dismissed H-1B Case: Unknown

U.S. Citizenship 
and Immigration 
Services 
In Re : 24059028 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JAN. 24, 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 California Service Center Director denied the Form 1-129, Petition for a Nonimmigrant Worker 
(petition), concluding 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. 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 of Chawathe, 25 l&N Dec. 369, 375 (AAO 2010). 
We review the questions in this matter de novo. Matter of Christa 's Inc., 26 I&N Dec. 537,537 n.2 
(AAO 2015). Upon de novo review, we will dismiss the appeal. 
I. ANALYSIS 
Section 106 of the American Competitiveness in the Twenty-First Century Act of 2000 (AC21), as 
amended by the 21st Century Department of Justice Appropriations Authorization Act (DOJ21 ), 
removes the six-year limitation on the authorized period of stay in H-lB visa status for certain 
individuals and broadens the class ofH-lB nonimmigrants who may take advantage of this provision. 
See American Competitiveness in the Twenty-First Century Act of 2000, Pub. L. No. 106-313, 
§ 106(a) , 114 Stat. 1251, 1253-54; 21st Century Department of Justice Appropriations Authorization 
Act, Pub. L. No. 107-273, § l 1030A(a), 116 Stat. 1758, 1836- 37 (2002). 1 
1 Under the original AC21 statute, only those with a particular employment-based immigrant petition or an application for 
lawful permanent residence (LPR) that was filed for 365 days or more could receive one-year extensions until a decision 
was make on their LPR status application . DOJ21 expanded the exemption to the six-year limit to those who have a 
permanent labor certification or a qualifying employment-based petition filed for 365 days or more. 
The exemption to the six-year limit under section 106(a) of AC21 is available for certain individuals 
whose labor certifications or immigrant petitions remain undecided due to lengthy adjudication delays. 
A delay of 365 days or more in the final adjudication of a filed labor certification application or 
employment-based immigrant petition under section 203(b) of the Act is considered "a lengthy 
adjudication delay" for purposes of this exemption. See§ 11030A(a), 116 Stat. at 1836. According 
to the text of section 106(b) of AC21, individuals may have their "stay" extended in the United States 
in one-year increments pursuant to an exemption under section 106(a) of AC21. 
This timeline of key events relating to filings on the Beneficiary's behalf offers context for our ultimate 
determination: 
June 30, 2010 Employer 1 filed an H-lB petition on the Beneficiary's behalf and it was 
approved. 
July 8, 2012 Employer 1 filed a qualifying employment-based petition with a priority date 
in February 2012 that was approved in January 2013. 
2013 The Beneficiary accepted a different position in a different location with 
Employer 1. 
December 17, 2013 Employer 1 filed a new H-1 B petition to reflect the new position in the new 
location and it was approved. 
July 2014 Employer 1 filed a new labor certification for the Beneficiary's new position 
in the new location and it was certified in December of that same year. 
Early 2015 The Beneficiary terminated his employment with Employer 1 and began 
working for Employer 2. 
November 2015 The Beneficiary departed the United States until November 2019. 
August 19, 2019 The Petitioner filed an H-lB petition on the Beneficiary's behalf and it was 
approved. 
July 15, 2020 The Petitioner filed an H-lB petition on the Beneficiary's behalf and it was 
approved. 
July 16, 2021 The Petitioner filed an H-1 B petition on the Beneficiary's behalf and it was 
denied on October 25, 2021. 
September 2, 2021 The Petitioner filed a permanent labor certification on the Beneficiary's 
behalf 
November 12, 2021 The Petitioner filed the H-lB petition before us on appeal. 
The Petitioner's H-lB petition was denied because it did not establish the 
March 26, 2022 Beneficiary's eligibility for the lengthy adjudication delay exemption at 
8 C.F.R. § 214.2(h)(l3)(iii)(D). 
June 26, 2022 The Petitioner filed this appeal. 
June 28, 2022 The Petitioner's labor certification was denied. 
On appeal, the Petitioner asserts that the Beneficiary qualifies for an AC21 extension on two separate 
bases: (1) their September 2, 2021 labor certification was still pending when they filed the current 
H-lB petition on November 12, 2021; and (2) the labor certification and qualifying employment-based 
petition Employer 1 filed was pending more than 365 days prior the expiration of the Beneficiary's 
sixth year in H-lB status. 
