Your SlideShare is downloading. ×

Thanks for flagging this SlideShare!

Oops! An error has occurred.

×

Introducing the official SlideShare app

Stunning, full-screen experience for iPhone and Android

Text the download link to your phone

Standard text messaging rates apply

Beyond Mgmt Q-1 AAO and court dismissals 2010-2011

651
views

Published on


0 Comments
0 Likes
Statistics
Notes
  • Be the first to comment

  • Be the first to like this

No Downloads
Views
Total Views
651
On Slideshare
0
From Embeds
0
Number of Embeds
0
Actions
Shares
0
Downloads
2
Comments
0
Likes
0
Embeds 0
No embeds

Report content
Flagged as inappropriate Flag as inappropriate
Flag as inappropriate

Select your reason for flagging this presentation as inappropriate.

Cancel
No notes for slide

Transcript

  • 1. Case 1:10-cv-02482-MHS Document 10 Filed 03/25/11 Page 1 of 16 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISIONBEYOND :MANAGEMENT, INC., Plaintiff, CIVIL ACTION NO.v. 1:10-CV-2482-MHSERIC HOLDER, JR., AttorneyGeneral of the United States, et al.,USCIS AAO is true defendant Defendants. ORDER This action is before the Court on defendants motion to dismiss due tolack of subject matter jurisdiction or, in the alternative, for summaryjudgment. For the following reasons, the Court denies the motion to dismissand grants the motion for summary judgment.Background On September 11,2008, plaintiffBeyondManagement, Inc. ("BMI), ahotel management company, filed Form I-129, Petition for a NonimmigrantWorker, with United States Citizenship and Immigration Services ("USCIS")Vermont Service Center seeking to be approved as an international cultural
  • 2. Case 1:10-cv-02482-MHS Document 10 Filed 03/25/11 Page 2 of 16exchange program and to obtain Q-1 visas for four named beneficiariespursuant to Section 101(a)(15)(Q) of the Immigration and Nationality Act("INA"), 8 U.S.C. § 1101(a)(15)(Q). A Q-1 status nonimmigrant alien isdefined as "an alien having a residence in a foreign country which he has nointention of abandoning who is coming temporarily (for a period not to exceed15 months) to the United States as a participant in an international culturalexchange program approved by the Secretary of Homeland Security for thepurpose of providing practical training, employment, and the sharing of thehistory, culture, and traditions of the country of the aliens nationality andwho will be employed under the same wages and working conditions asdomestic workers." 8 U.S. C. § 1101(a)(15)(Q); 8 C.F.R. § 214.2(q)(2)(i). On November 3, 2008, USCIS asked BMI "to submit additionalevidence that an international cultural exchange program exists at yourlocation and that the program includes all of the following requirements:(A) Accessibility to the public .... (B) Cultural Component .... (C) WorkComponent." Admin. R. (Defs. Mot. to Dismiss, Ex. A) at 377. On December17, 2008, BMI responded to the request with additional evidence. I d. at 375. 2
  • 3. Case 1:10-cv-02482-MHS Document 10 Filed 03/25/11 Page 3 of 16 By decision dated December 24, 2008, the Director ofUSCIS VermontService Center denied BMIs I-129 petition. The denial noted that all fourbeneficiaries had been in the United States on J-1 visas training in thehospitality industry with an emphasis on front desk operations and culinaryarts. The denial concluded that the beneficiaries were "temporary workersthat your organization is attempting to fit into the Q1 visa category," andthat the duties they "would primarily be performing would be independentof any claimed cultural exchange program that you claim to have at yourorganizations [sic] locations." Admin. R. at 34. On January 21, 2009, BMI filed a timely appeal of the denial of itspetition to USC ISs Administrative Appeal Office ("AAO"). By decision datedMay 13, 2010, the AAO affirmed the Directors decision and dismissed BMIsappeal. Admin. R. at 1-14. The AAO first found that BMI had failed to showthat its program qualified as an international cultural exchange programbecause it "failed to establish that the beneficiar[ies] would be engaged inemployment or training of which the essential elementis the sharing with theAmerican public, or a segment of the public sharing a common culturalinterest, of the culture of the aliens countries of nationality." Id. at 12 3
  • 4. Case 1:10-cv-02482-MHS Document 10 Filed 03/25/11 Page 4 of 16(emphasis in original). Second, the AAO found that the Director had correctlydetermined that only two of the four beneficiaries, who were all in the UnitedStates as J-1 exchange visitors at the time of filing, had obtained waivers ofthe two-year foreign residency requirement. I d. at 12-13. 1 Finally, the AAOfound that BMI had failed to provide sufficient documentation supporting theclaim that it would offer the beneficiaries wages and working conditionscomparable to those given to local domestic workers similarly employed. ld.at 13. On August 9, 2010, BMI brought this action against named governmentofficials pursuant to the Administrative Procedure Act ("APA") asking theCourt to declare that the decisions of December 24, 2008, and May 13, 2010,were arbitrary and capricious and in violation of the INA and the APA.Plaintiff asks the Court to reverse or remand this matter to the agency for adecision consistent with the evidence, to award BMI reasonable attorneysfees and costs, and to grant such other relief as may be just and proper. 1 The AAO noted that the other two beneficiaries had obtained waivers afterissuance of the Directors decision. 4
  • 5. Case 1:10-cv-02482-MHS Document 10 Filed 03/25/11 Page 5 of 16 Defendants assert that this Court has no jurisdiction to review thediscretionary decisions of the Director and the AAO, and that the case shouldtherefore be dismissed. In the event the Court determines that it does havejurisdiction, defendants contend they are entitled to summary judgment onBMIs claims.DiscussionI. Motion to Dismiss for Lack of Subject Matter Jurisdiction Defendants contend that Section 242(a)(2)(B)(ii) of the INA, 8 U.S.C.§ 1252(a)(2)(B)(ii), bars this Court from reviewing USCISs denial ofBMIs I-129 petition. That provision states in pertinent part that "no court shall havejurisdiction to review ... any ... decision of the Attorney General or theSecretary of Homeland Security the authority for which is specified underthis subchapter to be in the discretion of the Attorney General or theSecretary ofHomeland Security . ..." 8 U.S. C. § 1252(a)(2)(B)(ii) (emphasissupplied). fhe subchapter to which the statute refers is subchapter II ofChapter 12 of Title 8, 8 U.S.C. §§ 1151·1378. Zafar v. U.S. Atty Gen., 461F.3d 1357, 1361 (11th Cir. 2006). It therefore includes 8 U.S.C. § 1184, whichgoverns nonimmigrant visa petitions such as the I-129 at issue here. 5
  • 6. Case 1:10-cv-02482-MHS Document 10 Filed 03/25/11 Page 6 of 16 Section 1184 provides in pertinent part that "[t]he admission to theUnited States of any alien as a nonimmigrant shall be for such time andunder such conditions as the Attorney General may by regulationsprescribe . . . . " 8 U.S.C. § 1184(a)(l) (emphasis supplied). Defendantscontend that the discretion·granting "may" in the statutory language meansthat the authority for deciding whether to admit nonimmigrant aliens,including Q·l status nonimmigrants, is "specified" to be in the discretion ofthe Attorney General, and that judicial review of such decisions is thereforebarred under 8 U.S.C. § 1252(a)(2)(B)(ii). Neither the Eleventh Circuit nor any other circuit has addressed thisissue specifically in the context of a Q·l visa application. However, in NatlCollegiate Recreation Servs. v. Chertoff, 447 F. Supp. 2d 527 (D. S.C. 2006),the district court addressed the identical issue presented here. In that case,the court opted for a narrower interpretation of Section 1252(a)(2)(B)(ii),holding that it "bars judicial review only of determinations of the AttorneyGeneral which Subchapter II of the INA specifies as being in his discretion."Id. at 532 (emphasis in original). The court rejected the governmentsbroader interpretation (the same interpretation defendants urge in this case), 6
