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Special immigrant religious workers 2011 UPDATED
 

Special immigrant religious workers 2011 UPDATED

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UPDATED on June 10, 2012, with additional cases and comments.

UPDATED on June 10, 2012, with additional cases and comments.

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    Special immigrant religious workers 2011 UPDATED Special immigrant religious workers 2011 UPDATED Document Transcript

    • Special Immigrant Religious Workers 2011 As of April 6, 2012(Updated June 10, 2012—New additions from page 9.) Administrative Decisions [non-precedential]The USCIS Administrative Appeals Office (AAO) has jurisdiction over theappeals from decisions on most immigration petitions and applications that areentered by USCIS Service Centers, District, and Field Office Directors.There are numerous types of petitions and applications within the AAO’sjurisdiction, including employment-based immigration petitions, various waivers,legalization, and temporary protected status applications. The AAO producesappellate decisions that provide fair and legally supportable resolutions ofindividual applications and petitions for immigration benefits. These decisionsprovide guidance to applicants, petitioners, practitioners and government officialsin the correct interpretation of immigration law, regulations and policy. Somebecome Precedents pursuant to 8 CFR § 103.3(c) as shown: (c) Service precedent decisions. The Secretary of Homeland Security, or specific officials of the Department of Homeland Security designated by the Secretary with the concurrence of the Attorney General, may file with the Attorney General decisions relating to the administration of the immigration laws of the United States for publication as precedent in future proceedings, and upon approval of the Attorney General as to the lawfulness of such decision, the Director of the Executive Office for Immigration Review shall cause such decisions to be published in the same manner as decisions of the Board and the Attorney General. In addition to Attorney General and Board decisions referred to in §1003.1(g) of chapter V, designated Service decisions are to serve as precedents in all proceedings involving the same issue(s). Except as these decisions may be modified or overruled by later precedent decisions, they are binding on all Service employees in the administration of the Act. Precedent decisions must be published and made available to the public as described in 8 CFR 103.10(e).The first decision is from February 15, 2011, in category C1 which is for anImmigrant Petition for Special Immigrant Religious Worker Pursuant to Section203(b)(4) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(4),as described at Section 10l(a)(27)(C) of the Act, 8 U.S.C. § 1101(a)(27)(C). Thereare no Precedents yet under the latest regulations.The links show the “date of the decision” the “sequential number of decisions inthat category for that date” by “category” and “INA §”. Page 1 of 16
    • Feb152011_04C1101.pdf [A86 093 987/WAC 06241 54312] DISMISSEDHere is a small excerpt from this decision: “The petitioner is a Christian church. It seeks to classify the beneficiary as a special immigrant religious worker pursuant to section 203(b)(4) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(4), to perform services as a minister. The director determined that the petitioner had not established that the beneficiary had the required two years of continuous, lawful, qualifying work experience immediately preceding the filing date of the petition. * * * * * While the petition was pending, USCIS revised its special immigrant religious worker regulations. Supplementary information published at the time specified: "All cases pending on the rules effective date and all new filings will be adjudicated under the standards of this rule." 73 Fed. Reg. 72276, 72285 (Nov. 26, 2008). The revised USCIS regulation at 8 C.F.R. § 204.5(m)(4) requires the petitioner to show that the beneficiary has been working as a minister or in a qualifying religious occupation or vocation, either abroad or in lawful immigration status in the United States, continuously for at least the two-year period immediately preceding the filing of the petition. The USCIS regulation at 8 C.F.R. § 204.5(m)(11) requires that qualifying prior experience, if acquired in the United States, must have been authorized under United States immigration law. The director denied the petition on March 11, 2009, based on the beneficiarys unauthorized employment during the two-year qualifying period. On appeal, counsel protests that the lawful employment requirement did not exist when the petitioner filed the