Non-Precedent AAO Decisions on R-1 Non-Immigrant Religious Worker PetitionsAdministrative Decisions:D13 - Non-Immigrant Re...
Links to Selected Decisions with brief summaries:Jan072010_01D13101.pdf Appeal SUSTAINED, petition APPROVED.“The director ...
an IRS letter did not exist until November 2008. Nevertheless, the timing of the petitionersactivities is very significant...
address the case under the correct regulations. The case stands a good chance to be approved (itprobably was).Apr292010_01...
time, it is hardly remarkable that the petitioner has changed addresses during the 28 yearsbetween the IRS letter and the ...
Aug042010_01D13101.pdf Appeal DISMISSED.This case relates to an obvious FRAUDULENT petitioner and beneficiary. Read it for...
Ogundipe v. Mukasey, 541 F.3d (4th Cir. 2008) held, in part:       (1) “…a visa petition is meritorious in fact for purpos...
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Non precedent aao decisions re r-1 candidates for publication


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Non precedent aao decisions re r-1 candidates for publication

  1. 1. Non-Precedent AAO Decisions on R-1 Non-Immigrant Religious Worker PetitionsAdministrative Decisions:D13 - Non-Immigrant Religious WorkersDecisions_Issued_in_2010[A few were omitted as redundant, moot, or were withdrawals.]Administrative Decisions: AAO has not published any R-1 Precedents yet.The USCIS Administrative Appeals Office (AAO) has jurisdiction over the appeals fromdecisions on the majority of immigration petitions and applications that are entered by USCISService Center, District, and Field Office Directors. Generally, adjudications that actually requirean in-person interview are not appealed to the AAO. The N-400 has a different route through alocal “Second Hearing” and then judicial review. Most I-485s (with a few exceptions) and allpetitions to lift conditions on LPR status may be renewed before an IJ and then appealed to theBIA. Any decision on any petition or application may be certified to the AAO for its input.There are numerous types of petitions and applications within the AAO’s jurisdiction, includingemployment-based immigration petitions, various waivers, legalization, and temporary protectedstatus applications. The AAO is called upon to produce appellate decisions that provide fair andlegally supportable resolutions of individual applications and petitions for immigration benefits.These decisions provide guidance to applicants, petitioners, practitioners and governmentofficials in the correct interpretation of immigration law, regulations and policy. Specificselected decision may be submitted to the Attorney General via EOIR’s BIA for inclusion in thedecisions designated for publication that are made available online and are printed in boundvolumes entitled Administrative Decisions Under Immigration and Nationality Laws of theUnited States. These will be cited as Matter of [name], # I&N Dec. ### (AAO 2011) [or (BIAYear) or (A.G. Year) or (??? Year)]. The first # is a volume and the second is the page withinthat volume on which the decision begins. To cite a specific page, one adds a comma and thelater page number—this is a pinpoint citation.The decisions in the online collection are posted in PDF format. You will need Adobe Reader 8or higher to view them. The links have a meaning in identifying the posted Decisions.“Date”_“sequential number for that date” in that “Category” and “INA §”The first is a non-precedent dated January 7, 2010, the first one in category D13, under INA §101.D13 as noted and linked above, refers to Nonimmigrant Petition for Religious Worker Pursuant toSection 101(a)(15)(R)(l) of the Immigration and Nationality Act (INA or the Act), 8 U.S.C. §1101(a)(15)(R)(1).R-1 AAO Decisions: Candidates for publication??? Page 1
  2. 2. Links to Selected Decisions with brief summaries:Jan072010_01D13101.pdf Appeal SUSTAINED, petition APPROVED.“The director has emphasized the positions training requirements. 