sustained H-1B Case: Computer Consulting

U.S. Department of Homeland Security 
20 Mass. Ave. NW Room A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
FILE: EAC 04 176 5 1652 Office: CALIFORNIA SERVICE CENTER Date: f EB 3 
IN RE: 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(l S)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 
 1 lOl(a)(lS)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
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 04 176 5 1652 
Page 2 
DISCUSSION: 
 The service center director denied the nonimmigrant visa petition and the matter was 
appealed to the Administrative Appeals Office (AAO). The appeal will be sustained. The petition will be 
approved. 
The petitioner is a computer consulting firm that seeks to extend the employment of the beneficiary as a 
programmer-analyst and to continue his classification as a nonimmigrant worker in a specialty occupation 
pursuant to section lOl(a)(lS)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1 lOl(a)(15)(H)(i)(b). 
The director found that the beneficiary was not eligible for an extension of stay beyond six years under 
sections 104(c) or 106 of the Twenty-First Century Department of Justice Appropriations Act (2 lSt Century 
DOJ Appropriations Authorization Act) because less than 365 days had elapsed between when the petitioner 
filed the alien employment certification application and the date the petition was filed. On appeal, counsel 
asserts that the beneficiary is eligible for an extension of approval of the petition. 
In general, section 214(g)(4) of the Act, 8 U.S.C. $1 184(g)(4), provides that: "[Tlhe period of authorized 
admission of [an H-1B nonimmigrant] shall not exceed 6 years." The American Competitiveness in the 
Twenty-First Century Act (AC21), as amended by the 21" 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, and broadens the 
class of H-1B nonimmigrants who may avail themselves of this provision. 
As amended by tj 11030(A)(a) of the DOJ Authorization Act, 
 106(a) of AC-21 reads: 
(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 nonimmigrant alien previously issued a visa or 
otherwise provided nonimmigrant status under section lOl(a)(lS)(H)(i)(b) of such Act (8 
U.S.C. 1 lOl(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. ?j 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 1 1030(A)(b) of the DOJ Authorization Act amended 
 106(a) of AC-2 1 to read: 
(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; 
EAC 04 176 51652 
Page 3 
(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. 
CIS headquarters issued an operations memorandum, which confirms counsel's interpretation of CIS'S policy 
on this issue. See 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 American 
Competitiveness in the Twenty First Century Act of 2000 (AC2I)(Public Law 106-313). HQPRD 7016.2.8-P 
(May 12,2005). The pertinent part of the memorandum revises section 33.3(g)(8) of the Adjudicator's Field 
Manual (AFM) to read as follows: 
As discussed in section 31.2(d) of the AFM, assuming the alien is otherwise qualified for an 
extension of H-1B status, USCIS will grant an extension beyond the 6th 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. However, if the alien would no 
longer be in H-1B status at the time that 365 days from the filing of the labor certification 
application or immigrant petition has run, then the extension of stay requests cannot be 
granted. . . . 
On June 12, 2003, the petitioner submitted an application for labor certification with the State of New Jersey 
Department of Labor. On May 25, 2004, the petitioner submitted the instant H-1B extension request which 
stated a start date for the extended employment of July 8, 2004, which is more than 365 days after the filing 
of the application for labor certification, and which coincides with the end date of the previously approved 
period of H-1B employment. On these facts, the AAO finds that the beneficiary is eligble for a 7' year 
extension of status. This pending labor certification establishes the beneficiary's eligibility, under AC21, as 
amended, for exemption from the six-year maximum period of authorized stay. 
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. Accordingly, the appeal will be sustained and the petition 
will be approved. 
ORDER: 
 The appeal is sustained. The petition is approved.