sustained H-1B Case: Architecture

U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
PUBLICcopy
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u.s.Citizenship
and Immigration
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Office: CALIFORNIA SERVICE CENTER Date:WAC 05 020 50542FILE:
INRE: Petitioner:
Beneficiary:
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(H)(i)(b) of the
Immigration and Nationality Act, 8 V.S.c. § 1101(a)(15)(H)(i)(b)
ON BEHALF OF PETITIONER:
INSTRUCTIONS:
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to
the office that originally decided your case. Any further inquiry must be made to that office.
Robert P. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
WAC 05 020 50542
Page 2
DISCUSSION: The Director, California Service Center, denied the nonimmigrant visa petition. The matter is
now before the AAO. The appeal will be sustained. The petition will be approved.
The petitioner designs custom homes. It seeks to employ the beneficiary as an architectural designer pursuant
to section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.c.
§ 1101(a)(l5)(H)(i)(b).
The record of proceeding before the AAO contains: (1) the October 28, 2004 Form 1-129 and supporting
documentation; (2) the director's January 24, 2005 request for further evidence (RFE); (3) the petitioner's April
14, 2005 response to the RFE; (4) the director's August 2, 2005 RFE; (5) the petitioner's October 11, 2005
response to the RFE; (6) the director's November 17, 2005 denial decision; and (7) the Form 1-290B and the
petitioner's plea for leniency in interpreting the regulations. The AAO reviewed the record in its entirety before
issuing its decision.
Citizenship and Immigration Services' (CIS) records reflect that the beneficiary first arrived in the United States
in B-2 status and changed status to H-4 status beginning on December 1, 1998. On March 27, 2000 the
beneficiary changed her status to H-IB. The beneficiary has continuously resided in the United States in H-IB
status through the filing date of the instant petition. The record contains a letter from the California Employment
Development Department (EDD) dated February 6, 2004 sent to the petitioner's prior counsel indicating that the
California EDD had received the application for alien employment certification. On October 28, 2004 the
petitioner filed the petition that is the subject of this appeal.
On November 17,2005, the director indicated that the only issue to be determined is whether the petitioner had
established that the beneficiary is entitled to a seventh-year H-IB extension.
The director noted the applicable law at section 214(g)(4) of the Act, 8 U.S.c. § 1184(g)(4), that provides:
"the period of authorized admission of [an H-lB nonimmigrant] shall not exceed 6 years." The director also
noted pursuant to 8 C.F.R. § 2 l4.2(h)(13)(iii)(A) that:
An H-lB alien in a specialty occupation ... who has spent six years in the United States under
section lOl(a)(15)(H) and/or (L) of the Act may not seek extension, change status or be
readmitted to the United States under section 101(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.
The director also addressed the exemption to the six-year H-lB limitation created by the American
Competitiveness in the Twenty-First Century Act (AC-2l) (as amended by the Twenty-First Century DOl
Appropriations Authorization Act (DOl-2l» and the November 2, 2002 amendment by Section l1030A of
Public Law 107-273, 21st Century Department of Justice Appropriations Authorization Act, (DOl Act)
amendment that states:
(a) EXEMPTION FROM LIMITATION. -- The limitation contained in section 2l4(g)(4) of
the Immigration and Nationality Act (8 U.S.c. § 1184(g)(4)) with respect to the duration of
WAC 05 020 50542
Page 3
authorized stay shall not apply to any nonimmigrant alien previously issued a VIsa or
otherwise provided nonimmigrant status under section 101(a)(l5)(H)(i)(b) of such Act
(8 U.S.C. § I 101 (a)(15)(H)(i)(b)), if 365 days or more have elapsed since the filing of any of
the following:
(1) Any application for labor certification under section 212(a)(5)(A) of such Act (8
U.S.c. § 1182(a)(5)(A)), in a case in which certification is required or used by the
alien to obtain status under section 203(b) of such Act (8 U.S.c. § 1153(b)).
(2) A petition described in section 204(b) of such Act (8 U.S.C. § 1154(b)) to accord
the alien a status under section 203(b) of such Act.
Section 11030(A)(b) ofDOJ-21 amended section 106(a) of AC-21 to state the following:
(b) EXTENSION OF H-IB WORKER STATUS--The Attorney General shall extend the stay
of an alien who qualifies for an exemption under subsection (a) in one-year increments until
such time as a final decision is made-
(1) to deny the application described in subsection (a)(l), or, in a case in which such
application is granted, to deny a petition described in subsection (a)(2) filed on behalf
of the alien pursuant to such grant;
(2) to deny the petition described in subsection (a)(2); or
(3) to grant or deny the alien's application for an immigrant visa or for adjustment of
status to that of an alien lawfully admitted for permanent residence.
The director determined that the beneficiary began her "H" status on December 1, 1998 and that her period of
authorized admission as an "H" nonimmigrant had expired November 30, 2004. The director noted that 365
days had not passed since the Form ETA 750 had been filed February 6, 2004; thus the AC21 exemption as
modified by the DOJ Act did not apply to the beneficiary.
