sustained H-1B Case: Computer Science

idewing data deleted to 
prevent clearly unwafianted 
invasion of personal privacy 
PUBLIC COPY 
U.S. Department of Ifomeland Security 
20 Mass. Ave. N.W., Rrn. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: LIN 04 233 501 55 Office: NEBRASKA SERVICE CENTER 
IN RE: Petitioner: 
Beneficiary: 
Date: JUL 1 2 2006 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101 (a)(l S)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § 1 1 Ol(a)(l 5)(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. 
Administrative Appeals Office 
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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 an IT development and consulting firm that seeks to extend the employment of the 
beneficiary as a computer programmer and to continue his classification as a nonimmigrant worker in a 
specialty occupation pursuant to section IOl(a)(l5)(H)(i)(b) of the Immigration and Nationality Act (the 
Act), 8 U.S.C. tj 1 10 1 (a)(l S)(H)(i)(b). 
The record of proceeding before the AAO contains (1) the Form 1-129 and 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 record reflects that the beneficiary has been in the United States, in H-1B status, since January 17, 1999. 
The petitioner filed an application for alien labor certification (ETA 750) for the beneficiary on October 21, 
2003. 
The petitioner filed the instant petition on August 16, 2004, requesting that the beneficiary be granted an 
additional year of H-1B status pursuant to the American Competitiveness in the Twenty-First Century Act 
(AC-21) (as amended by the Twenty-First Century DOJ Appropriations Authorization Act (DOJ-21)). 
The requested start date of employment in the petition was August 2,2004. 
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 in AC-21 (as amended by DOJ-21) and therefore did not qualify for a seventh year of 
H- 1 B status. 
As a general rule, section 214(g)(4) of the Act, 8 U.S.C. 8 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-IB 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 nonimmigrants 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. tj 11 84(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 10 1 (a)( 1 5)(H)(i)(b) of such Act (8 
U.S.C. tj 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. tj 1 182(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)). 
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(2) 
 A petition described in section 204(b) 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(b) of AC-2 1 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. 
Two recent Citizenship and Immigration Services (CIS) policy memoranda have clarified how CIS is to 
implement these provisions of AC-2 1 and DOJ-2 1. 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-IB classification under section 106(a) of AC-21, and for an extension of her H-1 B status for a seventh 
year under section 106(b) of AC-2 1. 
Both memoranda provide, in part, that an alien who is otherwise eligible for an H-1B 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) HQPRD7016.2.8-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 of the Department of 
Labor's (DOL) PERM Rule on Determining Labor CertrJication Validity, Priority Dates for Employment- 
Based Form 1-140 Petitions, Duplicate Labor Certification Requests and Requests for Extension of H-IB 
Status Beyond the 6h Year: Adjudicator's Field Manual Update AD05-15. HQPRD7016.2.8 (September 23, 
2005). The second memorandum, at page 5, states, in part, the following: 
Once [the requirements of Section 106(a) of AC-211 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. 
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The date of the filing of the application for alien labor certification, October 21, 2003 is less than 365 
days prior to the August 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 expires on January 16, 2005, 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 under AC-2 1 on January 17, 2005. 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 withdraw 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. 
8 1361. The petitioner has sustained that burden. 
ORDER: 
 The appeal is sustained. The petition is approved.