dismissed H-1B Case: Systems Analyst

lcbntieing data deleted to 
prevent clearly unwarranted 
invasion of persooal privacy 
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 03 244 50438 Office: NEBRASKA SERVICE CENTER Date: 3UN 1 5 2006 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101 (a)(l 5)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 4 1 1 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 03 244 50438 
Page 2 
DISCUSSION: The service center director denied the nonirnrnigrant 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 a health sciences publisher. It seeks to employ the beneficiary as a systems analyst. The 
petitioner endeavors to classify the beneficiary as a nonimmigrant worker in a specialty occupation pursuant to 
section 10 1 (a)(l 5)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1 101 (a)(l 5)(H)(i)(b). 
The director denied the petition stating that the petitioner was not in valid status when the Form 1-1 29 petition 
was filed seeking an extension of H-1B eligibility under the American Competitiveness in the Twenty-First 
Century Act of 2000, Pub. L. No. 106-3 13, 1 14 Stat. 125 1 (2000) (AC21), as amended by the Twenty-First 
Century Department of Justice Appropriations Authorization Act, Pub. L. No. 107-273, 1 16 Stat. 1758 (2002) 
(21" Century DOJ Appropriations Authorization Act). 
On appeal, counsel states that the beneficiary was in status at the time the present petition was filed (August 
13,2003), and that the petitioner is entitled to an extension of H-1B eligibility under the above mentioned Act 
as the petitioner had a pending labor certification with a priority date of May 3,2002. The labor certification 
application was subsequently certified on August 19,2003. 
Pursuant to 8 C.F.R. § 214.2(h)(13)(iii)(A), the validity of petitions and periods of stay in the United States for 
aliens in a specialty occupation is limited to six years. Furthermore, an alien may not seek extension, change of 
status, or be readmitted to the United States under section lOl(a)(15)(H) or (L), 8 U.S.C. 1101(a)(15)(H) or 
(L), unless the alien has been physically present outside the United States - except for brief trips for business 
or pleasure - for the immediate prior year. In accordance with the regulation at 8 C.F.R. 
!j 214.2(h)(13)(ii)(B), when an alien has spent the maximum allowable period of stay in the United States, a 
new petition may not be approved, with certain exceptions. 
The petitioner seeks the beneficiary's services as a systems analyst. The petitioner wishes to continue the 
beneficiary's previously approved employment without change, and to extend the stay of the beneficiary in 
the United States. The petitioner indicates on the petition that it seeks to extend the beneficiary's H-1B status 
from May 3,2003 to May 2,2004. 
The director denied the present petition, finding that the beneficiary had already been employed in the United 
States since March 4, 1997 in H-1B status, and that he had reached the maximum six-year period of stay in 
the United States. The director found that the beneficiary's HlB status expired on February 14,2003 because 
his requested extension was denied by CIS. The director then held that the Form ETA-750, which has now 
been pending for more than one year, cannot be used for purposes of AC21, and that the beneficiary was out 
of status when the present petition was filed on August 13,2003. The petition was accordingly denied. 
On appeal, counsel asserts that the beneficiary has an approved labor certification that was filed more than 
365 days prior to the filing of the present petition, that the beneficiary was in status when the present petition 
was filed, and that the petition should accordingly be approved. 
Upon review of the evidence in the record, the AAO finds that the beneficiary is not eligible for approval of an 
H-1B petition in accordance with section 106(a) of the American Competitiveness in the Twenty-first Century 
Act of 2000, Pub. L. No. 106-3 13, 114 Stat. 125 1 (AC21), as amended by section 106(a) of the Twenty-first 
Century Department of Justice Appropriations Authorization Act (21 Century DOJ Appropriations Act). 
LIN 03 244 50438 
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In general, section 214(g)(4) of the Act, 8 U.S.C. 9 1184(g)(4), provides that "[tlhe period of authorized 
admission [of an H-1B nonimmigrant] may not exceed 6 years." However, the amended American 
Competitiveness in the Twenty-First Century Act ("AC21") removes the six-year limitation on the authorized 
period of stay in H-1B status for certain aliens whose labor certification applications or employment-based 
immigrant petitions remain undecided due to lengthy adjudication delays and broadens the class of H-1B 
nonirnmigrants who may avail themselves of this provision. 
