Special immigrant religious workers aao decisions 2010 6 22-2011
 

Special immigrant religious workers aao decisions 2010 6 22-2011

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Special immigrant religious workers aao decisions 2010 6 22-2011 Special immigrant religious workers aao decisions 2010 6 22-2011 Document Transcript

  • Special Immigrant Religious WorkersAdministrative DecisionsThe USCIS Administrative Appeals Office (AAO) has jurisdiction over the appeals fromdecisions on most immigration petitions and applications that are entered by USCIS ServiceCenters, District, and Field Office Directors.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 produces appellate decisions that provide fair and legallysupportable resolutions of individual applications and petitions for immigration benefits. Thesedecisions provide guidance to applicants, petitioners, practitioners and government officials inthe correct interpretation of immigration law, regulations and policy. Some become Precedents.These linked decisions are published in PDF format. You will need Adobe Reader 8 or higher toview them.The links show the “date of the decision” the “sequential number of decisions in that category forthat date” by “category” and “INA §”.The first decision is from January 5, 2010, in category C1 which is for an Immigrant Petition forSpecial Immigrant Religious Worker Pursuant to Section 203(b)(4) of the Immigration andNationality Act (the Act), 8 U.S.C. § 1153(b)(4), as described at Section 10l(a)(27)(C) of theAct, 8 U.S.C. § 1101(a)(27)(C). There are no Precedents yet under the latest regulations.C1 - Immigrant Religious Workers Decisions_Issued_in_2010Jan052010_01C1101.pdf REMANDED. 1.) The occupation of a translator of religious text including the Bible and associated writings of specific religious leaders of the denomination is a religious occupation. 2.) “The present petition was still pending on November 26, 2008, and therefore the new regulations apply to the petition. Nevertheless, the director denied the present petition under the old regulations, rather than under the new regulations. Therefore, the director erroneously based the decision on obsolete regulations that were no longer in effect at the time of the decision. The director must make the initial determination as to whether or not the petitioner has met the new regulatory requirements.” 3.) “ The director must issue a new decision based on the new regulations promulgated on November 26, 2008.” 4.) “Because the new regulations include substantial new evidentiary requirements, the director must also afford the petitioner an opportunity to submit all such evidence that the petitioner did not initially submit, or that the director has not previously requested. 8 C.F.R. § 103.2(b)(8). As always in these proceedings, the burden of proof rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361.”I-360 Religious Worker Decisions: Candidates for Precedent?????? Page 1
  • Jan052010_02C1101.pdf Motion DISMISSED as improperly filed.The beneficiary of a visa petition as well as his/her attorney or accredited representative may notfile a motion or appeal as the beneficiary is not an affected party of a visa petition, only thepetitioner is. Only a petitioner or his/her qualified representative may file an appeal or motion ina visa petition proceeding. This decision is instructive on procedural nuances on a revokedpetition and challenges to that revocation.Jan062010_01C1101.pdf Denial AFFIRMED on CERTIFICATION.This decision is instructive on procedural nuances and burden of proof. No evidence submitted.Jan062010_02C1101.pdf Denial AFFIRMED on CERTIFICATION.This decision is instructive on procedural nuances and burden of proof. Insufficient and non-qualifying evidence submitted. B-2 overstay who had vast majority of income from unauthorizedsecular employment is not only ineligible for the type of work in the previous two years but alsothe fact that is was unauthorized employment by a B-2 overstay. There is a discussion ofCongressional Intent to combat fraud which is stated in the legislation itself.Jan072010_01C1101.pdf Denial AFFIRMED on CERTIFICATION. “The 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. .... Therefore, the petitioner must establish that the beneficiary was continuously performing qualifying religious work throughout the two years immediately prior to [the filing date.]”Jan072010_02C1101.pdf Denial AFFIRMED on CERTIFICATION. “Section 205 of the Act, 8 U.S.C. § 1155, states: "The Secretary 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 explanationI-360 Religious Worker Decisions: Candidates for Precedent?????? Page 2
  • 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 Dec. 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. The approval of a visa petition vests no rights in the beneficiary of the petition, as approval of a visa petition is but a preliminary step in the visa application process. The beneficiary is not, by mere approval of the petition, entitled to an immigrant visa. Id. at 589.”Jan072010_03C1101.pdf REMANDED. [Good Candidate for Precedent.]A U.S. petitioner cannot be found to be inadmissible for having committed fraud andmisrepresentation. The petitioner could be subject to criminal prosecution for some other statutebut not under the INA. “We note that, while it is certainly possible for an organization or corporation based in the United States to commit fraud or misrepresentation on behalf of an alien, the directors citation of section 212(a)(6)(C)(i) of the Act is misplaced. That section reads as follows: "Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act is inadmissible." Whatever other civil or criminal penalties may result from such behavior, a United States entity cannot be in violation of section 212(a)(6)(C)(i) of the Act, because the entity is not an alien that can be found inadmissible.” ***** “On appeal, counsel argues that the director ignored documentation of the beneficiarys ministerial credentials and other evidence that the petitioner is a bona fide, fully functioning church. Counsel observes that, because [redacted] is an unpaid, volunteer member of the petitioners board of trustees (as noted by the officer who visited the church and spoke to him), it is unremarkable that [redacted] has a job outside the church. The petitioner submits a copy of the 2008 edition of IRS Publication 5 17, Social Security and Other Information for Members of the Clergy and Religious Workers. Page 8 of that publication states: "Ordained, commissioned, or licensed ministers of the gospel may be able to exclude the rental allowance or fair rental value of a parsonage that is provided to them as pay for their services. ....This exclusion applies only for income tax purposes. It does not apply for [self-employment] tax purposes." This provision would explain why the beneficiary reported "self-employment" income over and above his salary from the church. In this context, the amounts shown on the Social Security printout do not strongly suggest outside employment.I-360 Religious Worker Decisions: Candidates for Precedent?????? Page 3
  • For the reasons explained above, we will withdraw the directors stated ground for denial. Nevertheless, USCIS cannot approve the petition until and unless the petitioner resolves certain issues.”Additionally: “....Testimonial claims by the petitioner, the beneficiary, and/or the "friend in Nigeria" cannot and will not suffice in this respect. Going on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Commr. 1998) (citing Matter of Treasure Crafl of California, 14 I&N Dec. 190 (Regl. Commr. 1972)).Jan072010_04C1101.pdf WITHDRAWN. “A withdrawal may not be retracted and may not be refused. Matter of Cintron, 16 I&N Dec. 9 (BIA 1976).”Matter of Citron, 16 I&N Dec. 9 676 (BIA 1993) held: “The United States citizen petitioner submitted a letter to the District Director requesting that the visa petition filed to accord his spouse immediate relative classification be withdrawn. The letter request was acknowledged by the District Director, but he subsequently ordered the petition denied. In view of the petitioners letter request that the petition be withdrawn, the denial by the District Director was erroneous, and it is the order of the Board that the record reflect that the petition was withdrawn by petitioner.”The entire text of the Citron decision is: “The United States citizen petitioner filed a visa petition in behalf of the beneficiary as his spouse under section 201(b) of the Immigration and Nationality Act. He subsequently submitted a letter withdrawing the petition. In a decision dated October 9, 1975, the District Director acknowledged having received the letter withdrawing the petition but nevertheless ordered the petition be denied. The petitioner has appealed from the District Directors decision refusing to consider the petition withdrawn. The appeal will be sustained. Just as any United States citizen or lawful permanent resident may file a visa petition in behalf of an alien, so may he withdraw the petition before a decision has been rendered. The action of the District Director in refusing to consider the petition withdrawn was erroneous. Accordingly, we shall sustain the appeal and order the record to reflect that the petition has been withdrawn. ORDER: The appeal is sustained; the visa petition filed by the petitioner in behalf of the beneficiary has been withdrawn.”I-360 Religious Worker Decisions: Candidates for Precedent?????? Page 4
  • The BIA cited absolutely no legal basis for its conclusory opinion in that September 3, 1976,Precedent Decision. It appears to have simply been a Policy Statement seen as appropriate at thetime and nothing more. It does not deserve such status as a Precedent and certainly should not begiven deference in this day and age.Recently, the AAO has cited to this decision frequently, and it could invade the psyche ofadjudicators in inappropriate contexts. The AAO has been citing without the footnotes found inearlier AAO non-precedent Decisions such one dated April 26, 20063, which involved therevocation of an E1-3 Multinational Manager or Executive I-140 Immigrant Petition. TheService Center Director had approved the petition then discovered that it was an incorrectdecision. The text of that AAO Decision1 with its noteworthy footnotes, which is linked in thefootnote below, is as follows: “DISCUSSION: The Director, California Service Center, approved the employment- based petition1. Approval of the immigrant visa petition was subsequently revoked by the director on March 10, 2006. The matter is now before the Administrative Appeals Office (AAO) on certification from the director. The record reflects that the petitioner submitted a letter prior to the directors revocation requesting that the immigrant petition be withdrawn. Consequently, the AAO will withdraw the directors decision. The petitioner filed the instant immigrant petition to classify the beneficiary as a multinational manager or executive pursuant to section 203(b)(l)(C) of the Immigration and Nationality Act (the Act, 8 U.S.C. § 1153(b)(l)(C). The petitioner is a corporation organized under the laws of the State of California that is engaged in the business of trading textiles. The petitioner seeks to employ the beneficiary as its president. Counsel for the petitioner submitted a letter, dated February 22, 2006, requesting that the immigrant petition be withdrawn. In a decision dated March 10, 2006, the director revoked approval of the immigrant petition, concluding that the petitioner had not demonstrated that: (1) the beneficiary would be employed by the United States entity in a primarily managerial or executive capacity; (2) a qualifying relationship existed between the foreign and United States entities at the time of filing the petition; or (3) at the time the priority date was established, the petitioner demonstrated its ability to pay the beneficiary his proffered salary. The director certified the matter to the AAO. Upon review, in view of the petitioners request that the petition be withdrawn, the directors revocation of approval of the petition is erroneous. As noted in Matter of Cintron, 16 I&N Dec. 9 (BIA 1976), "[j]ust as any United States citizen or lawful permanent resident may file a visa petition in behalf of an alien, so may he withdraw the petition before a decision has been rendered." Accordingly, the directors decision is withdrawn. The record will reflect that the immigrant petition was withdrawn by the petitioner.21 http://www.uscis.gov/err/B4%20-%20Multinational%20Managers%20and%20Executives/Decisions_Issued_in_2006/Apr262006_01B4203.pdfI-360 Religious Worker Decisions: Candidates for Precedent?????? Page 5
  • ORDER: The directors March 10, 2006 decision is withdrawn. The immigrant visa petition filed by the petitioner in behalf of the beneficiary is withdrawn. (Footnotes from Original:) 1 On March 21, 2003, following approval of the immigrant visa petition, the director reopened the matter, and consequently issued a notice of decision in which he determined that the petitioner had not established its eligibility to classify the beneficiary as a multinational manager or executive. On appeal, the AAO withdrew the directors decision, stating that he had failed to comply with the regulation at 8 C.F.R. § 205.2, requiring that Citizenship and Immigration Services (CIS) issue a notice of intent to revoke approval of the petition. The AAO remanded the matter to the director. The record reflects that the director issued a notice of intent to revoke, however, the notice was sent to the petitioners counsel at an outdated address. The AAO again withdrew the directors decision to revoke approval of the petition, and remanded the matter to the director with instructions to resend the notice of intent to revoke to the correct address of record. 2 The AAO notes that while a request for withdrawal precludes a decision on the merits, a withdrawal will not prevent the director from entering a separate finding of fraud on a petition if the petitioner is found to have attempted to procure a visa through misrepresentation or fraud.”I urge USCIS to revisit its stand on the option vs. the right to withdraw an application orpetition especially when there is a reasonable basis to suspect fraud or any other illegal or illicitmotive for such withdrawal. Not every case will be suspect nor should every case be pursued as amatter of routine, but when known fraud indicators or blatant and glaring facts leap from thepages in a file, they should not be ignored. The world has changed and so must we all changewith it.Jan072010_05C1101.pdf WITHDRAWN.Jan132010_01C1101.pdf DISMISSED. Unlawfully employed beneficiary.Jan132010_02C1101.pdf REMANDED.Pending Appeal or Motion when new regulations were filed are also subject to the newregulations because the underlying decision was not final. “As required under section 2(b)(l) of the Special Immigrant Nonminister Religious Worker Program Act, Pub. L. No. 110-391, 122 Stat. 4193 (2008), U.S. Citizenship and Immigration Services (USCIS) promulgated a rule setting forth new regulations for special immigrant religious worker petitions. Supplementary information published with the new rule specified: "All cases pending on the rules effective date . . . will be adjudicated under the standards of this rule. If documentation is required under this rule that was notI-360 Religious Worker Decisions: Candidates for Precedent?????? Page 6
  • required before, the petition will not be denied. Instead the petitioner will be allowed a reasonable period of time to provide the required evidence or information." 73 Fed. Reg. 72276, 72285 (Nov. 26, 2008). Section 557(b) of the Administrative Procedure Act (APA), 5 U.S.C. § 557(b), provides that an initial agency decision is not final if "there is an appeal to, or review on motion of, the agency within time provided by rule." As this case was pending on appeal when the regulation went into effect, it is therefore subject to the new rule. ORDER: The matter is remanded to the director, California Service Center, for the issuance of a request for evidence (if necessary) and a new decision in accordance with the requirements of the new regulation published at 73 Fed. Reg. 72276 (Nov. 26, 2008). If the new decision is adverse to the petitioner, it shall be certified to the AAO for review.”Jan132010_03C1101.pdf Appeal DISMISSED.Taxi/limo driver is not a religious occupation OR “Just HOW stupid do you think USCIS is?”Jan132010_04C1101.pdf REMANDED.The Director issued an insufficient RFE and then misinterpreted the evidence. The stated basisfor denial is withdrawn and the director may issue a new RFE and offer the petitioner a“reasonable period of time” in which to provide specific evidence. The regulations listedspecific documentation that was not listed in the RFE. AAO did not say it those exact words butthat was the gist of it.Jan142010_01C1101.pdf Denial AFFIRMED on CERTIFICATION.Case was denied, appealed, remanded due to new regulations, new RFE sent but no response wasreceived. They gave up.Jan142010_02C1101.pdf Denial AFFIRMED on CERTIFICATION.Decision discusses insufficient evidence of qualifying work in required period and allowablebreak requirements as well as membership in the petitioner’s denomination.Jan142010_03C1101.pdf Denial AFFIRMED on CERTIFICATION.B-1 overstay working without authorization and a whole host of other problems.Jan202010_01C1101.pdf Appeal SUSTAINED, reasons for revocation overcome, prior petitionapproval REINSTATED.Impermissible retroactive application of regulation to case that was NOT still pending at the timeof the new regulations’ publication.I-360 Religious Worker Decisions: Candidates for Precedent?????? Page 7
  • “.... Because the petition had already been approved in 2007, the petition was not "pending on the rules effective date." We agree that the new regulations should not be applied retroactively to proceedings that were already closed before November 26, 2008. A case could be made for applying the regulations to approved petitions that were already in the process of being revoked on November 26, 2008, but this does not apply to the present petition. The director did not commence revocation until April 10, 2009, the date the director issued a notice of intent to revoke the approval of the petition. Because the sole basis for revocation is not permitted under the regulations, the revocation cannot stand, and the AAO hereby withdraws the directors decision. The beneficiary filed a Form 1-485 adjustment application, receipt number LIN 08 251 51533, on September 16,2008. The beneficiarys apparent violation of status might be relevant in the adjustment proceeding. (The cited regulation at 8 C.F.R. § 274a.l2(b)(16) was in effect in 2007.) That proceeding, however, is administratively separate from the present appeal. The AAO has no jurisdiction over the adjudication of the adjustment application, and can issue no instructions to the director with respect to that proceeding. The decision as to whether the beneficiarys alleged violation of status warrants denial of adjustment lies with the director alone. The approval of a visa petition vests no rights in the beneficiary of the petition, as approval of a visa petition is but a preliminary step in the visa application process. The beneficiary is not, by mere approval of the petition, entitled to an immigrant visa. Matter of Ho at 589.”Jan212010_01C1101.pdf Denial AFFIRMED on CERTIFICATION. “The issue presented on certification is whether the petitioner established that the beneficiary had been continuously employed in a qualifying religious vocation or occupation for two full years prior to the filing of the visa petition.” ***** “The petitioners evidence is insufficient to establish that the beneficiary will be working full time in a qualifying religious occupation with the petitioner.”In short, it was bogus job offer at a bogus church that submitted suspected fraud documents asevidence.Jan222010_01C1101.pdf Appeal DISMISSED.Insufficient evidence of beneficiary’s qualifying employment experience as well as other matterspertaining to petitioner’s qualifications.Jan222010_02C1101.pdf WITHDRAWN.I-360 Religious Worker Decisions: Candidates for Precedent?????? Page 8
  • Jan222010_03C1101.pdf Appeal DISMISSED. “.... The director determined that, as the beneficiary had worked in an unauthorized status in the United States during the requisite period, the petitioner had not established that the beneficiary had worked continuously in a qualifying religious vocation or occupation for the two years immediately preceding the filing of the visa petition. On appeal, counsel asserts that the beneficiary was never employed in the United States and thus was not in violation of the regulation. Counsel submits a brief in support of the appeal. ***** The issue presented on appeal is whether the petitioner established that the beneficiary had the requisite two years continuous experience in a religious vocation or occupation for the two years immediately preceding the filing of the visa petition. ***** Therefore, the petitioner must show that the beneficiary had been working 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 petition was filed on December 29, 2008. Accordingly, the petitioner must establish that the beneficiary had been continuously employed in qualifying religious work throughout the two-year period immediately preceding that date.”Counsel’s arguments are directly contradicted by the evidence presented with the petition.Jan222010_04C1101.pdf Appeal DISMISSED.Insufficient and contradictory evidence submitted.Jan222010_05C1101.pdf Appeal DISMISSED. “The issue presented on appeal is whether the petitioner established that the beneficiary had the requisite continuous experience in a religious vocation or occupation for the two years immediately preceding the filing of the visa petition.” ***** “Accordingly, because she was in an unlawful immigration status for seven months of the qualifying period, from April to November 2007, the record does not establish that the beneficiary has worked continuously in a qualifying religious occupation or vocation for two years immediately preceding the filing of the visa petition. Beyond the decision of the director, the petitioner has not established its ability to compensate the beneficiary....”I-360 Religious Worker Decisions: Candidates for Precedent?????? Page 9
  • Jan222010_06C1101.pdf Appeal DISMISSED. “The issue presented on appeal is whether the petitioner has established that the proffered position qualifies as that of a religious occupation.”School petitioned for beneficiary as a grade school teacher. The petitioner could not substantiatethat the position qualifies for the classification.Jan222010_07C1101.pdf REJECTED as untimely (one day late).Jan222010_08C1101.pdf WITHDRAWN.Jan222010_09C1101.pdf Appeal DISMISSED. “...The director determined that the petitioner had failed to establish that the beneficiary had been Engaged continuously in a qualifying religious vocation or occupation for two full years immediately preceding the filing of the petition and that any work he may have performed in the United States during the two years prior to filing the petition was in an authorized status.”The beneficiary entered as a B-2 and performed unauthorized work. It also appears to be a boguspetitioning “church”. “Beyond the decision of the director, the petitioner has failed to establish that the beneficiary will be engaged in full-time employment or how it plans to compensate the beneficiary.”Jan272010_01C1101.pdf Appeal DISMISSED. “The sole issue in this proceeding is whether the beneficiary possesses the required qualifying experience. The U.S. Citizenship and Immigration Services (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 petition was filed on June 4, 2009. Therefore, the petitioner must establish that the beneficiary was continuously performing qualifying religious work throughout the two years immediately prior to that date.”The beneficiary incorporated his own church out of his home and petitioned for himself as a non-immigrant R-1 twice, denied both times then filed the I-360. “USCIS records show that the petitioner filed nonimmigrant petitions on the beneficiarys behalf on March 7, 2005 (receipt number LIN 05 098 50851) and on December 28, 2006 (receipt number WAC 07 063 50491), but the director denied both of these petitions. InI-360 Religious Worker Decisions: Candidates for Precedent?????? Page 10
  • denying the 2006 petition, the director made a finding of fraud based on "misrepresentations or falsifications of a material fact on the 1-1 29 petition."”The above is another case of “Just HOW stupid do you think USCIS is?”Feb012010_01C1101.pdf REMANDED. “We find that the record sufficiently establishes that the position of headmaster with the petitioning organization is a religious occupation. The record sufficiently establishes that the position is primarily religious in nature and relates to a traditional religious function, i.e., teaching and indoctrinating students in their religious faith. The headmaster is responsible for the overall religious tenor and climate of the school, and he or she is no less responsible for instilling Christian values in the student body than the faculty member who teaches directly from the bible.”Certain additional evidence is required as to other issues. Needs evidence of continuous work inqualifying occupation during prerequisite two-year period and proof of payment for same. “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.”Feb012010_02C1101.pdf Appeal DISMISSED. “...[T]he petitioner has failed to establish that the position of a radio announcer is a religious occupation within the meaning of the regulation. Beyond the decision of the director, the petitioner has failed to establish that her prospective employer is a bona fide religious organization.”Also of note is the fact that the I-360 was signed by the beneficiary who had incorrectly listed theorganization she was affiliated with as the petitioner but this was not a dispositive ordisqualifying error by the self-petitioner. “Part 1 of the Form 1-360, Petition for Amerasian, Widow(er), or Special Immigrant. identifies the [redacted] as the petitioner. Review of the petition, however, indicates that the alien beneficiary is the petitioner. An applicant or petitioner must sign his or her application or petition. 8 C.F.R. § 103.2(a)(2). In this instance, Part 10 of the Form 1-360, "Signature," has been signed not by any church official, but by the alien beneficiary herself. Thus, the alien, and not the church, has taken responsibility for the content of the petition.”Feb012010_03C1101.pdf Appeal DISMISSED. “...[T]he record does not establish that the beneficiary worked in the United States in a lawful immigration status from his entry until his R-1 visa was approved on January 4,I-360 Religious Worker Decisions: Candidates for Precedent?????? Page 11
  • 2008. The Form I-360 indicated that the beneficiary arrived in the United States on September 29, 2006. This information corresponds with a copy of the beneficiarys visa, also submitted by the petitioner, which shows that the beneficiary entered the United States on September 29, 2006 pursuant to a B-2 visitors visa for the purpose of attending a religious conference. The expiration date of the beneficiarys visa was October 26, 2006. In several letters, the petitioner alleged that the beneficiary began working pursuant to an R-1 visa in March 2007. However, while a petition for the beneficiary to receive R-1 status was filed in January 2007, it was not approved until January 2008. Therefore, any work performed by the beneficiary in the United States prior to January 2008 was in an unauthorized immigration status and interrupts the continuous work experience required by the regulation. [Emphasis added.] Accordingly, the record does not establish that the beneficiary has worked continuously in a qualifying religious occupation or vocation for two years immediately preceding the filing of the visa petition. Beyond the decision of the director, the petitioner has not established the prospective employers ability to compensate the beneficiary. ...”Feb012010_04C1101.pdf Denial AFFIRMED on CERTIFICATION. “...On certification, the director determined that the petitioner had not submitted the required attestation, had not established that the position qualifies as that of a religious worker and that the beneficiary seeks to enter the United States to work in a full time compensated religious position.” “...[T]he petitioner has not provided the specific attestation required by 8 C.F.R.§ 204.5(m)(7).” “The record sufficiently establishes that the position of religious education director is a traditional religious function within the petitioners denomination. The petitioner consistently stated that the position required specific skills and performance and a minimum educational requirement. The petitioner also submitted letters from its governing body confirming the role of religious education director in the denomination and the experience and educational requirements for the position. Accordingly, the petitioners evidence sufficiently establishes that the proffered position of religious education director is a religious occupation within the meaning of the statute and regulation, and we withdraw the directors conclusion to the contrary.”The evidence demonstrates a very small membership and insufficient resources and insufficientneed for a full-time religious education director or that the job being offered actually fits that titlebased on a description of the actual duties, as opposed to a generic job description. “...[T]he petitioner has failed to establish that it will offer the beneficiary full-time compensated employment in a qualifying religious occupation.”I-360 Religious Worker Decisions: Candidates for Precedent?????? Page 12