8 C.F.R. § 214.2(r)(8)(ii)requires the petitioner to attest that the beneficiary is qualified for the position sought, but thereis no regulation stating that a position can only be a religious occupation if it requires a certainamount of religious training or education. If a given position has a known training requirement,then the petitioner must show that the beneficiary meets that requirement, but this does not meanthat the absence of detailed training requirements is, itself, a primary basis for denying thepetition.” CSC was making up unsupported and ultra vires requirements then denying for notmeeting them.Jan072010_02D13101.pdf Appeal REJECTED.Denial under old regulations had NO APPEAL. The new appeal rights do not extend back topreviously denied I-129s denied before the new regulations were published and effective.Jan082010_01D13101.pdf SUMMARILY DISMISSED.Problems with beneficiary’s status then no follow-up with I-290B after nine months.Jan212010_01D13101.pdf Dismissed as MOOT, beneficiary is already an LPR.The I-129 was denied because beneficiary reached the maximum time allowed in R-1 status, butthe I-360 was approved and an I-485 was approved based on that.Jan212010_02D13101.pdf Dismissed as MOOT, beneficiary is already an LPR.Petitioner file both an I-129 and an I-360. The I-129 was denied based on a lack of evidence .TheI-360 was approved and an I-485 was filed and approved.Jan262010_01D13101.pdf Appeal DISMISSED.Half-measures, after the fact, avail one naught.“The director denied the petition on May 16, 2009, because the petitioner failed to submit an IRSdetermination letter when the director requested it. The petitioner filed its appeal on June 16,2009. The appeal included a copy of an IRS Form 1023 application, along with a copy of a June15, 2009 cover letter requesting expedited processing of the application. The petitioner has sincesubmitted a copy of an IRS determination letter dated September 17, 2009, indicating that thepetitioner is a tax-exempt church.The issue in this proceeding is not whether the IRS now considers the petitioner to be a tax-exempt religious organization. The issue, rather, is whether the petitioner provided evidencerequired by USCIS regulations when instructed to do so. We are aware that the requirement forR-1 AAO Decisions: Candidates for publication??? Page 2
  3. 3. an IRS letter did not exist until November 2008. Nevertheless, the timing of the petitionersactivities is very significant. When the director specifically instructed the petitioner to submit anIRS determination letter in January 2009, the petitioner did not, at that time, make any evidentattempt to obtain such a letter. The petitioner did not file IRS Form 1023 until after the petitionwas denied.”Jan292010_01D13101.pdf Appeal SUSTAINED, petition APPROVED.The Director’s conclusion were baseless (and quite nutso).Feb012010_01D13101.pdf REMANDED. Incorrect application of precedent.“The directors request for "a letter from a Superior or Principal of the religious denomination ororganization" echoes language from Matter of Varughese, 17 I&N Dec. 399, 402 (BIA 1980).We find that the directors use of this language appears to have been significantly removed fromits original context. In Varughese, decided before special immigrant religious worker benefitswere available to non-ministers, the issue to be decided by the "Superior or Principal of thedenomination" concerned the credentials of an alien purporting to be a minister. Because thealien had been unable to produce proof of ordination, the Board of Immigration Appealsdetermined that a denominational official in the United States would need to verify the alienscredentials. We do not find that these circumstances closely mirror the proceeding at hand, andtherefore the director improperly relied on language from Varughese.”*****“Accordingly, we withdraw the directors decision. At the same time, review of the recordreveals other issues that the director and the petitioner must address before the petition can beapproved.”Feb012010_02D13101.pdf, Feb012010_03D13101.pdf, Feb012010_05D13101.pdfAppeals DISMISSED.Obstinate petitioner fought about rather than complied with obtaining and submitting an IRS tax-exempt status determination letter requirement.Feb052010_01D13101.pdf REMANDED.The initial RFE was erroneous and incomplete. The Director made procedural and substantiveerrors that afford further development of the case. Given a proper RFE, the case was likelygranted after remand.Apr142010_01D13101.pdf REMANDED.Employment relationship is complex and somewhat confusing but not contradictory as CSCfound. RFE was required to address new requirements of a new regulation applicable to all“pending” petitions. This was procedural and legal error as the Director did not evaluate andR-1 AAO Decisions: Candidates for publication??? Page 3
