sustained H-1B Case: Database Administration

U.S. Department of Homeland Security 
20 Mass. Ave. N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
FILE: LIN 05 108 50352 Office: NEBRASKA SERVICE CENTER Date: bkk 2 6 7008 
IN RE: Petitioner: 
Beneficiary: 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section lOl(a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. $ I 10 1 (a)(l S)(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. Wiemam, Director 
Administrative Appeals Office 
LIN 05 108 50352 
Page 2 
DISCUSSION: The service center director denied the nonimmigrant visa petition. The matter is now on appeal 
before the Administrative Appeals Office (AAO). The appeal will be sustained. The petition will be approved. 
The petitioner is a telemarketing firm that seeks to employ the beneficiary as a database administrator. The 
petitioner, therefore, endeavors to classify the beneficiary 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)(l5)tH)ti)tb). 
The record of proceeding before the AAO-eontains: (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 June 25, 1999. The 
beneficiary was most recently granted an extension of H-1B status from March 12, 2003 through June 24, 2005 to 
work for the petitioner. The petitioner filed an application for alien labor certification for the beneficiary on May 4, 
2004. 
The petitioner filed the instant petition on February 28,2005, requesting that the beneficiary be &ranted an additional 
year of H-IB status pursuant to the American Competitiveness in the Twenty-First Century Act (AC-21) (as 
amended by the Twenty-First Century DOJ Appropriatio'ns Authorization Act (DOJ-21)). The requested start 
date of employment in the petition is June 25,2005. 
 - 
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 at 
AC-2 1 (as amended by DOJ-21) and therefore did not qualify for a seventh year of H-1B status. 
As a general rule, section 214(g)(4) of the Act, 8 U.S.C. 
 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-1B 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. 8 1184(~)(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(q)(1 5)(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. 
 1153(b)). 
(2) A petition described in section 204(b) of such Act (8 U.S.C. 8 1154(b)) to accord the 
alien a status under section 203(b) of such Act. 
LIN 05 108 50352 
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Section 1 1030(A)(b) of DOJ-2 1 amended section 106(a) of AC-2 1 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)(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. 
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 policy memoranda, the AAO has determined 
that the beneficiary is eligible for an exemption from the six-year limitation on his H-13 classification under 
section 106(a) of AC-21, and for an extension of his H-1B status for a seventh year under section 106(b) of AC- 
21. 
These memoranda provide, in part, that a petitioner is not required to wait 365 days after filing a qualifying labor 
certification application to file Form 1-129 requesting the extension of a beneficiary's stay, so long as the labor 
certification application will have been pending for at least 365 days prior to the requested start date. 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 Afected by the American Competitiveness in the Twenty-First Century 
Act of 2000 (AC ZI)(Public Law 106-313) HQPRD70/6.2.8-P (May 12, 2005); Memorandum from William R. 
Yates, Associate Director for Operations, Citizenship and migration Services, Department of Homeland Security, 
Interim Guidance Regarding the Impact of the Department of labor's (DOL) PERM Rule on Determining Labor 
Cert$cation Validity, Priority Dates for Employment-Based Form 1-140 Petitions, Duplicate Labor CertiJication 
Requests and Requesb for Extension of H-IB Status Beyond the $h Year: Adjudicator's Field Manual Update 14005- 
15. HQPRD7016.2.8 (September 23,2005). Specifically, the first memorandum, at page 8, states the following: 
[A] petitioner must establish [that] the [requirements of Section 106(a)] were or will be met either 
on or before the requested start date on the H-1B extension application. Thus, an alien is eligible 
for an extension of H-1B status beyond the 6fi year as long as either the qualifying labor 
certification application or 1-140 petition has or will%ave been pending for at least 365 days prior 
to the alien's requested start date, regardless of whether the Hl-B extension application was filed 
prior to the passage of such period. 
The date of the filing of the application for alien labor certification, May 4,2004, was more than 365 days prior to 
the beneficiary's June 24, 2005 expiration of H-1B status and the June 25, 2005 requested employment start date 
specified on the Form 1-129. Thus, the fact that the petitioner filed the Form 1-129 petition on February 28,2005 
does not bar the beneficiary from a seventh year of H-1B sta.ks, and the AAO will reverse the director's denial of 
the petition. 
LIN 05 108 50352 
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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. 
ORDER: 
 The appeal is sustained. The petition is approved.