2 
A. AC21 Section 106(a) 
The AC21 section 106(a) prov1s10ns were published m the regulation at 8 C.F.R. 
§ 214.2(h)(13)(iii)(D)(l) providing: 
(D) Lengthy adjudication delay exemption from 214(g)(4) of the Act. 
(1) 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 
(ii) The filing of an immigrant visa petition with USCIS on the alien's behalf to accord 
classification under section 203(b) of the Act. 
The Petitioner asserts that because their labor certification was still pending at the time the current 
H-lB extension was filed, the Beneficiary qualifies for a one-year extension under AC21 section 
106(a). However, the referenced labor certification was filed in September 2021 (two months before 
filing the extension request before us), and thus , that filing does not meet the above requirements, as 
at least 365 days had not elapsed since its filing . See generall y 2 USCIS Policy Manual Part H. retired 
Adjudicator's Field Manual Chapter 31.2(d)(4), https: //www.uscis.gov /policymanual. Although it 
does not impact this case, we observe that DOL denied the Petitioner's labor certification soon after it 
filed this appeal, and it is no longer in a pending status . 2 
B. AC21 Section 106(b) 
The regulation at 8 C.F.R. § 214.2(h)(l 3)(iii)(D)(2) implements the AC21 section 106(b) requirements 
and provides: 
(2) H-IB 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 
2 We note the Director incorrectly stated the permanent labor certification this Petitioner filed was approved on September 
24, 2021, when it was never in an approved status and was denied immediately after the organization filed this appeal. 
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(iv) Administratively or otherwise close the application for permanent labor 
certification, immigrant visa petition, or application to adjust status. 
Any foreign national attempting to qualify for the exemption to the six-year limit is afforded one-year 
extensions under AC2 l section 106(b) until one of the following several events occur: 
• The labor certification validity period expires; 
• There's an adverse decision on the labor certification; 
• There's an adverse decision on the employment-based petition; 
• There's a decision on an LPR application; or 
• There's an administrative closure or a similar action on any of these filings. 
AC21 section 106(b); 8 C.F.R. § 214.2(h)(l3)(iii)(D)(2). The regulation further provides an additional 
limitation on the time a foreign national may continue to receive H-lB extensions under AC21 section 
106(b) and mandates that once a visa becomes available for a continuous one-year period, they must 
apply for LPR status within that timeframe. 8 C.F.R. § 214.2(h)(l3)(iii)(D)(]0). This regulatory 
provision provides in part: 
Limits on future exemptions from the lengthy adjudication delay. An alien is ineligible 
for the lengthy adjudication delay exemption under paragraph (h)(l3)(iii)(D) of this 
section if the alien is the beneficiary of an approved petition under section 203(b) of 
the Act and fails to file an adjustment of status application or apply for an immigrant 
visa within 1 year of an immigrant visa being authorized for issuance based on his or 
her preference category and country of chargeability. . . . USCIS may excuse a failure 
to file in its discretion if the alien establishes that the failure to apply was due to 
circumstances beyond his or her control. 
To qualify based on Employer l's petition, this Petitioner must demonstrate the Beneficiary followed 
all the regulatory requirements, including the mandate meant to ensure those who have experienced 
delays in the adjudicative process timely seek LPR status when it is available to them. See 8 C.F.R. 
§ 214.2(h)(l3)(iii)(D)(]0). 
Although the U.S. Department of State's Visa Bulletin indicates a visa has been continuously available 
to the Beneficiary since January 2017, he has not filed for LPR status. As the Petitioner acknowledges 
in the appeal brief, "the implication of [the Beneficiary's departure from Employer l] is that after his 
departure, he was no longer eligible-and will continue to remain ineligible-to apply for his [LPR 
status] until an employer who DOES possess a permanent, full time job opportunity first obtains a new 
[petition] approval." 
The Petitioner argues that, as a result: 
[P]erthe plain language of[8 C.F.R. § 214.2(h)(l3)(iii)(D)(]0)], such a showing [i.e., 
a failure to timely file for LPR status] is only necessary when a beneficiary seeks to 
'excuse', or overcome, their failure to apply for their AOS during the uninterrupted, 
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1-year period.[] Seeing as there was NOT a full, uninterrupted 1-year period during 
which he could have, but failed to, lawfully apply for his AOS, this point is moot. 