  4. 4. address the case under the correct regulations. The case stands a good chance to be approved (itprobably was).Apr292010_01D13101.pdf Appeal DISMISSED.The painfully incompetent should not even try to file a petition. Read what NOT to do as apetitioner.Apr292010_03D13101.pdf Appeal DISMISSED.Yes, being a “Monk” is a religious vocation. The varied duties are hard to list and document butthat will not defeat the petition. The petitioner failed on the financial aspects required to showadequate compensation to the beneficiary. There were also concerns about a a Buddhist Templebeing in a suburban single family house and the fact that it had filed 30+ petitions since 2000, 16were supposedly brief visits and only 4 seem to remain active at the Temple.Apr292010_04D13101.pdf Appeal DISMISSED. Stop beating that dead horse!Petitioner failed to submit required IRS tax-exempt determination letter. Petitioner argued that itis not required to get one from IRS for IRS purposes. AAO explains that although it is notrequired by IRS it is required by USCIS in order to support the USCIS petition.Apr292010_05D13101.pdf Appeal DISMISSED.This petition fails on soooo many levels, it’s worth the time to read it.May122010_03D13101.pdf Appeal DISMISSED. “Skeletal petition.”“Counsels complaint that the petitioner did not have adequate time to gather the requiredevidence fails for a simple but central reason. The evidentiary requirements were already in placewhen the petitioner filed the petition in March 2009, and the instructions to the Form 1-129petition listed those requirements. The petitioner has not explained why it chose to file thepetition before the required evidence was available. The petitioners filing of a skeletal petitiondoes not entitle the petitioner to an extension of time or oblige USCIS to make specialallowances. Indeed, the director was under no obligation to issue any notice at all. If a petition isfiled without all required initial evidence, the USCIS regulation at 8 C.F.R. § 103.2(b)(8)(ii)specifically gives the director the discretion to deny the petition on that basis without furthernotice.”Jul022010_01D13101.pdf Appeal DISMISSED.Inability to pay the beneficiary. Has a good discussion of a church with too small and poor of acongregation to pay a minister.Jul072010_01D13101.pdf Appeal SUSTAINED, Petition APPROVED, evidence was grosslymisinterpreted.“It is understandable that the director is concerned about the different addresses, but at the sameR-1 AAO Decisions: Candidates for publication??? Page 4
  5. 5. time, it is hardly remarkable that the petitioner has changed addresses during the 28 yearsbetween the IRS letter and the filing of the petition. IRS documentation showing the EmployerIdentification Number and the petitioners new address persuasively ties the petitioner, at itspresent location, to the IRS determination letter from 1981. The director cited these verydocuments as grounds for denial, without acknowledging how they support the petitionersclaims. There is no evidence, nor any reason to suspect, that the petitioner is impersonating adifferent mosque, by the same name, that continues to operate on Buckhout Street. Thepreponderance of available evidence heavily favors withdrawal and reversal of the directorsdecision.”Jul082010_07D13101.pdf Appeal DISMISSED.CSC had it wrong in evaluating evidence of the petitioner being a bona fide tax-exemptorganization. The petitioner did not submit the required attestation in response to an RFE or onappeal.Jul202010_01D13101.pdf REMANDED. Legal error and needs an RFE.“...The director, citing outdated regulations, denied the petition based on the determination thatthe beneficiarys current nonimmigrant status had expired prior to the validity period of thecurrent Form 1-129, Petition for a Nonimmigrant Worker.”*****“....Determinations on applications for extension of stay and change of status are concurrentwith, but separate from, a determination on the aliens eligibility for a nonimmigrant petition.While the determination regarding an aliens eligibility may be appealed, there is no appeal fromthe denial of an application for extension of stay or change of status. 8 C.F.R. § 214.1(c)(5) and §248.3(g). Because the beneficiarys past employment and maintenance of status relate to hisextension and change of status, rather than petition eligibility, the AAO lacks authority to decidethose questions.Regarding the directors determination on petition eligibility, as the director found thebeneficiary ineligible for nonimmigrant classification based upon an issue regarding his pastemployment, the matter will be remanded for the director to address the beneficiarys eligibilityunder 101(a)(15)(R)(l) of the Act. The director may request any additional evidence deemedwarranted and if so, should allow the petitioner to submit additional evidence in support of itsposition within a reasonable period of time.”Jul272010_02D13101.pdf Appeal REJECTED.Because 8 C.F.R. § 214.l(c)(5) does not allow for an appeal of a denial of an extension of stay,AAO cannot accept, and therefore must reject, the appeal.R-1 AAO Decisions: Candidates for publication??? Page 5