Section 106 of AC21, as amended by section 1 1030(A)(a) and (b) of the 21" Century Department of Justice 
Appropriations Act, reads as follows: 
(a) EXEMPTION FROM LIMITATION - The limitation contained in section 214(g)(4) of the 
Immigration and Nationality Act (8 U.S.C. 9 11 84(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. 5 
1101 (a)(lS)(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. 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. 9 1153(b)). 
(2) A petition described in section 204(b) of such Act (8 U.S.C. 8 1154(b)) to accord the 
alien a status under section 203(b) of such Act. 
(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 establishes the following: 
The petitioner filed, on behalf of the petitioner, an Application for Employment Certification 
on May 3,2002. 
On February 12, 2003, the petitioner filed a petition (LIN 03 106 51 823) for extension of 
classification on behalf of the beneficiary; 
CIS records indicate that the petition for extension of classification (LIN 03 106 5 1823) was 
denied on or about September 19,2003, and then appealed to the AAO; 
LIN 03 244 50438 
Page 4 
CIS records indicate that the petitioner's appeal (LIN 03 106 51823) was sustained by the 
AAO and the beneficiary's status extended for an additional 138 days (from February 14, 
2003 until July 2, 2003). 
The petitioner filed a Form 1-129 petition (the present petition) for continuation of previously 
approved employment without change on August 13, 2003, seeking continuation of the 
beneficiary's H-1B status from May 3,2003 until May 2,2004; 
In order to extend or amend the beneficiary's stay in the United States in the H-1B classification, the 
petitioner must demonstrate that the beneficiary qualifies for benefits under section 106(a) of the AC21, as 
amended by the 21" Century DOJ Appropriations Act. In addition, an extension of stay may not be approved 
for an applicant who failed to maintain the previously accorded status or where such status expired before the 
application or petition was filed, with certain exceptions. 8 C.F.R. $ 214.1(~)(4). See also Memorandum 
from William R. Yates, Guidance for Processing H-1B petitions as Aflected by the Twenty-First Century 
Department of Justice Appreciations Authorization Act (Public Law 107-273)(April24,2003). 
Here, the petitioner submitted evidence that the petitioner filed a labor certification application Form ETA 
750 on the beneficiary's behalf on May 3,2002, more than 365 days prior to the filing of the present petition. 
The director's decision to the contrary is withdrawn. 
As previously noted, the petitioner filed the present petition on August 13, 2003, a date subsequent to the 
enactment of the 21" Century DOJ Appropriations Act on November 2,2002. Accordingly, the pending labor 
certification application on the beneficiary's behalf can be the basis for extending his authorized period of 
stay in the United States in H-1B status beyond the maximum six-year limit as long as all other requirements 
for an extension of stay are met. 
Pursuant to 8 C.F.R. $ 214.1(~)(4), an extension of stay may not be approved for an applicant who failed to 
maintain the previously accorded status or where such status expired before the application or petition was 
filed, with certain exceptions. In this case, the beneficiary had reached the maximum allowable period of 
time in H-1B status before the instant petitionlapplication for extension of stay was filed, and was not in valid 
nonimmigrant status at the time of filing.. The petitioner has not demonstrated that the failure to timely file 
the application for extension of stay meets the requirements for any of the exceptions. 
In this case, the beneficiary's authorized period of stay expired on July 2,2003; however, the petition seeking 
a one-year extension was not filed until August 13,2003. CIS may not extend the beneficiary's status if he is 
no longer in status. Accordingly, the beneficiary has reached the 6-year maximum allowable period of stay as 
an H-1B nonimrnigrant, and the alien is not, therefore, eligible for an extension of stay pursuant to 8 C.F.R. $ 
214.1 (c)(4) and section 106(a) of AC21. The petition may not be approved. 
The burden of proof in these proceedings rests solely with the petitioner. 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.