  • Feb012010_05C1101.pdf Appeal DISMISSED.A totally incompetent filing. The petitioner meant to file for an R-1 but filed the wrong form.However, that was the wrong classification in the first place. This case illustrates the level ofincompetence out there among some “accredited representatives”. Hopefully, accreditation waschallenged and withdrawn.Feb052010_01C1101.pdf 2nd REMAND! “...AAO [previously] remanded the petition to the director for consideration and action pursuant to the new regulations. On remand, the director issued the petitioner a Notice of Intent to Deny, advising the petitioner of the deficiencies in its petition, to which the petitioner responded with a letter and 13 exhibits. The director, however, did not address the petitioners response or the new regulations in her certified decision to the AAO. The director erroneously based the certified decision on obsolete regulations that were no longer in effect.” “The matter is [again] remanded to the director for the issuance of a new decision in accordance with the requirements of the new regulation published at 73 Fed. Reg. 72276 (Nov. 26, 2008). If the new decision is adverse to the petitioner, it shall be certified to the AAO for review.”Feb122010_01C1101.pdf Denial AFFIRMED on CERTIFICATION.Even with some errors in the Director’s written decision the case cannot be approvedAdditionally, those errors are not fatal to the Decision and not substantial enough to overturn orremand for a new decision because the petition cannot be approved on substantive prerequisitesand disqualifying unlawful and disruptive acts (unauthorized employment of the beneficiary). “In the certified decision, the director stated that the petitioner seeks to employ the beneficiary as "Director of Media/African-National Outreach Coordinator." Noting this error, counsel stated: "Petitioner is sympathetic to the large caseload of the Service, but it is an egregious violation of procedural due process to deny the churchs case on the grounds that it failed to meet the burden of proof for another organizations petition." The reference quoted above is clearly incorrect, but we do not agree with counsels suggestion that the director essentially adjudicated the wrong petition. Rather, the language appears to have been mistakenly copied from another decision. Elsewhere in the same decision, the director correctly referred to the beneficiary as the "Director of Christian Education/Deaconess," and mentioned [redacted] and several specific pieces of evidence in the record. It is clear, on balance, that the director reviewed the correct record of proceeding in rendering this decision. The one erroneous reference to a different job title appears to be an isolated error, rather than a systematic or substantive error that would invalidate the entire decision.I-360 Religious Worker Decisions: Candidates for Precedent?????? Page 13
  • Counsels brief, like the certified decision, is not free from error. Counsel claims to cite "AAO case law," but instead cites a partially redacted, unpublished appellate decision. While 8 C.F.R. § 103.3(c) provides that AAO precedent decisions are binding on all USCIS employees in the administration of the Act, unpublished decisions are not similarly binding. Furthermore, the cited decision is from 2007, and therefore it has been substantially superseded by new regulations that went into effect in late 2008. Another error appeared in the directors decision, when the director claimed: "On schedule C of Form 1040 for the year 2004, the beneficiarys occupation indicated None. As explained above, it was the beneficiarys spouse, not the beneficiary, who the 2004 tax return showed as having no occupation. Indeed, the director had previously denied the petition because that same 2004 tax return identified the petitioner as a "consultant." As with the error regarding the beneficiarys job title, however, this appears to be isolated. More substantive is the directors finding that: The petitioner has failed to submit the requirements for the position, evidence of how the beneficiary is qualified, training received, and the requirements of the organization for becoming a member of the clergy. Additionally, the Bachelors Degree in Kindergarten Education attained by the beneficiary is issued by a non affiliated entity which requires no proof of religious training. The record does not support the above findings. The petitioners original submission included copies of the beneficiarys Bachelor of Kindergarten Education diploma and transcript from Harris Memorial College. The transcript listed several clearly religious courses, including "Faith and Modem Man," "The Christian and His Faith," "Introduction to the Bible" and "History of Israel & Prophets." Printouts from http://www.harrismemorialcollege.com leave no doubt as to the religious nature of the institution. The colleges vision statement reads: Harris Memorial College, Inc. shall continue to be a United Methodist institution of higher learning, offering education that is Christian in character and holistic in approach. It shall promote academic excellence, servant leadership, and responsible citizenship Harris shall continue as a Center for Deaconess Training and Women Development not only in the Philippines, but also in Asia and in the world. Harris shall provide equal access to quality education for both women and men. Another printout from the web site stated that the Bachelor of Kindergarten Education "program prepares students to become competent Early Childhood Educators with a Christian perspective." The record, therefore, establishes that the beneficiarys degree is from a United Methodist Church-affiliated institution that operates a program specifically for "Deaconess Training." The sufficiency of this training is evident from the previously- quoted letter from [redacted] who confirmed that the beneficiary "was commissioned as Deaconess of The United Methodist Church" in 1992, shortly after her 1991 graduation.I-360 Religious Worker Decisions: Candidates for Precedent?????? Page 14
  • There remains the directors core finding that the petitioner had not established that the beneficiary meets the requirement of two years of continuous, qualifying employment. The USCIS regulations at 8 C.F.R. §§ 204.5(m)(4) and (11) require that all qualifying experience that occurred in the United States must have been authorized under United States immigration law. Here, the record shows that the beneficiary engaged in unauthorized employment at Ark Christian Preschool for nearly all of the two-year qualifying period....”Feb122010_02C1101.pdf REMANDED. “...The director determined that the petitioner had not established that it qualifies as a bona fide tax-exempt religious organization.” ***** “The only stated ground for denial concerned the petitioners tax-exempt status.” ***** “The record contains three versions of an IRS determination letter, affirming the petitioners tax-exempt status. The director denied the petition based on the finding that "[a]ll three letters . . . are identical except for the altered address section on the letters." The record, however, does not support this finding. The format of the earliest submission of the letter is similar, but not identical, to the format of later submissions. For example, in the phrase "Effective Date of Exemption," the earliest letter has the word "Exemption" on the line below the rest of the phrase. Subsequent versions of the letter have the entire phrase on one line. While the director was understandably concerned about the petitioners use of two different addresses, the record shows that one address is the physical location of the church, whereas the other address is that of the house where the beneficiary lived at the time; it was not the address of an unrelated church. Because the record does not support the only stated ground for denial, we must withdraw the directors decision. Nevertheless, review of the record reveals several other factors that prevent approval of the petition.” ***** “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, regardless of the outcome, is to be certified to the Administrative Appeals Office for review.”Feb122010_03C1101.pdf Denial AFFIRMED on CERIFICATION.Nothing submitted in response to certified denial. Petitioner cannot pay beneficiary.Feb172010_01C1101.pdf Appeal SUMMARILY DISMISSED.No brief or evidence submitted.I-360 Religious Worker Decisions: Candidates for Precedent?????? Page 15
  • Feb232010_01C1101.pdf Denial AFFIRMED on CERTIFICATION.Evidence problems are fatal to this petition. “We note that the beneficiary did not file his 2004 federal tax return until 2006 and his daily work schedule was created after the fact. Like a delayed birth certificate, the beneficiarys late filing of his federal tax return, two years after it was due, raises serious questions regarding the truth of the facts asserted. Cf: Matter of Bueno, 21 I&N Dec. 1029, 1033 (BIA 1997); Matter of Ma, 20 I&N Dec. 394 (BIA 199l)(discussing the evidentiary weight accorded to delayed birth certificates in immigrant visa proceedings). Given the discrepancies noted above, the petitioner has failed to establish that the beneficiary was continuously employed in qualifying religious work for two full years preceding the filing of the visa petition. Doubt cast on any aspect of the petitioners proof may, of course, lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the visa petition. Matter of Ho, 19 I&N Dec. at 591. If USCIS fails to believe that a fact stated in the petition is true, it may reject that fact. Section 204(b) of the Act, 8 U.S.C. § 1154(b); see also Anetekhai v. I.N.S., 876 F.2d 1218, 1220 (5th Cir.1989); Lu-Ann Bakery Shop, Inc. v. Nelson, 705 F. Supp. 7, 10 (D.D.C. 1988); Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001).”Feb232010_02C1101.pdf Appeal DISMISSED.[If you’re going to exaggerate at least try harder at it. A sacristan or sexton is an employee orofficer of a church who is responsible for the care and upkeep of church property and sometimesfor ringing bells and digging graves. In other words, Quasimodo is not qualified for a religiousworker visa.] “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 sacristan. The director determined that the petitioner had not established that the position qualifies as that of a religious occupation, that the beneficiary has been working continuously in a qualified religious occupation or vocation, that the petitioner has the ability to pay the beneficiary, and that the petitioner is a bona fide nonprofit religious organization.” ***** “The first issue presented on appeal is whether the petitioner has established that the proffered position qualifies as that of a religious occupation.” ***** “In its undated letter submitted in support of the petition, the petitioner stated that the beneficiary "has performed on a volunteer basis the many duties required of the sexton and caretaker of the church sacristy." In a request for evidence (RFE) dated February 17, 2009, the director instructed the petitioner to:I-360 Religious Worker Decisions: Candidates for Precedent?????? Page 16
  • Provide a detailed description of the work to be done, including specific job duties, level of responsibility/supervision, and number of hours per week to be spent performing each duty. Include a daily and weekly schedule for the proffered position. List the minimum education, training, and experience necessary to do the job and submit documentary evidence to show that the beneficiary has met such requirements. Further, explain how the duties of the position relate to a traditional religious function. [Emphasis in the original.] In a March 27, 2009 letter responding to the RFE, the petitioner repeated the statement that the beneficiary has performed "the many duties required of7 the position, although now referring to the position as sacristan and caretaker. The petitioner did not further expand on the duties performed by the sacristan. The petitioner did, however, include in its list of parish jobs that of a maintenance worker, whose job description indicates that he or she is responsible, under the supervision of the plant manager, "for the operation, maintenance, repair, safety, and security of the entire parish campus and other parish properties." The petitioner provided no similar job description for a sacristan. On appeal, the petitioner states: The position of Sacristan is a primarily religious function, a religious occupation of the Roman Catholic denomination. It is a liturgical function since it supports the celebration of the Eucharistic Liturgy, which is the center and summit of the Roman Catholic Faith. The Sacristan is responsible for the proper preparation of the church facility, the sacred vessels, the sacred vestments, and those things required for the celebration of the Eucharistic Liturgy prior to each Mass. The same dedication and attention is required following the Mass. The Sacristan, in a position of management and oversight, ensures the smooth operation of the Sacristy. In this regard, the Sacristan is primarily a religious occupation, helping to promote the religious creed and beliefs of the Catholic Church. The celebration of the Sacred Liturgy is expected to take place in a sacred space and should be well-maintained, clean and orderly. The Sacristan is responsible therefore for the cleanliness and orderliness of the Church. In addition, the Sacristan helps train the Altar Servers and supervises their ministry at liturgical celebrations. The Sacristan also assists other liturgical ministers including readers, ushers, and greeters at our parish Liturgies. In this regard, the Sacristan also advances the Catholic creed. Specifically, [the beneficiary] was commissioned as a Catechist to teach the faith to our members. The petitioner on appeal also provides a job description for a sacristan with a detailed description of the duties. The petitioner provides no documentation from its governing authorities to indicate that the position is recognized as a religious occupation within the denomination.I-360 Religious Worker Decisions: Candidates for Precedent?????? Page 17
  • Additionally, the petitioner appears to have expanded and changed the duties of the proffered position. The petitioner initially claimed that the beneficiary performed the duties of sexton and caretaker. On appeal, the petitioner asserts that as sacristan, the beneficiary takes care of the facility and all vestments and vessels required for liturgy, that he trains the alter servers and supervises them during liturgy, and that he assists readers, ushers and greeters, as well as now being a catechist. A petitioner must establish eligibility at the time of filing; a petition cannot be approved at a future date after the petitioner or beneficiary becomes eligible under a new set of facts. 8 C.F.R. §§ 103.2(b)(l) and (12); Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971). A petitioner may not make material changes to a petition in an effort to make a deficient petition conform to USCIS requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998). The petitioner has not established that the position of sacristan is a religious occupation within the meaning of the regulation.”Feb232010_03C1101.pdf Appeal REJECTED as improperly filed.A potential employer cannot file an appeal for a denied petition that was signed by thebeneficiary and thus treated as having been filed by a self-petitioner.Feb232010_04C1101.pdf REMANDED. “Despite the issuance of new regulations (which superseded and replaced the old regulations), the director denied the present petition on May 4, 2009 under the old regulations, rather than under the new regulations. Therefore, the director erroneously based the decision on obsolete regulations that were no longer in effect at the time of the decision. The director must issue a new decision based on the new regulations promulgated on November 26, 2008. Because the new regulations include substantial new evidentiary requirements, the director must also afford the petitioner an opportunity to submit all such evidence that the petitioner did not initially submit, or that the director has not previously requested. 8 C.F.R. § 103.2(b)(8). As always in these proceedings, the burden of proof rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. ORDER: The matter is remanded to the director, California Service Center, for the issuance of a request for evidence (if necessary) and a new decision in accordance with the requirements of the new regulation published at 73 Fed. Reg. 72276 (Nov. 26, 2008). If the new decision is adverse to the petitioner, it shall be certified to the Administrative Appeals Office for review.”Feb232010_05C1101.pdf SUMMARILY DISMISSED.No brief or evidence submitted after 13 months.I-360 Religious Worker Decisions: Candidates for Precedent?????? Page 18
  • Feb232010_06C1101.pdf Appeal DISMISSED. “The issue presented on appeal is whether the petitioner has established that it is a bona fide nonprofit religious organization.”Pursuant to a site visit, the USCIS Investigator learned that the person who signed the I-360 haddied and could not find out who took over the responsibilities. The Investigator was refused entryand could not verify any place of worship actually existed inside the residence. There wereunsupported assertions made without any credible evidence. Overzealous counsel furtherattempted to make claims of Constitutional violations of freedom of religion. “Beyond the directors decision, the petitioner has not established that the beneficiary worked continuously throughout the qualifying period.”Feb232010_07C1101.pdf Appeal DISMISSED. “The issue presented on appeal is whether the petitioner established that the beneficiary had been engaged continuously in a qualifying religious vocation or occupation for two full years immediately preceding the filing of the petition.” “On appeal, counsel asserts that the beneficiarys failure to renew his work authorization was through no fault of his own. Counsel submits a letter and additional documentation in support of the appeal.” “...[T]he beneficiary entered the United States on August 16, 1999 and that his nonimmigrant status had expired on February 15, 2000. The petitioner submitted no documentation that the beneficiary was authorized to work in the United States at any time. As cited above, any work by the beneficiary that occurred in the United States in an unauthorized status is not qualifying work for the purpose of this visa petition.”The beneficiary entered as a B-2, apparently switched to an R-1 briefly, filed for adjustment, wasinterviewed and never renewed an EAD, and worked without authorization. The I-485 waseventually denied. Then the instant I-1360 was filed.Feb252010_01C1101.pdf Denial AFFIRMED on CERTIFICATION.A sloppily written decision actually did actually arrive at a correct decision. The beneficiaryactually did have R-1 status that covered the qualifying period but worked outside it parametersin a secular job for someone other than the R-1 petitioner thus disqualifying her experience. “...The director determined that the petitioner had not established that the beneficiary had the requisite two years of continuous, qualifying work experience immediately preceding the filing date of the petition.” “In response to the certified decision, counsel correctly observes that much of the decision rests on derogatory information concerning the beneficiary of another petition,I-360 Religious Worker Decisions: Candidates for Precedent?????? Page 19
  • who was found to be working without authorization as a sales consultant for a cosmetics company. Because this information is not relevant to the petition under consideration here, it would serve no purpose to discuss it in detail in this decision. We agree with counsel that much of the information in the denial notice was included in error. This error, however, does not negate the outcome of the overall decision. Even disregarding the erroneous references to another alien, there still remains a substantive decision based on the relevant facts.”Feb252010_02C1101.pdf Appeal REJECTED. (I-290B filed by wrong party.)“...The director determined that the petitioner had not established that the beneficiarys positionqualifies as a religious occupation relating to a traditional religious function.”“The appeal has not been filed by the petitioner, or by any entity with legal standing in theproceeding, but rather by an attorney who represents an SDA regional conference. Therefore, theappeal has not been properly filed, and we must reject the appeal.”Feb262010_01C1101.pdf Denial AFFIRMED on CERTIFICATION. “...The director determined that the petitioner had not established that the beneficiary has been working continuously in a qualifying religious occupation or vocation for two years immediately preceding the filing of the visa petition.”Counsel made an argument that misconstrued the courts ruling in Ruiz-Diaz v. United States,No. C07-1881RSL (W.D. Wash. June 11, 2009). This is worth reading.Feb262010_02C1101.pdf 2nd Appeal REJECTED. “The petitioners appeal must be rejected. The AAO does not exercise appellate jurisdiction over AAO decisions. The AAO exercises appellate jurisdiction over the matters described at 8 C.F.R. § 103.l(f)(3)(iii) (as in effect on February 28, 2003). See DHS Delegation Number 0150.1 ; 8 C.F.R. §103.3(a)(iv). Accordingly, the appeal is not properly before the AAO. Therefore, as the appeal was not properly filed, it will be rejected. 8 C.F.R. § 103.3 (a) (2) (v) (A)(l). It should be noted that the petitioner had the option of filing a motion to reopen or a motion to reconsider the AAOs most recent decision within 33 days of service pursuant to 8 C.F.R. § 103.5 but neither the Form I-290B itself nor counsels brief indicated an intent to file a motion.1”I-360 Religious Worker Decisions: Candidates for Precedent?????? Page 20
  • Footnote from original: “1 Even if properly under the AAOs jurisdiction as a motion, which it is not, counsels claims are not sufficient to meet the requirements of a motion to reopen or reconsider. Counsel argues the ineffective assistance of counsel who previously represented the petitioner. However, the record does not contain an affidavit from the petitioner and does not reflect whether or not a complaint has been filed against prior counsel as required by Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), aff’d, 857 F.2d 10 (1st Cir. 1988).”Feb262010_03C1101.pdf Denial ARRIRMED on CERTIFICATION. “The issue presented on certification 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.”Conflicting evidence is in the record casts doubt on the whole record. “Beyond the decision of the director, the petitioner has not established that the beneficiary is qualified for the proffered position....” ***** “As discussed above, the evidence is not clear when the beneficiary was ordained. [Redacted] stated that the beneficiary was ordained in the Philippines in 2004 but served as a youth minister on weekends while he was in school. [Redacted] stated that the beneficiary served as appointed as a pastor in April 2002. The petitioner stated that the beneficiary worked as an intern while fulfilling the requirements of ordination. The petitioner submitted no documentation regarding the ordination requirements or when the beneficiary fulfilled those requirements. The certificate of ordination in the record is undated. Accordingly, the petitioner has not established that the beneficiary is qualified to serve a minister within the petitioning organization.”Mar012010_01C1101.pdf Denial ARRIRMED on CERTIFICATION. “The director erred in determining that the petitioner must establish that the beneficiary was engaged in full-time employment as a minister during the qualifying period and we withdraw this statement. Nonetheless, the petitioner has provided insufficient evidence to establish that the beneficiary was continuously employed as a minister throughout the two-year period immediately preceding the filing of the visa petition.”Beyond the insufficient and contradictory documentary evidence, the beneficiary is an illegalalien. “Finally, the record reflects that the beneficiary was not in a lawful immigration status during the period that she worked for the petitioning organization. In response to the RFE, the petitioner stated that the beneficiary had "no legal status" in the United States.I-360 Religious Worker Decisions: Candidates for Precedent?????? Page 21
  • The regulation at 8 C.F.R. § 204.5(m)(11) provides that qualifying experience acquired while in the United States must have been authorized under United States immigration law. Accordingly, any work performed by the beneficiary in the United States in a "no legal status" interrupts the continuity of her work experience for the purpose of this visa petition.”Mar092010_01C1101.pdf Denial ARRIRMED on CERTIFICATION. [Precedent worthy?] “The issue under consideration is whether the petitioner seeks to engage the beneficiarys services in a religious vocation. The directors secondary finding, that the beneficiarys position does not qualify as a religious occupation, is contingent on the finding regarding the vocation issue. ...” ***** “The director denied the petition on December 6, 2007, in part because "[t]he petitioner has not submitted the requested evidence to establish the proffered position qualifies as a religious vocation." The director noted: "It is common in many religions for lay members of the congregation to partake in religious vows or rituals that commit themselves to their particular religious denomination without being considered to have been engaged in a religious vocation for the purposes of qualifying for this immigration benefit." The director added: "Since the petitioner has not established that the proffered position qualifies as a religious vocation...the petitioner must establish the beneficiary has been employed in a qualifying religious occupation for the required two year period." Therefore, the finding regarding a religious occupation is contingent on the finding that the beneficiary is not engaged in a religious vocation.”How can one take vows or be ordained in non-denomination that lacks anytype of clergy or class of “religious”?The noun “religious” means: “a member of a religious order under monasticvows”, “a member of a monastic order, especially a nun or monk”, “ amember of a religious order, congregation, etc.; a monk, friar, or nun”, “thereligious, devout or religious persons: Example: Each year, thousands ofthe religious make pilgrimages to the shrine”. The term “religious” finds itsorigins in the Middle English tradition, dating between 1175–1225 A.D. “The petitioner has acknowledged that it is not a religious denomination in its own right, and there is no evidence that it belongs to a religious denomination. Rather, the record indicates that the petitioner is an interdenominational organization whose staff includes active members of various denominations. As such, a position with the petitioning organization cannot qualify as a religious vocation, because the definition of "religious vocation" at 8 C.F.R. § 204.5(m)(3) specifically requires: "The religious denomination must have a class of individuals whose lives are dedicated to religious practices and functions." [Emphasis added.]I-360 Religious Worker Decisions: Candidates for Precedent?????? Page 22
