dismissed H-1B Case: Unknown

U.S. Citizenship 
and Immigration 
Services 
In Re: 22718661 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for Nonimrnigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: FEB. 9, 2023 
The Petitioner seeks to extend the Beneficiary's temporary employment under the H-lB nonirnrnigrant 
classification for specialty occupations. See Immigration and Nationality Act (the Act) section 
101(a)(15)(H)(i)(b), 8 U.S.C . § 1101(a)(15)(H)(i)(b) . The H-lB program allows a U.S . employer to 
temporarily employ a qualified foreign worker in a position that requires both: (a) the theoretical and 
practical application of a body of highly specialized knowledge; and (b) the attainment of a bachelor's 
or higher degree in the specific specialty ( or its equivalent) as a minimum prerequisite for entry into 
the position. 
The Vermont Service Center Director denied the Form 1-129, Petition for a Nonimmigrant Worker 
(petition), concluding that the Petitioner did not establish that the Beneficiary qualified for the lengthy 
adjudication delay exemption relating to the six-year limit in H-lB status enacted under section 104( c) 
of the American Competitiveness in the Twenty-First Century Act of 2000, Pub . L. No. 106-313, 
§ 106(a), 114 Stat. 1251, 1253 (AC21). The matter is now before us on appeal. The Petitioner bears 
the burden of proof to demonstrate eligibility by a preponderance of the evidence. Section 291 of the 
Act; Matter ofChawathe, 25 I&N Dec. 369,375 (AAO 2010). We review the questions in this matter 
de nova. Matter of Christo 's Inc., 26 I&N Dec. 537,537 n.2 (AAO 2015). Upon de novo review, we 
will dismiss the appeal. 
I. ANALYSIS 
The Beneficiary does not qualify for an exemption from the six-year H-lB status limit based on the 
Petitioner's filings under AC21, as amended by the 21st Century Department of Justice Appropriations 
Authorization Act (DOJ21). See American Competitiveness in the Twenty-First Century Act of 2000, 
Pub . L. No . 106-313, § 106(a) and (b), 114 Stat. 1251, 1253-54 (2000); 21st Century Department of 
Justice Appropriations Authorization Act, Pub. L. No. 107-273, § 11030A, 116 Stat. 1836, 1836- 37 
(2002) (Emphasis added to identify sections amended by DOJ21). 
In general, section 214(g)(4) of the Act, 8 U.S.C. § 1184(g)(4) provides: "In the case of a 
nonimmigrant described in section 101(a)(15)(H)(i)(b), the period of authorized admission as such a 
nonirnrnigrant may not exceed 6 years." However, AC21 sections 104 and 106 remove the six-year 
limitation on the authorized period of stay in H-lB visa status for certain individuals. The exemption 
under section 106(a) of AC21 is available for certain individuals whose labor certifications or 
immigrant petitions remain undecided due to lengthy adjudication delays. According to the text of 
AC21 section 106(b), individuals may have their "stay" extended in the United States in one-year 
increments pursuant to an exemption under section 106(a) of AC21. 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 § JI OJ (a)(l 5)(H)(i)(b)), if 365 days or more 
have elapsed since the filing of any of the following: 
(I) Any application for labor certification under section 212 ( a)(5 )( A) of such Act 
(8 USC§ 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 USC § 1153(b)). 
(2) A petition described in section 204(b) of such Act (8 USC § 1154(b)) to 
accord the alien a status under section 203(b) of such Act. 
DOJ2 l amended section 106(b) of AC2 l to read: 
(b) EXTENSION OF H-lB 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-
(]) 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. 
These provisions were published in the regulation at 8 C.F.R. § 214.2(h)(13)(iii)(D)(l)-(2) providing : 
(D) Lengthy adjudication delay exemption from 214(g)(4) of the Act. 
(I) An alien who is in H-lB status or has previously held H-lB status is eligible for H-lB 
status beyond the 6-year limitation under section 214(g)( 4) of the Act, if at least 
365 days have elapsed since: 
(i) The filing of a labor certification with the Department of Labor on the alien's 
behalf, if such certification is required for the alien to obtain status under section 
203(b) of the Act; or 
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(ii) The filing of an immigrant visa petition with users on the alien's behalf to accord 
classification under section 203(b) of the Act. 
(2) H-lB approvals under paragraph (h)(13)(iii)(D) of this section may be granted in up to 
I-year increments until either the approved permanent labor certification expires or a 
final decision has been made to: 
(i) Deny the application for permanent labor certification, or, if approved, to revoke 
or invalidate such approval; 
(ii) Deny the immigrant visa petition, or, if approved, revoke such approval; 
(iii) Deny or approve the alien's application for an immigrant visa or application to 
adjust status to lawful permanent residence; or 
(iv) Administratively or otherwise close the application for permanent labor 
certification, immigrant visa petition, or application to adjust status. 
We offer a timeline of relevant events: 
• July 26, 2017: The Petitioner filed a permanent labor certification on the Beneficiary's behalf 
that was certified on December 5, 2017; 
• June 4, 2018: The Petitioner filed their first employment-based immigrant petition (Form 
r-140) based on their approved labor certification; 
• December 12, 2018: U.S. Citizenship and Immigration Services (USCIS) denied the 
Petitioner's first Form r-140: 
• September 30, 2019: The Petitioner filed this H-lB extension request; 
• December 15, 2021: The Petitioner filed a second Form 1-140; 
• January 27, 2022: The Director denied the H-lB petition we have on appeal only considering 
AC21 section 104(c); 
• April 26, 2022: The Petitioner filed this appeal; and 
• July 13, 2022: USCrS approved the Petitioner's second Form 1-140. 
The sole provision the Director discussed in their denial decision was AC2 l section 104( c ). On appeal, 
the Petitioner contends they were instead requesting an extension under AC21 section 106. 
The Petitioner filed a labor certification and a subsequent Form 1-140 on the Beneficiary's behalf, but 
users denied the Form 1-140. On appeal, the Petitioner argues the Director should have considered 
more than the Form r-140's denial, and instead should have concluded that the labor certification 
served as a basis for the extension request under AC21 section 106(a). We do not agree. While the 
statute and the regulation do allow for consideration of whether a labor certification or a qualifying 
petition were filed for more than 365 days, it also contains a limiting provision that ends a foreign 
national's eligibility for extensions beyond the six-year limit if a decision is issued to deny the petition. 
8 C.F.R. § 214.2(h)(13)(iii)(D)(2)(ii). And that is the case here, as USCrS denied the 
employment-based petition several months before the Petitioner filed this petition. 
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Additionally, the fact that the Petitioner filed another Form I-140 after it filed this extension request 
has no effect on the Beneficiary's eligibility under AC21 because on the date they filed this H-lB 
petition, the first Form I-140 it filed was already denied. A filing party must establish eligibility for 
the requested benefit at the time of filing the application or petition. 8 C.F .R. § 103 .2(b )( 1 ). 
Applying 8 C.F.R. § 214.2(h)(l3)(iii)(D)(2)(ii), we conclude that when the Petitioner filed the current 
H-1 B petition, the Beneficiary was not eligible for an extension under any AC2 l provision. 
II. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. In visa petition proceedings, it is a petitioner's burden to establish 
eligibility for the immigration benefit sought. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
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