dismissed H-1B Case: Unknown

U.S. Citizenship 
and Immigration 
Services 
In Re: 15526951 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-1B) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : FEB. 16, 2021 
The Petitioner seeks to extend the Beneficiary's temporary employment under the H-lB nonimmigrant 
classification for specialty occupations. 1 The H-1B 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 Director of the Vermont Service Center denied the petition, concluding that the evidence ofrecord 
does not establish that the Beneficiary is eligible for an extension in accordance with the applicable 
provisions. On appeal, the Petitioner asserts that the Director erred in the decision. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit by a 
preponderance of the evidence. 2 Upon de nova review, we will dismiss the appeal. 3 
I. LEGAL FRAMEWORK 
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 nonimmigrant may not 
exceed 6 years." 
The regulation at 8 C.F.R . § 214.2(h)(13)(iii)(D) 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. 8 C.F.R. § 214.2(h)(13)(iii)(D) states (in 
relevant part): 
(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: 
1 See Immigration and Nationality Act (the Act) section 10l(a)(l5)(H)(i)(b), 8 U.S.C. § l 101(a)(l5)(H)(i)(b). 
2 See Section 291 of the Act; see also Matter of Chawathe , 25 l&N Dec. 369, 375 (AAO 2010). 
3 See Matter of Christo 's Inc ., 26 l&N Dec. 537, 537 n.2 (AAO 2015) . 
(i) The filing of a labor certification with the Department of Labor [(DOL)] on 
the alien's behalf: if such certification is required for the alien to obtain 
status under section 203(b) of the Act ... 
(ii) The filing of an immigrant visa petition with [U.S. Citizenship and 
Immigration Services (USCIS)] on the alien's behalf to accord classification 
under section 203(b) of the Act. 
(2) H-lB approvals under paragraph (h)(l3)(iii)(D) of this section may be granted in 
up to 1-year increments until either the approved permanent labor certification 
expires or a final decision has been made ... 
(5) Advance filing. A pet1t10ner may file an H-lB pet1t10n seeking a lengthy 
adjudication delay exemption under paragraph (h)(l3)(iii)(D) of this section within 
6 months of the requested H-lB start date. The petition may be filed before 365 
days have elapsed since the labor certification application or immigrant visa 
petition was filed with the Department of Labor or USCIS, respectively, provided 
that the application for labor certification or immigrant visa petition must have been 
filed at least 365 days prior to the date the period of admission authorized under 
this exemption will take effect. . 
Further, the regulation at 8 C.F.R. § 214.2(h)(13)(iii)(E) extends H-lB status beyond the 6-year 
limitation under section 214(g)(4) of the Act for an alien "who is the beneficiary of an approved 
immigrant visa petition for classification under section 203(b )(1 ), (2), or (3) of the Act, and who is 
eligible to be granted that immigrant status but for application of the per country limitation." 
II. ANALYSIS 
Upon review of the record in its totality and for the reasons set out below, we conclude that the 
Petitioner has not demonstrated that the Beneficiary is eligible for an extension of H-lB status in 
accordance with the applicable provisions of 8 C.F.R. § 214.2(h)(l3)(iii)(D) or (E). 
In the decision, the Director correctly determined that the requested employment period exceeded the 
six-year limit for H-lB workers and the Petitioner does not raise this issue on appeal. 
The Petitioner explains in its support letter and on appeal that it seeks an extension pursuant to section 
106 of the "American Competitiveness in the Twenty First Century Act" (AC21), which was codified 
by 8 C.F.R. § 214.2(h)(l3)(iii)(D). The Petitioner asserts that the priority date for the Form 1-140, 
Immigrant Petition for Alien Worker, is incorrect and submits the Form I-797, Notice of Action, as 
evidence. 
However, the pnonty date is not relevant to a determination of eligibility under 8 C.F.R. 
§ 214.2(h)(l3)(iii)(D). Further, the Notice of Action in the record is a receipt notice for the Form 
1-140, not an approval notice; therefore, it does not have a priority date. Rather, the Notice of Action 
2 
shows that USCIS received the Form 1-140 on November 13, 2019. 4 Notably, the instant H-lB 
extension petition was filed on December 13, 2019, approximately 31 days after the Form 1-140 was 
filed. Therefore, 365 days or more had not elapsed since the filing of the Form 1-140 at the time the 
current H-lB petition was filed and it does not meet the requirements of an extension under 8 C.F.R. 
§ 214.2(h)(l 3)(iii)(D). 
The record also contains a database printout showing the case number for ETA Form 9089, 
Application for Permanent Employment Certification (labor certification), the date the form was 
prepared, and its status. The date prepared is March 3, 2016, and the status shows as "Certified­
Expired." Additional information regarding the labor certification was not provided. The Petitioner 
asserts that the labor certification was filed more than 365 days ago. However, as noted, the record 
reflects that the labor certification was certified and had already expired. 8 C.F.R. 
§ 214.2(h)(13)(iii)(D) addresses lengthy adjudication delays which is not applicable to this case. 
8 C.F.R. § 214.2(h)(13)(iii)(D)(2) states, in part, that H-lB extensions may be granted until either the 
approved labor certification expires or a final decision is made on the pending application. Here, the 
labor certification already expired; therefore, it does not meet the requirements of an extension under 
8 C.F.R. § 214.2(h)(13)(iii)(D). 
Since there is no record that an unexpired permanent labor certification application for the Beneficiary 
has been pending for 365 days, or a petition filed on behalf of the Beneficiary, showing a filing date 
of at least 365 days, the evidence of record does not establish that the Beneficiary is eligible for an 
extension of stay beyond six years under the provisions of 8 C.F.R. § 214.2(h)(13)(iii)(D). We further 
note that the record does not evidence an approved Form 1-140 at the time of filing of the current 
petition and does not establish eligibility under 8 C.F.R. § 214.2(h)(13)(iii)(E). 
III. CONCLUSION 
The Petitioner has not met its burden to establish eligibility for the immigration benefit sought. 5 
ORDER: The appeal is dismissed. 
4 USCIS records evidence the Form 1-140 was denied on August 6, 2020. 
5 See Section 291 of the Act, 8 U.S.C. § 1361. 
3