A recent CIS policy memoranda has clarified that time spent as an H-4 dependent does not count against the
maximum allowable periods of stay available to principals in H-IB status. See Memorandum from Michael
Aytes, Associate Director, Domestic Operations, Citizenship and Immigration Services, Department of
Homeland Security, Guidance on Determining Periods ofAdmission for Aliens Previously in H-4 or L-2 Status;
Aliens Applyingfor Additional Periods ofAdmission beyond the H-1B Six Year Maximum; and Aliens Who Have
Not Exhausted the Six-Year Maximum But Who Have Been Absent for the United States for Over One Year.
HQPRD 70/6.2.8 (December 5, 2006). The memorandum, at page 2, states, in part, the following:
USCIS, therefore, is now clarifying that any time spent in H-4 status will not count against
the six-year maximum period of admission application to H-IB aliens. Thus, an alien who
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was previously an H-4 dependent and subsequently becomes an H-1B principal will be
entitled to the maximum period of stay applicable to the classification.
The AAO notes that the statute and relevant regulation limit the time a person may spend in the United States
in H-1B status and does not put a maximum limit on the amount of time an alien may spend in H-4 visa
status. See section 2l4(g)(4) of the Act, 8 USC § 1184(g)(4); 8 C.F.R. § 214.2(h)(13)(iii)(A). The spouse
and unmarried minor children of an H-1B principal are subject to the same period of admission and limitation
as the principal. 8 C.F.R. § 214.2(h)(9)(iv). Under the authority cited above, the AAO finds that the
beneficiary's maximum period of admission in H-1B visa status expired on March 26,2006.
Two prior CIS policy memoranda also clarified how CIS is to implement certain provisions of AC-21 and
DOJ-21. In accordance with these two policy memoranda, the AAO has determined that the beneficiary is
eligible for an exemption from the six-year limitation on her H-1B classification under section 106(a) of
AC-2l, and for an extension of her H-1B status for a seventh year under section 106(b) of AC-21.
Both memoranda provide, in part, that an alien who is otherwise eligible for an H-lB extension does not need
to first file a form 1-129 requesting an extension of time to allow the beneficiary to complete the six years, and
then file an additional Form 1-129 requesting an extension of time beyond the six years. Memorandum from
William R. Yates, Associate Director for Operations, Citizenship and Immigration Services, Department of
Homeland Security, Interim Guidance for Processing Form 1-140 Employment-Based Immigrant Petitions and
Form 1-485 and H-IB Petitions Affected by the American Competitiveness in the Twenty-First Century Act of
2000 (AC 2I)(Public Law 106-313) HQPRD70/6.2.8-P (May 12,2005); Memorandum from William R. Yates,
Associate Director for Operations, Citizenship and Immigration Services, Department of Homeland Security,
Interim Guidance Regarding the Impact ofthe Department ofLabor's (DOL) PERM Rule on Determining Labor
Certification Validity, Priority Dates for Employment-Based Form 1-140 Petitions, Duplicate Labor Certification
Requests and Requests for Extension of H-IB Status Beyond the 6 th Year: Adjudicator's Field Manual Update
AD05-I5. HQPRD70/6.2.8 (September 23, 2005). The second memorandum, at page 5, states, in part, the
following:
Once [the requirements of Section 106(a) of AC-21] have been met, the alien may be granted
an extension beyond the 6-year maximum on or prior to the date the alien reaches the 6-year
maximum. Such extensions may only be granted in one-year increments, but may be
requested on a single (combined) extension request for any remaining time left in the initial
6-year period. Requiring the filing of two extension petitions merely increases petitioner and
CIS workloads, and has no basis in statute.
The date of the filing of the application for alien labor certification, October 21, 2004, is less than 365 days
prior to the November 2, 2004 requested employment start date specified on the Form 1-129. This would
appear to preclude the beneficiary from a seventh year of H-1B status, as, at first glance, the application for
alien labor certification appears to not have been filed more than 365 days prior to the petition's requested
employment start date. However, the AAO has reviewed the record and determined that the alien's maximum
period of stay in H-1B status expired on March 26,2006, which is more than 365 days after the filing date of
the Form ETA-750. Thus, the beneficiary will begin working under the seventh year extension of status
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Page 5
under AC-21 on March 27, 2006. That date is more than 365 days after the application for alien labor
certification was filed. Under the CIS guidance quoted above, the petitioner may combine the extension
request to complete the alien's six year maximum and to extend for a seventh year under AC-21 on one Form
1-129 petition. Thus, the beneficiary is eligible for a seventh year of H-IB status, and the AAO will reverse
the director's denial of the petition.
The burden of proof in this proceeding rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361.
The petitioner has sustained that burden.
ORDER: The appeal is sustained. The petition is approved.