remanded H-1B Case: Software Developer

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JUN. 07, 2024 In Re: 31222838 
Appeal of Texas Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-lB) 
The Petitioner seeks to extend and change the Beneficiary's status to commence temporary 
employment 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)(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 a specific specialty ( or its equivalent) as a 
minimum prerequisite for entry into the position. 
Whilst the Director of the Texas Service Center approved the petition, they did so for a shorter period 
than the Petitioner requested. 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 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 withdraw the Director's decision and remand the matter for entry of a new decision consistent 
with the following analysis. 
The Beneficiary was selected for further processing in the FY 2023 H-lB numerical cap 1 on March 
25, 2022. The Petitioner filed this petition on June 29, 2022 to temporarily employ the Beneficiary as 
a software developer from October 1, 2022 to September 30, 2025. The Director initially denied the 
petition, concluding that the Beneficiary had exhausted their permissible period of time for H-lB 
admission or stay and did not provide sufficient evidence in the record establishing eligibility for any 
remainder or recapture time or eligibility for a new six-year period ofH-lB time. The Petitioner filed 
an appeal and we withdrew the Director's decision and remanded the matter to the Director for further 
action. 
The Director's limited validity notice is insufficient for our appellate review. On remand, the Director 
approved the petition for a shorter period than the Petitioner requested. But it is not sufficiently clear 
1 Additional information regarding the H-1B numerical cap may be found on the USCIS website at 
https :/ /www.uscis.gov/working- in-the-uni ted-states/temporary-workers /h-1 b-specialty-occupations-and- fashion­
models/h-1 b-cap-season. 
how the Director determined the petition validity the Petitioner and Beneficiary were eligible for under 
the presented circumstances. For example, the Director's decision states the Beneficiary was not 
eligible for any recapture time. But the Director's decision then states the Beneficiary could claim up 
to 23 days of recapture time. And the approval notice the Director issued with limited validity was 
valid for a period greater than 23 days from the date of the petitioner's approval. So, it is unclear what 
additional time the Director considered to add to the 23 days they described in the limited validity 
notice to conclude what the period of limited petition validity the Petitioner and Beneficiary are 
eligible for. 
We observe upon de novo review that the Beneficiary maintained L-lA classification from August 4, 
201 7 to March 21, 2019 and again from April 15, 2019 to December 2, 2019. An H or L petition was 
not filed and approved in favor of the Beneficiary, and the Beneficiary was not present in the United 
States during the validity of any Hor L petition any time after December 3, 2019. The Beneficiary 
resumed lawful nonimmigrant status in H-4 classification on September 23, 2021.2 So it appears the 
Beneficiary has not accrued any time that could count towards an H-lB period of admission after 
December 3, 2019. 
Section 214(g)(4) of the Act, 8 U.S.C. § 1184(g)(4), sets a six-year, or 2,192 day, limitation on an H­
lB nonimmigrant's period of authorized admission or stay. Time spent in the United States in either 
L-lA or L-lB classification counts toward that limitation. See 8 C.F.R. § 214.2(h)(13(iii)(A). Time 
spent in the United States in L-2 or H-4 classification does not. See generally Memorandum from 
Michael Aytes, Associate Director, Domestic Operations, HQPRD 70/6.2.8, 70/6.2.12, AD 06-29, 
Guidance on Determining Periods of Admission for Aliens Previously in H-4 or L-2 Status; Aliens 
Applying for Additional Periods ofAdmission beyond the H-JB Six Year Maximum; and Aliens Who 
Have Not Exhausted the Six-Year Maximum But Who Have Been Absent from the United States for 
Over One Year (Dec. 5, 2006), http://www.uscis.gov/legal-resources/policy-memoranda. 
The total elapsed period of the Beneficiary's L-lA stay in the United States amounted to 827 days. 
Consequently, the Beneficiary has not exhausted their maximum allowable time for H-lB 
classification and are eligible for a remaining period of 1,365 days. So, they do not have to depart the 
United States for a period of one year before reapplying to commence a new six-year period of 
admission. And the Petitioner's requested period of H-lB validity for the Beneficiary from October 
1, 2022 to September 30, 2025, is an elapsed period of 1,096 days, which is less than the total amount 
of time they have remaining. So, the Beneficiary appears eligible for the requested period of H-1 B 
admission. The Director's decision will therefore be withdrawn and the matter remanded for the entry 
of a new decision consistent with the foregoing analysis. 
2 The Beneficiary's nonimmigrant status expired on December 2, 2019. The Beneficiary filed a Form T-539 to change to 
H-4 nonimmigrant status prior to when their authorized period of stay lapsed on September 14, 2020 when a petition to 
extend L-lA status filed by the Beneficiary's previous employer was denied. This application was approved in an exercise 
of favorable discretion nunc pro tune pursuant to 8 C.F.R. § 248.l(b) on September 28, 2021 granting H-4 status to the 
Beneficiary effective September 23, 2021. 
2 
ORDER: The Director's decision is withdrawn. The matter is remanded for the entry of a new 
decision consistent with the foregoing analysis. 
3