  • More broadly, the new regulations contain no provision for interdenominational organizations at all. The regulations require denominational affiliation (see, e.g., 8 C.F.R. § 204.5(m)(l)), and the petitioner has not met this essential and fundamental requirement. Without denominational affiliation, or status as a denomination in its own right, the petitioner lies outside the class of organizations that can properly file petitions for nonimmigrant or special immigrant religious workers. The admittedly religious character of the activities at the petitioning organization is not, by itself, sufficient in this regard.”Mar152010_01C1101.pdf WITHDRAWN.Mar162010_01C1101.pdf Denial AFFIRMED on CERTIFICATION.[Vocation vs. Occupation; and secular vs. religious duties: Precedent possibility?] “...The director determined that the petitioner had not established that the beneficiary had the requisite two years of continuous, qualifying work experience immediately preceding the filing date of the petition, or that the beneficiarys position qualifies as a religious occupation.” ***** “The director denied the petition on July 10, 2009, based in part on the finding that the petitioner had not credibly and sufficiently documented the beneficiarys claimed prior qualifying employment. The director stated: "the petitioner indicates that the beneficiary receives free housing, living expenses, and transportation through congregation members. Remuneration for services must come directly from the petitioner. Payments made by congregants may merely be viewed as gifts and not in remuneration for the beneficiarys services. The director also found that the beneficiarys compensation is well below the federal minimum wage. In response to the certified decision [redacted], claimed that the beneficiary "has consistently refused our offers to increase her compensation," and noted that "many full time positions in the religious sector, for example, Nuns and Monks, are not compensated based on minimum wage." Nuns and monks work in religious vocations rather than religious occupations, and therefore a direct comparison between them and the beneficiary would be inaccurate and misleading.” ***** “Here, the petitioner has submitted IRS documentation of minimal compensation, but with respect to the remainder of the beneficiarys material support, the petitioner has offered only vague assertions that unnamed church members provide the beneficiary with housing and other support of indeterminate value. The joint letter of two witnesses, who claim (without proof) to have purchased a car for the beneficiary, is not "comparable, verifiable evidence" on a par with IRS documentation. Furthermore, such a letter does not compel the conclusion that other unidentified church members did, and will, support the beneficiary, and that this support has been directly contingent on her continued work for the petitioning church.” *****I-360 Religious Worker Decisions: Candidates for Precedent?????? Page 23
  • “As noted in the above discussion, we do not agree with all of the directors specific findings. Nevertheless, upon consideration of the evidence of record, we agree with the directors core finding that the petitioner has not submitted adequate evidence to establish that the beneficiary has and will continue to engage in continuous, qualifying employment.” ***** “We note that the former USCIS regulation at 8 C.F.R. § 204.5(m)(2), prior to the 2008 revision of the regulations, included a list of qualifying examples in the definition of the term "religious occupation": "Examples of individuals in religious occupations include, but are not limited to, liturgical workers, religious instructors, religious counselors, cantors, catechists, workers in religious hospitals or religious health care facilities, missionaries, religious translators, or religious broadcasters." When USCIS revised the regulations in 2008, supplemental information published with the regulations indicated that USCIS "removed the list of examples to eliminate confusion." 73 Fed. Reg. 72276, 72285 (Nov. 26, 2008). Therefore, the removal of the term "religious instructors" should not be construed to mean that such individuals are no longer considered to work in a religious occupation. When the director stated that "teaching" is a "secular" function, the director neglected to take into account the subject matter being taught. Some subjects are, indeed, inherently secular, such as mathematics. Here, however, the beneficiary is said to teach not at a school or a day care center, but at a Sunday school, which exists only for the purpose of inculcating the religious creed and beliefs of the petitioning church. With regard to the petitioners detailed list of the beneficiarys duties, it is true that most of the eight listed duties are administrative and therefore secular in nature. This does not mean, however, that each listed item takes up an equal portion of the beneficiarys working time. From the evidence and information presented, it is clear that the content of the instructional materials is religious in nature. The administrative duties appear to be incidental to the duties of a religious instructor; there is no evidence that the beneficiary is first and foremost an administrator with only token religious duties. For the reasons discussed above, we withdraw the directors finding that the beneficiarys duties, as described, are primarily secular. This is separate from our finding, above, in which we agree with the director that the petitioner has not shown the position to be full- time.”Mar162010_02C1101.pdf Appeal DISMISSED. “The director determined that the petitioner had not established that it is a bona fide nonprofit religious organization, that the position qualifies as that of a religious occupation, that the beneficiary has been working continuously in a qualified religious occupation or vocation for two full years immediately prior to the filing of the petition, and how it intends to compensate the beneficiary.”I-360 Religious Worker Decisions: Candidates for Precedent?????? Page 24
  • Upheld on all grounds. Beneficiary is a B-2 overstay, working illegally, apparently part-time asclerk in an unproven supposed “church” that has not shown affiliation to the church named in theIRS letter.Mar162010_03C1101.pdf Appeal REJECTED.Appeal of revoked petition was filed at 32 days, which is beyond the 18 days allowed and it doesnot qualify as a Motion. “We note that the director erroneously stated that the petitioner could file an appeal within 33 days. Nevertheless, the directors error cannot and does not supersede the pertinent regulations. The director erroneously marked the appeal as timely and forwarded the matter to the AAO. Neither the Act nor the pertinent regulations grant the AAO authority to extend the 18- day time limit for appealing a revocation. As the appeal was untimely filed, the appeal must be rejected. The regulation at 8 C.F.R. § 103.3(a)(2)(v)(B)(2) states that, if an untimely appeal meets the requirements of a motion to reopen or a motion to reconsider, the appeal must be treated as a motion, and a decision must be made on the merits of the case.” ***** “Here, the untimely appeal does not meet the requirements of a motion to reopen or a motion to reconsider. Therefore, there is no requirement to treat the appeal as a motion under 8 C.F.R. § 103-3(a)(2)(v)(B)(2).”Mar172010_01C1101.pdf Appeal DISMISSED. [Excellent candidate for Precedent!] See related: Matter of Riero and Espinol, 24 I&N Dec. 267 (BIA 2007) held: Alien seeking to establish 245(i) eligibility based on grandfathered marriage petition must prove that the marriage was bona fide at its inception in order to show it was “meritorious in fact.” Huarcaya v. Mukasey, 2008 WL 5191771 (2d Cir. 2008), accorded deference Ogundipe v. Mukasey, 541 F.3d 257 (4th Cir. 2008), cited positivelyFrom above AAO Decision: “The director determined that the petitioner had not established that had the requisite two years of continuous, lawful, qualifying work experience immediately preceding the filing date of the petition.”I-360 Religious Worker Decisions: Candidates for Precedent?????? Page 25
  • Another B-2 overstay since December 1995. There was a prior I-360 filed prior to April 30,2001, that was eventually denied and there was no appeal from that denial. INA § 245(i) willnever again be a factor in I-360s. Unlawful employment will never qualify for an I-360 approval. “On appeal, counsel notes that the petitioner had previously filed a petition on the beneficiarys behalf in 2001. Counsel argues: "Section 245(i) of the Immigration and Nationality Act allows a person to apply to adjust status notwithstanding the fact that she entered without inspection, overstayed, or worked without authorization." The question of whether the never-approved 2001 filing qualifies the beneficiary for section 245(i) relief lies outside the scope of this proceeding. Even if we were to find that the beneficiary qualifies for such relief, that finding would not change the outcome of the present proceeding. Section 245(i) relief applies at the adjustment stage, not the petition stage. The present proceeding is not an adjustment proceeding. Section 245(i)(2)(A) of the Act requires that an alien seeking section 245(i) relief must be "eligible to receive an immigrant visa"; that is, the alien must be the beneficiary of an approved immigrant visa petition. The law most certainly does not require USCIS to approve every petition filed on behalf of aliens who seek section 245(i) relief. Rather, such relief presupposes an already-approved petition. Without an approved petition, the beneficiary has no basis for adjustment of status, and therefore section 245(i) relief never comes into play. The regulations at 8 C.F.R. § 204.5(m) say nothing about what benefits are or are not available to the beneficiary at the adjustment stage, and the director, in this proceeding, did not bar the beneficiary from ever receiving benefits under section 245(i) of the Act. Rather, the director found that the beneficiarys lack of lawful status during the two-year qualifying period prevents the approval of the present petition. The beneficiarys hypothetical eligibility for section 245(i) relief at the adjustment stage does not require us to approve the petition before the beneficiary has even reached that stage.”[Emphasis added.]Four related AAO decisions plus a District Court Decision in same case:Mar172010_02C1101.pdf REAFFIRMING PRIOR DECISION. “Pursuant to 8 C.F.R. § 103.2(b)(6), the AAO disregards the withdrawal of the petition. The December 22, 2006 denial of the petition remains in force and undisturbed.” ***** “The AAO reaffirms its December 22, 2006 and October 14, 2009 findings that the petitioner and the beneficiary knowingly misrepresented material facts relating to the beneficiarys employment and income in order to conceal potentially disqualifying information relating to the beneficiarys eligibility for a benefit sought under the immigration laws of the United States.”I-360 Religious Worker Decisions: Candidates for Precedent?????? Page 26
  • Oct142009_01C1101.pdf REAFFIRMING PRIOR DECISION. “DISCUSSION: The Director, Vermont Service Center, denied the immigrant petition and certified its decision to the Administrative Appeals Office (AAO) for review. The AAO affirmed the directors decision on December 22, 2006 with a separate finding of willful misrepresentation of a material fact. Pursuant to a stipulation in Civil Action No. CV-07-4381, E.D.N.Y., April 18, 2008, the AAO reopened this matter pursuant to 8 C.F.R. § 103.5(a)(5)(ii) for the limited purpose of revisiting the finding of willful misrepresentation of a material fact. The AAO will reaffirm its prior finding of willful misrepresentation of a material fact. The AAO made its finding of willful misrepresentation in its December 22, 2006 appellate decision. The petitioner did not dispute the denial of the petition, but contested the finding of willful misrepresentation in federal court as described above. As a result of this litigation, the AAO agreed to provide the petitioner a final opportunity to explain the discrepancies which had led to the finding of willful misrepresentation. On June 24, 2009, the AAO reopened the proceeding and advised the petitioner that the AAO would once again enter a finding of material misrepresentation unless the petitioner provided documentary evidence to refute such a finding. The AAO described the grounds for its finding in its June 24, 2009 notice, incorporated here by reference. The AAO also advised the petitioner of additional information that had recently surfaced, which indicated further misrepresentation. The AAO allowed the petitioner 84 days (12 weeks) to submit evidence and/or arguments. The response period has ended, and the AAO has received no further response either from the petitioner or from counsel. We interpret this lack of response to mean that the petitioner has abandoned its efforts to contest the AAOs previous finding. Cf. 8 C.F.R. §103.2(b)(13) (If the petitioner or applicant fails to respond to a request for evidence or to a notice of intent to deny by the required date, the application or petition may be summarily denied as abandoned). Because the petitioner has offered neither evidence nor argument to address or refute the AAOs assertions, we reaffirm our prior finding of willful misrepresentation of material facts. This finding of material misrepresentation shall be considered in any future proceeding where admissibility is an issue. ORDER: The AAO reaffirms its December 22, 2006 finding that the petitioner and the beneficiary knowingly misrepresented material facts relating to the beneficiarys employment and income in order to conceal potentially disqualifying information relating to the beneficiarys eligibility for a benefit sought under the immigration laws of the United States.”Dec222006_01C1101.pdf Denial AFFIRMED on CERTIFICATION with a separate finding ofmaterial misrepresentation.Evidence manufactured in response to RFE which concealed material facts. Worth reading.I-360 Religious Worker Decisions: Candidates for Precedent?????? Page 27
  • Jul082010_04C1101.pdf REJECTED. [There is nothing to appeal!] “DISCUSSION: The Director, Vermont Service Center, denied the immigrant petition and certified its decision to the Administrative Appeals Office (AAO) for review. The AAO affirmed the directors decision on December 22, 2006 with a separate finding of willful misrepresentation of a material fact. On June 24,2009, the AAO reopened this matter pursuant to 8 C.F.R. § 103.5(a)(5)(ii) for the limited purpose of revisiting the finding of willful misrepresentation of a material fact; the AAO did not disturb the denial of the underlying petition. The AAO allowed the petitioner 84 days to address the grounds for that finding. On October 14, 2009, the AAO affirmed its finding of willful misrepresentation of a material fact, and stated that the record contained no response from the petitioner. The petitioner submitted a timely response, which did not reach the record before the AAO rendered its decision. On January 14, 2010, the AAO reopened the proceeding strictly on procedural grounds, to acknowledge the petitioners timely submission of correspondence. The AAO reaffirmed its finding of willful misrepresentation of a material fact. The matter is now before the AAO on appeal. The AAO will reject the appeal. In its previous order, dated March 17, 2010, the AAO stated: On September 11, 2009, the petitioner, through counsel, stated: "The petitioner hereby withdraws the petition," adding: "The petitioner reiterates that it has perpetrated no fraud." Counsel did not address or dispute the AAOs finding that the beneficiary also participated in the willful misrepresentation, as described in previous decisions and correspondence. The record contains no further correspondence from the petitioner or from counsel. We note that Matter of Cintron, 16 I&N Dec. 9 (BIA 1976) prohibits the denial of a petition after its withdrawal. Here, however, the petition has been denied since 2006. The AAOs subsequent action has only involved the finding of willful misrepresentation. An applicant or petitioner may withdraw an application or petition at any time until a decision is issued by USCIS [U.S. Citizenship or Immigration Services] . . However, a withdrawal may not be retracted. 8 C.F.R. § 103.2(b)(6). Here, USCIS issued its decision nearly three years before the petitioner attempted to withdraw the petition. The petition itself is administratively closed and cannot be withdrawn at this late date. By attempting to withdraw the petition, the petitioner has signaled its intent to abandon all attempts to pursue this petition. The petitioners apparent failure to respond to the AAOs latest correspondence reinforces that conclusion. The AAO now considers this matter closed.I-360 Religious Worker Decisions: Candidates for Precedent?????? Page 28
  • On April 19, 201 0, the director received a Form I-290B Notice of Appeal or Motion, indicating that the petitioner is "filing an appeal." There is, at this point, no appealable matter before the AAO. The petition has been denied and administratively closed for some time, and there is no provision for an appeal of an AAO finding of material misrepresentation. As we have observed in prior decisions in this proceeding, the petitioner has had numerous opportunities to rebut the finding of material misrepresentation, but has never presented any meaningful or substantive rebuttal of the specific points raised by the AAO. This has not changed in the latest proceeding. Because there is nothing to appeal, we must reject the appeal.”The decision included three additional and alternate reasons to dismiss and/or reject the filing: itwas filed by an improper party, it was untimely, and it cannot be treated as a Motion.Mar182010_01C1101.pdf Appeal DISMISSED.Another B-2 overstay, this one was already in Removal Proceedings. Counsel made a baselessargument upon filing the I-290B and never followed up with the promised brief.Mar182010_02C1101.pdf Appeal REJECTED.Not filed by the correct party.Mar182010_03C1101.pdf Appeal DISMISSED.Another B-2 overstay, also in Removal Proceedings. Counsel makes an unpersuasive argument. “The wording of the relevant legislation demonstrates Congress interest in USCIS regulations. Section 2(b)) of the Special Immigrant Nonminister Religious Worker Program Act, Pub. L. No. 110-391, 122 Stat. 41 93 (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). When USCIS published the new rule in November 2008, it did so in accordance with explicit instructions from Congress. Supplementary information published with the new rule specified:I-360 Religious Worker Decisions: Candidates for Precedent?????? Page 29
  • All cases pending on the rules effective date . . . will be adjudicated under the standards of this rule. If documentation is required under this rule that was not required before, the petition will not be denied. Instead the petitioner will be allowed a reasonable period of time to provide the required evidence or information. 73 Fed. Reg. 72276, 72285 (Nov. 26, 2008). Furthermore, the October 2008 legislation extended the special immigrant nonminister religious program only until March 5, 2009. From the wording of the statute, it is clear that this extension was so short precisely because Congress sought to learn the effect of the new regulations before granting a longer extension. Congress has since extended the life of the program three times. On any of those occasions, Congress could have made substantive changes in response to the regulations they requested, but Congress did not do so. Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it reenacts a statute without change. Lorillard v. Pons, 434 U.S. 575, 580 (1978). We may therefore presume that Congress has no objection to the new regulations as published, or to USCIS interpretation and application of those regulations.”Mar182010_04C1101.pdf Denial AFFIRMED on CERTIFICATION.Ordained over the internet for $30 then started his own church which then petitioned for him.Another is the growing group of decisions that can be classified as “Just HOW stupid do youthink USCIS is?”Mar182010_05C1101.pdf 2nd REMAND.A confusing procedural history with numerous errors. Apparently approved in error citing thewrong party as petitioner but done under old regulations. Then CSC improperly issued a noticeof intent to revoke to the wrong party. On prior remand, CSC issued an incorrect notice. NowAAO is imposing requirements of the new regulations because the case had been made “notfinal” based on the improper revocation proceedings. Wow! What a mess! It is hard to find thatanything in this case would stand up to judicial review if it were actually revoked following this2nd remand.Mar182010_06C1101.pdf SUMMARILY 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 a lay speaker, Sunday school teacher and choir member. The director determined that, because the beneficiary had not been in a lawful immigration status during the two years immediately preceding the petition, the petitioner had not established that the beneficiary had worked continuously in a qualifying religious occupation or vocation for two full years immediately preceding the filing of the visa petition.” *****I-360 Religious Worker Decisions: Candidates for Precedent?????? Page 30
  • “The petitioner did not address this issue on appeal or submit documentation to counter the directors finding regarding the beneficiarys immigration status during the two years immediately preceding the filing of the petition.”Mar182010_07C1101.pdf Appeal DISMISSED.Another B-2 overstay, this one via a Border Crossing Card. Also, the job offered was unclear.At one point referring to a sacristan (see definition above) and also as an ill-defined job of“religious instructor” with a position description tailored to the beneficiary rather than inaccordance with its own articles of incorporation and bylaws. “Further, even assuming that the beneficiary was authorized to work in the United States, which he was not, his volunteer work during the qualifying period is not qualifying work experience for purpose of this visa petition. The only religious workers who may qualify without an actual salary or in-kind support as evidence of their prior employment are those workers in an established missionary program under an R-1 or B-1 nonimmigrant visa. In this instance, the record does not establish that the beneficiary was in a missionary program or that he was an R-1 or B-1 nonimmigrant. See 72 Fed. Reg. 20442, 20446 (Apr. 25,2007). The petitioner has failed to establish that the beneficiary worked continuously in a qualified religious occupation or vocation for two full years prior to the filing of the visa petition. The petitioner has also failed to establish how it intends to compensate the beneficiary.”.Mar182010_08C1101.pdf Appeal DISMISSED. [Discusses Lozada. Precedent?] “The issue presented on appeal 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.”The petition was filed on December 29, 2008 “On the Form 1-360 petition, the petitioner stated that the beneficiary was present in the United States pursuant to an R-1 nonimmigrant religious worker visa that expired on August 15, 2006. The petitioner provided a copy of the beneficiarys Form 1-94, Departure Record, which reflects that she entered the United States on December 19, 2004 in an R-1 status that was valid until August 15, 2006. The director found that the beneficiary had not left the United States after her period of authorized employment and as she was not in a lawful immigration status during the period that she worked for the petitioning organization, any work performed by the beneficiary in the United States interrupted the continuity of her work experience for the purpose of this visa petition. On appeal, counsel states that the petitioner provided prior counsel with all of the information and fees to file an 1-360 petition on behalf of the beneficiary in May 2006 and that counsel failed to file the petition until August 10, 2006, five days before theI-360 Religious Worker Decisions: Candidates for Precedent?????? Page 31
  • expiration of the beneficiarys R-1 status. Counsel also asserts that prior counsel also failed to timely respond to the directors request for additional evidence, resulting in a denial for abandonment of the petition. Counsel asserts that although the director approved a subsequent motion to reopen, prior counsel failed to remit the required fee and again the petition was denied. Counsel stated that prior counsel was subsequently suspended from practicing before the Executive Office of Immigration Review (EOIR) on July 3, 2008 and subsequently disbarred on October 16, 2008. Prior counsel has also been disbarred by the State of Massachusetts. Counsel argues that because of prior counsels negligence in the petitioners prior filing, the instant petition should be approved as USCIS would have approved the prior petition. Any appeal or motion based upon a claim of ineffective assistance of counsel requires: (1) that the claim be supported by an affidavit of the allegedly aggrieved respondent setting forth in detail the agreement that was entered into with counsel with respect to the actions to be taken and what representations counsel did or did not make to the respondent in this regard, (2) that counsel whose integrity or competence is being impugned be informed of the allegations leveled against him and be given an opportunity to respond, and (3) that the appeal or motion reflect whether a complaint has been filed with appropriate disciplinary authorities with respect to any violation of counsels ethical or legal responsibilities, and if not, why not. Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), affd, 857 F.2d 10 (1st Cir. 1988). Counsel provides a copy of the July 3, 2008 order from the EOIR suspending prior counsel from practicing before the Department of Homeland Security and a copy of a notice from the Massachusetts Board of Bar Overseers of the Supreme Judicial Court indicating that prior counsel had been disbarred on October 16, 2008. The petitioner provided no affidavit regarding her agreement with prior counsel and no documentation of the basis for the actions taken by either organization or whether or not the suspension and disbarment were related to prior counsels breach of fiduciary duties to his clients, especially the petitioner in the present case. Additionally, the petitioner provided no evidence that prior counsel has been made aware of the petitioners claim against him and given an opportunity to respond. Accordingly, the petitioner has failed to meet the substantive requirements of Lozada. Counsel asserts that the petition would have been approved had it not been for prior counsels negligence; however, nothing in the record supports counsels assertion. The record does not contain a copy of the previous petition or the evidence provided by the petitioner in support of that petition. We note that as the director issued a request for additional evidence in the prior case, the record suggests that the first petition was deficient. It is not clear that the petition would have been approved had counsel and the petitioner timely responded to that request. Furthermore, the petitioner provided no documentation to establish that it attempted to renew the beneficiarys R-1 status or that it submitted a change of status so that the beneficiary could have remained in the United States in a legal status.I-360 Religious Worker Decisions: Candidates for Precedent?????? Page 32
  • The record reveals that the beneficiary was in an unlawful immigration status throughout the qualifying period. Therefore, the petitioner has failed to establish that she worked continuously in a qualifying religious occupation or vocation for two full years immediately preceding the filing of the petition. Beyond the decision of the director, the petitioner has failed to establish that it is a bona fide nonprofit religious organization. ....”[Emphasis added.]Mar192010_01C1101.pdf Denial of Appeal to Revocation Notice AFFIRMED onCERTIFICATION.Director’s decision and processing was filled with errors BUT the petition cannot be approved.Mar192010_02C1101.pdf Denial AFFIRMED but Appeal WITHDRAWN.Mar242010_01C1101.pdf Denial AFFIRMED on CERTIFICATION. “The first stated basis for denial concerns the petitioners tax-exempt status.”Decision contains an in-depth dissection of the documentation submitted and reasoning fordisallowing it as submitted. “The petitioner has not submitted the required IRS determination letter to show that the church in Florida, where the beneficiary has worked and intends to continue working, is recognized as tax-exempt. The asserted affiliation with the tax-exempt petitioning church in New York is not sufficient to establish eligibility. We will therefore affirm the directors finding in this regard.” ***** “The second and final issue raised by the director concerns the extent of the beneficiarys employment. The USCIS regulation at 8 C.F.R. §204.5(m)(2) requires that the beneficiary must "[b]e coming to the United States to work in a full time (average of at least 35 hours per week) compensated position."” ***** “As noted previously, the beneficiarys R-1 status was conditioned on a job offer showing $2,000 per month for full-time work, but the petitioner paid the beneficiary significantly less than that amount. On October 14, 2008, the AAO informed the petitioner that the consistent underpayment of the beneficiarys salary raised questions of eligibility. In response to the AAOs letter, the beneficiary stated that, previously, he had been "reluctant to ask for my full salary" because his adult son was not willing "to remain in the United States." (The beneficiary did not explain how this issue related to the matter of his compensation, or why having more dependents in his household would incline him to request lower compensation.) The beneficiary stated that he now draws his full salary and that his son has returned to Canada.” *****I-360 Religious Worker Decisions: Candidates for Precedent?????? Page 33
