sustained H-1B Case: Medicine

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;dentprying data deleted to 
prevent clearly unwarranted 
invasion of persond privacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Massachusetts Avenue, NW, Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: LIN 04 155 53581 Office: NEBRASKA SERVICE CENTER Date: JAN 2 0 2006 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101 (a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 8 1 lOl(a)(lS)(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, Di c 
Administrative Appeals @he 
LIN 04 155 53581 
Page 2 
DISCUSSION: The service center director denied the nonimrnigrant visa petition and the matter is now before 
the Administrative Appeals Office (AAO) on appeal. The appeal will be sustained. The petition will be 
approved. 
The petitioner is a healthcare company that seeks to employ the beneficiary as a physician. The petitioner 
endeavors to classify the beneficiary as a nonimmigrant worker in a specialty occupation pursuant to section 
10 l(a)(l 5)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1 101(a)(l S)(H)(i)(b). 
The director denied the petition because the beneficiary had remained in the United States in H-1B status for 
six years and the petitioner had not satisfied the requirements for an extension of stay under the "American 
Competitiveness in the Twenty-First Century Act," (AC21) and the Twenty-First Century Department of 
Justice Appropriations Authorization Act" (21St Century DOJ Appropriations Authorization Act). The 
director determined that because less than 365 days had elapsed between when the petitioner filed the alien 
employment certification application (September 30, 2003) and the date the petition was filed (April 30, 
2004), the beneficiary did not qualify for an extension of status. 
On appeal, counsel submits a brief. 
The beneficiary in the instant case has been the beneficiary of a series of approved H-1B petitions, valid from 
October 1, 1998 to September 30, 2004. In a letter dated April 19, 2004, the Missouri Department of 
Economic Development confirmed that the petitioner filed an alien labor certification application for the 
beneficiary on September 30,2003. The record also reflects that the petition was filed on April 30,2004. On 
appeal, counsel states that the director's decision was inconsistent with a Citizenship and Immigration 
Services' (CIS) opinion given during a Service Center Operations teleconference on July 27, 2004, which 
indicated that petitions similar to the instant matter should be approved. 
In general, section 214(g)(4) of the Act, 8 U.S.C. $ 1184(g)(4) provides that: "[Tlhe period of authorized 
admission of [an H-1B nonimrnigrant] shall not exceed 6 years." However, AC21 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 of this provision. 
As amended by 11030(A)(a) of the 21" Century DOJ Appropriations Authorization Act, 3 106(a) of AC21 
reads: 
(a) EXEMPTION FROM LIMITATION. -- The limitation contained in section 214(g)(4) of 
the Immigration and Nationality Act (8 U.S.C. $ 1 1 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)(l 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: 
t LIN 04 155 53581 
Page 3 
(1) Any application for labor certification under section 212(a)(5)(A) of such Act (8 U.S.C. 
5 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. 5 1153(b)). 
(2) A petition described in section 204(b) of such Act (8 U.S.C. § 1154(b)) to accord the alien 
a status under section 203(b) of such Act. 
Section 1 1030(A)(b) of the 2 1 " Century DOJ Appropriations Authorization Act amended 8 106(a) of AC2 1 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. 
CIS headquarters issued an operations memorandum on September 23, 2005, titled "Interim Guidance 
Regarding the Impact of the Department of Labor's (DOL) PERM Rule on Determining Labor Certification 
Validity, hority Dates for Employment-Based Form 1-140 Petitions, Duplicate Labor Certification Requests 
and Requests for Extension of H-IB Status Beyond the 6th Year," which confirms counsel's interpretation of 
CIS'S policy on this issue. The pertinent part of the memorandum revises section 33.3(g)(8) of the 
Adjudicator S Field Manual (AFM) to read as follows: 
As discussed in section 3 1.2(d) of the AFM, assuming the alien is otherwise qualified for an 
extension of H-1B status, USCIS will grant an extension beyond the 6" year if the filing date 
of a pending or approved labor certification application or a pending or approved EB 
immigrant petition is 365 days or more prior to the requested employment start date on the 
H-1B petition. Such extension should be granted regardless of whether the H-1B extension 
application was filed prior to the passage of such period. However, if the alien would no 
longer be in H-IB status at the time that 365 days from the filing of the labor certification 
application or immigrant petition has run, then the extension of stay request cannot be 
granted. . . . 
Accordingly, the appeal will be sustained, and the petition will be approved. 
LIN 04 155 53581 
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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. § 1361. 
The petitioner has sustained that burden. 
ORDER: The appeal is sustained. The petition is approved.