petition in 2006, and claims that "Congress did not authorize retroactive application" of the revised regulations. The wording of the relevant legislation demonstrates Congresss interest in USCIS regulations and the agencys commitment to combating immigration fraud. Section 2(b) of the Special Immigrant Nonminister Religious Worker Program Act, Pub. L. No. 110-391 (Oct. 10, 2008), reads, in pertinent part: Regulations - Not later than 30 days after the date of the enactment of this Act, the Secretary of Homeland Security shall- (1) issue final regulations to eliminate or reduce fraud related to the granting of special immigrant status for special immigrants described in subclause (II) or (III) of section 101(a)(27)(C)(ii) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(27)(C)(ii)).” Page 2 of 16
    • Mar102011_01C1101.pdf Prior Unfavorable Decision(s) AFFIRMED “The Director, California Service Center, initially approved the employment-based immigrant visa petition. Upon further review, the director determined that the petition had been approved in error and that the beneficiary was not eligible for the classification sought. The director properly served the petitioner with a notice of intent to revoke, and subsequently revoked the approval of the petition. The petitioner appealed the revocation. The Administrative Appeals Office (AAO) remanded the matter for a new decision pursuant to new regulations. The director again revoked the approval of the petition on notice, and certified the notice of revocation to the AAO for review. The AAO affirmed the revocation. The matter is now before the AAO on a motion to reconsider. The AAO will affirm its prior decision. The petitioner is described as an "American Dependency" of the Orthodox Church in Italy. It seeks to classify the beneficiary as a special immigrant religious worker pursuant to section 203(b)(4) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(4), to perform services as an assistant priest. The director determined that the individual who signed the Form 1-360 petition lacks hiring authority. The director also found that the petitioner had not established the existence of a qualifying full-time job offer, noting the beneficiarys secular employment and the lack of evidence that the petitioner has consistently paid the beneficiary at the proffered rate of compensation. The AAO reversed the directors finding regarding the petitioners standing, but affirmed the finding regarding the job offer. ....”Apr082011_01C1101.pdf [WAC 09 180 51280] DISMISSED “The petitioner is a church. It seeks to classify the beneficiary as a special immigrant religious worker pursuant to section 203(b)(4) of the Immigration and Nationality Act (the Act), 8 U.S.C.§ 1153(b)(4), to perform services as an assistant pastor. The director determined that the petitioner had not established that the beneficiary worked in an authorized status while in the United States and thus failed to establish that the beneficiary worked continuously in a qualifying religious occupation or vocation for two full years immediately preceding the filing of the visa petition. * * * * * The issue presented is whether the petitioner has established that the beneficiary was authorized to work in the United States and therefore worked continuously in a qualifying religious vocation or occupation for two full years immediately preceding the filing of the visa petition. ....” Page 3 of 16
    • Apr112011_01C1101.pdf [WAC 0514953080] Revocation AFFIRMED “The petitioner is a church. It seeks to classify the beneficiary as a special immigrant religious worker pursuant to section 203(b)(4) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(4), to perform services as a missionary. The director determined that the petitioner had not established that it has paid the beneficiary the proffered wage or that the beneficiarys services are required. The director concluded that therefore the beneficiary was not qualified for the preference visa classification. On appeal, counsel asserts that the "petition deserves an approval in light of Matter of Ho, in that [the beneficiary] has been faithfully serving the petitioning church during [the] last three years" and has been paid for her services. The petitioner submits additional documentation in support of the appeal. Section 205 of the Act, 8 U.S.C. § 1155, states that the Secretary of the Department of Homeland Security "may, at any time, for what he deems to be good and sufficient cause, revoke the approval of any petition approved by him under section 204." Regarding the revocation on notice of an immigrant petition under section 205 of the Act, the Board of Immigration Appeals has stated: In Matter of Estime, ... this Board stated that a