  • “The issue here is not the petitioners ability to compensate the beneficiary as such. Rather, our concern is with the regulatory requirement that the proposed employment must be full-time (at least 35 hours per week). The petitioner has indicated that the beneficiarys intended future duties are essentially the same as his past duties. As such, if the beneficiarys past work was part-time, then there is reason to presume that it will continue to be part-time in the future, and little reason to presume that the beneficiarys duties will spontaneously expand to fill more hours per week. In the July 2009 certified denial notice, the director stated: "the beneficiarys weekly schedule has only been 30.25 hours per week. The petitioner has established that the beneficiary has been employed only on a part-time basis." It is clear that the petitioner paid the beneficiary less than the $2,000 per month promised on the Form 1-129 petition in 2003. The record contains no contemporaneous evidence to show that the beneficiary requested or voluntarily accepted a reduced rate of pay. The petitioner and the beneficiary made no claims to that effect until after the director observed that the beneficiarys compensation did not match the terms to which the petitioner attested, under penalty of perjury, on the Form 1-129 petition. The significant underpayment of the beneficiarys salary during the two-year qualifying period is consistent with disqualifying interruptions in the continuity of the beneficiarys work. If, on the other hand, the petitioner worked continuously to the extent claimed, the implication is that the Form 1-129 petition contains false information about the beneficiarys compensation. Neither alternative casts the petition in a favorable light. We find that the petitioner has not persuasively rebutted the directors findings, and therefore we agree with the director that the petitioner has not sufficiently established the beneficiarys continuous employment during the qualifying period.”Mar252010_01C1101.pdf Untimely Appeal treated as Motion and DISMISSED.Looking at the record as a whole, the position that formed the basis for the prior R-1 non-immigrant work visa was bogus all along. Funny how the earlier fraud will come back to hauntone later. “The evidence of record does not sufficiently 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.”Mar252010_02C1101.pdf Appeal DISMISSED. [Good candidate for Precedent.] “The issue presented is whether the petitioner has established that it is a bona fide nonprofit religious organization.”Initially, the petitioner responded that it had applied to IRS and expected it could take 10 months.More than a year later, it started with the Constitutional claims. This suggests that the IRS turnedthem down.I-360 Religious Worker Decisions: Candidates for Precedent?????? Page 34
  • In short, the requirement for an IRS Determination Letter does not violate one’s Constitutionalrights to freedom of religion as the crackpot counsel suggests. (S)he is not alone in that meritlessargument but this decision addresses the issue well.Mar252010_03C1101.pdf Appeal DISMISSED. 1.) Petitioner’s counsel makes the redundant unconvincing “impermissible retroactivity2” argument by attempting to invoke Landgraf v. USI Film Products, 511 U.S. 244 (1994) tried without success by so many others. Congress directed DHS, within 30 days, to “issue final regulations to eliminate or reduce fraud”. This is clear Congressional intent. 2.) Counsel argued that “vested rights” were affected, however, there is no right to be illegally present in the U.S. following entry without inspection (EWI) in contravention of U.S. immigration law, therefore, an EWI (just like a status violator, or any visa overstay) beneficiary is ineligible to count any of the work performed and experience gained in the U.S. without proper legal employment authorization. 3.) The petitioner likewise had no “right” to have any petition approved merely by filing it. 4.) Congress has since extended the life of the program three times. On any of those occasions, Congress could have made substantive changes in response to the regulations they requested, but Congress did not do so. Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it reenacts a statute without change. Lorillard v. Pons, 434 U.S. 575, 580 (1 978). We may therefore presume that Congress has no objection to the new regulations as published, or to USCIS interpretation and application of those regulations.Mar252010_04C1101.pdf Appeal DISMISSED.Insufficient evidence in response to RFE. Newly offered evidence not accepted on appealbecause the petitioner had been put on notice previously of the deficiency but failed to complywith that request in the proceeding below.Mar262010_01C1101.pdf WITHDRAWN.Mar262010_02C1101.pdf REMANDED. “The matter is remanded to the director, California Service Center, for the issuance of a request for evidence (if necessary) and a new decision in accordance with the requirements of the new regulation published at 73 Fed. Reg. 72276 (Nov. 26, 2008). If the new decision is adverse to the petitioner, it shall be certified to the AAO for review.”2 In Landgraf v. USI Film Products, the Court established a two-step test that embodies this presumption againstretroactivity. 511 U.S. at 265. The first step of the Landgraf test requires that Congress must express its intent togive legislation retroactive effect in language “so clear that it could sustain only one interpretation.” Lindh v.Murphy, 521 U.S. 320, 328 (1997). If the Court does not find the requisite congressional intent, the second step ofthe Landgraf test considers whether retroactive application of the statute would attach “new legal consequences toevents completed before its enactment.” Landgraf, 511 U.S. at 270.I-360 Religious Worker Decisions: Candidates for Precedent?????? Page 35
  • Mar262010_03C1101.pdf Appeal REJECTED. “Here, the untimely appeal does not meet the requirements of a motion to reopen or reconsider.”Mar262010_04C1101.pdf Appeal DISMISSED.Beneficiary is a B-2 overstay for many years and claims to be the derivative on her husband’sdenied asylum claim and currently in Removal Proceedings. There was no evidence offered thatshe ever had an EAD. None of her “volunteer” work (which does not appear to qualify as areligious occupation or vocation) counts. In addition, the petitioner has not offered to pay thebeneficiary and the “position” is only part-time anyway and does not qualify for theclassification.Mar262010_05C1101.pdf Denial AFFIRMED on CERTRIFICATION.Although beneficiary had an R-1 non-immigrant visa, the record did not support a finding of therequired two years of qualifying employment. There was no sufficient job offer and thepetitioner could not show an ability to pay the beneficiary.Mar262010_06C1101.pdf Appeal REJECTED. Case REMANDED due to procedural error. “Part 1 of the Form I-360, Petition for Amerasian, Widow(er) or Special Immigrant, identifies the [redacted] as the petitioner. Review of the petition form, however, indicates that the alien is the petitioner. An applicant or petitioner must sign his or her application or petition. 8 C.F.R. § 103.2(a)(2). In this instance, Part 9 of the Form 1-360, "Signature," has been signed not by any church official, but by the alien. Thus, the alien, and not the church, has taken responsibility for the content of the petition.” “.......Here, because the director addressed the notice to the church, rather than to the alien self-petitioner, the director has arguably never served the notice of denial on the petitioner. Thus, the self-petitioning alien has never had the opportunity to file a timely appeal. The director must reissue the denial notice in order to give the actual petitioner that opportunity. The appeal has not been filed by the petitioner, or by any entity with legal standing in the proceeding, but rather by the legal representative of the organization that seeks to employ the petitioner. Therefore, the appeal has not been properly filed, and must be rejected. The director must serve a newly dated copy of the decision, properly addressed to the petitioner.”Mar302010_01C1101.pdf Denial AFFIRMED on CERTIFICATION.B-2 volunteer work does not count and did disrupt the required two-year period of qualifyingwork immediately before filing as a self-petitioner. In addition,” [t]he evidence does notestablish how the petitioners prospective employer will compensate the petitioner.”I-360 Religious Worker Decisions: Candidates for Precedent?????? Page 36
  • Apr022010_01C1101.pdf Denial AFFIRMED on CERTIFICATION.Position offered was entitled: “director of religious music and church youth groups”. “....The director determined that the petitioner failed to establish: (1) that the beneficiary possesses what the petitioner described as the minimum required experience for the position; (2) that the beneficiary continuously performed qualifying religious work throughout the two years immediately preceding the filing of the petition; or (3) its qualifying status as a tax-exempt religious organization.”This decision includes an in-depth discussion on IRS “group rulings”. Regarding the director’sapprehension as to the beneficiary’s qualifications: “training” and “employment experience” aretwo different things that should not be confused with each other. As for the required two years ofqualifying work experience preceding filing of the I-360, AAO and CSC followed the moneytrail and found gaps in payment from petitioner to the beneficiary while in R-1 status. This castconsiderable doubt on the veracity of the claimed “continuous qualifying experience” that isrequired.Apr062010_01C1101.pdf Appeal of revocation was SUMMARILY DISMISSED.A site visit revealed fraud and the petition was revoked. I-290B stated a brief would follow butafter nine months nothing was filed. The revocation stands.Apr062010_02C1101.pdf Appeal DISMISSED. “The issue presented on appeal is whether the petitioner has established that the beneficiary will be coming to the United States to work in a full time compensated position.”A site visit found inconsistencies that were not adequately explained.Apr062010_03C1101.pdf Appeal DISMISSED.The director determined that the petitioner had not established that the position as a “youth andyoung adult counselor” qualifies as that of a religious occupation. “Beyond the decision of the director, the petitioner has not established that his prospective employer is a bona fide nonprofit religious organization.” “Additionally, the petitioner has failed to establish that he worked continuously in a qualifying religious vocation or occupation for two full years immediately preceding the filing of the visa petition.”.... “The petition was filed on March 30, 2009.” The self-petitioner “was approved for an F-1 nonimmigrant student visa on September 13, 2000 with an expiration date of September 12, 2005.”....“The petitioner submitted no documentation to establish that he was authorized to work for church under the terms of his F-1 visa.”....“Accordingly, as the petitioner was not in an authorized work statusI-360 Religious Worker Decisions: Candidates for Precedent?????? Page 37
  • during the qualifying period, any work he performed in the United States interrupts the continuity of his work experience for the purpose of this visa petition. 8 C.F.R. § 204.5(m)(4).”Apr062010_04C1101.pdf REMANDED, “The matter is remanded to the director for the issuance of a request for evidence (if necessary) and a new decision in accordance with the requirements of the new regulation published at 73 Fed. Reg. 72276 (Nov. 26, 2008). If the new decision is adverse to the petitioner, it shall be certified to the AAO for review.”Apr062010_05C1101.pdf Appeal DISMISSED. “....The director determined that the record does not establish that the petition had been signed by an authorized official of the petitioning organization and that the petitioner had submitted the required attestation signed by an authorized representative of the prospective employer.” “We withdraw the directors finding that the petition was filed by the beneficiary and that the record does not reflect that the petition was filed by an authorized official of the organization.” “Nonetheless, the petitioner failed to submit the attestation required by 8 C.F.R. § 204.5(m)(7). As discussed previously, the petitioner failed to provide the attestation as instructed in the RFE and did not submit it on appeal. Accordingly, the petitioner has failed to provide the attestation required by the regulation. Beyond the decision of the director, the petitioner has failed to establish the beneficiary worked continuously in a qualifying religious vocation or occupation for two full years immediately preceding the filing of the visa petition.” “The petitioner has 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 petitioner has also failed to establish how it intends to compensate the beneficiary.”Apr062010_06C1101.pdf Denial AFFIRMED on CERTIFICATION.Inconsistent, conflicting, contradictory and insufficient evidence abound. “....The director determined that the petitioner had not established that the beneficiary had been engaged continuously in a qualifying religious vocation or occupation for two full years immediately preceding the filing of the petition.”I-360 Religious Worker Decisions: Candidates for Precedent?????? Page 38
  • “While the petitioner provided documentation of the beneficiarys income from his self- employment as a carpenter, it provided no documentation to corroborate that the beneficiary performed any work with the petitioning organization during the qualifying period. Furthermore, the petitioner stated in its December 14, 2006 letter that the beneficiary had been a member in good standing with the petitioning organization since February 2001 and became an elder in the church in June 2006. The petitioner also stated that the beneficiary had seven years experience as a pastor with its branch church, [redacted]. Based on the date of the letter, that would mean that the beneficiary had been working as a pastor for [redacted] in Nevada since at least 1999. However, the record contains a prior Form 1-360, Petition for Amerasian, Widow(er), or Special Immigrant, filed on behalf of the beneficiary by [redacted] in Norwalk, California (WAC 01 203 5571 8) on April 25, 2001. In a March 28, 2001 letter accompanying the prior petition, the pastor of that petitioning organization stated that the beneficiary had served as an assistant pastor with the organization for the past two years. In other words, the petitioner claimed that the beneficiary had served with [redacted] in Norwalk, California from at least March 28, 1999 through March 28, 2001.” “Beyond the decision of the director, the petitioner has not established the beneficiary seeks to enter the United States to work in a qualifying religious occupation.”Apr062010_07C1101.pdf Denial AFFIRMED on CERTIFICATION. “....The director determined that the petitioner had not established that he had been a member of the same denomination continuously for the two years immediately preceding the filing of the visa petition, that he had been engaged continuously in a qualifying religious vocation or occupation for two full years immediately preceding the filing of the petition, and how the prospective employer intended to compensate him. Additionally, the petitioner failed to provide the attestation required by the regulation.” “[W]e find that the petitioner has submitted sufficient documentation to establish that he was a member of the same religious denomination as his prospective employer for two full years prior to the filing of the visa petition. The petitioner submitted several documents indicating that he was a member and served as a pastor within the Methodist denomination. While his license indicated that he was of another denomination, it is clear that his credentials were accepted and he served within the Methodist Church. We therefore withdraw the directors determination to the contrary.” “....The [self]petitioner failed to submit copies of his IRS Form W-2 or certified copies of his tax returns. He has failed to provide the documentation required by the ... [controlling] ... regulation and therefore has failed to establish that he worked continuously in a qualifying religious occupation or vocation for two full years immediately preceding the filing of the visa petition.”I-360 Religious Worker Decisions: Candidates for Precedent?????? Page 39
  • “The petitioner has not submitted the documentation required by the ... [controlling] ... regulation. Accordingly, he has failed to establish how his prospective employer intends to compensate him. The petitioner also failed to provide the attestation required by the regulation at 8 C.F.R. § 204.5(m)(7),...”Apr062010_08C1101.pdf Appeal REJECTED. “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. The director properly served the petitioner with a notice of intent to revoke, and subsequently revoked the approval of the petition. The petitioner filed an appeal, which the director rejected as untimely. The director then re-opened the matter and once again rejected the appeal. The matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will reject the appeal. The petitioner is the headquarters of an international religious denomination. 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 member of the Sea Organization, the petitioners religious order. The director determined that the petitioner had not established that the beneficiary had the required two years of continuous, qualifying work experience immediately preceding the filing date of the petition. The U.S. Citizenship and Immigration Services (USCIS) regulation at 8 C.F.R. 5 205.2(d) requires an appeal to a revocation to be filed within 15 days after the service of notice of the revocation. If the decision was mailed, the appeal must be filed within 18 days. Service by mail is complete upon mailing. See 8 C.F.R. § 103.5a(b). The date of receipt shall be considered to be the filing date, but only if the form is properly signed and executed. See 8 C.F.R. § 103.2(a)(7)(i). The record shows that the envelope containing the notice of revocation was postmarked on June 9, 2005. This is the date of service. The properly-signed appeal was due no later than 18 days later, June 27, 2005. The director received an unsigned Form I-290B Notice of Appeal on June 27, 2005. The director did not accept this filing. The petitioner subsequently re-filed the appeal, accompanied by a July 5, 2005 letter from [redacted] reading: "The Form I-290[B] for this case has been signed now. Please excuse my error." This letter demonstrates that the petitioner did not file a properly signed and executed Form I-290B during the time allowed for an appeal. The director rejected the appeal on August 8, 2005. Subsequently, in a notice dated May 21, 2009 but postmarked the next day, the director reopened the proceeding, but reaffirmed the prior finding that the appeal was untimely and rejected the appeal again. On June 8, 2009, the petitioner filed a new Form I-290B Notice of Appeal. As the original appeal was rejected by the service center as untimely filed, there is no decision that may be appealed in this proceeding. A rejected appeal is not an appealable decision. See 8 C.F.R. § 103.3(a)(l). Accordingly, the AAO cannot accept, and must therefore reject, the petitioners appeal.”I-360 Religious Worker Decisions: Candidates for Precedent?????? Page 40
  • Apr062010_09C1101.pdf Appeal DISMISSED. “....The director determined that the petitioner had not established that the position [as a "minister of communication"] qualifies as that of a religious occupation, how it intends to compensate the beneficiary, and that it is a bona fide nonprofit religious organization.” “....[T]he petitioner quotes an outdated instruction in support for its assertion that a "broadcaster" would "be admitted under the request."” “The petitioner has submitted no documentation that the filming and editing of videos are primarily related to, and clearly involve inculcating and carrying out the petitioners religious creed and beliefs....” “The petitioner has failed to establish that the proffered position is a religious occupation within the meaning of the regulation. The second issue is whether the petitioner established how it intends to compensate the beneficiary.” “The petitioner submitted no documentation with the petition. In response to the directors RFE, the petitioner stated that it would provide the beneficiary with an annual compensation totaling $36,000, to include a salary of $18,000 and housing worth $18,000. The petitioner submitted no other documentation to establish how it intends to compensate the beneficiary, either in response to the RFE or on appeal. The petitioner has therefore failed to establish how it intends to compensate the beneficiary. The third issue is whether the petitioner has established that it is a bona fide nonprofit religious organization.” “....[I]n her RFE, the director specifically advised the petitioner that new regulations were promulgated on November 26, 2008 and that to comply with those regulations, the petitioner must submit evidence that it qualifies as a nonprofit religious organization "in the form of The Internal Revenue Service - IRS 501(c)(3) Tax Exempt Certification." The petitioner failed to submit the requested documentation. Failure to submit requested evidence that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. § 103.2(b)(14).” “Beyond the decision of the director, the petitioner has not 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.” “The petitioner provided no documentation of the beneficiarys qualifying work experience with the petition, in response to the RFE or on appeal. ...”I-360 Religious Worker Decisions: Candidates for Precedent?????? Page 41
  • Apr062010_10C1101.pdf Appeal DISMISSED. “....The director determined that the petitioner had not established that it is a bona fide nonprofit religious organization and that the position [as preschool teacher in a synagogue] qualifies as that of a religious occupation.” “The first issue presented on appeal is whether the petitioner has established that it is a bona fide nonprofit religious organization.”Rather than comply, the petitioner merely argued that it did not have to apply to the IRS. Thisargument once again failed. “The second issue on appeal is whether the petitioner has established that the proffered position qualifies as that of a religious occupation....” “In an August 13, 2008 job offer, the petitioner confirmed that the beneficiary would be reappointed to her position as "Toddler Teacher," with working hours from 7:30-3:30 and a salary of $22,295. The petitioner also provided a daily schedule for the "young toddler:" 7:30 – 9:00 Breakfast, free play. 9:00 – 9:15 Diapers. 9:15 – 9:30 Circle time, story, songs. 9:30 – 10:00 Free play. 10:00 – 10:15 Snack. 10:15 – 11:00 Play outside or inside. 1:00 – 11:30 Art work. 11:30 – 12:00 Free play in the room or in the bike room. 12:00 – 12:30 Lunch. 12:30 – 12:45 Diapers. 12:45 – 1:00 Get ready for nap, story time. 1:00 – 330 Nap. 3:30 - 3:45 Diapers. [3:45] - 4:00 Snack. 4:00- 6:00 Play outside or inside, songs, story, clean up and say goodbye. In documentation about its preschool, the petitioner stated, "Children can begin to attend our Infant and Toddler Center at 6 weeks of age. For preschoolers, ages 18 months through kindergarten we offer two different licensed tacks of education. Some parents choose our Developmental Track while others opt for Montessori Education."The petitioner switched the job title and expanded the duties (on paper) but basically thisbeneficiary was just a daycare center worker caring for infants as young as six weeks up to 3year old. “We are not persuaded by counsels arguments, as the development of any language skill is important to all forms of learning, whether or not the learning is of a religious nature.I-360 Religious Worker Decisions: Candidates for Precedent?????? Page 42
  • Understanding English, Arabic, Hindi or any other language would be just as critical to the teaching of Christianity, Islam, Hinduism, and other religions. The mere fact that the teaching occurs outside of the individuals native country does not elevate the position of the language teacher to that of a religious occupation. While it is arguable that the Montessori education track falls within the parameters of religious instruction, the petitioner submitted no documentation to establish that the beneficiarys position as a "toddler teacher" primarily relates to a traditional religious function, is recognized as a religious occupation within its denomination, and primarily relates to, and clearly involves, inculcating or carrying out the religious creed and beliefs of the denomination. Accordingly, the petitioner has failed to establish that the proffered position of toddler teacher is a religious occupation within the meaning of the regulation.” “Beyond the decision of the director, the petitioner has 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 petition.”Apr062010_11C1101.pdf Appeal DISMISSED.WOW! What an unfair decision! Hopefully, the petitioner sued USCIS under the AdministrativeProcedures Act (APA) [5 USC] § 706 (copied below). “....The director determined that the petitioner had not established that the beneficiary had worked continuously in a qualifying religious occupation or vocation for two full years immediately preceding the filing of the visa petition.” “In its February 17, 2009 letter submitted in support of the petition, the petitioner stated that the beneficiary had worked as a full-time, salaried missionary minister with the organization since 2006. The petitioner submitted a copy of a Form I-797A, Notice of Action, dated January 23, 2009, notifying the petitioner that the beneficiary had been approved for an extension of his R-1 nonimmigrant status and that the extension was valid from September 22, 2006 to September 21, 2008. In denying the petition, the director stated that as the beneficiary did not leave the United States after expiration of his visa in September 2008, that any work that he engaged in after that period was in an unauthorized status and therefore he was not eligible for benefits under this visa classification.[How the hell would he know he was supposed to leave in Sept. 2008, when he was notnotified of the nunc pro tunc approval until January 2009?] On appeal, counsel asserts that USCIS approved the beneficiarys R-1 status extension more than three years after it was filed on September 22, 2006 and that the petitioner, following "instructions given by one of your supervisor immigration personnel," filed the Form 1-360 within 30 days of receiving the approval notice. Counsel states that the delay in approving the R-1 extension was for the purpose of investigating potential fraudI-360 Religious Worker Decisions: Candidates for Precedent?????? Page 43
  • by the petitioner, that no fraud was found, and that the beneficiary should not be disadvantaged because of this.[This is a reasonable action to take (and advice to give) for any sane and reasonable USCISSupervisor. AAO’s refusal to believe it is ludicrous or as the statute says “arbitrary,capricious and an abuse of discretion.”] The record reflects that the beneficiary first entered the United States on September 22, 2003 pursuant to an R-1 visa with a valid class status until September 21, 2006. We note that the petitioner did not submit a request for an extension of the beneficiarys visa until after the expiration date of his approved status. The record does not reflect that the beneficiary left the United States upon expiration of his original R-1 status.[The fact that the petitioner sent the extension petition in time for it to be received onSeptember 22nd shows that it was not a complete afterthought. The fact that the I-129 wasaccepted through an acceptable exercise of discretion and eventually approved after aprotracted fraud investigation which found no fraud should count for something! USCIScaused a great delay which placed the beneficiary is an unlawful status through no fault ofhis own and should not be allowed to be held against him. Even though AAO is an appellateauthority, how can it possibly justify nullifying a perfectly acceptable exercise of discretionmade over three years prior? This is an egregious abuse of discretion by AAO and a missedopportunity to set a standard through Precedent.] Although counsel asserts that the petitioner was advised by an immigration supervisor to file the Form 1-360 petition 30 days after the R-1 extension request was approved, counsel did not identify the supervisor or the date, nature and substance of the conversation that led to such advice. Further, it is not clear why counsel, who admits to having more than 15 years of immigration law experience, would choose to wait until notification of approval of an R-1 status prior to advising her client to file for permanent legal status on behalf of the beneficiary. Nothing in the immigration laws requires the petitioner to have an approved R-1 status in order to file a Form 1-360 petition under section 203(b)(4) of the Act.[The portion underlined shows how out of touch AAO is from the day-to-day operationsand the way contract clerical staff is trained. The very people who would be opening themail with the petition in it has only a checklist to work with. Without evidence to show thatone is in a valid status, an application for adjustment of status based on a preferencepetition cannot be filed. So, is AAO saying that merely having the I-129 “pending” alone,would have been sufficient for filing and then approving the I-360?] While the record of proceeding does not reveal why USCIS took over two years to approve the petitioners request to extend the beneficiarys R-1 status, counsels argument that the beneficiarys unlawful immigration status was the result of this delay is unpersuasive. Other than allegedly making phone calls, neither counsel, the petitioner nor the beneficiary appears to have made any other effort to ensure that the beneficiary eitherI-360 Religious Worker Decisions: Candidates for Precedent?????? Page 44
