dismissed H-1B Case: Software Engineering

U.S. Citizenship 
and Immigration 
Services 
MATTER OF 0-S-, INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 25, 2015 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a healthcare management group, seeks to employ the Beneficiary as a software 
engineering manager, under the classification of a nonimmigrant worker in a specialty occupation. See 
section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1101(a)(15)(H)(i)(b). The Director, Vermont Service Center denied the petition. The matter is 
now before us on appeal. The appeal will be dismissed: 
The Director denied the petition, finding that the Petitioner did not establish that the Beneficiary is 
eligible for an extension of stay beyond the six years under section 1 04( c) and section 1 06( a) 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 ). On appeal, the 
Petitioner asserts that the Director's basis for denial of the petition was erroneous. 
The record of proceeding contains: (1) the Petitioner's Form I-129, Petition for a Nonimmigrant 
Worker, and supporting documentation; (2) the Director's request for evidence (RFE); (3) the 
Petitioner's response to the RFE; (4) the Director's decision; and (5) the Form I-290B and supporting 
documentation. We reviewed the record in its entirety before issuing our decision.' 
I. LAW 
A. Stay in H-1B Status Limited to Six Years 
An alien who will perform services in a specialty occupation may be admitted to the United States as 
an H-1B nonimmigrant. See section 101(a)(15)(H)(i)(B) of the Act. A specialty occupation is 
defined as an occupation that requires (1) theoretical and practical application of a body of highly 
specialized knowledge, and (2) the attainment of a bachelor's or higher degree in the specific 
1 We conduct appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). Also, in light 
of the petitioner's references to the requirement that U.S. Citizenship and Immigration Services (USCIS) apply the 
"preponderance of the evidence" standard, we affirm that, in the exercise of our appellate review in this matter, as in all 
matters that come within our purview, we apply the "preponderance of evidence" standard of review as articulated in the 
controlling precedent decision, Matter ofChawathe, 25 I&N Dec. 369, 375-376 (AAO 2010). 
Matter of 0-S-, Inc. 
specialty (or its equivalent) as a minimum for entry into the occupation in the United States. See 
section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l). The total number of aliens who may be issued 
H-1B visas or otherwise accorded H-1B status in a fiscal year may not exceed 65,000. See section 
214(g)(l)(A)(vii) of the Act,§ 8 U.S.C. 1184(g)(l)(A)(vii). 
Under the Act, H-1B admission is limited to six years. See section 214(g)(4) of the Act, 8 U.S.C. 
§ 1184(g)(4). 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, unless he/she has 
resided and been physically present outside the United States for the immediate prior year. See 
8 C.F.R. § 214.2(h)(13)(iii)(A). 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. 
However, as will be discussed, section 104(c) and section 106(a) ofthe "American Competitiveness 
in the Twenty-First Century Act" (AC21) as amended by the "Twenty-First Century Department of 
Justice Appropriations Authorization Act" (DOJ21) removes the six-year limitation on the 
authorized period of stay in H -1 B classification for aliens under certain conditions. 
B. Exemption for Beneficiaries with Approved Immigration Petition 
More specifically, section 1 04( c) of AC21 reads in, pertinent part, as follows: 
Notwithstanding section 214(g)(4) ofthe 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) of that 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. 
Pub. L. No. 106-313, § 104(c), 114 Stat. at 1253. 
Under 1 04( c) of AC21, an alien who is subject to a per-country limitation and who is the Beneficiary 
of an approved immigrant petition under section 203(b)(1), (2), or (3) of the Act, 8 U.S.C. 
1153(b)(l), (2), or (3), is eligible for H-1B approval beyond the statutory six-year maximum. See 
Pub. Law 106-313, 114 Stat. at 1252-1253. The H-1B Petitioner must demonstrate that an 
immigrant visa is not available to the alien at the time the H-1B petition is filed. 
C. Exemption for Beneficiaries with Pending Labor Certifications or Immigrant Petitions 
2 
Matter of 0-S-, Inc. 
Likewise, section 106(a) of AC21 as amended by DOJ21 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. 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 1 06(b) of AC21, aliens 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) ofDOJ21, 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 US C. § 11 OJ (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 US 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 US C. § 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 11 030A(b) of DOJ21 amended section 1 06(b) of AC21 to read: 
(b) EXTENSION OF H-1B 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 or for adjustment 
of status to that of an alien lawfully admittedfor 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 petition under section 203(b) of the Act is considered a lengthy 
adjudication delay for purposes ofthis exemption. See Pub. Law No. 107-273, 116 Stat. at 1836. 