notice of intention to revoke a visa petition is properly issued for "good and sufficient cause" where the evidence of record at the time the notice is issued, if unexplained and unrebutted, would warrant a denial of the visa petition based upon the petitioners failure to meet his burden of proof. The decision to revoke will be sustained where the evidence of record at the time the decision is rendered, including any evidence or explanation submitted by the petitioner in rebuttal to the notice of intention to revoke, would warrant such denial. Matter of Ho, 19 I&N Dec. 582, 590 (BIA 1988)(citing Matter of Estime, 19 I&N 450 (BIA 1987)). By itself, the directors realization that a petition was incorrectly approved is good and sufficient cause for the issuance of a notice of intent to revoke an immigrant petition. Id....” * * * * * Footnote #1 in original: The petition was filed on April 29, 2005. On November 26,2008, U.S. Citizenship and Immigration Services (USCIS) issued new regulations for special Page 4 of 16
    • immigrant religious worker petitions. Supplementary information published with the new rule specified that "All cases pending on the rules effective date ... will be adjudicated under the standards of this rule." As the instant case was not pending on the effective date of the new rule, it is not subject to the evidentiary requirements set forth in the November 2008 regulation.“Fake” or pointless job without proof of pay or less pay than the proffered wage.Apr112011_02C1101.pdf [SRC 06 22853128] DISMISSEDAlien was ordered removed, lost his appeal, ignored the order, and worked withoutauthorization. This Decision thoroughly discusses INA § 245(i) and its completeinapplicability to these cases because unauthorized work does not count for thepetition, therefore the I-360 can never be approved as a basis for later adjustmentunder 245(i).Apr122011_01C1101.pdf [WAC 05 240 51 151] REJECTED & REMANDEDThe above link is to a case that serves as a case study in procedural errors.Apr122011_02C1101.pdf [WAC 0918051506] DISMISSED “The issue presented is whether the petitioner has established that the beneficiary worked continuously in a qualifying religious vocation or occupation for two full years immediately preceding the filing of the visa petition. * * * * * On the Form 1-360, Petition for Amerasian, Widow(er), or Special Immigrant, the petitioner stated that the beneficiary was present in the United States pursuant to an R-l nonimmigrant religious worker visa that expired on August 18, 2007. The petitioner submitted a copy of the beneficiarys Form 1-94, Departure Record, which indicates that he entered the United States on November 14, 2003 in an F -1 nonimmigrant student status. USCIS records indicate that the beneficiary was approved for R-I status from August 11,2004 to March 1,2007 based on a Form 1-129, Petition for a Nonimmigrant Worker, filed on his behalf by the REDACTED INFORMATION (USCIS receipt number EAC 04 113 51820). A request to extend the beneficiarys R-I status (USCIS receipt number WAC 0710951613) was denied on November 3, 2008.”This case discusses Ruiz-Diaz v. U.S. and further explains: “We note that on August 20, 2010, the Ninth Circuit of Appeals reversed and remanded the district courts decision. Ruiz-Diaz v. U.S., 618 F.3d 1055 (9th Cir. 2010). Nonetheless, in accordance with the district courts decision, USCIS implemented a policy tolling the accrual of unlawful status and unauthorized employment until Page 5 of 16
    • September 9, 2010. The requirements for tolling unlawful presence and unauthorized work is set forth in a memorandum from Donald Neufeld, Acting Associate Director of the USCIS Office of Domestic Operations, Clarifying Guidance on the Implementation of the District Courts Order in Ruiz-Diaz v. United States, No. C07-1881RSL (W.D. Wash. June 11, 2009) (August 5, 2009): ....”Apr122011_03C1101.pdf [WAC 06 251 53684] DISMISSEDWho can sign the petition (or application)? Read the above to find out.Apr122011_04C1101.pdf Revoked, Appeal DISMISSED “The issue presented is whether the petitioner has established that it has the continuing ability to pay the beneficiary the proffered wage.” Answer: Nope.During a site visit from an Immigration Officer, the pastor fessed-up that they hadfinancial problems and could not pay the beneficiary the proffered wage. Theyasked for discretionary relief but there is no such relief available.Apr122011_05C1101.pdf SUMMARILY DISMISSED “On appeal, counsel generally asserts that the directors decision was "erroneous and not in compliance with the immigration rules and policies and recites portions of the regulation." Counsel, however, provides no specific argument related to the denial of this petition and does not identify any conclusion of the director that was erroneous or not in compliance with the regulation.”I would have referred “Counsel” to the BIA for Disciplinary action.Apr142011_01C1101.pdf Appeal Rejected but REMANDED to treat as a Motion “...