  • remained in a lawful immigration status or left the country upon expiration of his lawful status. Because the petitioner has failed to establish that the beneficiary remained in an authorized immigration status, it has failed to establish that the beneficiary worked continuously in a qualifying religious occupation or vocation for two full years prior to the filing of the visa petition. Beyond the decision of the director, the petitioner has failed to submit the attestation required by the regulation at 8 C.F.R. § 204.5(m)(7),...”5 USC § Sec. 706. Scope of reviewTo the extent necessary to decision and when presented, the reviewing court shall decide allrelevant questions of law, interpret constitutional and statutory provisions, and determine themeaning or applicability of the terms of an agency action. The reviewing court shall-- (1) compel agency action unlawfully withheld or unreasonably delayed; and (2) hold unlawful and set aside agency action, findings, and conclusions found to be- (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (D) without observance of procedure required by law; (E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or (F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.In making the foregoing determinations, the court shall review the whole record or those parts ofit cited by a party, and due account shall be taken of the rule of prejudicial error.Apr072010_01C1101.pdf Appeal DISMISSED. “The director determined that the petitioner had not established that the position [as a “director of liturgy and music” in a Catholic church] qualifies as that of a religiousI-360 Religious Worker Decisions: Candidates for Precedent?????? Page 45
  • occupation and that the beneficiary worked continuously in a qualifying religious occupation or vocation for two full years immediately preceding the filing of the visa petition.” “Beyond the decision of the director, the petitioner has not established it is a bona fide nonprofit religious organization.”Apr082010_01C1101.pdf Appeal REJECTED, as improperly filed by other than the petitioner.Apr082010_02C1101.pdf Appeal DISMISSED.The petitioner seeks to employ the beneficiary as a nun in a Buddhist center. Unfortunately onecannot enter the U.S. as B-2 tourist, work without authorization (even as volunteer) and have thatunauthorized period count for this visa category. Also, the interruption of status andunauthorized work affirmatively breaks the two-period of prerequisite qualifying work in orderto qualify for the visa. “The director determined that the petitioner had not established that the beneficiary worked continuously in a qualifying religious occupation or vocation for two full years immediately preceding the filing of the visa petition.” “Therefore, the petitioner must show- that the beneficiary worked 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 petition was filed on July 10, 2008. Accordingly, the petitioner must establish that the beneficiary had been continuously employed in qualifying religious work throughout the two-year period immediately preceding that date.” “The petitioner also submitted a copy of the beneficiarys visa, issued on May 25, 2007 and valid until May 24, 2008 indicating that she was approved as a B1/B2 non-immigrant visitor. The record reflects that the beneficiary entered the United States pursuant to that visa on June 1, 2007 and again on January 9, 2008. A Form I-94, Departure Record, indicates that on her last entry, the beneficiary entered the United States in a B-2 status for an authorized period of stay until July 8, 2008. An alien who is present in the United States pursuant to a B-2 visa is not authorized to work in the United States. 8 C.F.R. §214.1 (e). Any work performed in the United States in an unauthorized status interrupts the continuous work experience required by the regulation. 8 C.F.R. § 204.5(m)(4).”Apr082010_03C1101.pdf REMANDED.The petitioner seeks to obtain a visa for the beneficiary as a "Global Preacher/Bhakti YogaTeacher." “...The director determined that a compliance review verification visit failed to verify the existence of the petitioner, that it had extended a bona fide job offer to the beneficiary, and that it had the ability to pay the beneficiary the proffered wage.”I-360 Religious Worker Decisions: Candidates for Precedent?????? Page 46
  • “The regulation at 8 C.F.R. 5 204.5(m)(12) states, "If USCIS decides to conduct a pre- approval inspection, satisfactory completion of a site inspection will be a condition for approval of any petition." This does not mean, however, that a single visit to an empty building is an automatic and irrebuttable basis for denial of the petition. It does not prove or imply that the petitioner does not exist, and it is not a sufficient basis to conclude that no valid job offer exists for the beneficiary. The petitioners explanation for the absence of staff on the day of the investigating officers visit is not implausible. The record does not reflect that the investigating officer attempted any other means of verification, including calling the petitioner. While we agree with the director that the visit to the petitioners address did not verify the petitioners claims, we find however that the compliance review visit was at best, inconclusive, and a follow-up visit may be in order. Additionally, we find other issues of concern. 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 have in making the initial decision except as it may limit the issues on notice or by rule."); see also Janka v. US. Dept. of Transp., NTSB, 925 F.2d 1147, 1149 (9th Cir. 1991). The AAOs de novo authority has been long recognized by the federal courts. See, e.g., Dor v. INS, 801 F.2d 997, 1002 n. 9 (2d Cir. 1989). After the petitions July 2008 filing date but before the April 2009 denial, new regulations replaced the existing regulations at 8 C.F.R. § 204.5(m) as of November 26, 2008. The directors decision does not cite to these new regulations, and there are additional requirements that the petitioner must meet before the petition can be approved.” “Because the petitioner has not yet met the above requirements, the director cannot approve the petition. Nevertheless, because these requirements did not yet exist at the time of filing, the director must request the necessary evidence before the director can deny the petition based on the lack of that evidence. Supplementary information published with the new regulations specified: "All cases pending on the rules effective date . . . will be adjudicated under the standards of this rule. If documentation is required under this rule that was not required before, the petition will not be denied. Instead the petitioner will be allowed a reasonable period of time to provide the required evidence or information." 73 Fed. Reg. 72276, 72285 (Nov. 26, 2008).”Apr082010_04C1101.pdf Appeal DISMISSED. “The director determined that the petitioner had not established that it is a bona fide nonprofit religious organization.”Instead of just getting the IRS letter, the petitioner chose to argue about it.I-360 Religious Worker Decisions: Candidates for Precedent?????? Page 47
  • “The petitioner has failed to provide a currently valid determination letter from the IRS establishing that it is a tax-exempt organization. Therefore, the petitioner has failed to establish that it is a bona fide nonprofit religious organization as required by the regulation at 8 C.F.R. § 204.5(m)(8). The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. Here, the petitioner has not sustained that burden. Accordingly, the appeal will be dismissed.”Apr082010_05C1101.pdf REMANDED. “The petitioner "is a Roman Catholic social service organization." 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 social worker. The director determined that the petitioner has not submitted the required attestation signed by an authorized official of the organization.” “The issue presented on appeal is whether the petitioner has submitted an attestation signed by an authorized official of the organization.” “On February 3, 2009, the director issued a request for evidence (RFE) requesting, among other things, that the petitioner complete the attestation required by the new USCIS regulation. In response, the petitioner submitted an attestation signed by [redacted] and addressing each of the issues required by the regulation. Information submitted about the petitioning organization indicates that [redacted] "is pastor of St. Rose of Lima Parish and founder of the petitioning organization. In denying the petition, the director did not specify why the attestation did not meet the requirements of the regulation, and the AAO can discern no deficiencies that would require rejection of the attestation submitted by the petitioner. Accordingly, the directors decision is withdrawn. Nonetheless, the petition cannot be approved as the record now stands. The petitioner has not established it is a bona fide nonprofit religious organization...” “On remand, the director shall address whether the petitioner is a bona fide non-profit religious organization. The petitioner has also failed to establish that the proffered position qualifies as that of a religious occupation or vocation. The beneficiary is a nun. However, the proffered position is that of a social worker and the petitioner has not established that the beneficiary will be practicing her vocation of nun. On remand, the director shall address whether the beneficiary seeks to enter the United States for the purpose of working in a qualifying religious occupation or vocation.I-360 Religious Worker Decisions: Candidates for Precedent?????? Page 48
  • Additionally, the petitioner has failed to establish that the beneficiary has the requisite two years of continuous experience in the proffered position.” “The petition was filed on October 6, 2008. Accordingly, the petitioner must establish that the beneficiary had been continuously employed in qualifying religious work throughout the two-year period immediately preceding that date.” “The record reflects that the beneficiary entered the United States on August 28, 2004 pursuant to an F-1 student visa. On August 8, 2007, the beneficiary was approved for an R-1 non-immigrant religious worker visa valid until February 28, 2009. The beneficiary indicated on her Form G-325A, Biographic Information, that she worked as a dietary aide with the petitioning organization from November 2005 to June 2008 and as a social worker from June 2008 to the date the petition was filed. The record contains no documentation such as an IRS Form W-2 to corroborate any work performed by the beneficiary during 2006. On remand, the director shall address whether the beneficiary has the required two years continuous experience in a qualifying religious vocation or occupation. This matter will be remanded. The director may request any additional evidence deemed warranted and should allow the petitioner to submit additional evidence in support of its position within a reasonable period of time. As always in these proceedings, the burden of proof rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361.”Apr082010_06C1101.pdf Appeal DISMISSED. “The petitioner 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 director of its Discover Africa/African Redemptive Operation (AFRO) Network. The director determined that the petitioner had not provided verifiable evidence of how it intends to compensate the beneficiary.” “....[T]he record does not establish that the petitioner intends to compensate the beneficiary at a specific rate of pay. The beneficiary is responsible for generating the funding necessary to provide his own compensation. The amount the beneficiary receives varies from year to year. We note that the petitioner has not provided the attestation required by the new regulation at 8 C.F.R. § 204.5(m)(7)...” “As specifically provided for in the final rule, the only religious workers who may rely on self support rather than actual salary or in-kind support as evidence of their prior employment are those workers in an established missionary program under an R-1 or B-1 nonimmigrant visa. In this instance, the record does not establish that the beneficiary was in a missionary program.I-360 Religious Worker Decisions: Candidates for Precedent?????? Page 49
  • The petitioner has failed to establish that it has the ability or the intention of compensating the beneficiary.” “Beyond the decision of the director, the petitioner has not established that it is a bona fide nonprofit religious organization....” “The petitioner submitted a copy of a June 20, 2007 letter from the IRS indicating that it was exempt from taxes under section 501(c)(3) of the IRC as a public charity under sections 509(a)(l) and 170(b)(l)(A)(ii). The IRS letter therefore classifies the petitioner as a public charity rather than a religious organization.” “The evidence is therefore insufficient to establish that the petitioner is a bona fide nonprofit religious organization as required by the regulation at 8 C.F.R. § 204.5(m)(8).”Apr082010_07C1101.pdf Appeal DISMISSED. “...[T]he petitioner must show that the beneficiary worked 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 petition was filed on May 12, 2008. Accordingly, the petitioner must establish that the beneficiary was continuously employed in qualifying religious work throughout the two-year period immediately preceding that date.” “In its January 4, 2008 letter submitted in support of the petition, the petitioner stated that the beneficiary "has been working as the full-time Pastor in the Church since its inception in October 2003. Compensation has only been love offering and housing waiting for INS permit for work to pay him a salary." The petitioner indicated on the Form 1-360, Petition for Amerasian, Widow(er), or Special Immigrant, that the beneficiary entered the United States on August 19, 1993 in an F- 1 nonimmigrant student status. The petitioner submitted no other documentation with the petition to establish the beneficiarys qualifying work experience. In a request for evidence (RFE) dated November 6, 2008, the director requested additional documentation from the petitioner, including documentation that the beneficiary had maintained his F-1 status, a copy of Form 1-688 indicating that the beneficiary was authorized to work in the United States, and documentation reflecting that the beneficiary was compensated for his work with the petitioning organization. The petitioner provided no additional documentation or information regarding the beneficiarys immigration status with its December 28, 2008 response....” “The director denied the petition, determining that the petitioner had not established that the beneficiary was in a lawful immigration status for the two years immediately preceding the filing of the petition, and thus had failed to establish that he worked continuously during the qualifying period.I-360 Religious Worker Decisions: Candidates for Precedent?????? Page 50
  • On appeal, the petitioner states that the beneficiary is not a volunteer and receives a love offering and housing "until he obtains his Work Authorization." In a March 9, 2009 letter, the petitioner stated that the beneficiary "relocated to the USA as a student" in 1993 and received a Doctor of Psychology degree from Biola University in La Mirada, California in 1999. The petitioner submitted no documentation to establish the beneficiarys lawful immigration status during the qualifying period.” “The director determined that the petitioner had sufficiently established how it intends to compensate the beneficiary. However, we do not concur and withdraw this determination by the director.” “Beyond the decision of the director, the petitioner has failed to provide the attestation required by the regulation at 8 C.F.R. § 204.5(m)(7).” “The petition will be denied for the above stated reasons, with each considered as an independent and alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. Here, that burden has not been met. Accordingly, the appeal will be dismissed.”Apr082010_08C1101.pdf Appeal 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 a church office clerk. The director determined that the petitioner had not established that the position qualifies as that of a religious occupation.” “In its July 31, 2008 letter submitted in support of the petition, the petitioner stated that the beneficiary had been a member of the petitioning organization for ten years and "was elevated to the rank of a Deacon" in 2005, and that in that position "he provides Spiritual and Social services to the Church and the Community." The petitioner provided a copy of the beneficiarys February 26, 2005 certificate of ordination to the deaconate and also stated: At this time, the Church is offering [the beneficiary] a full time job as a Church Office Clerk. As the Church Clerk, he will be performing duties such as: keeping all church records and he will be teaching the mens Bible Class. For his services [he] will be paid four hundred and fifty dollars every week plus transportation expenses.” “On appeal, the petitioner changes the nature and title of the position offered to the beneficiary, now stating that it is a paid missionary position that would include ministering to hospitals, nursing homes, prisons and jails. A petitioner cannot, on appeal, offer a new position to the beneficiary, or materially change a positions title, its level ofI-360 Religious Worker Decisions: Candidates for Precedent?????? Page 51
  • authority within the organizational hierarchy, or the associated job responsibilities. The petitioner must establish that the position offered to the beneficiary when the petition was filed merits classification as a religious worker. A petitioner may not make material changes to a petition in an effort to make a deficient petition conform to USCIS requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998).” “The petitioner has failed to establish that the position of church office clerk is a religious occupation within the meaning of the regulation. Beyond the decision of the director, the petitioner has not established that the beneficiary worked continuously in a qualifying occupation or vocation for two full years immediately preceding the filing of the visa petition.” “...[T]he record reflects that the beneficiary was not in a lawful immigration status during the qualifying period. On the Form 1-360, Petition for Amerasian, Widow(er), or Special Immigrant, the petitioner stated that the beneficiary arrived in the United States on June 13, 1998 for an authorized period of stay until December 12, 1998. The petitioner provided no documentation to establish that the beneficiary was authorized to work in the United States during the two years prior to the filing of the visa petition. Accordingly, any work performed by the beneficiary in the United States interrupts the continuity of his work experience for the purpose of this visa petition. 8 C.F.R. § 204.5(m)(4).” “Additionally, the petitioner has failed to establish how it intends to compensate the beneficiary.”Apr082010_09C1101.pdf 2nd REMAND. “The Director, California Service Center, initially approved the employment based immigrant visa petition. On further review, the director determined that the beneficiary was not eligible for the visa preference classification. Accordingly, the director properly served the petitioner with a Notice of Intent to Revoke (NOIR) the approval of the preference visa petition and her reasons therefore and subsequently exercised her discretion to revoke approval of the petition on February 29, 2008. 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, and remand the petition for further action and consideration.” “The evidence of record sufficiently establishes that the petitioner existed as an entity at the addresses that it alleges in its documentation. The petitioner also provided a reasonable explanation for the closure of its facilities at the date and time of the investigators visit. The investigators report does not identify any other reasons why they concluded that the organization did not exist as a functioning church other than the church was closed on the one day they visited. The finding of the investigators during a single visit, especially considering the other evidence of record, does not, by itself, provide a sufficient basis on which to conclude that the organization does not exist asI-360 Religious Worker Decisions: Candidates for Precedent?????? Page 52
  • claimed. If the director believes a site visit is necessary to the adjudication of this petition, the director must attempt another visit. Additionally, the petitioner has not established how it intends to compensate the beneficiary.”Following a listing and discussion of financial documents submitted as evidence..... “These documents are questionable, however, not only because of the dates in which they were allegedly prepared, but also because the petitioner alleged in its letter submitted in support of the petition, that the beneficiary did not begin employment with the petitioning organization until April 2005. This is confirmed in the "verification of employment" letter from [redacted] which indicates that the beneficiary worked for that institution from August 1, 2003 to March 3 1, 2005. It is also confirmed by the copies of the beneficiarys Forms W-2, from [redacted]. Thus, the petitioners purported submission of IRS Forms 941 and California State Forms DE 6 for periods in which the beneficiary worked for another church is illogical and questionable. It is incumbent upon the petitioner to resolve any inconsistencies in the record by independent objective evidence. Any attempt to explain or reconcile such inconsistencies will not suffice unless the petitioner submits competent objective evidence pointing to where the truth lies. Doubt cast on any aspect of the petitioners proof may, of course, lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the visa petition. Matter of Ho, 19 I&N Dec. 582,591 (BIA 1988). The matter will therefore be remanded. On remand, the director should address whether the petitioner has established how it intends to compensate the beneficiary. Therefore, this matter will be remanded. The director may request any additional evidence deemed warranted and should allow the petitioner to submit additional evidence in support of the petition within a reasonable period of time. As always in these proceedings, the burden of proof rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361.”Apr092010_01C1101.pdf REMANDED.“Despite the issuance of new regulations (which superseded and replaced the old regulations),the director denied the present petition on October 8,2009 under the old regulations, rather thanunder the new regulations. Therefore, the director erroneously based the decision on obsoleteregulations that were no longer in effect at the time of the decision.”Apr092010_02C1101.pdf Appeal DISMISSED. “....The director determined that the petitioner had not established: (1) that the beneficiary had the requisite two years of continuous, qualifying work experience immediately preceding the filing date of the petition; (2) that the beneficiary qualifies for the positionI-360 Religious Worker Decisions: Candidates for Precedent?????? Page 53
  • offered; (3) the petitioners ability to compensate the beneficiary; or (4) the petitioners status as a qualifying religious organization.” “The record shows that the beneficiary was in the United States throughout this ten-week gap in his employment authorization; his most recent documented entry before the filing date was on July 30, 2008. The petitioner has submitted no documentation to show that the beneficiary was authorized to work for the petitioner between August 7 and October 13, 2008. For the reasons discussed above, we agree with the directors finding that the petitioner has not shown that the beneficiary engaged in two years of continuous, lawfully authorized employment immediately prior to the petitions filing date. We note that the director based the denial, in part, on the observation that the beneficiary worked for the petitioner not as an R-1 nonimmigrant religious worker, but as an E-3D nonimmigrant spouse of an E-3 Australian treaty nonimmigrant. This is not inherently disqualifying, because while E-3D nonimmigrant status does not automatically convey employment authorization, an alien in that status is eligible to apply for employment authorization (as the beneficiary clearly did in this instance). Our finding rests not on the beneficiarys E-3D status, but on the documented lapse in his employment authorization during the second half of 2008.” “In denying the petition, the director stated that the beneficiarys educational credentials "do[] not constitute proof that an alien is entitled to perform duties of an Imam." The director also stated: In addition, according to the public record listed on the website as "It is difficult to describe the methods to become an Imam. The term Imam means several different things to the different Islamic sects. So, for example, anyone who leads prayers at a prayer service is temporary [sic] an Imam. To become an Imam in this sense one may merely need to be an adult male." Another website indicates that "there are some people whom Sunnis call Imams who are not prayer leaders." Therefore, the "diploma" alone without submitted further evidence is insufficient to establish that the beneficiary qualified as [an] Imam and the proffered position is qualifies [sic] as vocation for the religious organization. The petitioner has not established that the beneficiarys activities for the petitioner would require any religious training or qualifications. The record does not provide information as to what training and/or educational requirements would be considered for a qualified religious worker in this position. The petitioner has not shown that the beneficiary is performing duties above and beyond those of a caring member of the denomination. Consequently, it is not been demonstrated that the beneficiary is qualified to engage in a religious vocation or occupation. On appeal, the petitioner submits various educational documents, some previously reproduced in the record, and a letter from who states:I-360 Religious Worker Decisions: Candidates for Precedent?????? Page 54
  • The term "Imam" in Islam, has two meanings - a general, literal one and a specific contextual one. In regards to the general literal meaning of the term Imam, it means any adult male who may lead congregational prayer at any place. The only requirement for fulfilling this position is that the person must be most proficient in reciting the Holy Quraan the best among the group. The specific and contextual meaning of the word Imam encompasses the knowledge, expertise and training of an individual in the fundamentals of Islamic Jurisprudence and Law. . . . This training prepares prospective Imams to take leadership positions in Islamic institutions by given them expertise in the dynamics of an Islamic community, the ability to relate to current issues and respond to diversity and lead the community to higher moral and ethical conduct. [The beneficiary] has a clear and established record of providing these special services for his community. . . . In addition to meeting the criteria defined above for both the general and specific contextual requirements, it is our opinion that [the beneficiary] is specially trained to be an Imam. We find that the petitioner has adequately shown that the beneficiary qualifies as an imam. The requirements for the position are admittedly rather loosely defined, but this merely makes it easier to meet those qualifications. Supplemental information published with the recently revised regulations pertaining to special immigrant religious workers indicates that "USCIS did not intend the definition of minister to require a uniform type of training that all denominations would have to provide their ministers. . . . [Some denominations do not require a particular level of formal academic training or experience." 73 Fed. Reg. 72276, 72280 (November 26, 2008). The director did not explain how the petitioners evidence was insufficient in this regard. If the decision will be adverse to the applicant or petitioner and is based on derogatory information considered by the Service and of which the applicant or petitioner is unaware, he/she shall be advised of this fact and offered an opportunity to rebut the information and present information in his/her own behalf before the decision is rendered. 8 C.F.R. § 103.2(b)(16)(i). Here, the director relied on information from two unidentified web sites. The director did not establish the authority of the sites, include printouts from the sites in the record, or advise the petitioner, prior to the decision, of the directors intent to deny the petition based on information from the sites. We will, therefore, disregard the passages that the director quoted from two unnamed web sites. The unattributed quotations have no value as evidence in this proceeding. We find that the petitioner has adequately established that the beneficiary is qualified for the position of imam, and we withdraw the directors contrary finding.”I-360 Religious Worker Decisions: Candidates for Precedent?????? Page 55
