sustained H-1B Case: Oil And Gas

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U.S. Department of Homeland Securit y
20 Massachusetts A ve. NW, Rrn. 3000
Washington , DC 20529
u.s.Citizenship
and Immigration
Services
FILE: LIN 0401753502 Office: NEBRASKA SERVICE CENTER Date: DEC 042006
IN RE: Petitioner:
Beneficiary:
PETITION: . Petition for a Nonimmigrant Worke r Pursuant to Sect ion 101(a)(15)(H)(i)(b) of the
Immigration and Nationality Act, 8 U.S.c. § 1101(a)(15)(H)(i)(b) .
. ON BEHALF OF PETITIONER : .'
INSTRUCTIONS:
. '.
This is the decision of the Administrative Appeals Offic e 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
, .
www.uscls.gov
i
I
·LIN 04 017 53502
· Page 2
DISCUSSION: The service ' center director denied the nonimmigrant visa petition and the matter was
appealed to the Administrative Appeals Office (AAO). The appeal will be sustained . The petition will be
approved for 74 days .
The petitioner is involved in oil and gas exploration , environmental cleanup, and property restoration . It
seeks to extend the employment of the beneficiary as its president and to classify him as a nonimmigrant
worker in a specialty occupation pursuant to section 101(a)(15)(H)(i)(b) of the Immigration and Nationality
Act (the Act), 8 U .S.c. § 1;101(a)(15)(H)(i)(b).
The director found that the beneficiary had reached the six-year maximum authorized period of admission as
an H-1B nonimmigrant and denied the petition. On appeal, counsel asserts that the beneficiary is entitled to
· recapture 435 days he spent outside the United States during the validity of his H-lB petition.
In general, section 2l4(g)(4) of the Act, 8 U .SiC. § 1184(g)(4), provides that "[t]he period of authorized
admission [of an H-IB nonimmigrant] may not exceed 6 years." [Emphasis added.] The regulation at
~ 8 C.F.R. § 214.2 (h)(13)(iii)(A) states, in pertinent part , that:
An H-lB alien .in:a specialty occupation . ... who has spent six years in the United States
under section 101(a)(15)(H) and/or (L) of the Act may not seek extension , change status or be
readmitted to the United States under section 101(a)(15)(H) or (L) of the Act unless ....
[emphasis added].
Pursuant to 8 C.F.R. § 2l4.2(h)(13)(iii)(A):
An H-IB alien in a specialty occupation . .. who has spent six years in the United States
under section 101(a)(15)(H) and/or (L) of the Act may not seek extension, change status or be
readmitted to the United States under section 101(a)(15)(H) or (L) of the Act unless the alien
has resided and been physically present outside the United States, except for brief trips for
business or pleasure, for the immediate prior year.
The regulation states, "(a]n H-IB alien... who has spent six years in the United States under section
101(a)(15)(H) and/or (L) of the Act may not seek extension." 8 C.F.R. § 214.2(h)(13)(iii). Section 214(g)(4)
of the Act states, "[i]n the case of a nonimmigrant described in section 101(a)(15)(H)(i)(b), the period of
authorized admission as such a nonimmigrant may not exceed 6 years." Section 101(a)(13)(A) of the Act
states that "[t]he terms 'admission' and 'admitted' mean, with respect to an alien , the lawful entry of the alien
in the United States after inspection and authorization by an immigration officer." The plain language of the
statute and the regulations indicate that the six-year period accrues only during periods when the alien is
lawfully admitted and physically present in the United States. This conclusion is supported and explained by
the court in Nair v. Coultice, 162 F. Supp. 2d 1209 (S .D. Cal. 2001). It is further supported by a policy
memorandum issued by the United States Citizenship and Immigration Services (USCIS) that adopts Matter
of J-, USCIS Adopted Decision 06-000 I (AAO , October 18 ,' 2005), available at:
http://uscis.gov/graphics/lawregs/decisions.htrn; as formal policy. See Memorandum from Michael Aytes , .