[T]he director properly served the petitioner with a Notice of Intent to Revoke the approval of the visa petition and her reasons for doing so, and subsequently exercised her discretion to revoke approval of the petition on June 1, 2009. The petition is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be rejected as untimely filed. The AAO will return the matter to the director for consideration as a motion to reopen.” * * * * * “Here, the untimely appeal meets the requirements of a motion to reopen. The official having jurisdiction over a motion is the official who made the last decision in the proceeding, in this case the service center director. See 8 C.F.R. § 103.5(a)(l)(ii). Therefore, the director must consider the untimely appeal as a motion to reopen and render a new decision accordingly.” Page 6 of 16
    • Apr142011_02C1101.pdf [WAC 05 207 52286] REMANDED to treat as aMotion because the same mistake was made as in the preceding case. “The record indicates that the director issued the decision on August 28, 2009. It is noted that the director improperly advised the petitioner that it had 30 days in which to file the appeal. The regulation at 8 C.F.R. § 205.2(d) provides the petitioner a period of only 15 days within which to submit an appeal from a notice of revocation of approval of a petition. The regulation is binding on U.S. Citizenship and Immigration Services (USCIS) employees in their administration of the Act, and USCIS employees do not have the authority to extend that filing period. See. e.g. Panhandle Eastern Pipe Line Co. v. Federal Energy Regulatory Commission, 613 F.2d 1120 (C.A.D.C., 1979) (an agency is bound by its own regulations); Reuters Ltd. v. FCC. 781 F.2d 946, (C.A.D.C..1986) (an agency must adhere to its own rules and regulations; ad hoc departures from those rules, even to achieve laudable aims, cannot be sanctioned). An agency is not entitled to deference if it fails to follow its own regulations. U.S. v. Heffner, 420 F.2d 809. (C.A. Md. 1969) (government agency must scrupulously observe rules or procedures which it has established and when it fails to do so its action cannot stand and courts will strike it down); Morton v. Ruiz, 415 U.S. 199 (1974) (where the rights of individuals are affected, it is incumbent upon agencies to follow their own procedures).”See also United States v. Nixon, 418 U.S. 683, 695-96 (1974) (holding thatgovernment officials are bound to adhere to the governing statute andregulations). 1Apr142011_03C1101.pdf [WAC 06 276 52142] Certified Denial AFFIRMED “The Director, California Service Center, denied the employment-based immigrant visa petition. The Administrative Appeals Office (AAO) remanded the matter for consideration under new regulations. The director again denied the petition and, following the AAOs instructions, certified the decision to the AAO for review. The AAO will affirm the directors decision. The petition will be denied.”The above case had multiple issues as to the position qualifying as a religiousoccupation, the beneficiary’s qualifications, and the compensation for the prior twoyears or in the future. I would also have questioned whether the petitioningorganization was eligible to file. It was more-or-less an ethnic neighborhood’scommunity-cultural center rather than a true religious organization. In other words,the petitioning organization appeared to be nothing more than a CBO (CommunityBased Organization). The beneficiary was basically volunteering in the CBO as acivics and English teacher helping to prepare folks to apply for naturalization and1 From a non-precedent at: Apr052011_03F1101.pdf or http://www.uscis.gov/err/F1%20-%20Petitions%20for%20Orphans/Decisions_Issued_in_2011/Apr052011_03F1101.pdf Page 7 of 16
    • helping them prepare for naturalization interviews as well as preparing somemeals. I’m guessing it was an ethnic Senior Center.Apr152011_01C1101.pdf [WAC 0710150564] APPEAL SUSTAINED “The Director, California Service Center, denied the employment-based immigrant visa petition. The Administrative Appeals Office (AAO) remanded the matter for consideration under new regulations. The director again denied the petition and, following the AAOs instructions, certified the decision to the AAO for review. The AAO withdrew the directors decision and again remanded the matter for further action and consideration. The director denied the petition a third time, and the petitioner appealed that decision to the AAO. The AAO will withdraw the directors decision and approve