dismissed H-1B Case: Medicine

identiQing data deleted to 
prevent ciearlli unwarranted 
invasion of personal privacy 
PUBLIC copy 
U.S. Department of Fiomeland Security 
20 Mass Ave., N.W., Rrn. 3000 
Washington. DC 20529 
U.S. Citizenship 
and Immigration 
FILE: LIN 04 235 52977 Office: NEBRASKA SERVICE CENTER Date: AUG 3 0 2006 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 I(a)(l S)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 5 1 101 (a)(l S)(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, Chief 
Administrative Appeals Ofice 
LIN 04 235 52977 
Page 2 
DISCUSSION: The director of the service center denied the nonimmigrant visa petition and the matter is now 
before the Administrative Appeals Ofice (AAO) on appeal. The appeal will be dismissed. The petition will be 
denied. 
The petitioner is a medical center that seeks to employ the beneficiary as a physician. The petitioner, 
therefore, endeavors to classifL the beneficiary as a nonimmigrant worker in a specialty occupation pursuant to 
section 10 l(a)(l S)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 9 1 10 1 (a)(l 5)(H)(i)(b). 
The director denied the petition because the beneficiary had remained in the United States in H-I B status for 
the maximum six-year period of stay and the petitioner had not satisfied the requirements for an extension of 
stay under the "American Competitiveness in the Twenty-First Century Act," (AC-21) as amended by the 
Twenty-First Century Department of Justice Appropriations Authorization Act" (DOJ Authorization Act). 
Included in the record of proceeding is the labor certification letter, from the 
U.S. Department of Labor (DOL). This letter indicates that the labor certification was filed on January 9, 
2004. Also included in the record is the Form 1-129 petition, which was filed on August 19, 2004; the 
petitioner seeks to extend the beneficiary's H-1B status from August 20,2004 to August 19,2005. 
In general, section 214(g)(4) of the Act, 8 U.S.C. $1 184(g)(4) provides that: "[Tlhe period of authorized 
admission of [an H-IB nonimmigrant] shall not exceed 6 years." However, AC-21 removes the six-year 
limitation on the authorized period of stay in H-1B visa status for certain aliens whose labor certifications or 
immigrant petitions remain undecided due to lengthy adjudication delays, and broadens the class of H-1B 
nonimmigrants who may avail themselves of this provision. 
As amended by $ 1 1030(A)(a) of the DOJ Authorization Act, 8 106(a) of AC-2 1 reads: 
(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. $ 1 lOl(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. fj 11 82(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 1 153(b)). 
(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 1 1030(A)(b) of the DOJ Authorization Act amended 5 106(a) of AC-2 1 to read: 
LIN 04 235 52977 
Page 3 
(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; 
(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 record reflects that the beneficiary first entered the United States in H-IB status on July 19, 1998 and has 
remained continuously in the United States until the petition filing date on August 19,2004. Thus, the expiration 
of the beneficiary's maximum period of authorized stay in H- 1 B status is July 18,2004. 
The evidence of record here reveals that the labor certification was filed on January 9,2004; thus, it had not been 
pending for at least 365 days at the time of the start date of employment on August 20,2004 or by the expiration 
of the beneficiary's maximum period of six year stay in H-1B status. The AAO therefore finds the beneficiary 
ineligible to derive benefits from the AC21, as amended by the 21'' Century DOJ Appropriations Act 
(DOJ21). See "Interim Guidance for Processing Form 1-140 Employment-Based Immigrant Petitions and 
Form 1-485 and H-IB Petitions AfSected by the American Competitiveness in the Twenty-First Century Act of 
2000 (AC21) (Public Law 106-3 13)," signed by William Yates, CIS Associate Director for Operations, on 
May 12,2005. 
As related in the discussion above, the petitioner has not established that the beneficiary is eligible to extend 
his stay in the H-I B classification beyond the six-year maximum period. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. 
The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed. The petition is denied.