  • Apr092010_03C1101.pdf Appeal DISMISSED. [Candidate for Precedent.] “An applicant or petitioner must establish that he or she is eligible for the requested benefit at the time of filing the application or petition. 8 C.F.R. 103.2(b)(l). Here, the original job offer related to a teaching position at a school that no longer exists. After AACS closed its doors, the petitioner claims to have created a new Assyrian Center (or Institute) for Religious and Cultural Studies, but the petitioner has provided no evidence about this new entity or shown that it has any objective existence or purpose other than to justify the beneficiarys continued employment. The original job offer, as described in the petitioners initial filing, no longer exists. Therefore, USCIS cannot reasonably approve any petition based on that job offer. Likewise, the beneficiary cannot retain a September 2008 priority date based on a position that did not exist prior to August 2009. The petitioner cannot modify the terms of employment after the filing date. A petitioner may not make material changes to a petition that has already been filed in an effort to make an apparently deficient petition conform to USCIS requirements. See Matter of Izummi, 22 I&N Dec. 169, 175 (Commr. 1998). We note that, on appeal, the petitioner revises the job offer yet again, stating that "[t]he beneficiary was finally ordained as a permanent deacon on November 15,2009," and as such "is part of the clergy of the Holy Apostolic Catholic Assyrian Church of the East." [redacted] lists the beneficiarys new diaconal duties, which overlap, but differ significantly from both earlier versions of his duties. Counsel, in an appellate brief, asserts that the petitioner has adequately described the nature of the beneficiarys new duties as a deacon. We do not argue, here, that the beneficiarys work as a deacon cannot qualify him for immigration benefits in the context of a properly filed petition. Nevertheless, the petition at hand was filed in 2008, relating to a teaching position the beneficiary no longer holds, at a school that is now closed. The beneficiarys ordination as a deacon more than a year later does not establish that the director should have approved the petition. The beneficiarys diaconal ordination would be more properly addressed in a new petition, filed after the ordination took place. The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. The petitioner has not met that burden. Accordingly, the AAO will dismiss the appeal.”Apr092010_04C1101.pdf Appeal DISMISSED. “....The director determined that the petitioner had not established that the beneficiarys intended position [as a kindergarten teacher in a Catholic school] qualifies as a religious occupation relating to a traditional religious function.”I-360 Religious Worker Decisions: Candidates for Precedent?????? Page 56
  • “Apart from the vague reference to "[i]ntegrating the Churchs philosophy within the content/subject matter," the above listed duties are secular.” “On August 29, 2009, the director instructed the petitioner to establish that the beneficiarys position qualifies as a religious occupation relating to a traditional religious function. In response, counsel notes that the former USCIS regulation at 8 C.F.R. § 204.5(m)(2), in effect prior to November 26, 2008, included "religious instructors" in a list of examples of qualifying religious occupations. It does not follow, however, that every instructor at a religious institution is a "religious instructor." The petitioner resubmitted copies of previously submitted documents. Counsel stated that "the employment agreements and job description" establish the religious nature of the beneficiarys position. Among the documents resubmitted is the "Job Description" indicating that the beneficiarys position is open to individuals who are "[p]referably," but not necessarily, practicing Catholics. The director denied the petition on November 24, 2009, stating that the petitioner had not adequately shown the religious nature of the beneficiarys teaching position. On appeal, counsel again quotes from previously submitted materials. Counsel quotes five items from the 17-item list of "Duties & Responsibilities," stating that these "[f]ive relate solely to the teaching of religion." In the same submission, counsel condemns the directors "recitation of secular duties omitting the religious focus and content [as] deceptive and misleading." Counsel, thus, engages in the same use of selective quotation that counsel attempts to condemn as "deceptive and misleading." Even then, only one of the five highlighted items directly mentions "the Churchs teachings." Another item refers to "high ethical standards," which is hardly the exclusive province of religion. The other three quoted items refer to policies and regulations of the diocese. Secular as well as religious employers require adherence to the employers policies, and there is no evidence that the dioceses policies and regulations "relate solely to the teaching of religion." The unsupported assertions of counsel do not constitute evidence. See Matter of Obaigbena, 19 I&N Dec. 533, 534 n.2 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1, 3 n.2 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503,506 (BIA 1980).”Apr092010_05C1101.pdf REMANDED. “...The AAO will withdraw the directors decision. Because the record, as it now stands, does not support approval of the petition, the AAO will remand the petition for further action and consideration.” “...The director determined that the petitioner had not established that the beneficiary had the requisite two years of continuous work experience immediately preceding the filing date of the petition.”I-360 Religious Worker Decisions: Candidates for Precedent?????? Page 57
  • “On appeal, the petitioner submits various exhibits to establish the beneficiarys presence at the Lake Hughes mission and the petitioners material support of the beneficiary. A California driver license, issued to the beneficiary on January 14,2004, shows that the beneficiary began using the Lake Hughes address years before the petitioner filed the petition. The petitioner also submits copies of bank statements from its account and from the beneficiarys account. The statements show numerous checks from the petitioners account (payable to "Cash), that match, in amount and in time, corresponding deposits into the beneficiarys account between December 2004 and October 2007. The eight checks from 2007 match eight of the "Minister/Volunteer Maintenan[ce]” checks previously claimed (but not documented) for 2007. The bank documents indicate that the petitioner paid the beneficiary an aggregate total of $31,245.42 during the qualifying period, an amount that appears to be sufficient for the beneficiarys material support at the austere level one would expect under a vow of poverty.” “The USCIS regulation at 8 C.F.R. § 204.5(m)(7) requires that an authorized official of the prospective employer of an alien seeking religious worker status must complete, sign and date an attestation prescribed by USCIS and submit it along with the petition. The prospective employer must specifically attest to twelve points spelled out in the regulatory language. The record does not contain the required attestation, and therefore the petition cannot be approved as it now stands. Therefore, the AAO will remand this matter for appropriate action. The director may request any additional evidence deemed warranted and should allow the petitioner to submit additional evidence in support of its position within a reasonable period of time.”Apr092010_06C1101.pdf REMANDED. “Despite the issuance of new regulations (which superseded and replaced the old regulations), the director denied the present petition on November 16, 2009 under the old regulations, rather than under the new regulations. Therefore, the director erroneously based the decision on obsolete regulations that were no longer in effect at the time of the decision. The director must issue a new decision based on the new regulations promulgated on November 26, 2008. Because the new regulations include substantial new evidentiary requirements, the director must also afford the petitioner an opportunity to submit all such evidence that the petitioner did not initially submit, or that the director has not previously requested. 8 C.F.R. § 103.2(b)(8). As always in these proceedings, the burden of proof rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361.”Apr122010_01C1101.pdf Appeal WITHDRAWN.I-360 Religious Worker Decisions: Candidates for Precedent?????? Page 58
  • Apr152010_01C1101.pdf REMANDED. “...The AAO will withdraw the directors decision and remand the petition for further consideration and action pursuant to new regulations.”Apr162010_01C1101.pdf REMANDED, “The Director, Vermont Service Center, initially approved the employment-based immigrant visa petition. On further review, the Director, California Service Center determined that the beneficiary was not eligible for the visa preference classification. Accordingly, the director properly served the petitioner with a Notice of Intent to Revoke the approval of the preference visa petition and her reasons for doing so, and subsequently exercised her discretion to revoke the approval of the petition on May 5, 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 reconsider.” “The record indicates that the director issued the decision on May 5, 2009. We note that the director improperly advised the petitioner that he 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. F. C. C., 781 F2d 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. US. 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). The appeal was received by USCIS on June 3, 2009, or 29 days after the decision was issued. Accordingly, the appeal was untimely filed. As the petitioner failed to timely appeal the directors notice of revocation of the visa preference classification, the appeal will be rejected. Nevertheless, the regulation at 8 C.F.R. § 103.3(a)(2)(v)(B)(2) states that if an untimely appeal meets the requirements of a motion to reopen or a motion to reconsider, the appeal must be treated as a motion, and a decision must be made on the merits of the case.”Apr162010_02C1101.pdf Appeal DISMISSED. “While the petition was pending, USCIS published new regulations for special immigrant religious worker petitions. Supplementary information published with the newI-360 Religious Worker Decisions: Candidates for Precedent?????? Page 59
  • regulations specified: "All cases pending on the rules effective date . . . will be adjudicated under the standards of this rule." 73 Fed. Reg. 72276, 72285 (Nov. 26, 2008). The current 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) states that any qualifying experience acquired in the United States must have been authorized under United States immigration law. The director denied the petition on November 23, 2009, stating that "the record makes clear that the beneficiary was not in lawful immigration status at the time of filing this petition." The director also noted that the beneficiarys "nonimmigrant status expired on June 14, 2003. Therefore, the beneficiary was out of status during the entire two year period." The director acknowledged the petitioners assertion "that the beneficiary worked for at least the period September 1,2005, through November 15, 2006" for the petitioner, but "the record generally fails to confirm the beneficiarys other activities during the rest of the two-year period." On appeal, counsel observes that the new regulations appeared with the following instruction: "If documentation is required under this rule that was not required before, the petition will not be denied. Instead the petitioner will be allowed a reasonable period of time to provide the required evidence or information." 73 Fed. Reg. 72276, 72285 (Nov. 26, 2008). The petitioner submits copies of the Federal Register publication and a redacted appellate decision in which the AAO remanded a petition with a pending appeal to the director, with instructions to issue a request for evidence (RFE) for newly required evidence. Counsel argues that the directors decision is procedurally flawed because the director did not issue an RFE before denying the petition. Counsel asserts that USCIS "should reopen its decision . . . and grant [the petitioner] a reasonable time to respond to such a request" for evidence. Counsels argument would have more force if the director had based the denial on the petitioners failure to submit newly required evidence. In this instance, however, the director did not simply find that the petitioner had submitted insufficient evidence. The principal basis for the denial of the petition was the beneficiarys admitted lack of legal status, which is a disqualifying factor on its face. If the petitioners initial submission shows grounds of ineligibility, which is the case here, then the USCIS regulation at 8 C.F.R. § 103.2(b)(8)(i) prescribes denial on that basis, without issuance of an RFE. Significantly, counsel does not identify any evidence, either real or hypothetical, that the petitioner could have submitted in response to an RFE that would overcome the principal ground for denial. Even if such evidence did exist, nothing prevented the petitioner from submitting such materials for consideration on appeal. The petitioners appellate submissions, however, exclusively address issues arising from the change in theI-360 Religious Worker Decisions: Candidates for Precedent?????? Page 60
  • regulations. Because the petitioner has neither submitted nor even identified any further evidence that could overcome the basis for denial, we conclude that remanding the petition for the issuance of an RFE would serve no useful purpose. Counsel also contends that, because the directors alleged error "forced" the petitioner to file an appeal, the director "should be instructed to refund the $585 filing fee." 8 C.F.R. §103.2(a)(l) flatly states that filing fees, including those for appeals, "are non- refundable." The petitioner and counsel devote most of the appeal to the procedural issues discussed above. Counsel only briefly addresses the substance of the denial notice, stating: For at least two years preceding the filing of the 1-360, the beneficiary was repeatedly authorized by the United States Government to be employed based upon his pending application for adjustment of status. Accordingly, for at least two years preceding the filing of the 1-360, the beneficiary was employed as a religious worker in lawful immigration status. USCIS records confirm that the beneficiary filed eleven applications for employment authorization between 2002 and 2009, but only the first six applications were approved. The beneficiary filed the last approved application on November 22, 2005, with receipt number MSC 06 049 20807. USCIS approved that application on February 3, 2006, granting the beneficiary employment authorization from March 3, 2006 through March 2, 2007. The beneficiary has since filed five applications for employment authorization, but all were denied. The statute and regulations do not merely require two years of continuous experience, which thereafter permanently exist as a basis for eligibility. Sections 101 (a)(27)(C)(i) and (iii) of the Act clearly indicate that the qualifying period is "2 years immediately preceding the time" of filing (emphasis added). The USCIS regulation at 8 C.F.R. § 204.5(m)(4) likewise refers to "the two-year period immediately preceding the filing of the petition," and similar language appears at 8 C.F.R. § 204.5(m)(11). Earlier employment, regardless of its duration, cannot qualify the beneficiary for classification as a special immigrant religious worker. The USCIS regulation at 8 C.F.R. §204.5(m)(4)(iii) allows for a break in the continuity of the beneficiarys work, but only under certain specified conditions (quoted elsewhere in this decision). The petitioner has not claimed or demonstrated that these conditions all apply to the interruption in the beneficiarys work for the petitioner. The expiration of employment authorization is not an acceptable basis for a break in the continuity of the beneficiarys employment. Because the beneficiarys employment authorization expired on March 2, 2007, more than two months before the petitions May 14, 2007 filing date, he could not have lawfully worked in the United States throughout the two-year period immediatelyI-360 Religious Worker Decisions: Candidates for Precedent?????? Page 61
  • preceding the filing of the petition. Even then, the petitioner states that the beneficiary stopped working for the beneficiary in November 2006, four months before the recorded expiration date of his employment authorization and a full six months before the petitions filing date. The beneficiary admittedly did not continuously perform qualifying religious work throughout the two years immediately preceding May 14, 2007. Therefore, the beneficiary did not qualify for classification as a special immigrant religious worker as of May 14, 2007. The director correctly denied the petition on that basis. The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. The petitioner has not met that burden, and has effectively conceded an affirmative ground of ineligibility. Accordingly, the AAO will dismiss the appeal.”Apr162010_03C1101.pdf SUMMARILY DISMISSED. “....The director determined that the petitioner had not established its status as a tax- exempt nonprofit religious organization.” “On the Form I-290B Notice of Appeal, filed on December 30, 2009, counsel indicated that a brief would be forthcoming within thirty days. To date, over three months later, careful review of the record reveals no subsequent submission; all other documentation in the record predates the issuance of the notice of decision. The statement on the appeal form reads simply: [The beneficiary] qualifies as a special immigrant religious worker. The petitioner ... qualifies as a bona fide nonprofit religious organization and has been recognized as a tax-exempt organization, with the purpose of furthering Muslim religious teachings. [The beneficiary] is a qualified Imam and religious hafiz with [the petitioning organization]. The above are general statements with no specific allegation of error. Counsel has listed a series of conclusions, with no arguments or evidence to support those conclusions. The bare assertion that the petition should be approved, or that director somehow erred in rendering the decision, is not sufficient basis for a substantive appeal.”Apr162010_04C1101.pdf SUMMARILY DISMISSED. “....The director determined that the petitioner had not established that a religious organization actually operates at the address claimed (a residential condominium), and that the petitioner had not adequately established the beneficiarys work history or the nature of her duties.”I-360 Religious Worker Decisions: Candidates for Precedent?????? Page 62
  • “On the Form I-290B Notice of Appeal, filed on December 16, 2009, counsel indicated that a brief would be forthcoming within thirty days. To date, four months later, careful review of the record reveals no subsequent submission; all other documentation in the record predates the issuance of the notice of decision. The Form I-290B itself, therefore, constitutes the entire appeal (apart from copies of USCIS correspondence submitted on appeal). On the appeal form, counsel states that the director "made errors of fact and law in the interpretation of the several and various documents that were provided for analysis and use." This is a general statement that makes no specific allegation of error. The bare assertion that the director somehow erred in rendering the decision is not sufficient basis for a substantive appeal. Counsel also states that the petition "had already been approved and was only denied upon the filing of the subsequent [adjustment applications] for the beneficiary and her dependents." Counsel does not explain why this is a basis for appeal, or how this factual observation discredits the directors decision. The petition had indeed "already been approved" before the directors decision, which is why the decision is a revocation under 8 C.F.R. § 205.2 rather than a denial under 8 C.F.R. § 103.3. Section 205 of the Act, 8 U.S.C. § 1155, states: "The Secretary 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 Dec. 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. The approval of a visa petition vests no rights in the beneficiary of the petition, as approval of a visa petition is but a preliminary step in the visa application process. The beneficiary is not, by mere approval of the petition, entitled to an immigrant visa. Id. at 589.I-360 Religious Worker Decisions: Candidates for Precedent?????? Page 63
  • Inasmuch as counsel has failed to identify specifically an erroneous conclusion of law or a statement of fact as a basis for the appeal, the appeal must be summarily dismissed.”Apr162010_05C1101.pdf REMANDED. “The Director, California Service Center, initially approved the employment based immigrant visa petition. On further review, the director determined that the beneficiary was not eligible for the visa preference classification. Accordingly, the director properly served the petitioner with a Notice of Intent to Revoke (NOIR) the approval of the preference visa petition and her reasons therefore, and subsequently exercised her discretion to revoke the approval of the petition on January 3, 2008. The director granted the petitioners motion to reopen and reaffirmed her decision in a decision dated November 19, 2008. The matter is now before the Administrative Appeals Office (AAO) on appeal. The decision of the director will be withdrawn and the petition will be remanded for further action and consideration.”The new regulations were published while the case had been reopened, therefore the newdecision must be based on the newer regulations. “The matter is remanded to the director, California Service Center, for the issuance of a request for evidence (if necessary) and a new decision in accordance with the requirements of the new regulation published at 73 Fed. Reg. 72276 (Nov. 26, 2008). If the new decision is adverse to the petitioner, it shall be certified to the AAO for review.”Apr282010_01C1101.pdf Appeal DISMISSED. “...The director determined that the petitioner had not established that the proffered position qualifies as a religious occupation, or that the beneficiary is qualified for the position.” “In reviewing the job description and other evidence in the record, we find that the director has overemphasized the beneficiarys administrative functions at the expense of his demonstrably religious duties. We withdraw the directors finding that the petitioner has not shown that the beneficiarys work relates to a traditional religious function. Despite this reversal, however, we cannot approve the petition because a second ground for denial remains. “The USCIS regulation at 8 C.F.R. § 204.5(m)(7)(ix) requires the petitioner to attest that the beneficiary is qualified for the position offered. The regulation at 8 C.F.R. § 204.5(m)(12) further specifies that USCIS may verify the petitioners supporting evidence through any means USCIS deems appropriate. Looking at these two regulations together, it is clear that, while the petitioner is required to attest to certain facts, USCIS is not required to accept those attestations uncritically or without question.” “In denying the petition, the director found that "the petitioner has not established that the beneficiary is qualified for the position." On appeal, counsel correctly states that theI-360 Religious Worker Decisions: Candidates for Precedent?????? Page 64
  • petitioner twice submitted a job description including "the minimum education, training and experience required." This does not, however, show that that the petitioner complied with the directors request for evidence to show that the beneficiary met those requirements.” “....Here, the "imposition of a training requirement" came not from the director, but from the petitioner, which stated that the beneficiarys intended position requires teaching and preaching experience in Spanish, "ministry experience in [a] multicultural setting," and at least a bachelors degree in a field related to the position. Because the petitioner voluntarily made these claims, the petitioner cannot now object to the directors efforts to confirm that the beneficiary possesses these qualifications. Counsel asserts that, by regulation, the petitioner is required only to show that the beneficiary possesses at least two years of continuous experience immediately preceding the petitions filing date, and that the petitioner has met that requirement. This is a non sequitur, because the issue is not whether the beneficiary performed qualifying work for two years, as required by 8 C.F.R. § 204.5(m)(4). Rather, the issue is whether the petitioner has shown that the beneficiary meets the qualifications that the petitioner itself claims to require for the job. The regulation at 8 C.F.R. § 204.5(m)(12) permits the director to take necessary steps to verify the petitioners claims. Failure to submit requested evidence which precludes a material line of inquiry shall be grounds for denying the application or petition. 8 C.F.R. § 103.2(b)(14). In this instance, the petitioner has repeatedly stated that the position requires a "minimum B.A. in [a] related field." The petitioner has not submitted any evidence that the beneficiary holds this degree. When the director noted this omission, counsel has responded by arguing, in effect, that the petitioner should not have to prove that the beneficiary holds the degree.”Apr292010_01C1101.pdf Appeal DISMISSED. “Based on the results of a compliance review site visit, the director determined that the petitioner had not established that it is a bona fide nonprofit religious organization.”The evidence finally submitted on appeal which had been specifically requested in the director’sRFE would not be accepted and evaluated by AAO. [If this had been the only item missing, thedirector would have accepted it on initial review and the case would not have gone to AAO.] “Beyond the directors decision, the petitioner has not established that the beneficiary was continuously employed in a qualifying religious vocation or occupation for two full years immediately preceding the filing of the visa petition. The AAO conducts appellate review on a de novo basis. The AAOs de novo authority is well recognized by the federal courts. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004).” “...[T]he petitioner must show that the beneficiary worked in a qualifying religious occupation or vocation, either abroad or in lawful immigration status in the United States,I-360 Religious Worker Decisions: Candidates for Precedent?????? Page 65