the petition.” * * * * * “The petitioner filed the Form 1-360 petition on February 23, 2007. The AAO has previously withdrawn denial decisions issued on July 13, 2007, and May 5, 2009, and stated that the only remaining issue left to resolve concerns the nature of the beneficiarys intended work. The AAOs remand order of August 25, 2009 details the early procedural history of this petition, and we need not repeat those details here. Instead, we incorporate the 2009 decision by reference.” * * * * * “On appeal from the latest decision, the petitioner protests: we believe that this time the Director again simply concurred with the AAO s concerns in regard to the nature of the beneficiary s duties ... without taking the time to review submitted evidence [in response to] the second RFE or simply discounting it as insufficient again. The record is consistent with this complaint. The director, in the latest denial notice, focused on the less-detailed original job description, and did not acknowledge the new details that the petitioner subsequently provided.” [Emphases added.]Aug252009_01C1101.pdf [WAC 07 101 50564] 2ND REMAND “The Director, California Service Center, denied the employment-based immigrant visa petition. The Administrative Appeals Office (AAO) remanded the matter for consideration under new regulations. The director again denied the petition and, following the AAOs instructions, certified the decision to the AAO for review. The AAO will withdraw the directors decision; however, because the petition is not approvable, the AAO will again remand the matter for further action and consideration.”Apr192011_01C1101.pdf [WAC 09 182 50525] DISMISSEDApr202011_01C1101.pdf [WAC 09 20 I 52022] REJECTED or in the alternativeSUMMARILY DISMISSED Page 8 of 16
    • Apr212011_01C1101.pdf [WAC 0919951210] REJECTED or in the alternativeDISMISSEDApr212011_02C1101.pdf [WAC 09 225 51825] REJECTED or in the alternativeSUMMARILY DISMISSEDApr212011_03C1101.pdf REJECTED and REMANDED for the limited purposeof the reissuance of the decision (to the proper party).Apr262011_01C1101.pdf REMANDEDJul212011_01C1101.pdf 2ND REMAND “The Director, Nebraska Service Center (NSC), initially approved the employment based immigrant visa petition. Upon further review, the director determined that the petition had been approved in error. The NSC director properly served the petitioner with a notice of intent to revoke and subsequently revoked the approval of the petition. The petitioner appealed the matter to the Administrative Appeals Office (AAO). The AAO remanded the matter for consideration under revised regulations, and the Director, California Service Center (CSC), denied the petition under the revised regulations, and certified that decision to the AAO for review. The AAO will withdraw the directors decision and again remand the matter to the director for further consideration and action.”The above are links to the AAO non-precedents posted for .2011, as of April 6, 2012 plus one earlier related case. . The following additions were run across on June 9, 2012.Apr212011_02C1101.pdf The AAO will reject the appeal as untimely, witha summary dismissal in the alternative.Apr212011_03C1101.pdf The AAO will reject the appeal and return thepetition for further action by the director. * * * * *We note, at the same time, that the director sent the notice of decision not to theself-petitioning alien, but to the church, presumably because the Form 1-360identified the church as the petitioner. Thus, the director has never issued anyrelevant notices to the petitioner himself. * * * * *Here, because the director never sent any denial notice to the self-petitioning alien,the director has arguably never served the notice of denial. Thus, the self- Page 9 of 16
    • petitioning alien has never had the opportunity to file a timely appeal. The directormust reissue the denial notice in order to give the actual petitioner that opportunity.Apr262011_01C1101.pdf The decision of the director will be withdrawnand the petition will be remanded for further action and consideration. * * * * *This matter will be remanded. The director may request any additional evidencedeemed warranted and should allow the petitioner to submit additional evidence insupport of its position within a reasonable period of time. As always in theseproceedings, the burden of proof rests solely with the petitioner. Section 291 of theAct, 8 U.S.C. § 1361.ORDER: The directors decision is withdrawn. The petition is remanded to the director for further action in accordance with the foregoing and entry of a new decision, which, if adverse to the petitioner, is to be certified to the AAO for review. * * * * *[ROP appeared to be incomplete. The denial referenced a document