Interim Decision #3108 

MATTER OF SAFETRAN 

In Visa Petition Proceedings 

SRC-N-7343 

Decided by Conimissioner April 24, 1989 

(1) Although not specifically addressed in the regulations, the 5- or 6-year limit of stay 

imposed on "H-1" and "L-1" nonimmigrant aliens is cumulative; it includes both the 

time spent in the United States as an "H-1" and as an "L-1" in the same 5- or 6-year 

period of time. 

(2) In order to establish the existence of extraordinary circumstances warranting an 

extension of temporary stay for a sixth and final year, the petitioner bears the burden 

of submitting evidence clearly detailing the evtreme hardship it will encounter as a 

result of the termination of the beneficiary's services. 

ON BEHALF OF PETITIONER: Paul Soreff, Esquire 

Allison, Soreff & Garber 

1326 South Third Street 

Louisville, Kentucky 40208 

The nonimmigrant visa petition was denied by the director and is 

now before the Commissioner on appeal. The appeal will be dismissed. 

The petitioner seeks to extend the validity of the petition approved 

on behalf of the beneficiary as its director of transit marketing. The 

director determined the petitioner had failed to demonstrate its intent 

to employ the beneficiary on a temporary basis. 

On appeal, counsel for the petitioner argues that the beneficiary has 

been in the United States as an "H-I" nonimmigrant alien for less 

than 3 years and that there is no regulatory authority to include the 

beneficiary's time in the United States as an "L-1" nonimmigrant into 

the 5-year limit of stay imposed by regulation. In the alternate, counselargues that if the two periods of time are considered as one, an 

extension for a sixth and final year is warranted due to the presence of 

extraordinary circumstances. 

The record in this matter reflects that the beneficiary initially 

entered the United States in August 1982 as an "L-1" and subsequently changed his nonimmigrant status to an "H-1" in May 1985. At the 

time the petition was filed the beneficiary had been in the United 

States for approximately 5 years. Current regulations at 8 C.F.R. 

214.2 (1988), effective March 30, 1987, and published in the Federal 

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Register, 52 Fed. Reg. 5738 (1987), have made 6 years the maximum 

limit for temporary stay for "H-I" nonimmigrant aliens. Additionally, 

8 C.F.R. § 214.2(h)(11)(ii) (1988) provides that an extension not to 

exceed 1 year may be granted beyond 5 years only under extraordinary 

circumstances. The key issue in this matter is whether the beneficiary's 

previous time as an "1.-1" should be included in the 5- or 6-year cap 

imposed by regulation. 

Upon review, it is held that it is the intent of the regulations to 

include the time spent both as an "H-I" and "L-1" into the same 5- or 

6-year period of stay. The regulation at 8 C.F.R. § 214.2(1)(12) (1988) 

specifically discusses the readmission into the United States of an 

"L-1" who has been in the United States as an "H-1." Likewise, the 

regulation at 8 C.F.R. § 214.2(h)(10)(ii) (1988) discusses the readmission of an "H-1" alien into the United States who has previously been 

in the United States as an "L-1" nonimmigrant alien. Therefore, 

although not specifically addressed in the regulation, it must be 

inferred that it was the intent of the regulation to include both periods 

of time as an "H-1" and as an "L-1" into the same 5-year period of 

stay. It would not be consistent to allow an alien beneficiary to remain 

in the United States for a possible period of 10 to 12 years, 5 or 6 years 

as an "L-1" and then 5 or 6 years as an "H-I," but then to preclude 

from admission an alien seeking entry as an "H-1" or "L-1" who had 

departed the United States after completion of a 5- or 6-year period of 

stay as "H-1" or an "L-1." 

As the beneficiary has been in the United States for approximately 5 

years as of the date the petition was filed, an extension may be granted 

only if it is shown that extraordinary circumstances exist justifying 

such an extension. Extraordinary circumstances exist when it is 

demonstrated that the termination of the beneficiary's services would 

impose an extreme hardship on the petitioner or that the beneficiary's 

services are in the national interest, welfare, or security of the United 

States. 

The petitioner is a firm which is involved in supplying railway 

signal equipment. It is presently in the process of bidding on two 

proposed projects in Taiwan to supply signaling equipment for their 

new railroad lines. These projects are deemed to be essential to the 

petitioner's continued financial viability. It is also argued that the 

projects are in the national interest, as they will diminish the United 

States trade deficit. 

It is claimed that the beneficiary in this matter is involved in the 

petitioner's contract negotiations for these projects and that his 

services are crucial to these negotiations. However, sufficient evidence 

has not been submitted clearly establishing that these negotiations 

cannot be successfully completed by another individual presently 

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employed by the petitioning entity. Further, the record does not 

establish that the beneficiary possesses some special knowledge or skill 

which Makes him essential to the petitioner. Lastly, the petitioner has 

failed to submit financial documentation establishing the extreme 

hardship the petitioner will experience if it does not obtain the 

contracts. 

In nonimmigrant visa petition proceedings, the burden of proving 

eligibility for the benefit sought remains entirely with the petitioner. 

Matter of Caron International, Inc., 19 I&N Dec. 791 (Comm. 1988); 

see also Matter of Shaw, 11 I&N Dec. 277 (D.D. 1965). The petitioner 

has failed to meet the burden of proof required in this proceeding. 

ORDER: The appeal is dismissed. 

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