dismissed H-1B Case: Software Development

ideniijling data deleted to 
P-t c!ea: 'v unw-ted 
inmion of personal privacy 
U.S. Department of Homeland Security 
20 Mass Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
PUBLIC COPY 
FILE: LIN 05 044 5 1869 Office: NEBRASKA SERVICE CENTER Date: JUL 2 1 2006 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l S)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § 11 Ol(a)(lS)(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 Office 
LIN 05 044 5 1869 
Page 2 
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. 
The petitioner is a software development and consulting company. It seeks to employ the beneficiary as a 
programmer analyst and to extend by 127 days his classification as a nonimmigrant worker in a specialty 
occupation pursuant to section I 0 1 (a)(l 5)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1 1 Ol(a)(l5)(H>(i>(b). 
The director denied the petition on the ground that the beneficiary had already been employed in the United 
States for six years, the maximum time allowable in H-IB classification. The director found that the 127 days 
that the beneficiary spent outside the country before the expiration of that six-year period were not entitled to 
be recaptured as they were brief absences for business or pleasure. Thus, the director concluded that the 
beneficiary was not entitled to an extension of his H-1 B classification for those days. 
The record of proceeding before the AAO contains: (I) the Form 1-129 and supporting documentation; (2) 
the director's request for evidence (RFE); (3) the petitioner's response to the WE; (4) the director's decision; 
and (5) the Form I-290B and the brief. The AAO reviewed the record in its entirety before issuing its 
decision. 
In general, section 214(g)(4) of the Act, 8 U.S.C. 5 11 84(g)(4), provides that "[tlhe period of authorized 
admission [of an H-1B nonimmigrant] may not exceed 6 years." [Emphasis added.] The regulation at 
8 C.F.R. tj 214.2 (h)(l3)(iii)(A) states, in pertinent part, that: 
An H-IB alien in a specialty occupation . . . who has spent six years in the United States under section 
101(a)(15)(H) and/or (L) of the Act may not seek extension, change status or be readmitted to the United 
States under section 1 OI(a)(15)(H) or (L) of the Act unless . . . . [emphasis added]. 
Section 101(a)(13)(A) of the Act states that "[tlhe terms 'admission' and 'admitted' mean, with respect to an 
alien, the lawful entry of the alien in the United States after inspection and authorization by an immigration 
officer." The plain language of the statute and the regulations indicates that the six-year period accrues only 
during periods when the alien is lawfully admitted and physically present in the United States. This 
conclusion is further supported and explained by the court in Nair v. Coultice, 162 F. Supp. 2d 1209 (S.D. 
Cal. 2001). It is further supported by a policy memorandum issued by the United States Citizenship and 
Immigration Services (USCIS) that adopts Matter of I-, USCIS Adopted Decision 06-0001 (AAO, October 
18, 2005), available at: http://uscis.gov/araphics/lawrens/decisions.htm, as formal policy. See Memorandum 
from Michael Aytes, Acting Associate Director for Domestic Operations, Citizenship and Immigration 
Services, Department of Homeland Security, Procedures for Calculating Maximum Period of Stay Regarding 
the Limitations on Admission for H-IB and L-1 Nonimmigrants. AFM Update AD 05-2 1 (October 2 1,2005). 
LIN 05 044 5 1869 
Page 3 
The director stated that the beneficiary entered the United States in H-1B classification on December 6, 1998 
and maintained continuous H-1B status until December 6, 2004. On December 1,2004 the petitioner filed an 
H-IB extension application with the Nebraska Service Center seeking to recapture an additional 127 days - 
which would extend the beneficiary's H-1B classification to April 13, 2005 - based on time the beneficiary 
spent outside the United States. The service center director did not allow for recapture of the time spent 
outside the United States as he stated that the absences were brief and were for business or pleasure. 
In accordance with the statutory and regulatory provisions previously cited, and the judicial decision in Nair 
v. Coultice, the AAO determines that the time the beneficiary spends in the United States after lawful 
admission in H-IB status is the time that counts toward the maximum six-year period of authorized stay. The 
beneficiary in this case was admitted to the United States in H-1B status each time he returned from outside 
the country. When he was outside the United States he was not in any status for U.S. immigration purposes. 
Thus, if proved, the beneficiary would have interrupted his period of H-1B status when he departed the 
country, and would have renewed his period of H-1B status each time he was readmitted in the United States. 
If proved, the beneficiary would be entitled to recapture any time spent outside the United States during the 
pendency of his H-1 B visa status. 
The AAO notes that the petitioner is in the best position to organize and submit proof of the beneficiary's 
departures from and reentry into the United States. Copies of passport stamps or Form 1-94 arrival-departure 
records, without an accompanying statement or chart of dates the beneficiary spent outside the country, could 
be subject to error in interpretation, might not be considered probative, and may be rejected. Similarly, a 
statement of dates spent outside of the country must be accompanied by consistent, clear and corroborating 
proof of departures from and reentries into the United States, along with cross-references to the dates on the 
passport pages reflecting the time the beneficiary spent outside the country. The petitioner must submit 
supporting documentary evidence to meet his burden of proof. See Matter ofSofJici, 22 I&N Dec. 158, 165 
(Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
The submitted affidavit from the beneficiary indicates that he was outside of the United States on five 
separate occasions for systems/project implementation. The affidavit is not sufficient evidence in establishing 
the time spent abroad, however, as the petitioner failed to submit proof of the beneficiary's departures from 
and reentry into the United States. Accordingly, the beneficiary is not entitled to additional days in H-1B 
classification. 
The petitioner bears the burden of proof in these proceedings. See section 291 of the Act, 8 U.S.C. § 1361. 
The petitioner has not sustained that burden. 
ORDER: 
 The appeal is dismissed. The petition is denied.