remanded H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date : AUG . 24, 2023 In Re : 27697416 
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 .1 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. 
The Director of the Texas Service Center denied the petition , concluding that the record did not 
establish the Beneficiary's remaining period ofH-lB admission or their eligibility for a new six-year 
period ofH-lB admission . 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 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 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-IB numerical cap 2 on March 
25, 2022. 3 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 denied the petition, 
concluding that the Beneficiary had exhausted their permissible period of time for H-IB 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. 
1 The Director incorrectly stated the Petitioner sought consular notification in their Decision . We conclude that to have 
been a harmless error. 
2 Additional information regarding the H-lB numerical cap may be found on the USCIS website at 
https :/ /www.uscis .gov/working- in-the-united-states /temporary-workers /h-1 b-special ty-occupations-and- fashion­
models/h-1 b-cap-season. 
3 Contrary to the Director 's assertions, the Beneficiary does not appear to have ever previously been counted against any 
prior H-lB numerical limitation or cap. 
The Beneficiary maintained L- lA classification from August 4, 2017 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 H 
or L petition any time after December 3, 2019. The Beneficiary resumed lawful nonimmigrant status 
in H-4 classification on September 23, 2021. 4 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 towards 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-IB 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 Petitioner has not exhausted their maximum allowable time for H-1 B 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-1 B 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 to them. 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 so that a first-line 
adjudication consistent with the foregoing analysis may be conducted. 
As the Director conducts that first-line adjudication, they may wish to also examine the following 
issue we have identified in our de novo review. Notably, it appears that the Beneficiary departed the 
United States on March 14, 2023 and returned on June 20, 2023. Departure generally abandons a 
request for change of status. See generally Memorandum from Thomas Cook, Acting Associate 
Commissioner, Office of Programs, HQ 70/6.2.9, Travel After filing a Request for a Change of 
Nonimmigrant Status (June 18, 2001), http://www.uscis.gov/legal-resources/policy-memoranda. So 
the Director should conduct a first-line review to evaluate the record and determine whether the 
Beneficiary remains eligible for a change of status and extension of stay. In so doing, they may wish 
to examine the issues we have identified above. We express no opinion regarding the ultimate 
disposition of this petition. 
ORDER: The Director's decision is withdrawn. The matter is remanded for the entry of a new 
decision consistent with the foregoing analysis. 
4 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