  • 7. Case 1:10-cv-02482-MHS Document 10 Filed 03/25/11 Page 7 of 16which would have applied the jurisdiction-stripping prov1s10n "to allinherently discretionary determinations, not just determinations madepursuant to provisions specified as being within the discretion of the AttorneyGeneral." l!;i. at 531. Although "plausible," the court found the governmentsreading of the statute contrary to principles of statutory constructionrequiring (1) clear and convincing evidence of legislative intent to restrictaccess to judicial review, (2) a strong presumption in favor of judicial reviewof administrative action, and (3) construction of ambiguities in deportationstatutes in favor of the alien. I d. at 532. Applying the narrower interpretation, the court found that "becauseneither the relevant Subchapter of the INA, nor the Regulations passedpursuant to the INA, specify that the Attorney Generals decision to approveQ-1 international cultural exchange programs is in his discretion, section1252(a)(2)(B)(ii) does not bar this court from reviewing the Governmentsdenial." Id. (footnote omitted). This Court finds the district courts decisionin Natl Collegiate Recreation Servs. to be well-reasoned and persuasive. 7
  • 8. Case 1:10-cv-02482-MHS Document 10 Filed 03/25/11 Page 8 of 16 Contrary to defendants argument, this case is not controlled by theEleventh Circuits decision in Zafar. In that case, the court held that Section1252(a)(2)(B)(ii) did not bar court review of an Immigration Judges decisionto deny a motion to continue a removal hearing because authority for thatdecision was not found in the relevant statutory provisions of the INA. Zafar,461 F.3d at 1360. The court noted several examples of statutorily specifieddiscretionary powers of the Attorney General, including one that, like 8U.S.C. § 1184(a)(1), does not contain "in his discretion" language but onlyspecifies that the Attorney General "may authorize immigration officers" totake certain actions. Id. at 1361 (quoting 8 U.S.C. § 1221(c)) (emphasissupplied). The court, however, acknowledged that these statutory provisions"[are] not before us," and concluded that decisions under these statutes would"presumably" not be reviewable by any court. Id. Thus, the language onwhich defendants rely is mere dicta and does not control the decision in thiscase. The Court concludes that it has jurisdiction to review defendantsdenial of plaintiffs I -129 petition. Therefore, the Court denies defendantsmotion to dismiss. 8
  • 9. Case 1:10-cv-02482-MHS Document 10 Filed 03/25/11 Page 9 of 16II. Motion for Summary Judgment Summary judgment is appropriate when "there is no genuine issue asto any material fact ... and the movant is entitled to judgment as a matterof law." Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322(1986). The Court must construe the evidence and all inferences drawn fromthe evidence in the light most favorable to the non-moving party. WSB-TVv. Lee, 842 F.2d 1266, 1270 (11th Cir. 1988). "However, even in the contextof summary judgment, an agency action is entitled to great deference."Preserve Endangered Areas of Cobbs History. Inc. v. U.S. Army Corp. ofEngrs, 87 F.3d 1242, 1246 (11th Cir. 1996). Under the APA, district court review of a visa petition denial is limitedto a determination of whether the decision was "arbitrary, capricious, anabuse of discretion, or otherwise not in accordance with law." 5 U.S.C.§ 706(2)(A); Sunshine Co. Food Distrib .. Inc. v. U.S. Citizenship andImmigration Servs., 362 Fed. Appx 1, 2 (11th Cir. 2010). The "focal point" ofthe Courts review "should be the administrative record." PreserveEndangered Areas of Cobbs History, Inc., 87 F.3d at 1246. "The role of thecourt is not to conduct its own investigation and substitute its own judgment 9
  • 10. Case 1:10-cv-02482-MHS Document 10 Filed 03/25/11 Page 10 of 16for the administrative agencys decision." Id. (citation omitted). Instead, thecourt is "to decide, on the basis of the record the agency provides, whether theaction passes muster under the appropriate APA standard of review." Id.(quoting Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985)). In this case, the administrative record fully supports the USCISsdenial of BMIs I-129 petition. Therefore, the Court grants defendantsmotion for summary judgment. 2 First, the record supports the finding that BMI failed to establish thatits program qualifies as an international cultural exchange program pursuantto 8 C.F.R. § 214.2(q)(3) because it failed to establish that the beneficiarieswould be engaged in employment or training of which the essential element1s sharing the culture of the aliens country of nationality. 3 The AAO 2 In light of this ruling, the Court finds it unnecessary to address defendantscontention that Attorney General Holder is not a proper party to this case. 3 The regulation provides in pertinent part: An international cultural exchange program must meet all of the followingrequirements: (continued. ..) 10
  • 11. Case 1:10-cv-02482-MHS Document 10 Filed 03/25/11 Page 11 of 16correctly noted that BMI failed to provide "any detailed description of thespecific duties to be performed by the four beneficiaries ... , what specifichotel or resort occupations they w[ould] fill ... , [or] the location or locationsat which the beneficiaries w[ould] be placed." Admin. R. at 9-10. The AAOalso correctly pointed out that evidence in the record showed that "programparticipants perform the same basic job functions as regular hotel staff, [andthat] the cultural aspects of the participants activities appear to betangential to their tasks as hotel employees responsible for the day·to·dayoperations of the front desk and other departments." Id. at 10. The AAOcorrectly noted that BMI had failed to document certain aspects of its claimedcultural program, and that other cultural events that had been documented 3 (. .. continued) (B) Cultural component. The international cultural exchange program must have a cultural component which is an essential and integral part of the international cultural exchange visitors employment or training.... (C) Work component. The international cultural exchange visitors employment or training in the United States may not be independent of the cultural component of the international cultural exchange program. The work component must serve as the vehicle to achieve the objectives of the cultural component ....8 C.F.R. § 214.2(q)(3)(iii). 11
  • 12. Case 1:10-cv-02482-MHS Document 10 Filed 03/25/11 Page 12 of 16were "conducted independently from the participants assigned hotelpositions" and occurred only infrequently. Id,. at 11. Finally, the AAOacknowledged the expert opinion of Dr. Michael Sturman of CornellUniversity, on which BMI relied, but found that he spoke only in generalterms using language that appeared to be derived from BMIs own letters,and that he failed to explain the basis for his opinion or to indicate that hehad reviewed the statutory and regulatory requirements pertaining to Q-1VIsas. Second, the record supports the finding that two of the four namedbeneficiaries were not eligible for Q-1 status at the time ofthe initial denialof the 1-129 petition because they were already in the United States and hadnot yet obtained waivers of the foreign residency requirement. Third, the record supports the AAOs determination that BMI failed toestablish that it would offer the beneficiaries wages and working conditionscomparable to those accorded local domestic workers similarly employed. Therecord indicates that BMI intended to pay the beneficiaries a totalcompensation package valued at $1,155.00 per month. Admin. R. at 79. At 12
  • 13. Case 1:10-cv-02482-MHS Document 10 Filed 03/25/11 Page 13 of 16the time of the filing of the petition, however, the federal minimum wage was$6.55 per hour, or $1,222.67 per month, based on a forty-hour work week.Thus, even assuming that comparable local domestic workers received onlyminimum wage, BMIs proposal failed to meet the laws requirements. BMI disputes the finding that itfailed to specifY what the duties of thecultural exchange participants would be. However, BMI fails to provide anycitation to the record to support this argument. Moreover, BMI is precludedfrom disputing this fact because it failed to respond to defendants Statementof Undisputed Material Facts, which states in part: "Plaintiffs submissionsdo not describe the specific duties ofthe four proposed beneficiaries for whomit petitioned via the I -129 submitted on or about September 11, 2008." Defs.Statement of Undisputed Material Facts -,r 22 (emphasis in original); see LR56.1B(2), NDGa. (absent any response, court will deem each of summaryjudgment movants facts as admitted). BMI also argues that it submitted sufficient documentation of thecultural component of the program. BMI claims that it "provided a list ofcultural activities which were carried out by each program participant every 13