3 
(b)(6)
Matter ~~ 0-S-, Inc. 
II. FACTUALBACKGROUND 
Upon review of the record of proceeding, we note the following: 
• The Petitioner filed the Form I-129 on September 8, 2014, and requested a three-year 
extension of H -1 B status. The Petitioner claimed that the Beneficiary was exempt 
from the six-year limitation pursuant to section 1 04( c) of AC21 based on an approved 
Form I-140, Immigration Petition for Alien Worker. 
• The Petitioner indicated that the Beneficiary was in the United States in L-1 status 
from December 5, 2005 to September 30, 2009. The Beneficiary has been in the 
United States in H-lB classification from October 1, 2009 to the present (without 
interruption). 2 
• The Petitioner submitted a printout which appears to be a screenshot from another 
employer 's immigration case management system. It names the Beneficiary as the 
employee. It further indicates that a "Labor Cert PERM" was filed on September 28, 
2007; approved on May 4, 2009; and was valid until October 31, 2009.3 
• The Petitioner submitted another printout from the same immigration case 
management system which indicates that "I-140 EB-2/EB-3" with a receipt number 
was filed on June 8, 2009, and approved on June 29, 2009.4 
• The Director issued an RFE on September 17, 2014. The Director noted that the 
evidence submitted was not sufficient to establish that the Beneficiary is eligible for 
an extension under AC21. Specifically, the Director noted that the receipt number for 
the Form I-140 indicates that the petition was revoked on May 23, 2014.5 
III. ANALYSIS 
A. Eligibility under section 1 04( c) of AC21 
2 The Petitioner submitted H-l B approval notices for the Beneficiary valid from October I, 2009 to June 3, 2012 ; June 4, 
2012 to January 20, 2015 ; and November 26,2013 to November 15,2016. 
3 The service records indicate that another employer , filed the Form ETA 9089, Application for Permanent 
Employment Certification, on behalf of the Beneficiary on September 28, 2007. It was certified by the U.S. Department 
of Labor (DOL) on May 4, 2009 , and was valid until October 31 , 2009. 
4 The service records indicate that filed the Form l-140 on behalf of the Beneficiary on June 8, 2009 . It was 
approved on June 29, 2009 . 
5 The service records indicate that the Form 1-140 with receipt number was automatically revoked 
upon the request from the employer to withdraw the approval of the petition . 
4 
Matter of 0-S-, Inc. 
Under 104(c) of AC21, an alien who is subject to a per-country limitation and who is the Beneficiary 
of an approved immigrant petition under section 203(b)(l), (2), or (3) of the Act, 8 U.S.C. 
1153(b)(l), (2), or (3), is eligible for H-1B approval beyond the statutory six-year maximum. See 
Pub. Law 106-313, 114 Stat. at 1252-1253. 
In this case, the Beneficiary did not have an approved Form I-140 on September 8, 2014 (the date 
the instant Form I-129 was filed), as the Form I-140 approval had been revoked on May 23, 2014. 
On appeal, the Petitioner asserts "[s]ince [the Beneficiary]'s I-140 petition was approvable when 
filed, subsequently approved and has not been revoked for fraud, misrepresentation or cause, he is 
eligible to retain the previous priority date and obtain an H-1B extension." The Petitioner cited a 
document titled "Unofficial Q & As from the NSC Liaison Committee." 
We note that the document states, in part, "USCIS will make sure that the previous petition was not 
revoked for fraud, misrepresentation or cause, and the petition must have been approvable to begin 
with. If the employer withdrew the previous petition because the beneficiary no longer works for the 
petitioner, then the beneficiary can still receive the original priority date." We further note that the 
statement was provided as a response to a question, in part, whether USCIS will recapture the 
priority date when the beneficiary can only provide a receipt number and not the actual copy of the 
approved I -140 petition. We find that the information cited by the Petitioner pertains to the retention 
of priority dates in the immigrant visa context and is not applicable to the discussion at hand. 
Further, the Petitioner has not established that the document reflects official USCIS policy and is 
authoritative evidence. The statute clearly requires that for section 1 04( c) of AC21 to apply, the 
Beneficiary must have an approved immigrant petition at the time the H-1 B petition was .filed; here, 
the Beneficiary did not. 
