sustained H-1B Case: Business Systems Analysis

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PUBLICCOpy:
u.s.Department of Homeland Security
20 Mass. Ave. N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
FILE: EAC 04 213 51566 Office: VERMONT SERVICE CENTER Date: JUN 262006
IN RE: Petitioner:
Beneficiary:
PETITION: 'Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l5XH)(i)(b) of the
Immigration and Nationality Act, 8 U.S.C. § 1101(aXI5)(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
EAC 04213 51566
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, in accordance with the following discussion.
The petitioner is an office products retailer that seeks to continue its employment of the beneficiary as a
business systems analyst. The petitioner, therefore, endeavors to extend the beneficiary's classification as a
nonimmigrant worker in a specialty occupation pursuant to section 101(a)(l5)(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 Form 1-129and supporting documentation ; (2) the
director's denial letter; and (3) the Form I-290B and supporting documentation. The AAO reviewed the
record in its entirety before issuing its decision.
The director found that the beneficiary was in the United States , in H-IB status, from November 18, 1998
through June 15 , 2004. The petitioner filed an application for alien labor certification on behalf of the
beneficiary on March 28, 2003.
The petitioner filed the instant petition on July 12, 2004 and requested that the beneficiary be granted an
additional year ofH-1B status, pursuant to the American Competitiveness in the Twenty-First Century Act
(AC-21) (as amended by the Twenty-First Century OOJ Appropriations Authorization Act (00J-21 )).
The AAO notes that this petition was filed nearly one month after the expiration of the beneficiary's
nonimmigrant status. Although the petitioner requested an extension of the beneficiary 's nonimmigrant
status, it offered no explanationof its failure to file a timely extension.
The director denied the petition , finding the beneficiary unqualified for an additional year of H- IB status.
The director found that, since the beneficiary had not maintained his valid nonimmigrant status , he was
unable to receive benefits under AC-21.
On appeal, counsel contends that the beneficiary is qualified for an additional year of H-l B status. Although
counsel concedes that the beneficiary's nonimmigrant status expired before the extension was filed and that
there was no justifiable reason for the delay in filing the petition, she requests that the petition be approved
and that CIS notify the United States Consulate in Montreal, Canada that the petition has been approved.
The AAO has reviewed the record and finds that the beneficiary is not eligible for relief under AC-21 as
amended by 00J-21. However, he is entitled to additional H-IB time, as he had not exhausted six years of
H-l B status at the time the petition was filed.
As noted previously, the beneficiary had been in the United States, in H- IB status, since November 18, 1998
at the time the petition was filed. Accordingly , he was entitled to an extension of his status through
November 17, 2004, and the director should have approved the petition through that date and notified the
requested consulate of said approval.
The beneficiary is not, however, eligible for any relief under AC-21, as amended by00J-21.
As a general rule, section 214(g)(4) of the Act , 8 U.S.C. § II 84(g)(4), provides that ''the period of
authorized admission of [an H-IB nonimmigrant] shall not exceed 6 years. " However, AC-21 removed
the six-year limitation on the authorized period of stay in H-IB visa status for aliens whose labor
EAC 04 21351566
Page 3
certifications or immigrant petitions remain pending due to lengthy adjudication delays, and 00J-21
broadened the class ofH-IB nonimmigrants able to avail themselves of this provision.
As amended by section 11030(A)(a) ofOOJ-21, section 106(a) of AC-21 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. § I 184(gX4)) with respect to the
duration of authorized stay shall not apply to any nonimmigrant alien previously issued a
visa or otherwise provided nonimmigrant status under section 101(a)(15)(H)(i)(b) of such
Act (8 U.S.C . § 1101(aX15)(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)(5XA) 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) ofOOJ-21 amended section 106(a) of AC-21 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)(I) , or, in a case in which
such application is granted , to deny a petition described in subsection (aX2) 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 penn anent
residence.
CIS issued a mem0:MMese provisions of AC-21 and 00J-21 on April 24 , 2003. See
Memorandum from Acting Associate Director for Operations , Citizenship and
Immigration Services , epartment 0 omeland Security , Guidance for Processing H-1B Petitions as
Affected by the Twenty-First Century Department ofJustice Appropriations Authorization Act (Public Law
107-273): Adjudicator's Field Manual Update AD03-09. HQBCIS 70/6.2.8-P (April 24, 2003l This
memorandum, at page 2 , states the following:
I See also Memorandum from Associate Director for Operations , Citizenship and Immigration
Services, Department of Homelan ecun , n ertm Guidance Regarding the Impact of the Department of Labor 's
(DOL) PERM Rule on Determ ining Labor Certification Validity , Priority Dates for Employment-Based Form 1-140
Petitions, Duplicat e Labor Certification Requests and Requests for Extension of H-1B Status Beyond the rJh Year:
Adjudicator's Field Manual Update AD05-1 5. HQPRD70 /6.2.8 (September 23, 2005).
EAC 04213 51566
Page 4
The request for an extension of status must establish that the alien beneficiary is in valid
H-IB status at the time the petition (Form 1-129) is filed with the BCIS [now CIS]. An
extension of stay may not be approved for an applicant who failed to maintain the
previously accorded status, or where such status expired before the application or petition
was filed , with certain exceptions .
AC-21 and DOJ-21 provide that CIS shall extend the stay of an alien who qualifies for the exemption in
one-year increments; however , this does not waive the extension requirements at 8 C .F.R. § 214.1 (c)(4),
which state that an extension of stay may not be approved for an applicant who failed to maintain the
previously accorded status or where such status expired before the application or petition was filed , with
certain exceptions (none of those exceptions have been established here).
If the alien is not otherwise eligible for an extension of stay, then CIS will not approve a request for extension
of H-IB status. "An extension of stay ma y not be approved for an applicant who failed to maintain the
previously accorded status or where such status expired before the application or petition was filed. "
8 C.F.R. § 214.1(cX4).
As counsel correctly notes, the beneficiary is not qualified for an extension of H-IB status. However ,
AC-21, DOJ-21, and the memoranda cited above pertain to extension of status requests only. Since the
beneficiary is ineligible for an extension of status, he cannot avail himself of AC-21 and DOJ-21 at this
time. AC-21 and DOJ-21 apply to nonimmigrant aliens only - a class to which the beneficiary has not
belonged since June 15,2004.
Therefore , the beneficiary is ineligible for a seventh year of H-IB status, and the petition was properly
denied on that ground.
Accordingly , the beneficiary is eligible for an additional five months of H-IB status (the period that
elapsed between June 15 , 2004 and November 17, 2004), and the petition is approved for a period of five
months (i.e. , the time that remained of his six years of authorized stay at the time the petition was filed).
The beneficiary is not, however, eligible for any relief under AC-21 and DOJ-21 at this time, as he was
not in a valid nonimmigrant status at the time this petition was filed.
The burden of proof in these proceedings 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 i s approved , in accordance with the discussion
above .