  • 14. Case 1:10-cv-02482-MHS Document 10 Filed 03/25/11 Page 14 of 16day." Pl.s Oppn at 17. Once again, however, this argument is not supportedby any citation to the record. BMI also argues that it submitted "voluminousevidence" that cultural events actually occurred and that the public wereinvited to and participated in the events. Id. The AAO, however, did not findthat cultural events did not occur or that the public were not invited or didnot participate. Instead, it found that the documented cultural eventsoccurred only infrequently and were conducted independently from theparticipants assigned hotel positions. Admin. R. at 11. BMI has cited noevidence to challenge this finding. BMI argues that defendants applied the Q·1 visa regulations differentlyto it as compared to major amusement parks. The Court will not address thisclaim because BMI did not pursue it administratively. See Dresser Indus ..Inc. v. United States, 596 F.2d 1231, 1238 (5th Cir. 1979) (holding thatAPA,5 U.S.C. § 704, imposes an exhaustion of administrative remediesrequirement). BMI claims that it did raise this claim at the administrativelevel, citing its response to USCISs request for additional evidence. Thisresponse, however, consists of hundreds of pages of documents, and BMIprovides no specific citation of the document(s) purportedly supporting this 14
  • 15. Case 1:10-cv-02482-MHS Document 10 Filed 03/25/11 Page 15 of 16claim. The Court notes that BMIs cover letter to its response, whichdescribes the enclosed documentation in some detail, does not mention anyclaim of disparate treatment. Admin. R. at 374·75. Finally, BMI argues that the AAO miscalculated the wages it paid toprogram participants and incorrectly used this as a basis for the denial. BMIcites Part 5 of Form I-129, where it indicated that beneficiaries would receive$7.00/hour plus housing, transportation, and other benefits worth$6,600/year. Admin. R. at 53. BMI, however, fails to explain the inconsistentinformation submitted in support of the I ·129, which indicated that programparticipants would receive total monthly benefits of $1,155.00 anderroneously stated that this exceeded the minimum wage requirement inGeorgia. Admin. R. at 79. BMI also fails to explain its failure to identify theactual locations where the named beneficiaries would be working,information that was essential to determining whether beneficiaries wouldbe employed under the same wages and working conditions as local domesticworkers. Its claim that the beneficiaries work location was the same asBMIs offices in Tucker, Georgia, is clearly disingenuous since it hasconsistently contended that "the cultural exchange program will take place 15
  • 16. Case 1:10-cv-02482-MHS Document 10 Filed 03/25/11 Page 16 of 16at several hotels and resorts throughout metropolitan Atlanta, Georgia andSouth Carolina." Admin. R. at 68.Summary For the foregoing reasons, the Court DENIES defendants motion todismiss [#7·1], GRANTS defendants motion for summary judgment [#7·2],and DISMISSES this action. IT IS SO ORDERED, this ?t J::t- day of March, 2011. arvin . hoob, Senior Judge United Sta s District Court Northern Di rict of Georgia 16
  • 17. U.S. Department of Homeland Security identifying data deleted to U.S. Citizenship and Immigration Services prevent clearly unwarranted Office ofAdministrative Appeals, MS 2090 Washington, DC 20529-2090 invasion of personal privac} U.S. Citizenship and Immigration Services PlmiJCCOPthttp://www.uscis.gov/err/D10%20-%20International%20Cultural%20Exchange%20Visitor%20(Q)/Decisions_Issued_in_2010/May132010_01D10101.pdfCLICK FOR CLEAN COPY OF DECISION FILE: EAC 08 242 50930 Office: VERMONT SERVICE CENTER Date: MAY 1 3 zmo INRE: Petitioner: Beyond Mgmt, Inc. (BMI) Beneficiaries: 4 nonimmigrants: (originally J-1s, 2 had 212(e) waivers at time of filing and the other two later obtained 212(e) waivers) [They should have applied for H2-Bs instead, maybe capo was met?] PETITION: Petition for Nonimmigrant Worker Pursuant to Section lOl(a)(lS)(Q)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(l5)(Q)(i) ON BEHALF OF PETITIONER: INSTRUCTIONS: Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents related to this matter have been returned to the office that originally decided your case. Please be advised that any further inquiry that you might have concerning your case must be made to that office. If you believe the law was inappropriately applied by us in reaching our decision, or you have additional information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The specific requirements for filing such a request can be found at 8 C.P.R. § 103.5. All motions must be submitted to the office that originally decided your case by filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Please be aware that 8 C.P.R. § 103.5(a)(l)(i) requires that any motion must be filed within 30 days of the decision that the motion seeks to reconsider or reopen . .. Perry Rhew Chief, Administrative Appeals Office www.uscis.gov
  • 18. EAC 08 242 50930Page2DISCUSSION: The Director, Vermont Service Center, denied the nonimmigrant visa petition. The matter isnow before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal.The petitioner filed the nonimmigrant petition seeking approval of its program as an international culturalexchange program and classification of the beneficiaries as international cultural exchange visitors pursuant to theprovisions of section 10l(a)(l5)(Q)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. §110l(a)(l5)(Q)(i). The petitioner states that it is engaged in hotel management, cultural exchange programs,information technology and construction management. The petitioner seeks to employ the beneficiariestemporarily in the United States as cultural exchange coordinators for a period of 15 months, and indicates thatthey will be placed at hotels. All four beneficiaries were in the United States in J-1 status at the time of filing.The director denied the petition concluding that the petitioners program is not eligible for designation by UnitedStates Citizenship and Immigration Services (USCIS) as an international cultural exchange program under section10 I (a)( 15)(Q)(i) of the Act. In denying the petition, the director determined that the petitioner failed to establishthat its cultural exchange program has a cultural component that is designed, on the whole, to exhibit or explainthe attitude, customs, history, heritage, philosophy, or traditions of the international cultural exchange visitorscountry of nationality, or that such component is an essential and integral part of the international culturalexchange visitors employment or training, as required by the regulation at 8 C.F.R. § 214.2(q)(3)(iii)(B). Thedirector further determined that only two of the four beneficiaries had received a waiver of the two-year foreignresidency requirement applicable to J-1 exchange visitors and would therefore be otherwise ineligible for therequested change of status.The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and forwardedthe appeal to the AAO. On appeal, counsel asserts that the directors decision contains multiple errors of fact andlaw. Counsel contends that the director disregarded the applicable standard of proof and the "enormous amount ofprobative evidence offered by the petitioner." Counsel claims that, contrary to the directors finding, thebeneficiaries will not be performing the duties of "regular hotel employees," but will "spend the vast majority oftheir day engaging in tasks which further the educational and cultural goals of the exchange program." Counselsubmits a brief in support of the appeal.I. TheLawSection 10 1(a)(l5)(Q)(i) of the Immigration and Nationality Act defines a nonimmigrant in this classification as: an alien having a residence in a foreign country which he has no intention of abandoning who is coming temporarily (for a period not to exceed 15 months) to the United States as a participant in an international cultural exchange program approved by the Attorney General for the purpose of providing practical training, employment, and the sharing of the history, culture, and traditions of the country of the aliens nationality and who will be employed under the same wages and working conditions as domestic workers.The regulation at 8 C.F.R. § 214.2(q)(3) provides:
  • 19. EAC 08 242 50930Page 3 International cultural exchange program. -- (i) General. A United States employer shall petition the Attorney General on Form 1-129, Petition for a Nonimmigrant Worker, for approval of an international cultural exchange program which is designed to provide an opportunity for the American public to learn about foreign cultures. The United States employer must simultaneously petition on the same Form 1-129 for the authorization for one or more individually identified nonimmigrant aliens to be admitted in Q-1 status. These aliens are to be admitted to engage in employment or training of which the essential element is the sharing with the American public, or a segment of the public sharing a common cultural interest, of the culture of the aliens country of nationality. The international cultural exchange visitors eligibility for admission will be considered only if the international cultural exchange program is approved. * * * (iii) Requirements for program approval. An international cultural exchange program must meet all of the following requirements: (A) Accessibility to the public. The international cultural exchange program must take place in a school, museum, business or other establishment where the American public, or a segment of the public sharing a common cultural interest, is exposed to aspects of a foreign culture as part of a structured program. Activities that take place in a private home or an isolated business setting to which the American public, or a segment of the public sharing a common cultural interest, does not have direct access do not qualifY. (B) Cultural component. The international cultural exchange program must have a cultural component which is an essential and integral part of the international cultural exchange visitors employment or training. The cultural component must be designed, on the whole, to exhibit or explain the attitude, customs, history, heritage, philosophy, or traditions of the international cultural exchange visitors country of nationality. A cultural component may include structured instructional activities such as seminars, courses, lecture series, or language camps. (C) Work component. The international cultural exchange visitors employment or training in the United States may not be independent of the cultural component of the international cultural exchange program. The work component must serve as the vehicle to achieve the objectives of the cultural component. The sharing of the culture of the international cultural exchange visitors country of nationality must result from his or her employment or training with the qualified employer in the United States. II. The Petitioners Cultural Exchange Program
  • 20. EAC 08 242 50930 Page 4 The first issue in this proceeding is whether the petitioner established that its proposed program is eligible for designation by USCIS as an international cultural exchange program under section 101(a)(l5)(Q)(i) of the Act. The director determined, in part, that the petitioner failed to establish that its cultural exchange program has a cultural component that is designed, on the whole, to exhibit or explain the attitude, customs, history, heritage, philosophy, or traditions of the international cultural exchange visitors country of nationality, or that such component is an essential and integral part ofthe international cultural exchange visitors employment or training, as required by the regulation at 8 C.P.R. § 214.2(q)(3)(iii)(B). The petitioner filed the Form I-129, Petition for a Nonimmigrant Worker, on September 11, 2008, accompanied 1 by the following supporting documentation regarding the petitioners cultural program: • A letter dated September 10, 2008 from the petitioners Global. Recruitment Manager, describing its program. • Copies of Form 1-797 Approval Notices, issued to for Q-1 classification petitions approved by USCIS between 2003 and 2008. • The petitioners International Cultural Exchange Visitor Program Structured Training Plan (GSTP), which includes a weekly schedule for the 15-month program. • A copy of the petitioners "Daily Cultural Activity Checklist" listing 25 activities to be completed by program participants, to be monitored by the property manager and the petitioners manager. • Evidence related to the "latest shows" held by the petitioner in Hilton Head, Myrtle Beach and Atlanta, GA. 2 • Evidence of previous cultural shows and presentations held by Global Hospitality Exchange between 2003 and 2007; • Testimonials and affidavits from prior Global Hospitality Exchange Q-1 program participants regarding their cultural exchange activities in the United States; • Letters from participating host properties and other cultural program partners; 1 The petitioner, I stated that it is one of four "wings" in- · which is described as a management company that offers services in hotel management, constructionmanagement, cultural exchange, and computer information technology. The petitioner explained that thecultural exchange wing is managed by in collaboration with " The petitioner stated that the beneficiaries will be working directly for GHE, butemphasized that the groups various "wings" are not separate companies and all have the same Federal taxidentification number.2 The evidence consisted of web site advertisements, photographs, copies of flyers and other documentationrelated to the following events: a "Graduation Event" held August 27, 2008 at the Sands Ocean Dunes Resortin Myrtle Beach; a "Fall Kickoff with Beyond" featuring "daily cultural villages" at Myrtle Beach propertiesbetween September 5 and 26, 2008 in Myrtle Beach; "Jamaica, Jamaica, Jamaica" featuring cultural villagesand managers receptions between August 7 and August 20, 2008; a "Multicultural Week" held at SandsResorts, Myrtle Beach in August 2008; "Rang Tarang" cultural evening held in March 2008 at the SandsOcean Dunes Conference Center in Myrtle Beach.
  • 21. EAC 08 242 50930Page 5 • An e-mail message dated September 30, 2004 from the Vice Consul of the United States Embassy in Seoul, Korea, addressed to the petitioner, stating that the petitioner "is meeting all the criteria set forth by the Foreign Affairs Manual," apparently referencing four Q-1 visa applicants sponsored by GHE.In its supporting letter dated September 10, 2008, the petitioner explained that its cultural exchange program takesplace at various hotels and resorts operated by its "Affiliate Cultural Partners" (ACPs). The petitioner emphasizedthat the beneficiaries will be assigned to hotels and resorts "throughout metropolitan Atlanta, Georgia and SouthCarolina" that are "located near major highways and interstates that are easily accessible to the American public."The petitioner further noted that "[a]ll guests that stay at one of our properties are introduced to variousinternational cultures and presentations in interesting and creative ways that adapt naturally to a hotel or resort."The petitioner indicates that cultural activities are the prime reason for the presence of the participant at theproperty, while "the employment only serves as a tool" to implement the cultural program. The petitioner notesthat it recruits exchange visitors who are currently enrolled in hospitality duties programs abroad, or who arealready experienced hospitality workers, so that they can easily adjust to the hotel atmosphere and "feel confidentabout sharing their culture with the guests."According to the petitioners plan, it "presents foreign cultures to the American public during the course of anormal business day" by encouraging program participants to wear "culturally proud nametags," and native dresson national holidays, to display maps and souvenirs of their home country, to provide hotel guests withinternational recipes and brochures, to play international music over the hotels sound system, and to plan andstage celebrations of their own culture. The petitioner stated that by displaying symbols of their cultural heritage,the program participants evoke questions from the hotel guests, thereby providing an opportunity for culturalexchange. The petitioner further indicated that the participants are expected to invite ethnic groups andassociations to the property to put on cultural exhibits, to