SAFETRAN

                                                             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, counsel-
      -


argues 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, 

 (1987), have made 6 years the maximum
limit for temporary stay for "H-I" nonimmigrant aliens. Additionally,
 

(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 

(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 

(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., 

 (Comm. 1988);
see also Matter of Shaw, 

 (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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