dismissed H-1B Case: Retail Management

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PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
FILE: LIN 03 174 545 16 Office: NEBRASKA SERVICE CENTER Date: APR 2 6 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 1 Ol(a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 8 1 10 l(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, Director 
Administrative Appeals Office 
LIN 03 174 54516 
Page 2 
DISCUSSION: The director of the service center denied the nonimmigrant visa petition and the matter is now 
before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. The petition will be 
denied. 
The petitioner is involved in the retail sales of nursery, craft and pet supplies. It seeks to employ the 
beneficiary as a store manager. The petitioner, therefore, endeavors to classify the beneficiary as a 
nonimmigrant worker in a specialty occupation pursuant to section 101 (a)(l 5)(H)(i)(b) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. $ 1 10 1 (a)(l 5)(H)(i)(b). 
The director denied the petition because the beneficiary is not eligible for extension of H-1B nonimmigrant 
status under the 21" Century Department of Justice Appropriations Authorization Act because a final decision 
was made on the alien's employment based immigrant petition (1-140). 
On appeal, counsel submits a brief stating that a final decision has not been made on the 1-140 petition in that, 
even though the 1-140 petition was denied, it is presently on appeal before the AAO. Thus, counsel contends 
that the decision denying the petition is not final and the petitioner is entitled to an extension of status. 
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-1B nonimmigrant] shall not exceed 6 years." However, the American Competitiveness in 
the Twenty-First Century Act (AC21), as amended by the Twenty-First Century Department of Justice 
Appropriations Authorization Act (2 lSt Century DOJ Appropriations Act), 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 $ 11030(A)(a) of the DOJ Authorization Act, $ 106(a) of AC-21 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 10 1 (a)(l 5)(H)(i)(b) of such Act 
(8 U.S.C. $ 1 101(a)(l5)(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. 8 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) 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 11030(A)(b) of the DOJ Authorization Act amended $ 106(a) of AC-21 to read: 
LIN03 174 54516 
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 of proceeding before the AAO contains: (I) Form 1-129 and supporting documentation; (2) the 
director's denial letter; and (3) Form I-290B and supporting documentation. The AAO reviewed the record in 
its entirety before issuing its decision. 
Citizenship and Immigration Service (CIS) records reflect that the petitioner's appeal of the 1-140 denial 
(LIN 03 120 55380) was dismissed by the AAO on October 31, 2003. That decision is a final decision. The 
1-140 petition is denied. Thus, the petitioner is not entitled to an extension of H-1B nonimmigrant status 
under AC21 and the petition must accordingly be denied. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. tj 1361. 
The petitioner has not sustained that burden. 
ORDER. The appeal is dismissed. The petition is denied.