sustained H-1B Case: Computer Software

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PUBLICcopy
U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rrn. 3000
Washington, DC 20529
U.S. Citizenship
and Immigration
Services
FILE: EAC 05 021 50055 Office: VERMONT SERVICE CENTER Date: OCT 05 2007
INRE: Petitioner:
Beneficiary:
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(H)(i)(b) of the
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(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 05 021 50055
Page 2
DISCUSSION: The Director, Vermont Service Center, denied the nonimmigrant visa petition. The
Administrative Appeals Office (AAO) dismissed a subsequently filed appeal. The matter is now before the
AAO on a motion to reopen and reconsider. The motion will be granted. The previous decision will be
withdrawn and the petition will be approved.
The petitioner is a computer software development and consulting company. It seeks to employ the
beneficiary as a computer systems analyst pursuant to section lOl(a)(15)(H)(i)(b) of the Immigration and
Nationality Act (the Act), 8 U.S.C. § 1101(a)(l5)(H)(i)(b). The director denied the petition determining that
the beneficiary was ineligible for extension of his H-1B nonimmigrant status because at the time of filing the
Form 1-129 on 365 days or more had not passed since the filing of the beneficiary's Labor
Certification, certified
The record reflects that the beneficiary first entered the United States in H-IB status on and
that his six-year maximum period of stay expired on April 8, 2005. Thus, the petitioner must establish that a
labor certification application was filed on the beneficiary's behalf on or before 65 days prior
to the expiration of the beneficiary's maximum authorized period of stay in H-1B visa status. The record
reflects three labor certification applications filed on the beneficiary's behalf: (1) a labor certification
application with a priority date of filed on behalf of the beneficiary by_I
as withdrawn (2) a labor certification application with a
filed on behalf of the beneficiary b that
was closed and (3) a labor certification application with a priority date 0
~ filed by the petitioner in process when the AAO rendered its decision on
The AAO dismissed the appeal determining that the petitioner had failed to establish that either the February
5, 2002 labor certification application or the labor certification application is presently
filed or pending w~tof Labor. On motion, counsel for the petitioner indicates that the instant
petition was filed and requested H-1B validity dates from 0_
2005. Counsel asserts that when the instant petition was filed, the labor certification application filed by
was still pending, thus establishing the beneficiary's eligibility for
e American Competitiveness in the
Appropriations Authorizatio~
The AAO has reconsidered the facts of this matter and withdraws its decision, as the
labor certification application filed on behalf of the beneficiary had not been withdrawn
when the instant petition was filed and continued to be in process throughout the duration of the requested
seventh year of H-IB validity. Thus, the beneficiary is eligible for a seventh year of H-IB status. The
petition will be approved.
J This labor certification application was closed when the Backlog Processing Center did not receive a
response from the employer expressing its desire to continue the processing of the labor certification
application.
EAC 05 021 50055
Page 3
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 is approved.