sustained H-1B Case: Broadcast Journalism

iwfLing data deW to 
pevent clearly unw-d 
invasion of personal pfiv8CY 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave. N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
FILE: EAC 04 248 52883 Office: VERMONT SERVICE CENTER Date: JUN 0 7 2006 
IN RE: 
PETITION: Petition for a Nonirnrnigrant Worker Pursuant to Section lOl(a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 5 1 lOl(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 further inquiry must be made to that office. 
EAC 04 248 52883 
Page 2 
DISCUSSION: The director 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. 
The petitioner is a television satellite transmission company that seeks to continue its employment of the 
beneficiary as a broadcast journalist. The petitioner, therefore, endeavors to extend the beneficiary's 
classification as a nonirnrnigrant worker in a specialty occupation pursuant to section 10 1 (a)(l S)(H)(i)(b) of 
the Immigration and Nationality Act (the Act), 8 U.S.C. 1 10 l(a)(l 5)(H)(i)(b). 
The record of proceeding before the AAO contains (1) the Form 1-129 and supporting documentation; (2) the 
director's request for evidence (RFE); (3) the petitioner's RFE response and supporting documentation; 
(4) the director's denial letter; and (5) the Form I-290B and supporting documentation. The AAO reviewed 
the record in its entirety before issuing its decision. 
According to the petitioner, the beneficiary was in the United States, in H-1B status, fiom October 8, 1998 
through March 17, 1999 and from March 14, 1999 through at least September 2, 2004 (the date the petition 
was filed). The petitioner filed an application for alien labor certification for the beneficiary on September 
30,2003. 
The petitioner filed the instant petition on September 2,2004 and requested that the beneficiary be granted an 
additional year of H-1B status, pursuant to the American Competitiveness in the Twenty-First Century Act 
(AC-2 I), as amended by the Twenty-First Century DOJ Appropriations Authorization Act (DOJ-21). 
The director denied the petition, holding that since 365 days had not elapsed between the filing of the 
application for alien labor certification and the filing of the instant petition, the beneficiary did not meet the 
requirements set forth at AC-21 (as amended by DOJ-21) and therefore did not qualify for a seventh year of 
H-1B status. 
As a general rule, section 214(g)(4) of the Act, 8 U.S.C. § 1184(g)(4), provides that "the period of 
authorized admission of [an H-1B nonimmigrant] shall not exceed 6 years." However, AC-21 removed 
the six-year limitation on the authorized period of stay in H-1B visa status for aliens whose. labor 
certifications or immigrant petitions remain pending due to lengthy adjudication delays, and DOJ-21 
broadened the class of H-1B nonimrnigrants able to avail themselves of this provision. 
As amended by section 1 1030(A)(a) of DOJ-2 1, section 106(a) of AC-2 1 states the following: 
(a) EXEMPTION FROM LIMITATION. -- The limitation contained in section 214(g)(4) 
of the Immigration and Nationality Act (8 U.S.C. 1184(g)(4)) with respect to the 
duration of authorized stay shall not apply to any nonimrnigrant alien previously issued a 
visa or otherwise provided nonirnmigrant status under section 10 1 (a)(l 5)(H)(i)(b) of such 
Act (8 U.S.C. llOl(a)(lS)(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)). 
EAC 04 248 52883 
Page 3 
I 
(2) A petition described in section 204@) of such Act (8 U.S.C. 5 1154(b)) to 
accord the alien a status under section 203(b) of such Act. 
Section 1 1030(A)(b) of DOJ-2 1 amended section 106(a) of AC-2 1 to state the following: 
(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. 
In accordance with two recent CIS policy memoranda, the AAO has determined that the beneficiary is 
eligible for an exemption from the six-year limitation on his H-1B classification under section 106(a) of 
AC-21, and to an extension of his H-1B status for a seventh year under section 106@) of AC-21, because 
the petitioner filed a labor certification application more than 365 days before the starting date of the 
employment period sought in the extension petition. 
The first memorandum,' at page 8, states, in part, the following: 
[A]n alien is eligible for an extension of H-1B status beyond the 6" year as long as either 
the qualifying labor certification application or 1-140 petition has or will have been 
pending for at least 365 days prior to the alien's requested start date, regardless of 
whether the H-1B extension application was filed prior to the passage of such period. 
The second memorandum: at page 7, states, in part, the following: 
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 Afected by the American 
Competitiveness in the Twenty-First Century Act of 2000 (AC 2I)(Public Law 106-313) HQPRD7016.2.8-P 
(May 12,2005). 
* Memorandum from William R. Yates, Associate Director for Operations, Citizenshp and Immigration 
Services, Department of Homeland Security, Interim Guidance Regarding the Impact of the Department of 
Labor's (DOL) PERM Rule on Determining Labor CertiJication Validity, Priority Dates for 
Employment-Based Form 1-1 40 Petitions, Duplicate Labor Certijkation Requests and Requests for Extension 
of H-IB Status Beyond the gh Year: Adjudicator's Field Manual Update AD0.5-15. HQPRD7016.2.8 
(September 23,2005). 
EAC 04 248 52883 
Page 4 
USCIS will grant an extension beyond the 6' year if the filing date of a pending or 
approved labor certification application or a pending or approved EB immigrant petition 
is 365 days or more prior to the requested employment start date on the H-1B petition. 
Such extension should be granted regardless of whether the H-1B extension application 
was filed prior to the passage of such period. 
The requested employment start date in the instant petition was October 1, 2004.~ As noted previously, 
the application for alien labor certification was filed on September 30, 2003. Therefore, the application 
for alien labor certification was filed more than 365 days prior to the petition's requested employment 
start date. Thus, the beneficiary is eligible for a seventh year of H-1B status, and the AAO will reverse 
the director's denial of the petition. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
$ 136 1. The petitioner has sustained that burden. 
ORDER: The appeal is sustained. The petition is approved. 
3 The record reflects that the beneficiary's previous status expired on September 30,2004.