not foundtherein and is disputed as to its contents. The appeal was accompanied by a copy ofa document that contained information that partially matched that referenced by thedirector and refuted what was included in the denial but without support in therecord. That was a “clear error” and it was “substantive”. Giving the benefit of thedoubt to the petitioner/applicant is a longstanding traditional practice in theimmigration benefits context. Here, the mismatch in information and the missingdocument referenced by the decision casts doubt on the initial agency decision.Was an adjudicator confused? Was a denial being reused and certain unrelatedverbiage was left where it did not belong? It needed a “do-over”.]May112011_03C1101.pdf Appeal Rejected, Remanded to Treat as MTRThe petitioner is a church. It seeks to classify the beneficiary as a specialimmigrant religious worker pursuant to section 203(b)(4) of the Immigration andNationality Act (the Act), 8 U.S.C. § 1153(b)(4), to perform services as its seniorpastor. The director determined that the petitioner had not responded to the NOIR.The NOIR advised the petitioner that, as a result of an onsite review of itspremises, it failed to establish that the beneficiary worked continuously in aqualifying religious occupation or vocation for two full years immediatelypreceding the filing of the visa petition and that the petitioner operated in thecapacity claimed in the petition . * * * * * Page 10 of 16
    • The record indicates that the director issued the decision on October 2, 2009. It isnoted that the director improperly advised the petitioner that it had 30 days inwhich to file the appeal. The regulation at 8 C.P.R. § 205.2(d) provides thepetitioner a period of only 15 days within which to submit an appeal from a noticeof revocation of approval of a petition. .... * * * * *Here, the untimely appeal meets the requirements of a motion to reopen andreconsider. The official having jurisdiction over a motion is the official who madethe last decision in the proceeding, in this case the service center director. See 8C.F.R. § 103.5(a)(1)(ii). Therefore, the director must consider the untimely appealas a motion to reopen and reconsider and render a new decision accordingly.May172011_04C1101.pdf Denial Withdrawn, RemandedDISCUSSION: The Director, California Service Center, denied the employment-based immigrant visa petition. The matter is now before the AdministrativeAppeals Office (AAO) on appeal. The AAO will withdraw the directors decision.Because the record, as it now stands, does not support approval of the petition, theAAO will remand the petition for further action and consideration.The petitioner is a Pentecostal Christian church. It seeks to classify the beneficiaryas a special immigrant religious worker pursuant to section 203(b)(4) of theImmigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(4), to performservices as a minister. The director determined that the petitioner had notestablished that the beneficiary had the requisite two years of continuous, lawfulwork experience immediately preceding the filing date of the petition.On appeal, the petitioner submits arguments from counsel and copies of thebeneficiarys employment authorization cards. ..... * * * * *Because USCIS records show that the beneficiary applied to renew hisemployment authorization in June 2006, the AAO has reviewed the file for thatapplication. The Director, Texas Service Center, denied the application forabandonment, because the beneficiary had supposedly failed to submit colorphotographs of himself in response to a July 12, 2006 request for evidence.The record proves that the beneficiary did, in fact, respond to that notice on August10, 2008. The beneficiarys response, which the beneficiarys attorney mailed to theTexas Service Center, somehow found its way into the beneficiarys A-file at theCalifornia Service Center instead of the Form 1-765 file at the Texas Service Page 11 of 16
    • Center. Because the photographs never reached the 1-765 file, the director in Texasmistakenly concluded that the petitioner had failed to submit them.The above information strongly suggests that USCIS error is responsible for thelapse in the beneficiarys employment authorization. If the director in Texasreceived the photographs and approved the employment authorization application,then the beneficiary would have held the proper authorization when the two-yearqualifying period began in November 2006.The director must issue a new decision, taking into consideration the evidence thatshows USCIS error with regard to his 2006 application for employmentauthorization, and incorporating any nunc pro tunc remedy that the director maydeem appropriate.Review of the record reveals additional