remanded H-1B Case: Aerospace Engineering

U.S. Citizenship 
and Immigration 
Services 
In Re : 15959514 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAY 26, 2021 
The Petitioner, an aerospace engineering consulting services company, seeks to extend the Beneficiary's 
temporary employment as an "avionics systems engineer" under the H-lB nonimmigrant classification 
for specialty occupations .1 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 Vermont Service Center approved the petition but shortened the petition 's 
requested validity period. On appeal, the Petitioner asserts that the Director erred in calculating the 
petition's validity period. The matter is now before us on appeal. 
While we conduct de nova review on appeal, 2 we conclude that a remand is warranted in this case . 
I. LEGAL FRAMEWORK 
A beneficiary's stay in H-lB status is generally limited to six years. Section 214(g)(4) of the Act, 
8 U.S.C. § 1184(g)(4) , states "[i]n the case of a[n] [H-lB] nonimmigrant described in section 
101(a)(15)(H)(i)(b), the period of authorized admission as such a nonimmigrant may not exceed 
6 years." Pursuant to 8 CFR 214.2(h)(13)(iii)(A), 
... [a]n H-lB alien in a specialty occupation ... who has spent six years in the United 
States under section 10l(a)(15)(H) and/or (L) of the Act may not seek extension , 
change status, orbe readmitted to the United States under section 10l(a)(15) (H) or (L) 
of the Act unless the alien has resided and been physically present outside the United 
States, except for brief trips for business or pleasure, for the immediate prior year. 
However, "[t]he statute, regulations, and current policy guidance, [] do not clearly address situations 
where an alien did not exhaust his or her maximum six-year period of admission." 3 U.S. Citizenship 
1 See Immigration and Nationality Act (the Act) section 1 0l(a)(l5)(H)(i)(b ), 8 U.S .C. § 11 0l(a)(l 5)(H)(i)(b ). 
2 See Matter of Christo 's Inc., 26 l&N Dec . 537, 537 n.2 (AAO 2015) . 
3 See 2 USCIS Policy Manual H.31.3(g)(15) , https://www .uscis.gov/policy-manual. 
and Immigration Services (USCIS) will therefore "allow an alien in the situation described above to 
elect either to: be re-admitted for the 'remainder' of the initial six-year admission period without 
being subject to the H-lB cap if previously counted; or seek to be admitted as a 'new' H-lB alien 
subject to the H-lB cap."4 
II. ANALYSIS 
According to USCIS records, the petition! I was filed on the Beneficiary's behalf and 
approved on November 24, 2010. The petition was amended by the petition! I which 
was approved with validity dates August 16, 2011 to October 31, 2013, and then revoked 5 on June 26, 
2012.6 The Beneficiary entered and departed the United States in 2011 and 2012 but did not exhaust 
his maximum period of admission. 
In 2014, the Petitioner filed an H-lB petition,__ _____ ___. on behalf of the Beneficiary, which 
was approved with a validity period of November 5, 2014 to July 30, 2017. The Beneficiary entered 
the United States on February 12, 2015. 
The Petitioner then filed the instant petition seeking an extension of the Beneficiary's status, which 
was approved by the Director. In her calculation of the petition's validity period, the Director included 
the Beneficiary's 2011 to 2012 time in H-lB status, presumably interpreting the Beneficiary's 2015 
entrance as a re-admission for the remainder of the initial six-year admission period. The Director's 
reasoning for considering the Beneficiary's entrance in 2015 as a continuation of his six-year 
admission period was not clear in the Director's decision. The Director then considered time that 
could be recaptured pursuant to 8 C.F.R. § 214.2(h)(13)(iii)(e) in the decision. 
On appeal, the Petitioner asserts that the petition does not request recaptured time. The Petitioner 
explains that the Beneficiary entered as a new H-lB nonimmigrant in 2015, resetting the six-year 
period of stay as the Beneficiary had remained outside the country for over a year. However, while 
the Petitioner included the 2014 approval notice for the petition I I, a copy of the 
petition itself is not included in the record and the Petitioner does not clarify whether the 2014 petition 
was filed subject to the H-lB cap. 
Therefore, we will remand for the Director to reconsider the petition's validity period. The Director 
may request any additional evidence considered pertinent to the new determination and any other 
issue. As such, we express no opinion regarding the ultimate resolution of this case on remand. 
ORDER: 
4 Id. 
The decision of the Director is withdrawn. The matter is remanded for the entry of a 
new decision consistent with the foregoing analysis. 
5 The reason for the revocation was n~r nrnvided iu the lecord. 
6 The petitions,~----~and._ ____ ___. were filed by a different Petitioner than in the instant case. 
2