sustained H-1B Case: Automotive Engineering

identihing data deleled to 
prevent clearly unwarranted 
invasion o%osrsonal ~rivacv 
US. Department of Homeland Security 
20 Mass. Ave. N.W., Rm. A3042 
Wash~ngton, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: Office: NEBRASKA SERVICE CENTER Date: SEp 0 9 200~) 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10l(a)(l S)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 5 1 101 (a)(lS)(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 fiu-ther inquiry must be made to that office. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
Page 2 
DISCUSSION: The director of the service center denied the nonimmigrant visa petition and the matter is now 
before the Administrative Appeals Office (AAO) on appeal. The appeal will be sustained. The petition will be 
approved. 
In order to continue employing the beneficiary as a design engineer, the petitioner, a corporation that provides 
automotive engineering services, endeavors to continue classification of the beneficiary for an eighth year as a 
nonimmigrant worker in a specialty occupation pursuant to section lOl(a)(lS)(H)(i)(b) of the Immigration and 
Nationality Act (INA), 8 U.S.C. 5 1 lOl(a)(lS)(H)(i)(b). 
The director denied the petition on the basis that the beneficiary is not eligble for extension of H-IB 
nonirnrnigrant status under the American Competitiveness in the Twenty-First Century Act (AC21) because an 
application for permanent labor certification was neither pending nor approved at the time that the petition was 
filed. In pertinent part, the director stated: 
On March 17, 2005, [Citizenship and Immigration Services] sent the petitioner a request for 
additional evidence [RFE] that the application for alien employment certification was still 
pending or had been approved. 
On March 28, 2005, the petitioner returned the [RFE] cover letter and stated that the labor 
certification application was returned by the Michigan Department of Career Development on 
May 23, 2002. The Department of Career Development denied the application based upon 
inadequate recruitment, and as such no application for labor certification is currently pending for 
the petitioner's busmess. 
It is noted from the record that the beneficiary has been in the United States under Section 
101(a)(15)(H) or (L) of the Act for over 7 years. Since the beneficiary has remained in the 
United States in H or L status for over six years and the petitioner has not satisfied the 
requirements for an extension of stay under AC21, no further extensions of the petition may be 
granted. 
The crux of the appeal, as stated at section 3 of the timely filed I-290B (Notice of Appeal) is that the director 
misinterpreted the information presented in the RFE reply, in that both the wording of the petitioner's RFE 
response letter and its attached documents regarding the labor certification application process indicated that the 
labor certification application had not been denied, but rather was still pending. As the evidence of record 
substantiates counsel's assertion, the grounds for the denial have been overcome, and the appeal will be sustained. 
In general, section 214(g)(4) of the INA, 8 U.S.C. $1 184(g)(4), provides that: "[Tlhe period of authorized 
admission of [an H-IB nonimmigrant] shall not exceed 6 years." However, AC21, as amended by the 
Twenty-First Century Department of Justice Appropriations Authorization Act (2 1 Century DOJ Appropriations 
Act), removes the six-year limitation on the authorized period of stay in H-1B visa status for certain aliens whose 
labor certifications or immigrant petitions remain undecided due to lengthy adjudication delays. 
As amended by 3 11030(A)(a) of the 21" Century DOJ Appropriations Act, section 106(a) of AC21 reads: 
(a) EXEMPTION FROM LTMITATION. -- The limitation contained in section 2 14(g)(4) of the 
Immigration and Nationality Act (8 U.S.C. 8 1184(g)(4)) with respect to the duration of 
authorized stay shall not apply to any nonirnrnigrant alien previously issued a visa or otherwise 
provided nonimrnigrant status under section 10 1 (a)( 1 S)(H)(i)(b) of such Act (8 U.S.C. 
Page 3 
9 llOl(a)(l5)(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. 9 1182(a)(5)(A)), in a case in which cerhfication is required or used by the 
alien to obtain status under section 203(b) of such Act (8 U.S.C. 9 1153(b)). 
(2) A petition described in section 204(b) of such Act (8 U.S.C. 4 1154(b)) to accord 
the alien a status under section 203(b) of such Act. 
Section 1 1030(A)(b) of the 2 1" Century DOJ Appropriations Act amended section 106(a) of AC21 to read: 
(b) EXTENSION OF H-1B 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 decisive WE document is the January 5,2005 letter fiom the Michigan Department of Labor and Economic 
Growth (DL&EG) that directed the petitioner to engage in recruitment efforts and return the documentation of 
those efforts by May 17, 2005. The letter clearly indicates that processing of the labor certification application 
will contlnue upon timely receipt of the requested recruitment documentation. Counsel's March 24,2005 letter of 
reply that forwarded ths Michigan DL&EG letter indicated that the labor certification application had not been 
denied but was pending further DL&EG action commensurate with its March 17, 2005 Request for Evidence. It 
is also noted that the director erroneously read the May 23,2002 letter fi-om the Michigan Department of Career 
Development as a denial of the petitioner's labor certification application, when actually this letter indicated that 
the application would be processed "under the regular permanent process in the order in which it was initially 
received." The record reflects that there had been a denial of a reduction in recruitment request made by the 
petitioner, and that the DL&EG advised the petitioner that it would have to proceed with the traditional 
recruitment. The denial of reduction in recruitment was not a denial of the labor certification application. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. 
The petitioner has sustained that burden. 
ORDER: The appeal is sustained. The petition is approved.