  6. 6. Aug042010_01D13101.pdf Appeal DISMISSED.This case relates to an obvious FRAUDULENT petitioner and beneficiary. Read it for a goodlaugh.Aug122010_01D13101.pdf Appeal DISMISSED.Failed to submit sufficient evidence as to requirements for ordination and failed to submitsufficient documentation of beneficiary’s ordination.Aug202010_01D13101.pdf REMANDED.Gross errors and prejudice abound. Similar to the following case.Aug202010_02D13101.pdf REMANDED.Case presents gross procedural and legal errors evidencing blatant prejudice and incompetenceon the part of the adjudicator in misconstruing the regulations, in evaluating the evidence,misinterpreting the cited precedent and in documenting the required site visit. The mishandlingof the Motion and inadequate review of the Appeal are glaring errors as well.Aug232010_01D13101.pdf REMANDED.The new regulations shall apply and the Director must issue an RFE. All conclusions werewithdrawn as unsupported. A fresh Decision based on an evaluation of any newly submittedevidence under the correct regulations must be made and if a denial, certified back to AAO.Confirms that the “new” regulations were intended to be applied to all pending petitions. "Allcases pending on the rules effective date . . . will be adjudicated under the standards of this rule."73 Fed. Reg. 72276, 72285 (Nov. 26, 2008). The case was remanded as the Director madeunsupported conclusions as to the position and the beneficiary’s qualifications for it as well as tothe petitioner’s finances and the results of the site visit which apparently was completed but notmade part of the record. A very sloppy job was done at CSC on this case.Aug262010_01D13101.pdf Appeal DISMISSED. R-1 extension denied.The petitioner had not established it qualifies as a bona fide nonprofit religious organization attime of filing. The petitioner did not submit required evidence up front, or in response to an RFE,but did submit sufficient evidence on appeal. AAO refused to consider the new evidence onappeal in a rigid procedural stand. Would that rigidity stand up to judicial review?This appears to have been a cop-out on the issue of when a fact must exist. This is incontravention to a similar case. The issue of what evidence will be considered and at which pointin the process is something that AAO needs to address in its forthcoming regulatory update. Thefollowing case is on that topic and should be considered in writing the regulations.R-1 AAO Decisions: Candidates for publication??? Page 6
  7. 7. Ogundipe v. Mukasey, 541 F.3d (4th Cir. 2008) held, in part: (1) “…a visa petition is meritorious in fact for purposes of grandfathering under 8 C.F.R. § 1245.10 if, based on the circumstances that existed at the time the petition was filed, the beneficiary of the petition qualified for the requested classification.” (2) “An alien seeking to adjust his status may prove that a previously denied visa application was meritorious in fact by making an appropriate factual showing in removal proceedings, subject to any applicable evidentiary and procedural rules.” (3) “We find nothing in the applicable statutes or regulations that prevents an IJ in removal proceedings from considering other evidence that a petition was approvable when filed, even if that evidence was never submitted in conjunction with the original petition.” [As noted by dissent on review of the majority opinion, but this would be qualified by the last phrase of (2) above.]Also, the petitioner had not provided sufficient documentation of the beneficiarys previous R-1employment. The beneficiary fell out of status and worked without authorization and wasthereby ineligible for any change or extension of non-immigrant status. AAO acknowledged thispart of the Director’s Decision but did not address it on the merits as there is NO APPEAL froma denial of an extension or change of NIV status.Aug262010_03D13101.pdf APPEAL DISMISSED.Although position title is “missionary” the petitioner has failed to establish that the profferedposition is a religious occupation within the meaning of the regulation.Aug272010_05D13101.pdf APPEAL DISMISSED.The job as a “fencing coach” is NOT a religious occupation.Aug272010_06D13101.pdf APPEAL DISMISSED.Decision discusses failure to document compensationR-1 AAO Decisions: Candidates for publication??? Page 7