done so. 3 Further, the section of Senate Report 106-260 that the 
2 The fu II version of the statute may be accessed online at http://www.gpo.gov/fdsys/pkg/PLAW-106publ313/pdf/PLAW-
106publ313.pdf (last visited Jun. 7, 2021). 
3 For example, in drafting section 104( c) of AC2 l, Congress could have stated, "Notwithstanding section 2 l 4(g)(4) and 
section 214(c)(2)(D)ofthe Immigration and Nationality Act .... " 
4 
Petitioner cites on appeal specifically states that the AC21 "affords transitional protection to 
individuals on H-1B visas," acknowledging that that the individuals might "be forced to return home 
at the conclusion of their allotted time in H-1B status," and that the "provision enables these 
individuals to remain in H-1B status" (emphasis added).4 
Next, the Petitioner focuses heavily on the language contained in the Interoffice Memorandum from 
Michael Aytes, Associate Director, Domestic Operations, Guidance on Determining Periods of 
Admission for Aliens Previously in H-4 or L-2 Status; Aliens Applying for Additional Periods of 
Admission beyond the H-1B Six Year Maximum; and Aliens Who Have Not Exhausted the Six-Year 
Maximum But Who Have Been Absent from the United States for Over One Year (Dec. 5, 2006) and 
claims that it is relevant here. However, the sentence in the Aytes Memorandum that "[a]liens who 
are eligible for the 7th year extension may be granted an extension of stay regardless of whether they 
are currently in the United States or abroad and regardless of whether they currently hold H-1B status," 
does not support the conclusion that section 104(c) of AC21 extends beyond H-1B non immigrants. 
The Petitioner emphasizes that foreign nationals need not currently hold H-1B status to be eligible for 
AC21. While true, the Petitioner ignores that the above-quoted sentence is found in the paragraph 
beginning with the following sentence, "[i]n sections 106 and 104(c) of AC21, Congress provided 
exemptions to the six-year maximum period of stay rules for certain H-1B aliens" (emphasis added). 
Taking these sentences together, the meaning of the paragraph is clear: if an individual is not currently 
in H-1B status, such individual must have previously held H-1B status to be eligible. This conclusion 
is supported by the subsequent" Note," which states that the Petitioner must establish the individual's 
eligibility for "any additional periods of stay in H-1B status ... including evidence of ... previous H-
1B status ... "(emphasis added). The use of the word "additional" implies that the individual must 
have had H-1B status to begin with, while the requirement of evidence of previous H-1B status 
specifically indicates the individual had to have held such status. Thus, contrary to the Petitioner's 
arguments, it is not clear how an individual who has never had H-1B status could be eligible for periods 
of "additional" H-1 B status and could submit evidence of his or her "previous" H -1 B status. 
Similarly, the Petitioner cites revisions to the Adjudicator's Field Manual (AFM) found at 2 USCIS 
Policy Manual H.31.2(d)(5), https://www.uscis.gov/policymanual, which state, "[a] qualified alien 
need not be in H-1B status in order to benefit from sections 106 and 104(c) of AC21. The alien may 
obtain such additional periods of H-1B admission through a petition to change status from another 
nonimmigrant classification, or through H-1B visa issuance at a U.S. consulate (unless visa exempt) 
and admission from abroad." Although it is acknowledged that the Petitioner uses this sentence to 
claim the Beneficiary may change his status to H-1B to take advantage of the AC21 exemption, this 
assertion fails for the same reasons as those explained above. As with the Aytes Memorandum, the 
accompanying "Note" in the AFM states that the petitioner bears the burden of proof to establish an 
individual's eligibility for "any additional periods of stay in H-1B status ... including evidence of .. 
. previous H-1B status .... " 
The Petitioner contends that the Director narrowly interpreted the regulations at 8 C.F.R. 
§ 214.2(h)(13)(iii)(E) to only allow foreign nationals who currently maintain or previously held H-1B 
4 The full version of Senate Report 106-260 can be found at https://www.govinfo.gov/content/pkg/CRPT-
106srpt260/html/CRPT-106srpt260.htm (last visited Jun. 7, 2021). 
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status to benefit from AC21 provisions. However, the Petitioner has not persuasively explained how 
the regulation could be interpreted in any other manner. The plain and unambiguous language of the 
regulation specifically states in pertinent part, "[a]n alien who currently maintains or previously held 
H-lB status ... is eligible for H-lB status beyond the 6-year limitation under section 214(g)(4) of the 
Act." Accordingly, the Petitioner's position in this matter is not supported by statutory or regulatory 
authority. We cannot agree that 8 C.F.R. § 214.2(h){l3)(iii)(E) effectively extends section 214(g)(4) 
of the Act to apply to L non immigrants. To the contrary, we conclude that the Act contains separate 
provisions regarding the maximum admission periods for H-lB and L nonimmigrants: section 
214(g)(4) of the Act (for H-lB nonimmigrants), and section 214(c)(2)(D) of the Act (for L 
non immigrants). Likewise, the regulations separately address the maximum periods of admission for 
H-lB and L non immigrants. Compare 8 C.F.R. § 214.1(1)(12) (setting forth limitations on period of 
stay for L non immigrants) with 8 C.F.R. § 214.2(h)(13)(iii)(A) (for H-lB nonimmigrants). 
In short, the evidence of record is insufficient to establish that section 104(c) of AC21 extends to 
individuals other than those described in section 214(g)(4) of the Act. The statutory and regulatory 
authority encompasses only individuals accorded H-lB classification and cannot be extended to other 
nonimmigrant classifications. Thus, an H-lB non immigrant is the only non immigrant eligible for an 
extension of such status pursuant to section 104(c) of AC21. Consequently, we cannot find that the 
Beneficiary, who is not and has never been in H-lB status, is eligible for an extension of H-lB 
nonimmigrant status pursuant to section 104(c) of AC21. 5 
IV. CONCLUSION 
The evidence of record does not establish that the Beneficiary is eligible for an extension of H-lB 
nonimmigrant status pursuant to section 104(c) of AC21. For this reason, the petition must be denied. 
The appeal will be dismissed for the above stated reason. In visa petition proceedings, it is a 
petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act 
8 U.S.C. § 1361. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
5 As the identified ground of ineligibility is dispositive of the Petitioner's appeal, we decline to reach and hereby reserve 
any arguments regarding specialty occupation issues. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) ('"courts and 
agencies are not required to make findings on issues the decision of which is unnecessary to the results they reach"); see 
also Matter of L-A-C-, 26 I &N Dec. 516, 526 n .7 (BIA 2015) (declining to reach alternative issues on appeal where an 
applicant is otherwise ineligible). 
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