dismissed H-1B Case: Unknown

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: DEC. 11, 2024 In Re: 34569979 
Appeal of Nebraska Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-lB) 
The Petitioner seeks to amend and extend the Beneficiary's temporary employment under the H-lB 
nonimmigrant classification for specialty occupations. See Immigration and Nationality Act (the Act) 
section 10l(a)(15)(H)(i)(b), 8 U.S.C. § l 101(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 Director of the Nebraska Service Center denied the 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. The matter is now before us on appeal pursuant to 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 I&N Dec. 369, 375-76 (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. LAW 
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, § 11030A(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 AC21 section 106(a) prov1s10ns were published in the regulation at 8 C.F.R. 
§ 214.2(h)(13)(iii)(D)(l). The regulations states in pertinent part: 
(D) Lengthy adjudication delay exemption from 214(g)(4) of the Act. 
(1) An alien who is in H-1 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 exemption to the six-year limit under section 106(a) of AC21 is thus available for certain 
individuals whose labor certification 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 DOJ21 § 11030A(a), 116 Stat. at 
1836. 
According to the text of section 106(b) of AC21, codified in the regulation at 8 C.F.R. 
§ 214.2(h)(13)(iii)(D)(2) individuals may have their "stay" extended in the United States in one-year 
increments until 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. 
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)(l 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)(13)(iii)(D) of this 
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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. 
II. ANALYSIS 
This timeline of key events relating to filings on the Beneficiary's behalf offers context for our ultimate 
determination: 
January 6, 2011 Employer 1 filed a qualifying employment-based petition with a priority date 
in May 2010 that was approved in May 2011. 
August 2019 
The Beneficiary accepted a position with Employer 2. Employer 2 submitted 
a prevailing wage determination on behalf of the Beneficiary which was 
approved by the Department of Labor. 
May 2021 Beneficiary's immigrant number was current. Beneficiary had previously 
resigned from Employer 1. 
March 2023 Employer 1 withdrew the approved 1-140. 
January 2023 Employer 2 laid off the Beneficiary and did not pursue an immigrant petition 
on behalf of the Beneficiary. 
March 2023 The Petitioner filed an H-lB petition on the Beneficiary's behalf and it was 
approved. 
March 2024 The Petitioner filed the H-lB petition before us on appeal. 
June 13, 2024 
The Petitioner's H-lB petition was denied because it did not establish the 
Beneficiary's eligibility for the lengthy adjudication delay exemption at 
8 C.F.R. § 214.2(h)(13)(iii)(D). 
July 11, 2024 The Petitioner filed this appeal. 
On appeal, the Petitioner asserts that the Beneficiary qualifies for an AC21 extension on two separate 
bases: (1) their approved Immigrant Petition for Alien Worker remains valid, even after it was 
withdrawn, when they filed the current H-lB petition; 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. To qualify based on Employer 1 '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)(13)(iii)(D)(]0). 
Although the U.S. Department of State's Visa Bulletin indicates a visa has been continuously available 
to the Beneficiary since May 2021, he has not filed for LPR status. We conclude that the Petitioner's 
contentions on appeal do not merit a favorable exercise of discretion to excuse the Beneficiary's failure 
to file an adjustment of status application within one year of the authorization for issuance of an 
immigrant visa based on their preference category and country of chargeability. The Beneficiary's 
statement indicates that they failed to file their adjustment of status application within one year of the 
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availability of an immigrant visa based on their preference category and country of chargeability 
because of "job change, layoff, I-140 withdrawal, and the need to maintain H-lB status," that all 
"contributed to the delays that were beyond the beneficiary's control." The Petitioner's statements 
indicate that due to the Beneficiary's departure from Employer 1, 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 explained 
that the Beneficiary did not have an approved I-140 to apply for his LPR status as the original I-140 
was withdrawn in March 2023. However, the Petitioner did not provide sufficient evidence to 
establish the reason he did not apply to adjust status when his visa number became available in May 
2021 and prior to the date employer 1 withdrew the approved I-140 petition in March 2023. 
The Petitioner also describes circumstances which prevented the Beneficiary from pursuing 
employment-based permanent immigration sponsored by other employers. Between August 2019 and 
to the current date, the Beneficiary was employed in the United States by a separate employer and the 
current Petitioner. The Petitioner refers to the Beneficiary's laying off from a previous employer and 
the comparatively short duration of employment with the Petitioner as circumstances which influenced 
the Beneficiary's permanent immigration posture. In sum, the Petitioner avers that, but for the 
combination of circumstances they identified, the Beneficiary would have been able to pursue other 
avenues for permanent immigration which could have resulted in his ability to file an adjustment of 
status application. But it is not apparent how the Beneficiary's history with the previous employer 
and the current Petitioner's lack of pursuing permanent immigration relates to the Beneficiary's failure 
to apply for adjustment of status or an immigrant visa based on the petition that was approved on their 
behalf on the sponsorship of an unrelated previous employer due to a circumstance beyond their 
control. 
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. 
So whilst we agree that the Beneficiary is not eligible to file for LPR status because their sponsoring 
employer withdrew the approval and no other sponsoring employer exists, we do not agree that this 
constitutes a circumstance or set of circumstances beyond the control of the Beneficiary such that their 
failure to file an adjustment of status or immigrant visa application would be excusable in a favorable 
exercise of discretion. 
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Simply claiming 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. 
On appeal, the Petitioner also requests that we exercise discretion to excuse the Beneficiary's failure 
to file an adjustment of status application or apply for an immigrant visa within 1 year of an immigrant 
visa being authorized for issuance. However, the Petitioner did not establish that the failure to file 
was due to circumstances beyond the Beneficiary's control. In addition, the Petitioner explains that 
the Beneficiary is raising his U.S. citizen daughter and his "ability to remain in the United States and 
maintain his H-lB status is critical for the stability and welfare of his daughter." Further, the 
Beneficiary states he is a "heart attack survivor" and the stress of leaving the United States after 24 
years could pose a serious health risk. While we acknowledge the claimed challenges, the Petitioner 
did not provide sufficient evidence to corroborate these hardships since it only provided one letter 
from 2021 indicating the Beneficiary was under care for cardiogenic shock and a copy of his 2015 
divorce decree that gave the Beneficiary and his former spouse joint legal custody of their child. Even 
if the Petitioner established the Beneficiary's failure to file LPR status was due to circumstances 
beyond his control, which he does not, the evidence is not sufficient to excuse the delay. 
For the above reasons, we conclude that the Petitioner and Beneficiary are not eligible for H-lB 
petition validity beyond the statutory six-year limitation. 
III. 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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