issues of concern that preclude approval ofthe petition. The AAO may cite additional grounds to deny an application orpetition that fails to comply with the technical requirements of the law even if theService Center does not identify all of the grounds for denial in the initial decision.See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D.Cal. 2001), affd, 345 F.3d 683 (9th Cir. 2003); see also Soltane v. DOJ, 381 F.3d143, 145 (3d Cir. 2004) (noting that the AAO conducts appellate review on a denovo basis).May192011_01C1101.pdf DISCUSSION: The Director, California ServiceCenter, denied the employment-based immigrant visa petition and it is now beforethe Administrative Appeals Office (AAO) on appeal. The AAO will withdraw thedirectors decision and remand the petition for further consideration and action.The self-petitioner seeks classification as a special immigrant religious workerpursuant to section 203(b)(4) of the Immigration and Nationality Act (the Act), 8U.S.C. § 1153(b)(4), to perform services as a pastor. The director determined thatthe petitioner had not established that he had received a qualifying job offer andfailed to submit the required attestation.On appeal, counsel asserts that the director overlooked the letter of employmentpreviously submitted. Counsel submits a brief in support of the appeal. * * * * *The issue presented on appeal is whether the petitioner has established that he hasreceived a qualifying job offer. * * * * * Page 12 of 16
    • We find that the record sufficiently establishes that the petitioner has received aqualifying job offer, and we withdraw the directors decision.Nonetheless, the petition cannot be approved as the record now stands. ....May312011_02C1101.pdf Denial Withdrawn, Remanded [MUST READ]ORDER: The directors decision is withdrawn. The petition is remanded to the director for further action in accordance with the foregoing and entry of a new decision which, if adverse to the petitioner, the director must certify to the Administrative Appeals Office for review.Jun012011_01C1101.pdf Denial Affirmed on CertificationDISCUSSION: The Director, California Service Center, denied the employment-based immigrant visa petition. The Administrative Appeals Office (AAO)remanded the matter for consideration under new regulations. The Director,California Service Center, again denied the petition and, following the AAOsinstructions, certified the decision to the AAO for review. The AAO will affirm thedirectors certified decision.The self-petitioner seeks classification as a special immigrant religious workerpursuant to section 203(b)(4) of the Immigration and Nationality Act (the Act), 8U.S.C. § 1153(b)(4), to perform services as a pastor.FN1 The director determinedthat the petitioner had not established that he worked continuously in a qualifyingreligious occupation or vocation for two full years prior to the filing of the petition. * * * * *FN1 The beneficiary signed the Form 1-360, Petition for Amerasian, Widow(er), orSpecial Immigrant, submitted with the initial filing. In response to a request forevidence dated July 25, 2007 and in accordance with the directors instructions, anew Form I-360, signed by the prospective employer, was submitted. However, thedirector had no authority to have the prospective employer submit a new petitionwithout a fee. Pursuant to section 286(m) of the Act, 8 U.S.C. § 1356, USCIS isrequired to recover the full cost of adjudication. USCIS cannot adjudicate separatedecisions on a single fee. The AAO erroneously continued the error when it issueda remand. However, the error is harmless as the same counsel represents both theself-petitioner and the prospective employer and received and responded to allnotices and decisions. Page 13 of 16
    • Jun012011_02C1101.pdf Revocation Upheld, Appeal DismissedDISCUSSION: The Director, Nebraska Service Center (NSC), initially approvedthe employment-based immigrant visa petition. On further review, the Director,NSC determined that the petitioner was not eligible for the visa preferenceclassification. Accordingly, the Director, NSC properly served the petitioner with aNotice of Intent to Revoke (NOIR) approval of the visa petition and his reasons fordoing so. On November 24, 2008, the petitioner was again notified that the petitionwas approved. However, following another review of the record, the Director,California Service Center (the director), to whom jurisdiction of Forms I-360,Petitions for Amerasian, Widow(er), or Special Immigrant, had been transferred,determined that the petitioner was not eligible for the visa classification and againnotified the petitioner of her intent to withdraw approval of the petition. Thedirector subsequently exercised her discretion to revoke approval of the petition onOctober 23, 2009. The petition is now before the Administrative Appeals Office(AAO) on appeal. The appeal will be dismissed.Jun022011_01C1101.pdf Appeal DismissedEntered as valid R-1 but switched employers without authorization and otherissues.Jun212011_01C1101.pdf Denial Withdrawn, Case RemandedDISCUSSION: The Director, Vermont Service Center, denied the employment-based immigrant visa petition and also denied a subsequent motion to reopen. Thematter is now before the Administrative Appeals Office (AAO) on appeal. TheAAO will withdraw the directors decision and remand the petition to theCalifornia Service Center for further consideration and action.