It is the Petitioner's claim that, because Employer 1 is no longer sponsoring the Beneficiary for LPR 
status, the one-year filing requirement is inapplicable to him because he could not "lawfully apply for 
his AOS" without a sponsor, (but he should still be able to rely on their filings for an AC21 extension 
beyond the six-year limit) and, thus, the timely LPR filing requirement is a moot point. But setting 
aside the Beneficiary's conundrum and skipping to the end to conclude he is perpetually eligible for 
one year H-lB extensions is not an argument that fares well for the Petitioner or for the Beneficiary. 
The one-year filing requirement at 8 C.F.R. § 214.2(h)(13)(iii)(D)(]0) was intended to facilitate LPR 
status for those who experienced delays in the adjudicative process, and it aligns with the temporal 
limit Congress placed on extensions beyond the six-year limit. Retention of EB-1, EB-2, and EB-3 
Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers, 81 
Fed. Reg. 82,398, 82,450 (Nov. 18, 2016). U.S. Citizenship and Immigration Services further stated 
within the preamble of this same final rule: 
Allowing foreign workers to benefit from the exemption when they do not file 
applications for [LPR status] after an immigrant visa becomes immediately available, 
may allow such workers to remain in H-lB status indefinitely, which would run counter 
to the purpose of the statute. See S. Rep. No. [106-]260, at 23 [(2000)]. To avoid this 
result, DHS is confirming that beneficiaries of section 106(a) must file an application 
for adjustment of status within 1 year of immigrant visa availability. 
Inherent with seeking immigration benefits for foreign nationals and employers alike are additional 
burdens the parties must satisfy. Part of that burden in the H-1 B context is compliance with all the 
statutory and regulatory provisions that lead to the benefit the parties are seeking. Here, that includes 
the requirements to timely file for LPR status once a visa becomes available. We do not agree that the 
regulation is a moot point here, we consider this provision to be directly relevant to the Beneficiary's 
situation, and we conclude he is subject to its requirements. While we agree that the Beneficiary is 
not eligible to file for LPR status, that does not absolve him from meeting the regulation's plain 
language requirements, which only provides one method in which a foreign national is not required to 
file for such status within one year of visa availability. Further, we do not find that the Beneficiary's 
failure to apply was due to circumstances beyond his control. 
The only avenue for this Beneficiary to receive H-lB status extensions beyond the six-year limit is to 
demonstrate he meets the requirements contained in the statute and in the regulations. The two sole 
methods the statute permits are provided within AC21 sections 106 and 104( c ), with the latter being 
inapplicable to this filing. But here, the Petitioner appears to propose the Beneficiary can deviate from 
the pathway Congress established, and somehow still navigate to the end result the legislature 
prescribed. Unlike in Robert Frost's poem 'The Road Not Taken" where the preferred way forward 
was to journey down the road less traveled, the Beneficiary's proper course to qualify for this 
exception was to stick to the "beaten path" Congress laid out for him. The Petitioner does not explain 
how the Beneficiary can circumvent the statute's requirements, nor do they offer an alternative legal 
authority that he might rely upon to bypass the statute's dictated route. 
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A petitioner's ipse dixit assertions-as it has expressed here-will not carry its burden of 
demonstrating eligibility. See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997) (citing to Turpin v. 
Merrell Dow Pharmaceuticals, Inc., 959 F.2d 1349, 1360 (6th Cir.), cert. denied, 506 U.S. 826 (1992). 
In other words, simply claiming something is so-that the Beneficiary is eligible for extensions 
beyond the six-year limit-without demonstrating how he complies with the legal requirements will 
not satisfy the Petitioner's burden of proof in these proceedings. See Chawathe, 25 I&N Dec. at 
3 71-72 ( discussing assertions that are not supported by probative material will not meet a filing party's 
burden of proof). Rather, the Petitioner should offer an explanation illustrating how the Beneficiary 
complied with the statute and the regulation. 
For the above reasons, we agree with the Director's position that 8 C.F.R. § 214.2(h)(l3)(iii)(D)(]0) 
prevents the Beneficiary from receiving any additional H-lB status extensions. 
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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