  • continuously for at least the two-year period immediately preceding the filing of the petition. The petition was filed on September 2, 2008. Accordingly, the petitioner must establish that the beneficiary had been continuously employed in qualifying religious work throughout the two-year period immediately preceding that date.” In view of the evidence submitted and described “the petitioner has failed to establish that the beneficiary was continuously employed in a qualifying religious occupation or vocation for the two years immediately preceding the filing of the visa petition. Additionally, the petitioner has failed to establish how it will compensate the beneficiary” “The petitioner stated that the beneficiary is paid an hourly wage by the "group home" to which she is assigned, that she remits these earnings to DMMM, who in turn provide her with a stipend, food and lodging. The petitioner provided no documentation of any earnings by the beneficiary or any compensation paid to the beneficiary by the DMMM. Additionally, the record is not clear as to whether the beneficiarys earnings are paid by the DMMM or through some other source. The regulation requires that the beneficiarys salaried or non-salaried compensation must be paid by the attesting employer. 8 C.F.R. §204.5(m)(7)(xi). The petitioner has, therefore, failed to provide verifiable evidence of how it intends to compensate the beneficiary. Finally, the petitioner has not established that the beneficiary will be engaged in full time employment. We note that the attestation provided by the petitioner was submitted on a Form 1-129 Supplement to the R-1 classification. The R-1 classification requires the petitioner to attest that the beneficiary will work a minimum of 20 hours a week, which is not full time employment as required by the regulation at 8 C.F.R. § 204.5(m)(2). The petitioner has not submitted documentation of the beneficiarys expected hours of work and therefore has not established that the beneficiary will be engaged in full time employment (at least 35 hours per week). The petition will be denied for the above stated reasons, with each considered as an independent and alternative basis for denial....”Apr292010_02C1101.pdf Denial AFFIRMED on CERTIFICATION. [Precedent worthy?]Conflicting and manufactured evidence will not support a petition. This is worth reading andincludes numerous useful citations.Apr302010_01C1101.pdf Appeal DISMISSED. “The director determined that the petitioner had not established that the beneficiary had the requisite two years of continuous, lawful, qualifying work experience immediately preceding the filing date of the petition, or that the beneficiarys intended position [as a music Minister in a Pentecostal Christian church of the Assemblies of God denomination] qualifies as a religious occupation.”I-360 Religious Worker Decisions: Candidates for Precedent?????? Page 66
  • Decision discusses the question of whether the beneficiarys occupation is "recognized as areligious occupation within the denomination," the inapplicability of Ruiz-Diaz v. United States,No. C07-188 1RSL (W.D. Wash. June 1 I, 2009), and the fact that USCIS substantially revisedits regulations in November 2008, which affects the applicability of court decisions based on theolder version of the regulations. Notably missing is any reference to the USCIS Policy Memo ofAugust 5, 2009, entitled: “Clarifying Guidance on the Implementation of the District CourtsOrder in Ruiz-Diaz v. United States, No. C07-1881RSL (W.D. Wash. June 11, 2009)”May062010_01C1101.pdf Appeal DISMISSED. “The petitioner is a church of the African Methodist Episcopal denomination. 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 maintenance worker. The director determined that the petitioner had not established that it had made a qualifying job offer to the beneficiary, or that it is able to pay the beneficiarys salary.” “[W] agree with the directors finding that the beneficiarys part-time maintenance position does not qualify as a religious occupation, and that the petitioner has not extended a qualifying offer of full-time employment.” “In denying the petition, the director acknowledged the petitioners submission of tax and payroll documentation, but stated: "the petitioner failed to submit evidence that would pertain to the petitioners ability to pay" the beneficiarys salary. The petitioner does not address this issue on appeal. Given the petitioners acknowledged submission of tax and payroll documentation, it is not clear how the director concluded that the petitioner has not established its ability to compensate the beneficiary. The petitioners submission of IRS documentation showing past compensation falls within the regulation at 8 C.F.R. § 204.5(m)(10), and the beneficiarys documented 2008 compensation was only $75.50 short of the beneficiarys proposed annual compensation. There are occasions when the facts of a particular petition require the petitioner to submit evidence that goes beyond the letter of the regulations. The regulations spell out minimum, not maximum, evidentiary requirements, and the director must determine on a case-by-case basis whether circumstances require more information and/or evidence. 8 C.F.R. § 214.2(r)(16) authorizes the director to verify the petitioners claims through any means determined appropriate by USCIS, and 8 C.F.R. § 103.2(b)(S)(iii) states that the director may request more information or evidence if the required initial evidence does not establish eligibility. In such instances, the director may request very specific evidence and deny the petition if the petitioner fails to submit such evidence. When the director requests a specific document, or material from a very narrow, specified range of evidence, then the petitioners failure to submit the requested evidence is a valid basis for denial under 8 C.F.R. §§ 103.2(b)(12) and (14). Here, however, the directorI-360 Religious Worker Decisions: Candidates for Precedent?????? Page 67
  • requested a broad range of evidence (specifically "IRS documentation") and the petitioner made a good-faith effort to comply with that request. Among other things, the petitioner submitted copies of IRS Forms W-2, which 8 C.F.R. § 214.2(r)(l l)(i) specifically identifies as acceptable documentation. The directors finding, as written, cannot stand, and we withdraw that finding (although the denial remains in effect, for other reasons already discussed). ....” “If the above documentary omissions were the only problems with the record, then the petition could not be denied until after the petitioner has had the opportunity to submit the missing evidence. See 73 Fed. Reg. 72276, 72285 (Nov. 26, 2008). It is clear, however, that the directors decision rested largely on regulatory provisions included in both the old and new versions of the regulations, most significantly the nature of the beneficiarys janitorial and maintenance work for the petitioner. Such work is nonqualifying, both under the former regulation at 8 C.F.R. § 204.5(m)(2) and the new regulation at 8 C.F.R. §204.5(m)(5). Therefore, the petition could not be approved under either the old or new version of the regulation, and it would serve no constructive purpose for us to request, now, the required attestation and IRS documentation from 2007. The submission of those materials would not make the petition approvable.”May062010_02C1101.pdf Appeal DISMISSED.This decision goes to great lengths to insist on proper translations and translator’s certificationsof same. One generic translator certificate that does not specifically tie it to the documents isinsufficient. [Ever hear of “bait and switch” or “the old switcheroo”?] “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 youth minister. The director determined that the petitioner had not established that the position qualifies as that of a religious occupation and that the beneficiary was qualified for the proffered position.” “On appeal, counsel asserts that the director failed to provide the petitioner with adequate notice and sufficient information of the deficiencies in its petition, and erred in determining that the position did not qualify as a religious occupation and that the beneficiary was not qualified for the position. Counsel submits a brief and additional documentation in support of the appeal. Counsel asserts that the petitioner "was not sufficiently apprised [in the request for evidence (RFE)] of the fact that the USCIS needed more information" to support the issues on which the petition was denied. The purpose of the RFE is to elicit further information that clarifies whether eligibility for the benefit sought has been established, as of the time the petition is filed. See 8 C.F.R. §§ 103.2(b)(8) and (12). Even if the director committed a procedural error by failing to adequately notify the petitioner, it is not clear what remedy would be appropriate beyond the appeal process itself. As with any claim of a violation of due process, a violation of an immigration regulation will notI-360 Religious Worker Decisions: Candidates for Precedent?????? Page 68
  • render a decision unlawful unless the violation prejudiced the interests of the alien protected by the regulation. United States v. Rangel-Gonzales, 617 F.2d 529, 530 (9th Cir. 1980). As noted above, the petitioner submitted additional documentation on appeal, which we have considered.” “We find that the evidence submitted by the petitioner sufficiently establishes that the position of youth minister is a religious occupation as defined by the regulation at 8 C.F.R. § 204.5(m)(5). We withdraw the directors determination to the contrary. The second issue on appeal is whether the petitioner has established that the beneficiary is qualified for the proffered position....”May062010_03C1101.pdf Denial AFFIRMED on CERTIFICATION.“Rev. Wal-Mart” “The self-petitioner seeks classification 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 pastor. The director determined that the petitioner had not established that he had worked continuously in a qualifying religious occupation or vocation for two full years immediately preceding the filing of the visa petition.” “The record reflects that the petitioner was not authorized to work in the United States following his graduation from Southeastern Baptist Theological Seminary in December 2005 until the Form I-360 petition filed on his behalf by [redacted] was approved on November 26, 2007. Additionally, approval of that petition was revoked in February 2008 after [redacted] withdrew its petition after terminating the petitioners employment in 2007.”May062010_04C1101.pdf REMANDED.The “Culture of NO!” is alive and well at CSC. “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 brother in its religious order. The director determined that a site visit failed to substantiate the petitioners claims.” “In its documentation submitted in support of its October 28, 2008 petition, the petitioner stated that the position is that of a brother (a gender-neutral title) in its religious order, and outlined the beneficiarys primary duties and responsibilities, which it stated comprised a minimum of 50 hours per week, as follows:” ...[Includes a list of time devoted to prayer, study and chores. The director made too big of a dealthat a “brother” did chores. Just a hint to CSC, monks, nuns, friars, sisters, and brothers oftenare self-supporting and might: keep bees and produce honey and bee’s wax (soap and candles),I-360 Religious Worker Decisions: Candidates for Precedent?????? Page 69
  • grow crops or keep animals and feed themselves and still manage to produce products for sale(yogurt, cheese, extra eggs, jam, jelly or other preserves, wines, juices, cider, or even tallowproducts (tallow: a hard fatty substance made from rendered animal fat, used in making candlesand soap). Dom Perignon was a Benedictine monk who perfected certain winemaking techniquesand some used in grape growing and harvesting as well as selection and blending grapes for theproduction of a variety of wines including sparkling wines; rather than inventing champagne asthe myths attribute to him.] “Accordingly, we do not find that the compliance review failed to support the petitioners claims regarding compensation or the nature of the proffered position, and we withdraw the directors statements to the contrary. Nonetheless, the petition may not be approved as the record now stands and the matter is remanded to the director for further clarification.”May062010_05C1101.pdf Denial AFFIRMED on CERTIFICATION. “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 associate pastor. The director determined that the petitioner had not established how it intends to compensate the beneficiary and that it has extended a qualifying job offer to the beneficiary.” “In a January 8, 2007 letter, the petitioner stated that the beneficiary would be compensated at the rate of $21,600 annually plus "living accommodation." The petition was filed on January 31, 2007. Therefore, the petitioner must establish that it had the ability to compensate the beneficiary the proffered wage as of that date.” “[T]he petitioners evidence is insufficient to establish that the proffered position will offer full time employment to the beneficiary.”May062010_06C1101.pdf Appeal 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 a pastor. The director determined that the petitioner had not established that the beneficiary worked continuously in a qualifying religious occupation or vocation for the two years immediately preceding the filing of the petition.”Late submitted evidence not accepted on appeal and there were other deficiencies.May112010_01C1101.pdf Appeal DISMISSED.Beneficiary went out of status and simply does not qualify for the instant I-360.I-360 Religious Worker Decisions: Candidates for Precedent?????? Page 70
  • May122010_01C1101.pdf Appeal REJECTED.An important statement on procedure for “abandonment denials”. “The Director, California Service Center, denied the employment-based immigrant visa petition. The petitioner appealed the decision to the Administrative Appeals Office (AAO). The AAO subsequently remanded the petition to the director for a new decision based on revised regulations. The director denied the petition for abandonment. The petitioner filed a motion to reopen the petition. The director dismissed the motion. The matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will reject the appeal. The petitioner is a Conservative Jewish temple. 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 teacher in the petitioners childrens center. On July 28, 2009, the director issued a notice of intent to deny the petition. The director allowed the petitioner until August 27, 2009 to respond to the notice, and advised the petitioner: "Failure to respond to this request will result in the denial of the petition." The record contains no timely response to the notice. The petitioner submitted an untimely response to the notice, postmarked September 3, 2009. The director received the response the next day. Counsel, at the time, stated that because "the Notice was sent in the middle of the summer, the schools director, [redacted] was not available to sign [a required] attestation until now. We hope that you consider the enclosed evidence and not penalize my clients for the timing of this Response. Additional time to respond to a request for evidence or notice of intent to deny may not be granted. 8 C.F.R. 103.2(b)(8)(iv). There exists no provision to allow for a late response to a notice of intent to deny. The director denied the petition on September 5, 2009, citing the U.S. Citizenship and Immigration Services (USCIS) regulation at 8 C.F.R. $ 103.2(b)(13), which states: "If the petitioner or applicant fails to respond to a request for evidence or to a notice of intent to deny by the required date, the application or petition may be summarily denied as abandoned." Under 8 C.F.R. 103.2(b)(15), a denial due to abandonment may not be appealed, but an applicant or petitioner may file a motion to reopen under 8 C.F.R. § 103.5(a)(2), which states that a motion to reopen an application or petition denied due to abandonment must be filed with evidence that the decision was in error because: (i) The requested evidence was not material to the issue of eligibility;I-360 Religious Worker Decisions: Candidates for Precedent?????? Page 71
  • (ii) The required initial evidence was submitted with the application or petition, or the request for initial evidence or additional information or appearance was complied with during the allotted period; or (iii) The request for additional information or appearance was sent to an address other than that on the application, petition, or notice of representation, or that the applicant or petitioner advised the Service, in writing, of a change of address or change of representation subsequent to filing and before the Services request was sent, and the request did not go to the new address. The cited regulation does not identify any other circumstance under which the petitioner may successfully move to reopen a petition denied for abandonment. The director dismissed the petitioners motion on November 10, 2009. The petitioner appealed the directors decision on December 10, 2009. A field office decision made as a result of a motion may be appealed to the AAO only if the original decision was appealable to the AAO. 8 C.F.R. § 103.5(a)(6). Because a denial for abandonment is not appealable to the AAO, the dismissal of the petitioners motion is, likewise, not appealable to the AAO. Procedurally, this matter lies outside of the AAOs jurisdiction and we must reject the appeal.”May122010_02C1101.pdf REMANDED. [Precedent worthy?]This one is worth reading. “The Director, California Service Center, denied the employment-based immigrant visa petition and certified the decision to the Administrative Appeals Office (AAO) for review. The AAO will withdraw the directors decision. Because the record does not support approval of the petition, the AAO will remand the petition for further action and consideration. The petitioner is a nonprofit corporation affiliated with the Church of Scientology (CoS). 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 its director of records, assets and materiel. The beneficiary is a member of the Sea Organization, which the AAO recognizes as the religious order of the CoS. The director determined that the petitioning entitys ties with the CoS are not sufficient to lend religious significance to the beneficiarys work. In response to the certified decision, the petitioner submits a brief from counsel and letter from CoS officials discussing the petitioners role within the CoS.” “At issue in this proceeding is not whether the beneficiary belongs to such a religious order, but whether he works for a qualifying religious organization. If the beneficiary works for such an organization, then he is engaged in a qualifying religious vocation as defined at 8 C.F.R. § 204.5(m)(5).”I-360 Religious Worker Decisions: Candidates for Precedent?????? Page 72
  • ***** “For the reasons quoted above, we cannot affirm the directors decision. That decision rests entirely on grounds that the record does not support. At the same time, other factors exist that prevent the approval of the petition.”May182010_01C1101.pdf Appeal DISMISSED. [Excellent candidate for Precedent!]This decision draws a fine line on the IRS Letter requirement. “In its April 21, 2009 response to the RFE, the petitioner stated that it had filed the IRS Form 1023 on April 3, 2009 "only to meet USCIS regulations." The petitioner further stated that it had not received the certification but would provide the document upon receipt. The petitioner submitted a copy of an April 14, 2009 letter from the IRS, acknowledging receipt of the petitioners application and informing it that, absent a need to further develop its application, it should receive its exemption letter within 60 days. The director denied the petition on May 13,2009 based on the petitioners failure to provide a valid determination letter from the IRS establishing its status as a religious organization exempt from income taxes under section 501(c)(3) of the IRC. On June 26, 2009, the petitioner provided the required IRS determination letter, dated June 17, 2009, to USCIS.”At first blush, it seems like there was a due process violation but read on.... “[T]he record does not reflect that the petition would have been approved under the superseded regulation. We note that in order to establish its bona fides as a tax-exempt organization under the prior regulation at 8 C.F.R. § 204.5(m)(3), the petitioner was required to submit either an exemption letter from the IRS or such documentation as is required by the IRS to establish eligibility for exemption under section 501(c)(3) of the IRC as it relates to a religious organization. The petitioner failed to submit this required documentation with its application, and indeed argued that it was not required to follow the regulation.” “[I]nstructions accompanying the previous version of the Form 1-360 required the petitioner to submit either documentation that it is exempt from taxation under section 501(c)(3) of the IRC or the information required by the IRS to make such a determination. The petitioner did neither.”If the petitioner had submitted required evidence in the first place, then (andonly then) would this have been a due process violation.May192010_01C1101.pdf Appeal DISMISSED. “On appeal, counsel asserts that it is "fundamentally unfair" to apply the new U.S. Citizenship and Immigration Services (USCIS) [regulations] to the instant petition andI-360 Religious Worker Decisions: Candidates for Precedent?????? Page 73
  • that "the new 1-360 regulation has no counterpart for 1-1 30s and I-140s, which are similar visa petitions to the 1-360."” “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 entered the United States on September 22, 1990 with an authorized period of stay until March 21, 1991, and that he was currently "out of status." In its April 27, 2007 letter submitted in support of the petition, the petitioner stated that the beneficiary began his "full time ministry in 2001," becoming "an Exhorter, our churchs official ministerial title, in 2002."” “The director denied the petition on April 13, 2009, finding that the beneficiary had not been in a lawful immigration status during the two years immediately prior to the filing of the visa petition. On appeal, counsel argues that section 245(i) of the Act "allows aliens who are out of status to adjust status if the alien is the beneficiary of a visa petition filed on or before April 30, 2001 and the alien was physically present in the United States on December 21, 2000." Counsels argument is without merit.” “The regulations at 8 C.F.R. § 204.5(m) say nothing about what benefits are or are not available to the beneficiary at the adjustment stage, and the director, in this proceeding, did not bar the beneficiary from ever receiving benefits under section 245(i) of the Act. Rather, the director found that the beneficiarys lack of lawful status during the two-year qualifying period prevents the approval of the present petition. The beneficiarys hypothetical eligibility for section 245(i) relief at the adjustment stage does not require us to approve the petition before the beneficiary has even reached that stage.” “Section 245(i) relief applies at the adjustment stage, not the petition stage. The present proceeding is not an adjustment proceeding. Section 245(i)(2)(A) of the Act requires that an alien seeking section 245(i) relief must be "eligible to receive an immigrant visa"; that is, the alien must be the beneficiary of an approved immigrant visa petition. The law does not require USCIS to approve every petition filed on behalf of aliens who seek section 245(i) relief. Rather, such relief presupposes an already-approved petition. Without an approved petition, the beneficiary has no basis for adjustment of status, and therefore section 245(i) relief never comes into play.” [Emphasis added.] “...[T]o fall within the provisions of section 245(i) of the Act, the alien must be the beneficiary of an approved petition under section 204 of the Act. Accordingly, the Act itself limits those who may benefit from the provision of section 245(i). Even if the adjudication of the beneficiarys application for adjustment of status was within the purview of this appeal, the petitioner has provided no documentation to establish that the beneficiary falls within the qualifying provisions of section 245(i) of the Act.”I-360 Religious Worker Decisions: Candidates for Precedent?????? Page 74
  • Sorry, but a 16 year visa overstay does disqualify you from this visa, not to mention making oneineligible for adjustment of status (except for limited forms of relief). Also, if one were to goabroad for a visa, the unlawful presence bar would kick-in and prevent re-entry for 10 yearsunless one could get a waiver and that requires a showing of extreme hardship to a qualifyingrelative [USC or LPR spouse or parent, but NOT a child]. INA § 245(i) is now far afield fromthe I-360 visa petition proceedings.May192010_02C1101.pdf REMANDED. “The AAO will withdraw the directors decision and remand the petition to the California Service Center for further consideration and action pursuant to new regulations.” “We note that, on the Form 1-360 petition, the petitioner listed the beneficiarys "Current Nonimmigrant Status" as "Overstay," his nonimmigrant status having expired on August 8, 1999. If this is true, then the beneficiarys lack of lawful immigration status is a facially disqualifying factor according to the regulations at 8 C.F.R. 204.5(m)(4) (which requires the beneficiarys prior qualifying employment in the United States to have been "in lawful immigration status") and 8 C.F.R. § 204.5(m)(11) (which requires that the beneficiarys prior employment, "if acquired in the United States, must have been authorized under United States immigration law").”May192010_03C1101.pdf Appeal DISMISSED. “....The director determined that the petitioner had not established that the position qualifies as that of a religious occupation, that the beneficiary was qualified for the position, and that the beneficiary worked continuously in a qualifying religious occupation or vocation for two full years prior to the filing of the petition. The director further determined that the petitioner failed to submit the attestation required by the regulation.” “We do not concur with the director that the duties outlined in the position description describe duties generally provided by dedicated members of a congregation on a volunteer basis. Preaching, pastoral counseling, and performing weddings, baptisms and funerals are sacerdotal duties not normally associated with voluntary work of a regular member of the congregation. The Minutes of the 71 General Assembly provide that an ordained minister within the organization has to meet specific qualifications, including passing an examination encompassing "church government, doctrine and general Biblical knowledge." We find that the evidence sufficiently establishes that the proffered position is a religious occupation within the meaning of the regulation. We therefore withdraw this determination by the director.” “The record sufficiently establishes that the beneficiary is qualified for the proffered position, and we withdraw the directors determination to the contrary.”I-360 Religious Worker Decisions: Candidates for Precedent?????? Page 75
  • “In denying the petition, the director determined that the petitioner had failed to establish that the beneficiary had worked full time for the petitioner. The regulation at 8 C.F.R. § 204.5(m)(10) describes minister as an individual who works solely as a minister in the United States. The beneficiarys primary job during the qualifying period was in construction and maintenance. Therefore, the petitioner has failed to establish that the beneficiary worked continuously in a qualifying religious occupation or vocation for the two years immediately preceding the filing of the petition. The fourth issue on appeal is whether the petitioner submitted the attestation required by the regulation at 8 C.F.R. § 204.5(m)(7)....” “On appeal, the petitioner states that it did not receive the attestation forms with the RFE "due to the fact that form 1-129 suffered changes due to change in regulation and we were not informed." However, in her RFE the director specifically advised the petitioner to submit the attestation and outlined the issues that were to be addressed in the attestation. While the new Form 1-360, Petition for Amerasian, Widow(er), or Special Immigrant, contains a section in which the petitioner may provide the attestation, there is no specific "form" required for the attestation. The petitioner failed to provide the attestation in response to the RFE but submits it on appeal. Beyond the decision of the director, the petitioner has not established how it intends to compensate the beneficiary.” “Additionally, the petitioner has not established that it is a bona fide nonprofit religious organization.” “The petitioner submitted no documentation to establish its tax-exempt status with the petition. In response to the RFE, the petitioner stated that it was submitting a "[s]igned and dated statement that certifies that the Church is affiliated to the Church of God." However, the petitioner failed to submit a currently valid determination letter from the IRS either for the petitioning organization or for the Church of God indicating that it had a group exemption that covers the petitioner.”May192010_04C1101.pdf Appeal DISMISSED. “The petitioner is a mosque. 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 imam. The director determined that the petitioner had not established that the beneficiary worked continuously in a qualifying religious occupation or vocation for two full years prior to the filing of the visa petition.”The decision on the petition hinged on insufficient evidence, a lack of translations, anunexplained discrepancy in dates, and gaps in the employment during the required period.I-360 Religious Worker Decisions: Candidates for Precedent?????? Page 76