[During the course of processing, this became a centralized filing at CSC.]Jun282011_01C1101.pdf DismissedThe petitioner is a church. It seeks to classify the beneficiary as a specialimmigrant religious worker pursuant to section 203(b)(4) of the Immigration andNationality Act (the Act), 8 U.S.C. § 1153(b)(4), to perform services as anassistant pastor. The director determined that the petitioner had not establishedhow it intends to compensate the beneficiary and that it has established a need forthe beneficiarys services. Page 14 of 16
    • Jul072011_01C1101.pdf DismissedThe petitioner is a church. It seeks to classify the beneficiary as a specialimmigrant religious worker pursuant to section 203(b)(4) of the Immigration andNationality Act (the Act), 8 U.S.C. § 1153(b)(4), to perform services as a bibleteacher. The director determined that the petitioner had not established that it is abona fide nonprofit religious organization, that it exists as a religious organization,and that there is a valid job offer to the beneficiary.[AAO found additional reasons against approval.]Jul122011_02C1101.pdf Appeal Rejected, Remanded to Treat as MTRDISCUSSION: The Director, California Service Center, denied the employment-based immigrant visa petition and it is now before the Administrative AppealsOffice (AAO) on appeal. The appeal will be rejected as untimely filed. The AAOwill return the matter to the director for consideration as a motion to reopen. * * * * *Neither the Immigration and Nationality Act (the Act) nor the pertinent regulationsgrant the AAO authority to extend the 33-day time limit for filing an appeal. As theappeal was untimely filed, the appeal must be rejected. Nevertheless, the regulationat 8 C.F.R. § 103.3(a)(2)(v)(B)(2) states that, if an untimely appeal meets therequirements of a motion to reopen or a motion to reconsider, the appeal must betreated as a motion, and a decision must be made on the merits of the case.Jul212011_01C1101.pdf RemandedDISCUSSION: The Director, Nebraska Service Center (NSC), initially approvedthe employment based immigrant visa petition. Upon further review, the directordetermined that the petition had been approved in error. The NSC director properlyserved the petitioner with a notice of intent to revoke. and subsequently revokedthe approval of the petition. The petitioner appealed the matter to theAdministrative Appeals Office (AAO). The AAO remanded the matter forconsideration under revised regulations. and the Director, California ServiceCenter (CSC), denied the petition under the revised regulations. and certified that Page 15 of 16
    • decision to the AAO for review. The AAO will withdraw the directors decisionand again remand the matter to the director for further consideration and action.[Multiple issues, big and small.]Jul272011_01C1101.pdf RemandedDISCUSSION: On January 30, 2009, the Director, California Service Center,denied the employment-based immigrant visa petition. The petitioners March 2,2009 appeal/motion to reopen was rejected by the director as untimely filed. Thedirector granted the petitioners motion to reopen its decision and again denied thepetition on November 17, 2009. The matter is now before the AdministrativeAppeals Office (AAO) on appeal. The decision of the director will be withdrawnand the petition will be remanded for further action and consideration.[Sloppy processing below. How can an I-290B submitted on March 2, 2009, for adenial dated January 30, 2009, (delivered by mail) be untimely? There were 28days in Feb. 2009, and one more in January after date of denial plus two in Marchwhich equals 31 days, so even if the actual date of denial were added, that is only32 days and if someone mistook it for a leap year, it still have been 33 days. Thiswas not addressed to my satisfaction in the AAO decision.]ORDER: The directors decision is withdrawn. The petition is remanded to the director for further action in accordance with the foregoing and entry of a new decision, which, if adverse to the petitioner, is to be certified to the AAO for review. Page 16 of 16