invite international speakers for seminars and lectures,and to host cultural book discussion events.As an example of its cultural events, the petitioner stated that it holds a cultural history month at ACP properties,during which participants "assemble a model village of artifacts, artwork, flags, music, figurines" in a high trafficarea of the hotel. The petitioner stated that the cultural model village is promoted to the general public by theACP property and GHE. The petitioner stated that program participants also participate in a "managers receptionpresentation" at 5:00 p.m. on most weekdays, which provide a chance for them to talk and mingle with hotelguests and serve international foods. Finally, the petitioner indicated that program participants coordinate an"Around the World in Just One Day," event at the ACP properties on a monthly basis, which is "open to thegeneral public." The record shows that the petitioner sometimes sponsors cultural events at other locationsbesides the ACP properties and resorts, sometimes with co-sponsors.The petitioners Structured Training Plan includes the following program description: Participants work within various departments of these hotel properties to share their culture with hotel guests, gain work experience and hospitality skills. The program is accessible to the American public solely for the purpose of cultural exchange and the participants work and
  • 22. EAC 08 242 50930Page 6 position cannot be independent of the commitment to share their respective culture with the hotel guests, fellow staff and all contacts.According to the program schedule, the beneficiaries spend one week upon arrival in the United States at thepetitioners headquarters undergoing orientation and cultural exchange program training, and begin shadowingcurrent program participants at their assigned property, before beginning to work independently during the fourthweek, at which time they will dress in their native costumes, wear nametags, complete a daily checklist, decoratethe work environment, and interact with hotel guests. Each month includes one week devoted to planning andimplementing a managers reception. During the second month, the participants are to "organize ideas for culturalpresentations" and develop "cultural exchange nametags" to reflect their home country and flag. During monththree, the participants form a committee for an International Food Festival and hold the festival for "propertyguests and public." During the fourth month, the participants are expected to develop cultural history projects andbulletin boards, and during the sixth month, the participants are expected to deliver a cultural customspresentation for guests and public. In the seventh month, the participants are expected to deliver a "culture intravel and tourism" power point presentation in the hotel lobby. During the ninth month, the participants wouldhold a cultural dress and fashion show at the property after planning, marketing and promoting it. In the eleventhmonth, the participants are expected to create an "International Gesture Dictionary" for use by the property andshare it with staff members. During the 12th month, the participants are to hold a "Seasons Greeting culturalevent." The participants have a "final cultural exchange program presentation" due at the end of the fourteenthmonth of the program.The director issued a request for additional evidence on November 3, 2008. The director advised the petitionerthat USCIS was not persuaded that the work component serves as a vehicle to achieve the objectives of thecultural component of the petitioners program, but rather appears to be independent of the cultural component.The director requested additional evidence to establish that the petitioner operates an international culturalexchange program that meets the public accessibility, work, and cultural components set forth at 8 C.F.R.§ 214.2(q)(3)(iii).In response to the RFE, the petitioner submitted a slightly revised Jetter further explaining how its culturalexchange program satisfies the requirements set forth at 8 C.F.R. § 214.2(q)(3)(iii). The petitioner emphasizedthat "all guests that stay in one of our properties are introduced to various international cultures and presentationsin interesting and creative ways that adapt naturally to a hotel or restaurant environment." The petitioner furthernoted that the program is not only available to paying guests of the hotel, but to the general public sharing acommon cultural understanding. The petitioner indicated that it spends thousands of dollars on a monthly basispromoting its cultural events that take place daily in its partner hotels and resorts by advertising through mailinglists, Facebook ads, newspaper ads, radio ads and Chamber of Commerce newsletters. The petitioner also statedthat "other than the hotel guest, there is a majority of general public that visits our cultural locations to attendmanagers receptions, cultural weeks, book expos and culinary classes."With respect to its programs work component, the petitioner emphasized that, "unlike a regular hotel employee atACP, our participant is engaged in structured cultural activities with the sole objective of sharing his or herCountrys history, culture and traditions." The petitioner described the daily activities of a participant, noting thathe or she might start her day by preparing a breakfast dish from his or her native country, decorating the hotels
  • 23. EAC 08 242 50930Page 7restaurant to reflect the international environment, ensure that the name of the dish and country of origin aredisplayed, distribute flyers with the recipe, serve the dish in his or her native costume, and play internationalmusic in the background as they interact with guests. The petitioner noted that other program participants mayprepare traditional snacks or sweets for guests to sample at other locations, such as check in/check out, and laterprepare hors doeuvres for a managers reception, while also decorating the hotel lounge to reflect an internationalenvironment.The petitioner emphasized that the cultural component is the primary focus of its program and that many of itsguests visit its hotels and resorts "not merely for sleeping accommodations, but to actually feel and get first handinformation about the international culture and to discuss cultural and ethnic themes and issues, to hold seminarsand lectures, discussion groups and classes."The petitioners response to the RFE included an evaluation of its cultural exchange program bySturman, professor of hotel administration and human resources at Cornell University, who states his opinion thatthe petitioners program participants "clearly quality for a Q-1 visa." states: The cultural interaction, and ultimately cultural education of the guests, is well structured and organized. Guests are not simply staying at the hotels; they are being given a planned and thorough cultural experience. The Cultural Program is extensively marketed, and the American public is encouraged to attend the shows, book expos and seminars and attend the events specifically planned as part of the program. As such, the duties of those hired for the Culture Program are inherently and completely connected with the program. Job duties of those hired for this program are fully integrated with the requirements of the program. For example, while a front desk clerk brought in under the program will have to perform the regular duties associated with this position (answer phones, check in guests, handle guest complaints), the position requires the individual to focus on talking about his or her culture, talking about the decorations at the front desk, promoting the next cultural event, and so forth. All aspects of the job duties are perform [sic] with the goals of the cultural exchange program in mind. As another example, the F&B Cultural Exchange Coordinator has very different duties from other F&B :fanagers. That is, the F&B Cultural Exchange Coordinator focuses on promoting the featured ethnic dishes, inviting people to receptions where the ethnic dishes are displayed, etc. Similar examples can be provided for all positions to be filled under the cultural exchange program: all duties are performed with the purpose of promoting and enhancing the cultural exchange. As such, it is clear that the work component of those to be brought in under the cultural exchange program is not independent of Cultural Exchange and they are both fully integrated with each other.The petitioner submitted additional letters from recent program participants who have worked in the positions ofchef, food and beverage worker, restaurant server, bartender, front desk assistant, food and beverage supervisor,