  • “Beyond the decision of the director, the petitioner has not provided the attestation required by 8 C.F.R. § 103.2(b)(7). Therefore, even if it had overcome the directors ground for denial of the petition, which it has not, the petition still could not be approved.”May192010_08C1101.pdf Appeal DISMISSED. “The petitioner identifies itself as a Sunni Islamic mosque. 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 imam. The director determined that the petitioner had not established that (1) it qualifies as a tax-exempt religious organization; (2) it intends to compensate the beneficiary as claimed; or (3) the beneficiary had the required two years of continuous, lawful, qualifying work experience immediately preceding the filing date of the petition. On appeal, the petitioner submits a brief from counsel, new witness statements, and documents relating to other immigration proceedings.”According to counsel, the beneficiary’s R-1 extension petition was denied, he was issued anNTA, and a Motion was filed on the I-129. Removal Proceedings were apparently continuedpending resolution of the Motion and this I-360 proceeding.However... “USCIS records show that the director granted the motion to reopen on August 7, 2009, but then acknowledged the withdrawal of the petition on September 23, 2009. The extension was never approved. If an aliens R-1 nonimmigrant status has expired, but a timely application for an extension of such stay is pending, the regulation at 8 C.F.R. § 274a. 12(b)(20) allows the alien to continue employment with the same employer for up to 240 days after the date of expiration. If USCIS denies the application for extension of stay during that 240-day period, the employment authorization automatically terminates upon notification of the denial decision. In the beneficiarys case, his R-1 status expired on May 9, 2008. His subsequent 240 days of employment authorization ended on January 4, 2009. The petitioner acknowledges that USCIS did not approve the extension application (Form 1-129 receipt number [redacted]). Therefore, the beneficiarys former R-1 status would not have authorized him to work in the United States between January 5, 2009 and the petitions filing date nearly six months later on June 25, 2009. We acknowledge the filing of a motion to reopen the extension application (motion receipt number [redacted]. Nevertheless, unless USCIS directs otherwise, the filing if a motion to reopen or reconsider does not stay the execution of any decision in a case. See 8 C.F.R. § 103.5(a)(l)(iv). The .denial of the extension application automaticallyI-360 Religious Worker Decisions: Candidates for Precedent?????? Page 77
  • terminated the beneficiarys employment authorization, and the filing of a motion did not stay that automatic termination or retroactively grant the beneficiary employment authorization for the period between the expiration of the 240-day grace period and the filing of the motion.” “The beneficiarys admissibility is not at issue in the present proceeding. See Matter of O, 8 I&N Dec. 295 (BIA 1959) (the visa petition procedure is not the forum for determining substantive questions of admissibility under the immigration laws). The question before us is not whether the beneficiary accrued unlawful presence, but whether he was authorized to work in the United States. The cited memorandum does not address the issue of employment authorization.May202010_01C1101.pdf REMANDED. “The self-petitioner seeks classification 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 pastor. The director determined that the petitioner had not established that his prospective employer is a bona fide nonprofit religious organization.” “With the petition, the petitioner submitted a copy of a State of Florida Consumers Certificate of Exemption, indicating that the employing organization was exempt from paying Florida sales and use tax. In a request for evidence (RFE) dated August 13, 2008, the director, relying on the regulations in effect at the time, instructed the petitioner to submit evidence that the prospective employer qualifies as a nonprofit religious organization "in the form of either" a certificate of exemption from the IRS or such documentation required by the IRS to determine exemption under section 501(c)(3) of the IRC. In response, the petitioner resubmitted a copy of the Florida Consumers Certificate of Exemption and a copy of a 2008 Not-for-Profit Corporation Annual Report that the organization filed with the Florida Secretary of State. The director denied the petition, finding that the petitioner had not submitted the documentation outlined in the RFE. On appeal, the petitioner submits a copy of an August 11, 1969 letter form (sic) the IRS to the Florida Baptist State Convention granting the organization a group exemption to include its affiliated churches. The petitioner also submitted a December 17, 2008 letter from the Florida Baptist Convention indicating that the employing organization is affiliated with the Florida Baptist Convention and covered under its group exemption.”The director’s finding was in error, the petitioner did submit evidence thatwould have been accepted by IRS but the director did not evaluate itcorrectly. AAO skirted this issue and made no such finding. “We find that the petitioner has submitted sufficient documentation to establish that his prospective employer is a bona fide nonprofit religious organization.I-360 Religious Worker Decisions: Candidates for Precedent?????? Page 78
  • Nonetheless, the petition cannot be approved as the record now stands. The petitioner has not submitted the attestation required by the regulation at 8 C.F.R. §204.5(m)(8)....” [Also, there had been no site visit etc, per 8 C.F.R. § 204.5(m)(12).]May212010_01C1101.pdf Denial AFFIRMED on CERTIFICATION. “....The directors certified decision denied the petition based on the petitioners failure to respond to the Notice of Intent to Deny (NOID) and failure to overcome the original ground for denial of the petition. The petitioner submitted no additional documentation on certification.”The initial reasons for denial were overcome on the prior appeal. The case was then remandedfor issuance of an RFE to address the new regulatory requirements. A NOID was issued but therewas no response to it. The beneficiary or the petitioner probably knew that the case would nothave been approved at that point.May242010_01C1101.pdf Denial AFFIRMED on CERTIFICATION. “The petitioner 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 youth minister. The director determined that the petitioner had not established that the position qualifies as that of a religious occupation and that the beneficiary worked continuously in a qualifying religious occupation or vocation for two full years prior to the filing of the visa petition.” “....It is incumbent upon the petitioner to resolve any inconsistencies in the record by independent objective evidence. Any attempt to explain or reconcile such inconsistencies will not suffice unless the petitioner submits competent objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). The petitioner provided no documentation to establish that the proffered position primarily relates to a religious to a traditional religious function, is recognized as a religious occupation within its denomination and that the duties of the position primarily relate to, and clearly involve, inculcating or carrying out the religious creed and beliefs of the denomination.” “Additionally, the record reflects that the beneficiary was not in a lawful immigration status during the two years prior to the filing of the petition. The record contains a copy of the beneficiarys Form I-94, Departure Record, reflecting that he entered the United States on February 19, 1989 in a B-2 nonimmigrant visitors status, which was valid until August 18, 1989. In his statement, the beneficiary stated that he has lived in the United States since 1989. The petitioner submitted no documentation to establish that the beneficiarys presence in the United States since 1989 has been in a lawful immigration status. Any work performed in the United States in an unauthorized status interrupts theI-360 Religious Worker Decisions: Candidates for Precedent?????? Page 79
  • qualifying work experience for purpose of this visa classification. 8 C.F.R. § 204.5(m)(4).”May252010_01C1101.pdf Denial WITHDRAWN, Petition APPROVED. “The petitioner is a "para-church organization" organized "to promote the Christian faith through the bible study, praise and worship, teaching, and other means which will advance the Gospel." 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 does not appear to be operating at the claimed capacity. On certification, counsel asserts that the director "abused [her] discretion by failing to properly consider all the evidence presented, and denied the petition without proper reasoning." The petitioner submits additional documentation on certification.” “In a NOID issued on remand, the director advised the petitioner that its new premises "are not sufficient to accommodate 300 members" and that the map provided with its prior lease "does not show any area that would be suitable for a church with 300 members." The director advised the petitioner that it did not appear to be operating at its claimed capacity. In response, the petitioner stated that it is not a church but an organization that "develops and directs bible study classes" and that these classes are held in different locations. The petitioner also provided letters from several churches stating that the petitioner used their spaces for its bible study classes. Documentation reflects that the petitioners "300 members" consist of those who attend its classes in Arlington and Plano, Texas. The petitioner reiterates its argument on certification and provides additional documentation. The regulation provides that USCIS may verify the petitioners claims through any means it determines appropriate. The petitioner has provided a reasonable explanation and sufficient corroborative documentation to explain why it was not at the location provided on its petition. Based on the new lease, the director concluded that the petitioner could not provide the services it alleges in the space it leased. However, we find that the directors conclusion was based on her assumption that the petitioner provided its services in its leased spaces. Evidence of record does not support this conclusion. The AAO finds that the petitioner has provided sufficient documentation to establish that it exists in the capacity that it alleges. The petitioner did not allege that it was a church or that it held church services. The petitioner also provided sufficient documentation of its physical location both at its prior address and its current address. The directors decision is therefore withdrawn. In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. The petitioner has met that burden.”I-360 Religious Worker Decisions: Candidates for Precedent?????? Page 80
  • Jul082010_01C1101.pdf SUMMARILY DISMISSED.“....The beneficiary lacked lawful nonimmigrant status during that period, his B-2 visitor visahaving expired almost eight years earlier.”“Counsel, on appeal, offers no substantive discussion or rebuttal of the stated grounds for denialof the petition. The appeal, as it stands, consists solely of the claim that counsel will submit abrief within 30 days. The petitioner filed the Form I-290B Notice of Appeal on July 6, 2009. Todate, a year later, careful review of the record reveals no subsequent submission; all otherdocumentation in the record predates the issuance of the notice of decision. The petitioner hasnot contested the basis for denial.”Jul082010_03C1101.pdf Denial AFFIRMED on CERTIFICATION. “The Director, California Service Center, initially approved the employment based immigrant visa petition. On further review, the director determined that the beneficiary was not eligible for the classification. Accordingly, the director properly served the petitioner with a Notice of Intent to Revoke (NOIR) the approval of the visa petition and her reasons therefore, and subsequently exercised her discretion to revoke the approval of the petition on April 30, 2007. Following the petitioners appeal, 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.” “As the petitioner has failed to establish that the position is compensated, either monetarily or nonmonetarily, it has failed to establish that it has extended a qualifying job offer to the beneficiary. The director also determined that the petitioner has not established how it intends to compensate the beneficiary.”Jul082010_04C1101.pdf See the four related decisions section above, this is one of them.Jul092010_01C1101.pdf REMANDED. “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.”I-360 Religious Worker Decisions: Candidates for Precedent?????? Page 81
  • Jul152010_01C1101.pdf DISMISSED as MOOT.“Review of USCIS records indicates that, subsequent to filing the instant petition, the petitionerfiled another Form 1-360 petition seeking the same classification, with receipt number WAC 09233 51595. USCIS records further indicate that the second petition was approved on December28, 2009. The alien concurrently filed a Form 1-485 Application to Adjust Status, receipt numberWAC 09 233 51620, which USCIS approved on the same day, December 28,2009. Because thealien has adjusted to lawful permanent resident status, further pursuit of the matter at hand ismoot.”Jul152010_02C1101.pdf REMANDED.A complex procedural history.Jul152010_04C1101.pdf 2nd REMAND. [Good candidate for Precedent!]This is another complicated procedural mess. It is important for its discussion of INA § 245(k).Jul212010_01C1101.pdf WITHDRAWN.Jul222010_01C1101.pdf REMANDED.“While the record does not support the only stated ground for denial, the petition cannot beapproved without additional information.”“[T]he present petition was pending on the [new] rules effective date. However, as the directordid not request the newly required documentation, the petitioner has not had an opportunity tosubmit those materials. Before rendering a new decision, the director must allow the petitioner achance to complete the record.”Jul282010_03C1101.pdf REJECTED.“The self-petitioning alien did not sign the Form I-290B Notice of Appeal or Motion, and neitherdid any attorney or accredited representative acting on his behalf.”Aug022010_01C1101.pdf Denial AFFIRMED on CERTIFICATION.R-1 status violation by working outside the petitioner’s employ during R-1 validity period. “The fundamental issue here does not involve a few days in April 2007 between the expiration of the beneficiarys original R-1 status and the approval of the new petition. The beneficiarys compensated employment ceased for more than seven months, during a time when her R-1 status remained valid. The beneficiary stopped working, [redacted] for reasons that had nothing to do with her nonimmigrant status (which remained valid for several months thereafter).”I-360 Religious Worker Decisions: Candidates for Precedent?????? Page 82
  • Aug042010_01C1101.pdf Denial AFFIRMED On Certification.“The petitioner is a church. It seeks to classify the beneficiary as a special immigrant religiousworker 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 music minister/choir director. The director determined thatthe petitioner had not established that the beneficiary was a member of the same religiousdenomination and worked continuously in a qualifying religious occupation or vocation for twofull years immediately preceding the filing of the petition and how it intends to compensate thebeneficiary.”“On November 26, 2008, as required under section 2(b)(l) of the Special Immigrant NonministerReligious Worker Program Act, Pub. L. No. 110-391, 122 Stat. 4193 (2008), U.S. Citizenshipand Immigration Services (USCIS) promulgated a rule setting forth new regulations for specialimmigrant religious worker petitions. 73 Fed. Reg. 72276 (Nov. 26, 2008). The directorerroneously based part of her decision on obsolete regulations that were no longer in effect at thetime of the decision. Nonetheless, the petitioner was put on notice of the new regulations andallowed time in which to meet the new evidentiary requirements. Further, the AAO will considerall evidence of record. Accordingly, we find that the directors reliance on the supersededregulations is harmless error.”“....even if the beneficiary worked for the petitioner in a volunteer capacity as claimed, volunteerwork is not qualifying work experience for the purpose of this visa petition. The only religiousworkers who may qualify without an actual salary or in-kind support as evidence of their prioremployment are those workers in an established missionary program under an R-1 or B-1nonimmigrant visa. In this instance, the record does not establish that the beneficiary was in amissionary program or that he was an R-1 or B-1 nonimmigrant. See 72 Fed. Reg. 20442, 20446(Apr. 25, 2007).”Aug052010_01C1101.pdf Appeal DISMISSED following REVOCATION.Insufficient and contradictory evidence.Aug122010_01C1101.pdf REMANDED. “....Because the record, as it now stands, does not support approval of the petition, the AAO will remand the petition for further action and consideration. The petitioner is a Baptist 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 music minister (also called worship leader). The director determined that the petitioner had not established that the position qualifies as a religious occupation. On appeal, the petitioner submits arguments from counsel and various witness letters.”I-360 Religious Worker Decisions: Candidates for Precedent?????? Page 83
  • “The sole issue in the directors decision is whether the petitioner seeks to employ the beneficiary in a qualifying occupation. The U.S. Citizenship and Immigration Services (USCIS) regulation at 8 C.F.R. §204.5(m)(5) defines "religious occupation" .....” “In response, counsel repeated the list of duties submitted previously, and asserted that music has traditionally "been [an] integral and indispensable part of life, worship, and fellowship of the church." The question here is not simply whether music is important to church services. The petitioner must also show that its religious denomination traditionally recognizes the position of music minister to be a paid occupation, rather than a duty typically relegated to a volunteer from the congregation.” “With respect to the directors remarks about specialized training, the regulations (substantially revised in November 2008) include no provision that a religious occupation must require specific religious or theological training. Even if such a requirement existed, the record amply documents the beneficiarys own specialized religious training, culminating in a masters degree in "Worship Leadership." If Baptist universities offer an advanced degree in the beneficiarys field (which is clearly not secular), then the existence of such a degree is good evidence that Baptist denominations consider a position in that field to be a religious occupation. The preponderance of available evidence indicates that the Southern Baptist denomination recognizes the position of music minister (essentially synonymous with worship leader) as a religious occupation rather than as an occasional duty entrusted to a volunteer from the congregation. We must, therefore, withdraw the directors finding to the contrary. Because the decision rests solely on that one finding, we must also withdraw the denial decision. Although we will withdraw the denial decision, we cannot approve the petition. An application or petition that fails to comply with the technical requirements of the law may be denied by the AAO even if the Service 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), aff’d, 345 F.3d 683 (9th Cir. 2003); see also Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004) (noting that the AAO conducts appellate review on a de novo basis).” “....[T]he evidence indicates that the beneficiary did not continuously engage in qualifying employment throughout the two-year period immediately preceding the petitions filing date. Next, we consider whether the beneficiary was authorized to work throughout the two- year qualifying period. ...” “We add, briefly, that expiration of R-1 nonimmigrant status is not among the valid grounds listed at 8 C.F.R. § 204.5(m)(4) for interruption of the beneficiarys work during the qualifying period.I-360 Religious Worker Decisions: Candidates for Precedent?????? Page 84
  • For the above reasons, the available evidence strongly indicates that the beneficiary worked without authorization between November 2007 and March 2009 - most of the two-year qualifying period. This is, by itself, a facially disqualifying factor and grounds for denial of the petition. Nevertheless, the director did not mention this ground in the July 2009 denial notice, and therefore the petitioner has not had the opportunity to address this ground on appeal. Any new decision by the director must take this issue into account.”Aug122010_02C1101.pdf REMANDED. “....Because the record, as it now stands, does not support approval of the petition, the AAO will remand the petition for further action and consideration. The petitioner is a Methodist 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 its senior pastor. The director determined that a compliance review had failed to verify the petitioners claims.” “The petitioner filed the Form 1-360 petition on March 18, 2004, stating that the beneficiary had arrived in the United States on May 15,2003 as an R-1 nonimmigrant religious worker. “The petitioner submits letters from two individuals who assert that they live next to the petitioning church, and that they have seen the beneficiarys car "in the parking lot of the church on a regular basis since 2003." The individuals provide their names, addresses and telephone numbers. The compliance review report, in contrast, refers only to "a neighbor who lives near the church building." Observations contained in an investigative report that are conclusory, speculative, equivocal, or irrelevant do not provide good and sufficient cause for the issuance of a notice of intent to revoke the approval of a visa petition and cannot serve as the basis for revocation. Matter of Arias, 19 I&N Dec. 568 (BIA 1988). Similarly, such observations cannot form the basis for denial of a petition. The USCIS officers conclusory statement regarding an unidentified neighbor, therefore, would not be sufficient grounds for denial of the present petition, even if the petitioner had not subsequently contradicted that finding by submitting statements from two identified witnesses. If the director continues to be concerned about the activities at the church, it would be proper to seek to verify the claims of the witnesses on appeal. Furthermore, it is worth noting that, while the second site visit raised questions regarding other aliens, the beneficiary was indeed present at the church when the officers arrived for that site visit.”Additional concerns must be addresses on remand.I-360 Religious Worker Decisions: Candidates for Precedent?????? Page 85
  • Aug192010_01C1101.pdf Appeal DISMISSED. “The petitioner filed the Form 1-360 petition on August 19, 2009. The petitioners initial submission shows that the beneficiary entered the United States as a B-2 nonimmigrant visitor for pleasure on February 5, 2009, and that his B-2 status expired on August 4,2009, shortly before the petitions filing date. (The petitioner prepared the petition form on July 30, 2009, but did not properly file it until three weeks later.) The petitioner submitted a translated certificate dated January 19, 2009, indicating that the beneficiary worked at "Gazi Husrev-begs vakuf (mosque) as musebbih ([Mluslim leader in prayers) in Sarajevo." The translation did not provide any further details regarding the beneficiarys work at that mosque. The original document, in Croatian, includes the date "01.04.2004" (April 1, 2004). That date does not appear in the translation, which proves that the translation is incomplete. Any document containing foreign language submitted to USCIS shall be accompanied by a full English language translation which the translator has certified as complete and accurate, and by the translators certification that he or she is competent to translate from the foreign language into English. 8 C.F.R. § 103.2(b)(3). The translation of the certificate is obviously incomplete, which diminishes its evidentiary weight.” “Counsel, in a cover letter accompanying the initial filing of the petition, stated that the beneficiary "was trained as an Imam in Bosnia where he worked for two years prior to filing his application." Because the beneficiary was in the United States for six months immediately preceding the petitions filing date, the beneficiary could not have worked continuously in Bosnia throughout the two years immediately before that date. The petitioners initial submission did not include any documentation of the beneficiarys activities in the United States during the six months immediately preceding the petitions filing date.”Aug312010_01C1101.pdf Appeal DISMISSED. [Strong candidate for Precedent.]An I-360 was filed and then the new regulation was published in order to comply with newlegislation. New evidentiary requirements were made retroactive to all “pending petitions”.Therefore, USCIS was under an obligation to provide the petitioners with notice and anopportunity to comply. USCIS did provide the petitioner information about the requirement andan opportunity to comply. Instead of complying as afforded, the argumentative and obstinatepetitioner did not comply with the RFE until it was too late to do any good to save the petition.The petitioner did not even try to comply until after the petition was denied. AAO was under noobligation to accept the new evidence on appeal under these circumstances. “We do not dispute the IRSs interpretation of its own requirements, but in this proceeding, the petitioner seeks a benefit not from the IRS, but fiom USCIS. 8 C.F.R. § 204.5(m)(8) clearly requires the petitioner to submit an IRS determination letter. When USCIS published this regulation, supplementary information published with the regulation explained USCISS reasoning:I-360 Religious Worker Decisions: Candidates for Precedent?????? Page 86
  • Several commenters objected to the proposed requirement that petitioners must file a determination letter from the IRS of tax-exempt status under IRC section 501(c)(3), 26 U.S.C. 501(c)(3), with every petition. Commenters pointed out that the IRS does not require churches to request a determination letter to qualify for tax-exempt status. A designation that an organization is a "church" is sufficient to qualify for taxexempt status. Although some churches choose to request a formal IRC section 501(c)(3) determination, they are not required to do so. . . . USCIS recognizes that the IRS does not require all churches to apply for a tax- exempt status determination letter, but has nevertheless retained that requirement in this final rule. See Internal Revenue Service, Tax Guide for Churches and Religious Organizations: Benefits and Responsibilities under the Federal Tax Law (IRS pub. no. 1828, Rev. Sept. 2006). A requirement that petitioning churches submit a tax determination letter is a valuable fraud deterrent. An IRS determination letter represents verifiable documentation that the petitioner is a bona fide tax-exempt organization or part of a group exemption. Whether an organization qualifies for exemption from federal income taxation provides a simplified test of that organizations non-profit status. Requiring submission of a determination letter will also benefit petitioning religious organizations. A determination letter provides a petitioning organization with the opportunity to submit exceptionally clear evidence that it is a bona fide organization. 73 Fed. Reg. 72276, 72279-80 (Nov. 26, 2008). In this proceeding, the issue is not whether the IRS would automatically regard the petitioner as tax-exempt, but whether the petitioner has produced the required IRS determination letter that USCIS regulations require. The petitioner, on appeal, shows that it has begun taking steps to obtain the necessary letter, but these preliminary steps do not show that the IRS recognizes the petitioner as tax-exempt. We agree with the directors finding in this regard. Even if the petitioner had actually submitted the IRS letter on appeal, it would still be true that the petitioner did not provide that document when the director specifically requested it. When the petitioner is put on notice of required evidence and given a reasonable opportunity to submit it before the director denies the petition, but the petitioner does not submit that evidence until the appeal, the AAO will not consider that evidence for any purpose. See Matter of Soriano, 19 I&N Dec. 764, 766 (BIA 1988); Matter of Obaigbena, 19 I&N Dec. 533, 537 (BIA 1988). The failure to submit requested evidence that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. § 103.2(b)(14). The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. The petitioner has not met that burden. Accordingly, the AAO will dismiss the Appeal”I-360 Religious Worker Decisions: Candidates for Precedent?????? Page 87