remanded H-1B Case: Unknown

U.S. Citizenship 
and Immigration 
Services 
In Re : 25334878 
Appeal of Nebraska Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JAN. 27, 2023 
The Petitioner seeks to extend the Beneficiary's 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 the specific specialty ( or its equivalent) as a minimum prerequisite for entry into 
the position. 
The Nebraska Service Center Director approved the Form 1-129, Petition for a Nonimmigrant Worker 
(petition) on a limited basis, concluding that the Petitioner did not establish the Beneficiary was 
entitled for the full requested period of work. The matter is now before us on appeal. The Petitioner 
bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. Section 291 
of the Act; Matter of Chawathe, 25 l&N Dec. 369, 375 (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 conclude that a remand is warranted in this case . 
Section 104 of the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) 
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, 
§ 104(c), 114 Stat. 1251, 1253-54. More specifically, section 104(c) of AC21 reads in, pertinent part: 
Notwithstanding section 214(g)(4) of the Immigration and Nationality Act (8 U.S .C. 
1184(g)(4)) , any alien who-
(1) is the beneficiary of a petition filed under section 204(a) of that Act [8 U.S .C. 
§ 1154(a)] for a preference status under paragraph (1), (2), or (3) of section 
203(b) of that Act [8 U.S.C. § 1153(b )]; and 
(2) is eligible to be granted that status but for application of the per country 
limitations applicable to immigrants under those paragraphs, may apply for, and 
the Attorney General may grant, an extension of such nonimmigrant status until 
the alien's application for adjustment of status has been processed and a 
decision made thereon. 
The implementing regulation provides: 
An alien who currently maintains or previously held H-lB status, who is the beneficiary 
of an approved immigrant visa petition for classification under section 203(b )(1 ), (2), 
or (3) of the Act, and who is eligible to be granted that immigrant status but for 
application of the per country limitation, is eligible for H-lB status beyond the 6-year 
limitation under section 214(g)(4) of the Act. The petitioner must demonstrate such 
visa unavailability as of the date the H-lB petition is filed with USCIS. 
8 C.F.R. § 214.2(h)(l3)(E). Section 104(c) of AC21 is applicable when an individual, who is the 
beneficiary of a Form 1-140, Immigrant Petition for Alien Workers, is eligible to be granted lawful 
permanent resident status but for the application of a per country limitation to which that individual is 
subject or, alternatively, if the immigrant preference category applicable to that individual is, as a 
whole, "unavailable." Thus, to establish eligibility under the exemption at section 104( c) of AC2 l, a 
petitioner must establish that at the time of filing for the extension of H-1 B nonimmigrant status, a 
beneficiary is not eligible to be granted lawful permanent resident status on the sole basis that they are 
subject to a per country or worldwide visa limitation in accordance with their immigrant visa "priority 
date." 
A review of the filing before the Director does not reveal any explicit claim under AC21 for the 
Beneficiary's extension request. As a result, the Director concluded the Beneficiary should receive a 
shortened approval period ending at what would normally be construed as his six-year limit in the 
relevant nonimmigrant status. However, on appeal, the Petitioner provides additional information that 
places their previously submitted evidence into context. Although we see no error on the Director's 
part, the Petitioner states the Beneficiary is eligible for H-lB status extensions beyond the six-year 
limit based on AC21 section 104( c ). 
Even though the Petitioner provided an immigrant petition approval notice among the 400-plus pages 
of evidence before the Director, it did not instruct the Director of how that material corresponded with 
the Beneficiary's eligibility under AC21. On the date the Director adjudicated this petition, the 
immigrant petition filed on the Beneficiary's behalf was approved and a visa number was not available 
based on the designated immigrant classification. Based on this new information, we are remanding 
the matter to the Director to consider, in the first instance, what effect the Petitioner's claims have on 
the Beneficiary's extension request. 
ORDER: The Director's decision is withdrawn. The matter is remanded for the entry of a new 
decision consistent with the foregoing analysis. 
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