sustained H-1B Case: Medicine

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: MAY 03, 2024 In Re: 30682415 
Appeal of California Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-lB) 
The Petitioner seeks to temporarily employ the Beneficiary under the H-B nonimmigrant classification 
for specialty occupations . See Immigration and Nationality Act (the Act) section 10l(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 temporarily employ a 
qualified noncitizen 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. 
Whilst the Director of the California Service Center approved the petition, they did so for a shorter 
period than the Petitioner requested. The matter is now before us on appeal pursuant to 8 C .F .R. 
§ 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe, 25 l&N Dec. 369, 375-76 (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. 
I. APPLICABILITY OF THE LENGTHY ADmDICATION EXEMPTION 
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. See also 8 C.F.R. § 214.2(h)(13)(iii)(A) 
(requiring residence and physical presence outside of the United States for the immediate prior year 
before seeking to resume H-lB status after exhausting the six-year period). Exemptions from the six­
year limitation are present in the regulations to ameliorate delays from lengthy adjudication or per­
country limitations of certain employment-based immigrant visas for those H-lB nonimmigrants 
pursuing employment based lawful permanent resident status in the United States. Employers of H­
lB noncitizens who are the beneficiaries of a labor certification filed with the Department of Labor or 
an employment-based immigrant petition under 203(b) of the Act pending greater than 365 days may 
seek a one-year extension of petition validity beyond the statutory six-year maximum for relief from 
lengthy adjudication delays. See 8 C.F.R. § 214.2(h)(13)(iii)(D)(l)-(10) . Employers of H-lB 
noncitizens who are the principal beneficiaries of employment-based immigrant petitions under 203(b) 
of the Act but prevented from obtaining immigrant status due to per country limitations may apply for 
a three-year extension of pet1t10n validity beyond the six-year maximum. See 8 C.F.R. § 
214.2(h)(l3)(iii)(E)(l)-(6). A Petitioner must demonstrate eligibility for the exemptions at the time 
of filing. See 8 C.F.R. § 103.2(b)(l) ("An applicant or petitioner must establish that he or she is 
eligible for the requested benefit at the time of filing the benefit request and must continue to be 
eligible through adjudication."). 
The Petitioner, an institution of higher education, filed this petition on June 5, 2023 to employ the 
Beneficiary as a house staff fellow physician (trainee) for the period July 1, 2023 to June 30, 2025. 
The Director approved the petition on September 12, 2023 but issued a limited validity notice because 
the approved petition's period of validity was shorter than that requested by the Petitioner. The 
Director noted that the Beneficiary commenced their H-lB period of stay in the United States on June 
14, 2019. So, the Director concluded the Beneficiary's six-year period of admission would conclude 
on June 13, 2025. And the Director stated the record did not establish that the beneficiary was eligible 
for any recapture time, the lengthy adjudication delay exemption contained at 8 C.F.R. 
§ 214.2(h)(l3)(iii)(D)(l)-(l 0) or the per country limitation exemption contained at 8 C.F.R. 
§ 214.2(h)(l3)(iii)(E)(l)-( 6). 
But the Director makes no note or mention that the record contains a Form I-797 Receipt Notice for 
Form I-140 filed by the Beneficiary on their own behalf on May 22, 2023 submitted with the initial 
petition. 1 The Petitioner asserts the Beneficiary is eligible for an extension beyond the sixth year as 
they are the beneficiary of an employment based immigrant petition filed more than 365 days prior to 
the end of the Beneficiary's statutory six-year maximum on June 13, 2025. 
Upon de novo review, we conclude the Beneficiary is eligible for H-lB status for the full petition 
validity period the Petitioner requested in its petition. The regulation at 8 C.F.R. 
§ 214.2(h)(l3)(iii)(D)(5) permits advance filing of the request for extension beyond the sixth year 
under the lengthy delay exemption in combination with any time remaining to the Beneficiary under 
the maximum period of H-lB admission described at INA§ 214(g)(4) so long as the visa petition or 
labor certification affording the exemption was filed more than 365 days prior to the date the period 
of admission beyond the sixth year will take effect. The Petitioner requested petition validity from 
July 1, 2023 to June 30, 2025. The end of the Beneficiary's maximum six-year period in H-lB status 
is on June 13, 2025. Any petition validity beyond June 13, 2025 to June 30, 2025 would require the 
Petitioner and the Beneficiary to demonstrate eligibility for petition validity beyond the sixth year 
under the lengthy adjudication delay exemption contained at 8 C.F.R. §2 l 4.2(h)(l 3)(iii)(D)( 1)-( 10) or 
the per country limitation exemption contained at 8 C.F.R. § 214.2(h)(l3)(iii)(E)(l)-(6). The record 
contains evidence in the form of a receipt notice for Form I-140 filed by the Beneficiary on their own 
behalf on May 22, 2023. This petition was filed more than 365 days before the end of the Petitioner's 
maximum six-year period of stay on June 13, 2025. So, the Beneficiary's period of stay under the 
exemption, i.e. time beyond the sixth year due to the lengthy delay exemption, would take effect on 
June 14, 2024 which is more than 365 days after the filing of the immigrant petition on May 22, 2023. 
Consequently, the Petitioner and Beneficiary are eligible for H-lB petition validity beyond the 
completion of the Beneficiary's sixth year in H-1 B status on June 13, 2025 up to the requested end 
date of this petition on June 30, 2025 pursuant to 8 C.F.R. § 214.2(h)(l3)(iii)(D)(l)-(10). 
1 USCIS records reflect this petition was approved on October 17, 2023. 
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II. CONCLUSION 
In visa petition proceedings, it is the Petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. The Petitioner has met that burden. 
ORDER: The appeal is sustained. 
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