  • 24. EAC 08 242 50930Page 8housekeeping supervisor, and sales director, who discuss how they shared their culture while performing their jobduties.The petitioner also submitted affidavits from several of the hotels that host the petitioners cultural exchangecoordinators, as well as correspondence the petitioner received from guests who attended some of the petitionerscultural events. In addition, the petitioner provided evidence that its major events have been publicized on thepetitioners own web site and Facebook page, on Chamber of Commerce web sites, through flyers and signsplaced at the hosting property, in local newspapers, through a mailing list, mailed invitations and "other marketingmailings."Finally, the petitioner compared its Q-1 program to those offered by other organizations in the hospitality industryin hotels and resorts, noting that the petitioners program meets or exceeds the qualifications of similar programsthat have been consistently approved by USCIS.The director denied the petition on December 24, 2008, concluding that the beneficiaries primary work dutieswould be independent of any cultural duties in which they would be involved. The director noted that all fourbeneficiaries have been in the United States on J-1 visas training in the hospitality industry, with an emphasis onfront desk operations and culinary arts. The director concluded that the beneficiaries with prior experience infront desk operations would serve as front desk clerks performing duties such as answering the phone, checkingin guests and handling guest complaints, while participants trained in the culinary arts would be preparing foodand beverages to be served to resort guests.On appeal, counsel for the petitioner asserts that "even the most cursory examination of the evidence reveals thatall of the program participants job functions or training are used as a platform to enhance the publics knowledgeof their native culture." Counsel emphasizes that the petitioner provided "a detailed letter explaining the duties ofeach beneficiary and how these duties were an integral part of the exchange program." Counsel states that thedirector "made a clear error of fact" when he concluded that the beneficiaries would be performing the regularduties associated with front desk operations, and further explains how the petitioners work component serves as avehicle to achieve the objectives ofthe cultural program, as follows: Although a program participant may be assigned to work alongside a regular front desk clerk; he or she does not replace that front desk clerk, nor does he or she share the same objectives as a front desk clerk, whose sole goal would be to greet chests, handle check outs and make reservations (and ultimately increase hotel profits.) A program participant may be responsible for greeting guests however, the cultural program participant is expected to greet a guest wearing national costume and informing the guest of the associates country of origin. Furthermore, the cultural program participant is trained and expected to engage guests in conversations about their home country, invite guests to cultural events being staged at the hotel and educate the guest about their country of origin.Counsel asserts that "clearly the cultural heritage of the program participant is expressed if he or she greets aguest in their native tongue while wearing a native costume," and that "each member of the public who is greeted
  • 25. EAC 08 242 50930Page9by a cultural program participant will be introduced to the unique culture of the program participant through theparticipants performance ofthe assigned duties."Counsel further contends that the director "erroneously found that the beneficiaries would be preparing food andbeverages to be served to guests." Counsel emphasizes that "[a]lthough the beneficiaries may assist in mealpreparation they are not kitchen assistants," but rather "will devise ethnic menus reflecting their own culture andheritage, assist in their preparation, create display cards describing the dish and discuss the meal and its originswith guests and customers." Counsel asserts that the preparation of such dishes expresses the participants ethnicheritage and leads to the sharing of the culinary traditions of their home countries.Counsel claims that, during the "vast majority of their time," program participants are "engaging in tasks that arepurely cultural, for example, the staging of cultural exhibits." Counsel asserts that the director erred by requiringthat "any and all tasks be purely cultural in nature," noting that the regulations "clearly permit the dualfunctionality of any task or duty to be performed by the program participant," such that a task or duty which has acultural function as well as a work or training function is permissible according to the language of the regulation.Finally, counsel contends that the director applied a higher standard of proof than the "preponderance of theevidence" standard applicable in immigration proceedings, and "held the petitioner to a much higher standardthan any other similarly situated petitioners." Specifically, counsel states that [t]he denial of Petitioners petitionon the basis of inadequate proof that the work component was an integral part of the cultural exchange programamounts to an abuse of discretion because there is no rational explanation for the finding," in light of the"mountain of evidence" submitted. Counsel stresses that the director "held petitioner to an impossibly highstandard of proof requiring that it must provide the Service with evidence that the work component is completelydependent on the cultural component of that program."Upon review, and for the reasons discussed herein, the AAO concurs with the directors determination that thepetitioner failed to establish that its program qualifies for designation as an international cultural exchangeprogram pursuant to the provisions of 8 C.P.R. § 214.2(q)(3) because the petitioner failed to establish that thebeneficiary would be engaged in employment or training of which the essential element is sharing the culture ofthe aliens country of nationality.To be eligible for designation as an international cultural exchange program under section 101(a)(l5)(Q)(i) of theAct, the petitioner must establish that its proposed program satisfies all of the requirements at 8 C.F .R. §214.2(q)(3) pertaining to the programs public accessibility, cultural component and work component. Thedirector found that the petitioner failed to establish that its program satisfies the work component requirement setforth at 8 C.P.R. 214.2(q)(3)(iii)(C).As a threshold issue, the AAO notes that the petitioner has not submitted a detailed letter explaining the duties ofeach beneficiary and how these duties were integral to the cultural exchange program, as claimed by counsel onappeal. The petitioner has not provided any detailed description of the specific duties to be performed by thefour beneficiaries as "cultural exchange coordinators," nor has it identified what specific hotel or resortoccupations they will fill, such as front office clerk or food and beverage positions. Going on record withoutsupporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these
