remanded H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re: 21179745 
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 : SEP. 29, 2022 
The Petitioner seeks to extend the Beneficiary's temporary employment as a software developer under 
the H-lB nonimmigrant classification for specialty occupations. See Immigration and Nationality Act 
(the Act) section 10l(a)(l5)(H)(i)(b), 8 U.S.C. § 110l(a)(l5)(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 Vermont Service Center denied the petition, concluding that the Petitioner did not 
establish that it is eligible for a petition extension in accordance with the applicable provisions. On 
appeal, the Petitioner asserts that the Director erred. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit by a 
preponderance of the evidence. See Section 291 of the Act; see also Matter of Chawathe, 25 I&N 
Dec. 369,375 (AAO 2010) . Upon de nova review, we will dismiss the appeal. See Matter of Christo 's 
Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). 
Section 214(g)(4) of the Act, 8 U.S .C. § 1184(g)(4), provides: "In the case of a nonimmigrant 
described in section 10l(a)(l5)(H)(i)(b ), the period of authorized admission as such a nonimmigrant 
may not exceed 6 years ." The regulation at 8 C.F.R. § 214.2(h)(l3)(iii)(D) codifies section 106 of the 
American Competitiveness in American Competitiveness in the Twenty-First Century Act, Pub. L. 
No. 106-313, 114 Stat. 1251 (2000), as amended by the Twenty-First Century Department of Justice 
Appropriations Authorization Act, Pub. L. No . 107-273, 116 Stat. 1758 (2002), and it removes the six­
year limitation on the authorized period of stay in H-lB visa status for certain foreign nationals whose 
labor certifications or immigrant petitions remain undecided due to lengthy adjudication delays. 
To prevail in this matter, the Petitioner must establish that a labor certification or an 1-140 petition had 
been pending for at least 365 days on the date the H-lB petition was filed. Upon review of the record 
in its totality and for the reasons set out below, we conclude that a remand is warranted. 
The Petitioner filed the instant H-1 B pet1t10n on March 31, 2021, and it seeks to extend the 
Beneficiary's H-1B status from April 5, 2021 to April 4, 2022. The Form I-140 the Petitioner claims 
as the basis for the requested petition extension was filed April 16, 2020 and denied October 13, 2020. 
The Petitioner filed a combined motion to reopen and reconsider the petition, which the Director 
denied on February 2, 2021. However, on April 5, 2021, the Petitioner filed a second combined motion 
to reopen and reconsider the petition, and the Director approved the I-140 petition on September 6, 
2022. We consider approval of the I-140 petition a significant development that warrants withdrawal 
of the Director's denial and remand of the matter for issuance of a new decision taking this 
development into account. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for the entry of a 
new decision consistent with the foregoing analysis. 
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