Acting Associate Director for Domestic Operations , Citizenship and Immigration Services , Department of
Homeland Security, Procedures for Calculating Maximum Period of Stay Regarding the Limitations on
Adm issionfor H-IB and L-1 Nonimmigrants. AFM UI;ldateAD 05-21 (October 21 ,2005).
The AAO notes that the petitioner is in the best position to organize and submit proof of the beneficiary's
departures from and reentry into the United States . Copies ofpassport stamps or Form 1-94 arrival-departure
records, without an accompanying statement or chart of dates the beneficiary spent outside the country , could
be subject to error in interpretation, might not be considered probative, and may be rejected. Similarly, a
· statement of dates spent outside of the country must be accompanied by consistent, clear and corroborating
proof of departures from and reentries into the United States .. The petitioner must submit supporting
LIN 04 017 535q2
Page 3'
documentary evidence to meet its burden of proof. SeeMatter of Soffci, 22 I&N Dec. 158, 165 (Comm.
1998) (citing Matter of Treasure Craft ofCalifornia, 14 I&N Dec. 190 (Reg. Comm. 1972)).
, ' '
The AAO finds that the time that counts toward the maximum six-year period of authorized stay is time that
the beneficiary spends in the United States after Iawful admission in H-IBstatus. In this.case, the beneficiary
would have been admitted to the United States in 'H-IB status each time he may have returned from outside
the country. The total period for which he could have been in lawful H-IB status in the United States was six
years. If he was outside the country, the beneficiary, was not in any status for U.S. immigration purposes. By
virtue of departing the country, the beneficiary would stop the period that he was in H-IB status, and renew
that status with each readmission to the United States. An extension of the beneficiary's H-IB status would
be justified for the tota] number of days that the petitioner proves the beneficiary was out of the country.
Counsel has prevailed on her contention that any of the beneficiary'stime outside the United States during the
periods of approved Hel B petitions would not count toward the maximum period of stay in H orL status.
, '
One, issue remains, namely, how much time, if any, should be credited to the beneficiary as established
time-out-of-the-country. This is an evidentiary question to be decided by the evidence of record. For reasons
discussed below, the AAO: finds that the petitioner has established the basis of its extension petition, namely,
that the beneficiary should be credited 61 days and that his time in H-lB status and authorized stay should be
extended by that amount of time.
The record reflects that the beneficiary has been in the United States in H-IB status from December 8, 1997
through December 8, 2003, and has reached his six year maximum period of stay. The petitioner states that
the beneficiary was out-of-the-country for a total of 435 days, from August 2, 1998 until November 27,2003.
In support of that assertion, the petitioner submitted a chart detailing the dates the beneficiary left the United
States and the dates of his 'return, totaling 435 days. The petitioner also submitted a copy of the beneficiary's
passport bearing various departure and arrival stamps. Some of the stamps in the passport, however, are
illegible. The AAO was able to identify 10 entry dates from U.S. Immigration stamps. No corresponding
stamps could be identified for these dates, however, for the beneficiary's departure from the United States .
which would establish the total time the beneficiary was outside the United States for these dates. The
beneficiary is entitled to recapture 19 days based on these entry stamps.' The AAO was able to identify five
departure stamps which matchentrystamps and coincide with the information provided by the petitioner on
its chart summarizing the beneficiary's departure and return to the United States. The beneficiary is entitled
to recapture an additional 64 days based on this information.". In total the AAO finds that the beneficiary is
entitled to recapture a total of 74 days based upon the current record. The petitioner did not provide any'
additional information in supp~rt of its claim, such 'as airline tickets, travel itineraries, etc.
The burden of proof in these proceedings rests solely with the petitioner. See 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 for 74 days.
1 August 24, 1998; October 14, 1999; July 20,2000; July 12,2001; September 26,2001; November 2,2001;
December 23,2001; March 23, 2002; April 30, 2002; April 30, 2003.'
2 December 27,2000 - January 5, 2001; April 19,2001 - April 29, 2001; May 26,2002 - June 9,2002;
January 8, 2003 - January '18,2003; May 28, 20~3 - June 13,2003;