sustained H-1B Case: Internet Technology

identifying data deleted tb 
prevent clearly uiiwmted 
invasion of personal privacy 
U.S. Department of ffomeland Security 
20 Mass Ave., N.W., Rrn. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
PUBLIC COPY 
FILE: LIN 05 046 5 1963 Office: NEBRASKA SERVICE CENTER Date: AUG 1 5 2006 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 1 Ol(a)(l 5)(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. 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
LIN 05 046 5 1963 
Page 2 
DISCUSSION: The director of the service center denied the nonimmigrant visa petition and the matter is 
before the AAO on appeal. The appeal will be sustained. The petition will be approved. 
The petitioner is an Internet technology and management company that seeks to employ the beneficiary as a 
systems analyst programmer. The petitioner, therefore, endeavors to classify the beneficiary as a nonimmigrant 
worker in a specialty occupation pursuant to section 101(a)(l 5)(H)(i)(b) of the Immigration and Nationality Act 
(the Act), 8 U.S.C. fj 1 lOl(a)(lS)(H)(i)(b). The director denied the petition because the petitioner sought to 
extend the validity of the beneficiary's petition and period of stay in the H-1B classification beyond the 
maximum six-year period of stay in the United States. Counsel submits a timely appeal. 
Pursuant to 8 C.F.R. fj 214.2(h)(13)(iii)(A), the validity of petitions and periods of stay in the United States for 
aliens in a specialty occupation is limited to six years. Furthermore, an alien may not seek extension, change of 
status, or be readmitted to the United States under section lOl(a)(15)(H) or (L), 8 U.S.C. 5 1101 (a)(15)(H) or 
(L), unless the alien has been physically present outside the United States - except for brief trips for business 
or pleasure - for the immediate prior year. 
The petitioner wishes to continue the beneficiary's previously approved employment without change, and to 
extend or amend the stay of the beneficiary in the United States. The petitioner indicates on the petition that 
it seeks to extend the beneficiary's H-1B status from February 15,2005 to February 14,2006. 
The director denied the petition, finding that because the beneficiary had already been employed in the United 
States since February 16, 1999 in H-1B status, he had reached the maximum six-year period of stay in the 
United States. The director stated that counsel sought to qualify the beneficiary for benefits under the 
American Competitiveness in the 21'' Century Act (the AC21) by submitting a labor certification letter issued 
by the Illinois Department of Employment Security indicating that the petitioner filed a request for labor 
certification on the beneficiary's behalf on December 8, 2003. The director denied the petition, finding that 
the labor certification had not been pending for 365 days or more at the time the instant petition was filed. 
On appeal, the petitioner states that the issue with the petition is the date of filing; thus, the AAO should 
approve the petition. 
Upon review of the evidence in the record, the AAO finds that the beneficiary is eligible to derive benefits from 
the amendment to section 106(a) of the AC2 1 by the 2 1" Century DOJ Appropriations Act. 
The record of proceeding before the AAO contains: (I) the Form 1-129 filed on December 2, 2004; (2) the 
letter from the Illinois Department of Employment Security, dated June 29, 2004; (3) the director's denial 
letter; and (4) the Form I-290B. 
To extend or amend the beneficiary's stay in the United States to February 14, 2006 in the H-1B 
classification, the petitioner needed to prove that the beneficiary qualifies for benefits under either section 
106(a) of the AC2 1 or the 2 1 St Century DOJ Appropriations Act. 
LIN 05 046 5 1963 
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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." However, AC-21 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 ofthis provision. 
As amended by $ 1 1030(A)(a) of the DOJ Authorization Act, 5 106(a) of AC-2 1 reads: 
(a) EXEMPTION FROM LIMITATION. -- The limitation contained in section 214(g)(4) of 
the Immigration and Nationality Act (8 U.S.C. 5 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. 5 1 1 Ol(a)(l S)(H)(i)(b)), if 365 days or more have elapsed since the filing of any of the 
following: 
(I) Any application for labor certification under section 212(a)(5)(A) of such Act (8 
U.S.C. § 11 82(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. 3 1154(b)) to 
accord the alien a status under section 203(b) of such Act. 
Section 11030(A)(b) of the DOJ Authorization Act amended 8 106(a) of AC-21 to read: 
(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. 
Based on the evidence in the record, the AAO finds the beneficiary qualifies for benefits under the 
amendment to section 106(a) of the AC2 1 by the 2 1" Century DOJ Appropriations Act. The instant petition 
was filed on December 2,2004. In the denial letter, the director concluded that when the instant petition was 
filed, 365 days had not lapsed since the filing of the labor certification (file number V-IL 53436-Y) on 
December 8, 2003. The AAO does not concur with the director's conclusion. The memorandum entitled 
LIN 05 046 5 1963 
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"Interim Guidance for Processing Form 1-140 Employment-Based Immigrant Petitions and Form 1-485 and 
H-1B Petitions Affected by the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) 
(Public Law 106-3 13)," signed by William Yates, CIS Associate Director for Operations, on May 12, 2005, 
states that the labor certification application only needs to have been pending for 365 days prior to the start 
date of the proposed employment. The beneficiary's start date of employment is February 15,2005; thus, the 
LCA would have been pending for over 365 days prior to the start date. 
As related in the discussion above, the petitioner has established that the beneficiary is eligible to extend his 
stay in the H-1B classification beyond the six-year maximum period. 
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.