dismissed H-1B Case: Unknown

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JAN. 18, 2024 In Re: 29426905 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-lB) 
The Petitioner seeks to temporarily employ the Beneficiary under the H-lB nonimmigrant 
classification for specialty occupations. See Immigration and Nationality Act (the Act) section 
101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(l5)(H)(i)(b) . The H-lB program allows a U.S. employer to 
temporarily employ a qualified nonimmigrant 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 because the requested petition validity 
dates passed before the date of adjudication. The matter is now before us on appeal. 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe , 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc. , 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
The regulation at 8 C.F.R. § 214.2(h)(9)(ii)(B) states that: 
If a new H petition is approved after the date the petitioner indicates that the service [] will 
begin, the approved petition and approval notice shall show a validity period commencing with 
the date of approval and ending with the date requested by the petition, as long as that date 
does not exceed either the limits specified by paragraph (h)(9)(iii) of this section or other 
Service policy. 
The regulation at 8 C.F.R. § 214.2(h)(9)(iii) explains that an H-lB petition approval "may not exceed 
the validity period of the labor condition application." 
The Petitioner filed the instant petition on June 30, 2022 seeking new employment for the Beneficiary 
from October 1, 2022 to November 2, 2022 and requested consular processing upon approval. The 
filing was accompanied by a certified labor condition application (LCA) with validity dates of 
November 3, 2019 to November 2, 2022. The Director denied the petition on November 10, 2022 
explaining that U.S. Citizenship and Immigration Services (USCIS) is precluded from retroactively 
approving a "new H petition" pursuant to 8 C.F.R. § 214.2(h)(9)(ii)(B). The Petitioner filed a motion 
to reconsider that the Director denied on March 6, 2023. Subsequently, the Petitioner timely filed its 
appeal. 
On appeal, the Petitioner contends that there is no authority that prohibits USCIS from retroactively 
approving a new H petition for validity dates that have already passed and asserts that "in other 
contexts" it is "common practice" to do so. The Petitioner submits two redacted approval notices for 
unrelated individual B-2 extension applications that were approved for a period commencing from a 
point in the past in relation to the date the respective application was adjudicated in support of its 
contention. But the regulation at 8 C.F.R. § 214.1 ( c) permits USCIS to excuse a failure to maintain 
status in its discretion only in the context of an extension of status. 1 Here, the Petitioner does not cite 
to any regulation or policy which would allow for a similar exercise of discretion effectuating approval 
for an initial or new H-1 B petition when the requested validity dates have already passed. 2 
And the Petitioner states that "retroactive approval of the instant petition would not violate any of the 
requirements of 8 C.F.R. § 214.2(h)(9)(iii) because the "validity period as indicated in the Form I-129 
of the H-lB petition does not exceed three years and commences and ends with dates not exceeding 
the validity period of the LCA." Notably, the Petitioner asserts that the Director would not have been 
precluded from issuing an approval notice valid from November 10, 2022 (the date of the petition 
denial decision) until November 2, 2022 (the end date of the requested validity period). But were that 
so the petition would have a start date falling outside the LCA's validity period. In any event, and as 
explained previously, the Petitioner does not cite to any regulation or policy which would allow for a 
retroactive approval of this H-1B petition. 
The Petitioner also claims that "[i]f the denial is reversed" and the petition approved "with the 
requested validity dates," the Petitioner would be able to "file a second Form I-129 petition on the 
Beneficiary's behalf since they would have been counted under the H-lB cap pursuant to 8 C.F.R. 
§ 214.2(h)(13)(iii)(C)(2). However, the regulation at 8 C.F.R. § 214.2(h)(8)(ii)(A) provides that 
"[ e Jach alien issued a visa or otherwise provided nonimmigrant status" under section 
101(a)(15)(H)(i)(b) of the Act "shall be counted for purposes of any applicable numerical limit." In 
other words, an individual is considered counted against the H-lB cap only when they are issued a 
visa or granted nonimmigrant status. The approval of an H-1B petition does not in and of itself grant 
any immigration status to a beneficiary and does not guarantee that a beneficiary will subsequently be 
eligible for a visa and for admission to the United States. Section 221(h) of the Act. 
Finally, we are also not persuaded by the Petitioner's assertion that the petition should be approved 
notwithstanding the passing of the requested validity dates because of a purported "lengthy delay" in 
adjudicating the petition. In support, the Petitioner relies on a printout for the "Historical National 
Median Processing Time (in Months) for All USCIS Offices for Select Forms By Fiscal Year" for 
fiscal year 2019 through December 31, 2022. The data the Petitioner submitted, however, only 
"represents the time it took to complete half of the cases in a given time period." Furthermore, the 
1 An analogous regulation at 8 C.F.R. ~ 248.1 (b) pennits USCTS to exercise of favorable discretion to nunc pro tune change 
nonimmigrant status of a Beneficiary who failed to maintain lawful nonimmigrant status. 
2 The unsubstantiated assertions of counsel do not constitute evidence. See INS v. Phinpathya, 464 U.S. 183. 188-89 n.6 
(1984)(the unsupported assertions of counsel on appeal or in a motion are not evidence). 
2 
Petitioner's requested validity end date of November 2, 2022 was approximately four months from 
the date of filing. 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. The Petition has not met that burden. 
ORDER: The appeal is dismissed. 
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