The Petitioner also states that US CIS can "continue to grant an extension even if the I -140 petition 
has been denied" and cites to a memorandum from William R. Yates, Associate Director for 
Operations, United States Citizenship and Immigration Services, Department of Homeland Security, 
Interim Guidance for Processing Form I-140 Employment-Based Immigrant Petitions and Form I-
485 and H-1 B Petitions Affected by the American Competitiveness in the Twenty First Century Act 
of 2000 (AC21) (Public Law 106-313), HQPRD 70/6.2.8-P (May 12, 2005), 
http://v,r'NW.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memorancla/Archive 
s%20 1998-2008/2005/ac2 1 intrm051205.pclf. 
We note that the section the Petitioner is referring to, states: 
Question 5: Does a timely and non-frivolous I-140 appeal pending at the AAO 
allow an alien to request an H-IB extension beyond the 6-year 
limit? 
Answer: Subject to regulatory modification, as long as a decision may be 
reversed on direct appeal or certification to the Administrative 
Matter of 0-S-, Inc. 
!d. 
Appeals Office (AAO), users will not consider that decision final 
for this purpose. 
However, the Petitioner did not submit evidence to establish that the revocation of the applicable 
Form I-140 was not a final decision at the time the H-1B petition was filed. We further note that 
automatic revocation triggered by a petitioner's withdrawal of the Form I-140 is not an appealable 
decision. See 8 e.F.R. § 214.2(h)(11)(ii) and (12)(ii). 
The Petitioner noted that USeiS approved other petitions under similar circumstances. The 
director's decision does not indicate whether the service center reviewed the prior approvals of the 
other nonimmigrant petitions. If the previous nonimmigrant petitions were approved based on the 
same unsupported and contradictory assertions that are contained in the current record, the approvals 
would constitute material and gross error on the part of the Director. We are not required to approve 
petitions where eligibility has not been demonstrated, merely because of prior approvals that may 
have been erroneous. See, e.g. Matter of Church Scientology International, 19 I&N Dec. 593, 597 
(eomm'r 1988). It would be "absurd to suggest that [USeiS] or any agency must treat 
acknowledged errors as binding precedent." Sussex Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 
(6th eir. 1987), cert. denied, 485 U.S. 1008 (1988). 
A prior approval does not compel the approval of a subsequent petition or relieve the petitioner of its 
burden to provide sufficient documentation to establish current eligibility for the benefit sought. 55 
Fed. Reg. 2606, 2612 (Jan. 26, 1990). A prior approval also does not preclude USeiS from denying 
an extension of an original visa petition based on a reassessment of eligibility for the benefit 
sought. See Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 556, 2004 WL 1240482 (5th eir. 2004). 
Furthermore, our authority over the service centers is comparable to the relationship between a court 
of appeals and a district court. Even if a service center Director had approved the nonimmigrant 
petitions on behalf of the Beneficiary, we would not be bound to follow the contradictory decision of 
a service center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), affd, 248 
F.3d 1139 (5th eir. 2001), cert. denied, 122 S.et. 51 (2001). 
As the Petitioner has not established that the Beneficiary had an approved immigrant petition but 
was subject to per-country limitations, the Petitioner has not established that the Beneficiary 
qualifies for an extension of stay under section 1 04( c) of Ae21. 
B. Eligibility under section 106 of Ae21 as amended by DOJ21 
As noted, section 106(a) of Ae21 as amended by DOJ21 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. 
In this case, the Beneficiary's labor certification was filed on September 28, 2007 and certified on 
May 4, 2009. That labor certification was filed in support of the Form I-140, filed on June 8, 2009, 
Matter of 0-S-, Inc. 
which was initially approved on June 29, 2009, but was subsequently revoked on May 23, 2014. As 
noted earlier, this revocation is the final decision made on the Form I-140. 
Further, the Beneficiary has not applied for an immigrant visa or filed an application to adjust status 
in the United States. Therefore, the Petitioner has not established that the Beneficiary is eligible for 
extension ofhis H-1B status beyond the six-year limitation under section 106 of AC21 
IV. CONCLUSION AND ORDER 
In visa petition proceedings, it is the Petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 ofthe Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met.6 
ORDER: The appeal is dismissed. 
Cite as Matter of O-S-, Inc., ID# 13660 (AAO Sept. 25, 2015) 
'.I 
6 Since the identified basis for denial is dispositive of the Petitioner's appeal, we will not address other grounds of 
ineligibility we observe in the record of proceeding.