  • 26. EAC 08 242 50930Page 10proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft ofCalifornia, 14 I&N Dec. 190 (Reg. Comm. 1972)). While the petitioner maintains that it does not place itsprogram participants in back office, housekeeping, maintenance or other roles that do not have direct contact withhotel guests, the AAO notes that previous participants have stated that they served in roles such as housekeepingsupervisor and sales director. It appears that the director assumed that the beneficiaries would be serving inculinary or front desk positions based on the stated purpose of their recent periods of training in J-1 status.However, the AAO notes that it is the petitioners burden to establish what types of roles and duties will constitutethe work component of its program for the individual beneficiaries included in the petition.Furthermore, the petitioner has also failed to identify the location or locations at which the beneficiaries will beplaced. The petitioner merely stated that the program will take place "at several hotels and resorts throughoutmetropolitan Atlanta, Georgia and South Carolina." The AAO finds it reasonable to expect the petitioner toidentify the specific host properties that will receive the beneficiaries, and to submit documentation related to theimplementation of its cultural exchange program at these specific properties.Although the record indicates that the program participants are required to "share their culture" with hotel guestsand staff, the petitioner has also indicated that it recruits hospitality students and professionals who are alreadyexperienced in the hotel industry, and assign them to traditional hospitality industry roles, such as front deskpositions or food and beverage positions. Counsel claims on appeal that although the petitioners programparticipants may "perform certain duties at the reception desk of the hotel," they are not front desk clerks becausethey "wear international dress and name tags" and engage guests in conversations about their home countries,while any assistance they provide to guests is "incidental." However, other evidence in the record confirms thatthat the petitioners program participants do in fact perform the same basic job functions as "regular" hotel staff.For example, Dr. Sturman states in his evaluation that "a front desk clerk brought in under the program will haveto perform the regular duties associated with this position (answer phones, check in guests, handle guestcomplaints)," duties that do not appear to be incidental. In addition, prior participants have provided affidavits inwhich they identify their roles as "restaurant server," "front desk assistant," "food and beverage supervisor," and"housekeeping supervisor." The petitioner has not established how guest service or other regular duties inherent tosuch positions would be "incidental" to such roles.The evidence in the record is insufficient to establish that the foreign program participants share their respectivecultures with the public on a regular basis as an essential element of their work-related responsibilities. Rather,the cultural aspects of the participants activities appear to be tangential to their tasks as hotel employeesresponsible for the day-to-day operations of the front desk and other departments. While counsel correctly statesthat the statute and regulations do not require the program to be purely cultural, the regulation specifies that theprograms cultural component must be wholly designed to exhibit or explain the attitude, customs, history,heritage, philosophy, or traditions ofthe exchange visitors country of nationality. 8 C.F.R. § 214.2(q)(3)(iii)(B).The evidence does not demonstrate that petitioners cultural component is wholly designed to exhibit or explainany ofthese aspects of Nepalese or Indian culture. Daily interactions with hotel guests such as wearing a country-specific nametag or native dress, handing out a recipe or brochure, decorating the hotels front desk, displayingflags and maps, or playing international music, are merely casual and unstructured cultural exchanges. Suchinteractions must be deemed secondary to the beneficiaries employment as hotel workers. The petitioner has not
  • 27. EAC 08 242 50930 Page 11 established that the daily cultural interactions of the participants would be part of a structured program truly designed to share the history, culture, and traditions of the country of the aliens nationality. Furthermore, while the petitioner indicates on appeal that the beneficiaries would spend the majority of their time while on duty engaging in cultural interactions, the record shows that the beneficiaries are responsible for performing the same basic job duties as other hotel workers working in the same hotel departments, which would reasonably limit the amount of time they could spend interacting with individual guests. The AAO is not persuaded that the beneficiaries, in their roles as front desk agents or servers, for example, would realistically spend less than half of their time actually performing the regular duties of the position to which they are assigned. Finally, certain aspects of the petitioners claimed cultural program simply have not been documented. Although the petitioner claims to invite guests and speakers for presentations, book discussions, seminars, courses, language and culinary classes, the petitioner has not submitted evidence that any of these more formal means of cultural exchange have taken place at any of its properties. The petitioner claims that the participants take part in daily "managers receptions," at the host properties, however, the petitioners Structured Training Plan indicates that managers receptions are held only once per month. Regardless, it is unclear how any of these functions would be carried out as a part of the beneficiaries regular front desk or food and beverage responsibilities. The evidence shows that the petitioners program participants do engage in more formal and structured cultural events such as "cultural week" events, and the East Meets West and Rang Tarang events documented in the record. However, these events are conducted independently from the participants assigned hotel positions and occur with much less frequency. The AAO cannot conclude that any beneficiary participating in the program would participate in one of these structured cultural events more than a few times during a 15-month stay in the United States. The AAO acknowledges the expert opinion from which was submitted in response to the request for evidence. Although is well-credentialed m the fields of human resources and hotel management, his letter does not speak directly to the critical question in this case - whether the beneficiaries will be primarily engaged in qualifying cultural exchange activities during the course of their regular work day, or whether their work as front desk clerks or food and beverage workers will be independent of the cultural program. Instead,-~ speaks in general terms regarding the petitioners program, using language that at times appears to be derived almost verbatim from the petitioners own letters. Furthermore, his description of the work component of the program undermines counsels claim on appeal~rogram participants "are not performing the duties of regular hotel employees." As noted above,.-specifically states that "a front desk clerk brought in under the program will have to perform the regular duties associated with this position." Finally, it is unclear on what basis he rendered his opinion, as he has not identified what documentation was provided by the petitioning company, nor has he indicated that he has reviewed the statutory and regulatory requirements pertaining to Q-1 visas. The AAO may, in its discretion, use as advisory opinion statements submitted as expert testimony. However, where an opinion is not in accord with other information or is in any way questionable, the AAO is not required to accept or may give less weight to that evidence. Matter of Caron International, 19 I&N Dec. 791 (Comm. 1988).
