dismissed H-1B Case: Mathematics Education

(b)(6)
U.S. Citizenship 
and Immigration 
Services 
MATTER OF E-B-R-P-S-S-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: DEC. 17, 2015 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR 
A NONIMMIGRANT WORKER 
The Petitioner, a public school system, seeks to continue its temporary employment of the 
Beneficiary as a "mathematics teacher" under the H-1B nonimmigrant classification. See 
Immigration and Nationalit y Act (the Act) § 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b) . 
The Director, California Service Center, denied the petition . The matter is now before U:s on appeal. 
The appeal will be dismissed. 
I. ISSUE 
The issue before us is whether the Petitioner has established that the Beneficiary is entitled to a 
seventh-year H-1 B extension in accordance with the applicable statutory and regulatory provisions . 
1 
II. LEGAL FRAMEWORK AND ANALYSIS 
On the Form I-129, the Petitioner was asked to provide the Beneficiary 's prior period of stay in H 
classification in the United States. The Petitioner stated that the Beneficiary had been in the United 
States, in H-1B status, from August 31, 2007, through the date the present petition was filed on July 
2 3, 2014. 
1 We conduct appellate review on a de novo basis . Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 20 15); see 
5 U.S.C. § 557(b) ("On appeal from or review of the initial decision , the agency has all the powers which it would have 
in making the initial deci sion except as it may limit the issues on notice or by rule."); see also Dor v. !NS, 891 F.2d 997, 
I 002 n.9 (2d Cir. 1989). 
2 In fact, the Beneficiary held valid H-1 8 status only through December 28, 2013. As noted in the Director's April 20 , 
2015, decision, the Benefi ciary's prior H-18 petition was not eligible for an extension under 
AC21. The prior H-18 petition was filed on July 26,2013 , seeking 7th year H-18 extension based on filing of a labor 
certification , However , the labor certification was filed on February 11, 2013 , and had not been 
pending for at least 365 days at the time the previous H-1 8 petition was filed. Ther efore, the Director only approved the 
previous petition throu gh December 28 , 2013 , which is the remainder period of the Beneficiar y's six-year maximum 
admission (six year beginning August 31 , 2007 minus days outside of United States) in H-1 B status . The Petitioner does 
not address the substance of these findings, but only states that the Director eiTed in approvin g the prior petition only 
through December 28, 2013. 
Matter of E-B-R-P-S-S-
Section 214(g)(4) of the Act, 8 U.S.C. § 1184(g)(4) provides: "[i]n the case of a nonimmigrant 
described in section 101(a)(15)(H)(i)(b), the period of authorized admission as such a nonimmigrant 
may not exceed 6 years." Sections 106(a) and 104(c) 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) temporarily removes the six-year limitation on the 
authorized period of stay in H -1 B 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 certifications or 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 1 06( a) of AC21. 
As amended by section 11030A(a) ofDOJ21, section 106(a) of AC21 reads: 
(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)(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 thefiling of 
any of the following: 
(1) Any application for labor c.ert(fication under section 212(a)(5)(A) of 
such Act (8 USC§ 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 USC§ 1153(b)). 
(2) A petition described in section 204(b) of such Act (8 US C. § 1154(b)) 
to accord the alien a status under section 203 (b) of such Act. 
Section 11030A(b) ofDOJ21 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 beha(fof the alien pursuant to such grant; 
2 
(b)(6)
Matter of E-B-R-P-S-S-
(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 
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. L. No. 107-273, 116 Stat. at 
1836. 
The Petitioner submitted evidence indicating that it filed a labor certification ( ) on 
behalf of the Beneficiary on February 11, 2013. However, as noted by the Director in her decision 
denying the petition, the labor certification has been denied. 3 As noted above, section 1 06(b) of 
AC21 specifies that exemption from the six-year limitation on the authorized period of stay in H-1B 
classification is available only "until such tinie as a final decision is made to ... deny the [labor 
certification]." As the labor certification has been denied, the Beneficiary does not qualify for an 
extension beyond the six-year limitation. 4 
We now tum to section 1 04( c) of AC21 regarding the exemption to the limited period of authorized 
admission under section 214(g)(4) ofthe Act. 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) ofthat 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. 
3 The Petitioner does not dispute the Director 's statement that the labor certification has been denied. A search of public 
records indicates that the labor certification was denied on July 16, 2014. 
4 There is no indication that any other labor certification or petition was filed on behalf of the Beneficiary: (I) more than 
365 days before the present petition was filed; and (2) remains pending. 
3 
Matter of E-B-R-P-S-S-
Pub. L. No. 106-313, § 104(c), 114 Stat. at 1253. 
Section 104(c) of AC21 is applicable when a foreign national, who is the beneficiary of a Form 
I-140 petition, is eligible to be granted lawful permanent resident status but for the application of a 
per country limitation to which that foreign national is subject or, alternatively, if the immigrant 
preference category applicable to that foreign national is, as a whole, "unavailable." Thus, to 
establish eligibility under the exemption at 1 04( c) of AC21, the Petitioner must establish that at the 
time of filing for the extension of H -1 B nonimmigrant status, the Beneficiary is not eligible to be 
granted lawful permanent resident status on the basis that he/she is subject to a per country or 
worldwide visa limitation in accordance with the his/her immigrant visa "priority date." 
In this case, the Petitioner does not assert and there is no evidence to support a claim that the 
Beneficiary here qualifies for an exemption under 1 04( c) of AC21. 
Generally, an H-1B petition may not be approved on behalf of a beneficiary who has spent the 
maximum allowable stay as an H..:1B nonimmigrant in the United States. 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. 
III. CONCLUSION AND ORDER 
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 of Otiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter of E-B-R-P-S-S-, ID# 14858 (AAO Dec. 17, 2015) 
4