sustained H-1B Case: Data Engineering

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: DEC. 3, 2024 In Re: 34698424 
Appeal of Texas Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
The Petitioner, a commercial airline organization, seeks to extend the Beneficiary's temporary 
employment as a senior data engineer under the H-lB nonimmigrant classification for specialty 
occupations. See Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. 
§ 1101(a)(15)(H)(i)(b). The H-lB program allows a U.S. employer to file a petition with U.S. 
Citizenship and Immigration Services to temporarily employ a qualified foreign worker in a position 
that requires both: (a) the theoretical and practical application of a body of highly specialized 
knowledge; and (b) the attainment of a bachelor's or higher degree in the specific specialty ( or its 
equivalent) as a minimum prerequisite for entry into the position. 
The Texas Service Center Director approved the Form 1-129, Petition for a Nonimmigrant Worker 
(petition) for a shorter period than requested. The matter is now before us on appeal. The Petitioner 
bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. Section 291 
of the Act; Matter ofChawathe, 25 l&N Dec. 369,375 (AAO 2010). We review the questions in this 
matter de novo. Matter of Christo 's Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo 
review, we will sustain the appeal. 
Section 214(g)(4) of the Act, 8 U .S.C. § 1184(g)(4), sets a six-year limitation on the period of 
authorized admission or stay for an H-lB nonimmigrant. However, as provided by 8 C .F.R. 
§ 214.2(h)(13)(iii)(A), time spent outside the United States does not necessarily count when 
calculating the end-date of that six-year period. 
Section 106 of the American Competitiveness in the Twenty-First Century Act of 2000 (AC21 ), as 
amended by the 21st Century Department of Justice Appropriations Authorization Act (DOJ21 ), 
removes the six-year limitation on the authorized period of stay in H-lB visa status for certain 
individuals and broadens the class ofH-lB nonimmigrants who may take advantage of this provision. 1 
1 Under the original AC21 statute, only those with a particular employment-based immigrant petition or an application for 
lawful permanent residence (LPR) that was filed for 365 days or more could receive one-year extensions until a decision 
was make on their LPR status application . DOJ21 expanded the exemption to the six-year limit to those who have a 
permanent labor certification or a qualifying employment-based petition filed for 365 days or more. 
The exemption to the six-year limit under section l 06( a) of AC2 l is available for certain individuals 
whose ETA Form 9089, Application for Permanent Employment Certification (labor certification) or 
corresponding immigrant petitions remain undecided due to lengthy adjudication delays. The issue 
we address in this appeal is the appropriate timeframe for the petition's approval. The Petitioner 
requested an approval period from October 1, 2024, through January 4, 2026. 2 
The Director's calculation to grant the limited approval through 2025, accounted for the Beneficiary's 
recapture time, which would extend the limited approval through January 5, 2025. But due to other 
provisions of the law, that is not the end of the story. 
In the Director's decision, they stated the Beneficiary was not "eligible for the Lengthy Adjudication 
Delay Exemption codified at Title 8, Code of Federal Regulations (8 CFR) 214.2(h)(13)(iii)(D); or the 
Per-country Limitation Exemption codified at 8 CFR 214.2(h)(l3)(iii)(E)." This statement runs 
contrary to the Petitioner's claims in the letter it submitted with the petition in which it claimed it 
submitted a labor certification to the U.S. Department of Labor (DOL) "at least 365 days prior to 
Beneficiary's H-1 B maximum date, the AC-21 Section 106(a) exemption will take effect. Thus, 
Beneficiary is entitled to an additional year ofH-lB status under AC-21 Section 106(a), and the new 
H-lB maximum validity period is January 4, 2026." (Emphasis in original). 
In addition to claiming the Beneficiary's eligibility under AC21 section 106(a), the Petitioner also 
provided evidence of the labor certification filing with the petition. We therefore factor in AC21 
section 106(a). On appeal, the Petitioner asserts that due to the Beneficiary's eligibility under AC21 
section 106(a), the Director should have approved the petition's validity date through January 4, 2026, 
and we agree with that assessment based on the evidence in the record before the Director. So, the 
Petitioner has demonstrated eligibility as requested in their cover letter accompanying the original 
petition: January 4, 2026. 
ORDER: The appeal is sustained. 
2 We note the Petitioner's letter it submitted with the petition bore a different ending employment date when compared to 
the date it listed on the petition. As the date on the petition appears to be a "standard" three-year period, and because the 
company did not restate the date on the petition on appeal, we construe the date listed in its cover letter to supersede the 
date listed on the petition. 
2