  • 28. EAC 08 242 50930Page 12Based on the foregoing discussion, it must be concluded that the petitioner failed to establish that its programqualifies for designation as an international cultural exchange program pursuant to the provisions of 8 C.F.R.§ 214.2(q)(3) because the petitioner failed to establish that the beneficiary would be engaged in employment ortraining of which the essential element is the sharing with the American public, or a segment of the public sharinga common cultural interest, of the culture of the aliens countries of nationality. The presence of the foreignemployees may contribute to some guests overall experience at the participating hotels and resorts. However, thefact remains that the participants will be spending the majority of their time on a daily basis performing thestandard duties of hotel workers, during which periods their cultural interaction with resort guests will be limitedto informal and unstructured cultural exchanges.Based on the foregoing discussion, the petitioner has not established that its cultural exchange programsatisfies the cultural and work components set forth at 8 C.F.R. §§ 214.2(q)(3)(ii)(B) and (C). Accordingly,the appeal will be dismissed.The second issue addressed by the director is whether the four beneficiaries, who were all in the United Statesas J-1 exchange visitors at the time of filing, have obtained the required waiver of the two-year foreignresidency requirement and are eligible for the requested change of status.Section 212(e) of the Act bars an alien in J-1 nonimmigrant status from applying for an immigrant visa,permanent residence, or nonimmigrant H or L status, until the alien has resided in his or her country ofnationality for at least two years after leaving the United States. In addition, section 248(a)(3) of the Act barsexchange visitor aliens from changing nonimmigrant classification to anything other than A or G diplomaticvisa status. See also Matter of Kim, 13 I&N Dec. 316 (Reg. Comm. 1968). Section 212(e) concludes byproviding for a discretionary waiver of the two-year foreign residence requirement if, among other grounds,the departure from the United States would impose exceptional hardship upon the aliens U.S. citizen spouseor child.The director determined that the petitioner submitted approval notices for Form I-612, Application to WaiveForeign Residence Requirement, for only two of the four beneficiaries.On appeal, the petitioner asserts that three beneficiaries, and werein receipt of approved J-1 foreign residency requirement waivers and that evidence of the approved waiverswas provided to USCIS prior to the denial of the petition. Counsel asserts that the fourth beneficiary is inreceipt of a U.S. State Department "no objection" letter and will be eligible to change her status or consularprocess should the 1-129 petition be approved.Upon review-the AAO notes that the petitioner submitted evidence of approved waivers for only twobeneficiaries, and prior to the adjudication of the petition. The petitionerprovided a copy of a State Department "No Objection" statement and a USCIS receipt number for the Form 1-612 application filed by USCIS records show that this application (EAC 09 057 40959)was filed on November 26, 2008 and approved on December 31, 2008, one week after the directors decisionwas issued. Therefore the director correctly determined that this beneficiary was not eligible for the requestedchange of status as of December 24, 2008. Although counsel indicates on appeal that the remaining
  • 29. EAC 08 242 50930Page 13beneficiary, has received a State Department "no objection" statement and "will be eligible tochange her status," the petitioner has not submitted any documentary evidence related to her waiverapplication other than statements from the Indian government. USCIS records do showfiled a Form I-612 with USCIS on January 8, 2009, and the application was on February 2, 2009(EAC 09 100 40523). Therefore, the director correctly determined that not eligible for achange of status as of December 24, 2008. The AAO notes for the record that, as ofF ebruary 2, 2009, all fourbeneficiaries had received waivers of their two-year foreign residency requirement.Beyond the decision of the director, the AAO finds that the petitioner failed to establish that it will offer thebeneficiaries wages and working conditions comparable to those accorded local domestic workers similarlyemployed, as required by 8 C.F.R. §214.2(q)(4)(D).The petitioner indicates that it intends to pay the beneficiaries as follows: a $600 monthly stipend; fullyfurnished housing valued at $350 per month; and utilities, cable, phone, transportation, and housekeepingservices valued at $205 per month, for a total compensation package valued at $1,155.00. The petitionerstated that the minimum wage in Georgia is $5.15 per hour or $892.67 per month. However, as noted above,the petitioner has not identified the actual work locations of any of the beneficiaries and it cannot bedetermined whether the salary offered should be compared to local domestic workers in Georgia. Regardless,even assuming that all employees would work in Georgia, the petitioner relied upon an outdated minimumwage figure for Georgia. The federal minimum wage was increased in 2007 pursuant to the Fair LaborStandards Act (FLSA), as amended, in a three-step process. 3 As of July 24, 2008, the federal minimum wagewas increased to $6.55 per hour, or $1,222.67 per month, based on a 40 hour workweek.Thus, the total compensation offered is actually less than the minimum wage and therefore cannot beconsidered comparable to local domestic workers. Furthermore, the petitioner has not submitted evidencethat minimum wage is standard pay for the positions offered, as it has not identified the exact positions to beheld. Some of the participants in the petitioners program, based on the evidence submitted, are actuallyexperienced hospitality workers who would not necessarily be expected to work at the entry-level wage forthe industry, much less at minimum wage. For these additional reasons, the petition will be denied.An application or petition that fails to comply with the technical requirements of the law may be denied by theAAO even if the Service Center does not identify all of the grounds for denial in the initial decision. SeeSpencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), a.ffd. 345 F.3d 683(9th Cir. 2003). The AAO maintains plenary power to review each appeal on a de novo basis. 5 U.S.C.557(b) ("On appeal from or review of the initial decision, the agency has all the powers which it would havein making the initial decision except as it may limit the issues on notice or by rule."); see also, Janka v. USDept. ojTransp., NTSB, 925 F.2d 1147, 1149 (9th Cir. 1991). The AAOs de novo authority has been longrecognized by the federal courts. See, e.g. Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004).3 See "Minimum Wage Change" http://www.dol.state.ga.us/spotlight/sp_minimum_wage_change_2007.htm,(accessed on Aprill6, 2010).
  • 30. EAC 08 242 50930Page 14The AAO acknowledges that USCIS has previously approved Q-1 cultural exchange program petitions filedby the petitioners claimed affiliate. It is worth emphasizing that that eachpetition filing is a separate proceeding with a separate record. See 8 C.P.R. § 103.8(d). In making adetermination of statutory eligibility, USCIS is limited to the information contained in the record ofproceeding. See 8 C.F .R. § 103 .2(b )( 16)( ii).If the previous nonimmigrant petitions were approved based on the same assertions that are contained in thecurrent record, the approvals would constitute material and gross error on the part of the director. The AAOis not required to approve applications or petitions where eligibility has not been demonstrated, merelybecause of prior approvals that may have been erroneous. See, e.g. Matter of Church ScientologyInternational, 19 I&N Dec. 593, 597 (Comm. 1988). It would be absurd to·suggest that USCIS or any agencymust treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090(6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). Despite any number of previously approved petitions,USCIS does not have any authority to confer an immigration benefit when the petitioner fails to meet itsburden of proof in a subsequent petition. See section 291 of the Act.Furthermore, the AAOs authority over the service centers is comparable to the relationship between a courtof appeals and a district court. Even if a service center director had approved the nonimmigrant petitions filedby the petitioner, the AAO would not be bound to follow the contradictory decision of a service center.Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), ajjd, 248 F.3d 1139 (5th Cir. 2001),cert. denied, 122 S.Ct. 51 (200 1). Based on the lack of required evidence of eligibility in the current record,the AAO finds that the director was justified in departing from the previous petition approvals by denying theinstant petition.The petition will be denied and the appeal dismissed for the above stated reasons, with each considered as anindependent and alternative basis for the decision. When the AAO denies a petition on multiple alternativegrounds, a plaintiff can succeed on a challenge only if it is shown that the AAO abused its discretion withrespect to all of the AAOs enumerated grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp.2d at 1043.In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with thepetitioner. Section 291 ofthe Act, 8 U.S.C. § 1361. Here, that burden has not been met.ORDER: The appeal is dismissed.