sustained H-1B Case: Software Development

U.S. Department of Homeland Security 
20 Massachusetts Ave. NW, Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Imigration 
FILE: EAC 04 047 53189 Office: VERMONT SERVICE CENTER Date: SEP 0 2 2003 
IN RE: 
PETITION: Petition for a Nonimrnigrant Worker Pursuant to Section lOl(a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § 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 materials have been returned 
to the office that originally decided your case. Any further inquiry must be made to that office. 
Robert P. Wiernann, Director 
Administrative Appeals Office 
EAC 04 047 5 3 189 
Page 2 
DISCUSSION: The service center director denied the nonirnmigrant 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 software development and consulting company., It seeks to employ the beneficiary as a 
programmer analyst and to extend by 30 days his classification as a nonirnmigrant 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. 5 1 lOl(a)(lS)(H)(i)(b). 
The director denied the petition on the ground that the beneficiary had already been employed in the 
United States for six years, the maximum time allowable in H-1B classification. The director found that 
the 30 days the beneficiary spent outside the country on a work assignment shortly before the expiration 
of that six-year period were not interruptive of the beneficiary's employment and did not entitle him to an 
extension of his H-1B classification for 30 days. 
The record of proceeding before the AAO contains: (1) Form 1-129 and supporting documentation; (2) 
the director's request for evidence (RFE); (3) the petitioner's response to the RFE; (4) the director's 
decision; and (5) Form I-290B and an appeal brief. The AAO reviewed the record in its entirety before 
issuing its decision. 
In general, section 214(g)(4) of the Act, 8 U.S.C. 5 1184(g)(4), provides that "[tlhe period of authorized 
admission [of an H-1B nonimmigrant] may not exceed 6 years." [Emphasis added.] The regulation at 
8 C.F.R. 5 214.2 (h)(l3)(iii)(A) states, in pertinent part, that: 
An H-1B 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]. 
Section 1Ol(a)(13)(A) of the Act states that "[tlhe 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 indicates 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 further supported and explained by the court in Nair v. Coultice, 162 F. 
Supp. 2d 1209 (S.D. Cal. 2001). 
The record shows that the beneficiary entered the United States in H-1B classification on October 4, 1997 
and maintained continuous H-1B status until December 10, 2003. On December 9, 2003 the petitioner 
filed an H-1B extension application with the Vermont Service Center seeking to recapture an additional 
30 days - which would extend the beneficiary's H-1B classification to January 9, 2004 - based on time 
the beneficiary spent outside the United States on a work assignment from September 2 to October 1, 
2003. To recapture those days, the service center director stated, the time spent outside the United States 
must have been interruptive of the benefisiary's employment. Since the beneficiary's time outside the 
1 
According to counsel, the extension beyond six years included 65 days that were recaptured, pursuant to rulings of 
the California Service Center, for time the beneficiary spent outside the country. 
EAC 04 047 53 189 
Page 3 
United States was on a work-related detail, the director determined that it did not interrupt his 
employment in the United States. Accordingly, the beneficiary was not entitled to recapture those days 
and extend his H-1B classification for 30 days until January 9, 2004. The AAO disagrees with the 
director's ruling. 
In accordance with the statutory and regulatory provisions previously cited, and the judicial decision in 
Nair v. Coultice, the AAO determines that the time the beneficiary spends in the United States after 
lawful admission in H-1B status is the time that counts toward the maximum six-year period of 
authorized stay. The beneficiary in this case was admitted to the United States in H-1B status each time 
he returned from outside the country. When he was outside the United States he was not in any status for 
U.S. immigration purposes. Thus, the beneficiary interrupted his period of H-1B status when he departed 
the country, and renewed his period of H-1B status each time he was readmitted in the United States. The 
director should have granted an extension of the beneficiary's H-1B classification until January 9, 2004 
for the 30 days he was outside the country from September 2 to October 1,2003. 
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 of passport 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 documentary evidence to meet his burden of proof. See Matter of Sofici, 22 I&N Dec. 
158, 165 (Cornrn. 1998) (citing Matter of Treasure Craft of Cali$ornia, 14 I&N Dec. 190 (Reg. Comrn. 
1972)). 
The beneficiary's passport stamps indicate that he arrived at O.C.S.I. Airport in Mumbai, India, on 
September 2, 2003, after departing the United States, and that he reentered the United States on October 
1, 2003. Accordingly, the beneficiary is entitled to an additional 30 days in H-1B classification. 
The petitioner bears the burden of proof in these proceedings. 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 until January 9,2004.