Your SlideShare is downloading. ×
Special Immigrant Religious WorkersAdministrative DecisionsThe USCIS Administrative Appeals Office (AAO) has jurisdiction ...
Jan052010_02C1101.pdf Motion DISMISSED as improperly filed.The beneficiary of a visa petition as well as his/her attorney ...
submitted by the petitioner in rebuttal to the notice of intention to revoke, would               warrant such denial.    ...
For the reasons explained above, we will withdraw the directors stated ground for denial.       Nevertheless, USCIS cannot...
The BIA cited absolutely no legal basis for its conclusory opinion in that September 3, 1976,Precedent Decision. It appear...
ORDER: The directors March 10, 2006 decision is withdrawn. The immigrant visa       petition filed by the petitioner in be...
required before, the petition will not be denied. Instead the petitioner will be               allowed a reasonable period...
“.... Because the petition had already been approved in 2007, the petition was not       "pending on the rules effective d...
Jan222010_03C1101.pdf Appeal DISMISSED.       “.... The director determined that, as the beneficiary had worked in an unau...
Jan222010_06C1101.pdf Appeal DISMISSED.       “The issue presented on appeal is whether the petitioner has established tha...
denying the 2006 petition, the director made a finding of fraud based on       "misrepresentations or falsifications of a ...
2008. The Form I-360 indicated that the beneficiary arrived in the United States on        September 29, 2006. This inform...
Feb012010_05C1101.pdf Appeal DISMISSED.A totally incompetent filing. The petitioner meant to file for an R-1 but filed the...
Counsels brief, like the certified decision, is not free from error. Counsel claims to cite     "AAO case law," but instea...
There remains the directors core finding that the petitioner had not established that the       beneficiary meets the requ...
Feb232010_01C1101.pdf Denial AFFIRMED on CERTIFICATION.Evidence problems are fatal to this petition.       “We note that t...
Provide a detailed description of the work to be done, including specific job            duties, level of responsibility/s...
Additionally, the petitioner appears to have expanded and changed the duties of the       proffered position. The petition...
Feb232010_06C1101.pdf Appeal DISMISSED.       “The issue presented on appeal is whether the petitioner has established tha...
who was found to be working without authorization as a sales consultant for a cosmetics       company. Because this inform...
Footnote from original:       “1 Even if properly under the AAOs jurisdiction as a motion, which it is not, counsels      ...
The regulation at 8 C.F.R. § 204.5(m)(11) provides that qualifying experience acquired      while in the United States mus...
More broadly, the new regulations contain no provision for interdenominational       organizations at all. The regulations...
“As noted in the above discussion, we do not agree with all of the directors specific      findings. Nevertheless, upon co...
Upheld on all grounds. Beneficiary is a B-2 overstay, working illegally, apparently part-time asclerk in an unproven suppo...
Another B-2 overstay since December 1995. There was a prior I-360 filed prior to April 30,2001, that was eventually denied...
Oct142009_01C1101.pdf REAFFIRMING PRIOR DECISION.        “DISCUSSION: The Director, Vermont Service Center, denied the imm...
Jul082010_04C1101.pdf REJECTED. [There is nothing to appeal!]      “DISCUSSION: The Director, Vermont Service Center, deni...
On April 19, 201 0, the director received a Form I-290B Notice of Appeal or Motion,       indicating that the petitioner i...
All cases pending on the rules effective date . . . will be adjudicated under the               standards of this rule. If...
“The petitioner did not address this issue on appeal or submit documentation to counter       the directors finding regard...
expiration of the beneficiarys R-1 status. Counsel also asserts that prior counsel also     failed to timely respond to th...
Special immigrant religious workers aao decisions 2010 6 22-2011
Special immigrant religious workers aao decisions 2010 6 22-2011
Special immigrant religious workers aao decisions 2010 6 22-2011
Special immigrant religious workers aao decisions 2010 6 22-2011
Special immigrant religious workers aao decisions 2010 6 22-2011
Special immigrant religious workers aao decisions 2010 6 22-2011
Special immigrant religious workers aao decisions 2010 6 22-2011
Special immigrant religious workers aao decisions 2010 6 22-2011
Special immigrant religious workers aao decisions 2010 6 22-2011
Special immigrant religious workers aao decisions 2010 6 22-2011
Special immigrant religious workers aao decisions 2010 6 22-2011
Special immigrant religious workers aao decisions 2010 6 22-2011
Special immigrant religious workers aao decisions 2010 6 22-2011
Special immigrant religious workers aao decisions 2010 6 22-2011
Special immigrant religious workers aao decisions 2010 6 22-2011
Special immigrant religious workers aao decisions 2010 6 22-2011
Special immigrant religious workers aao decisions 2010 6 22-2011
Special immigrant religious workers aao decisions 2010 6 22-2011
Special immigrant religious workers aao decisions 2010 6 22-2011
Special immigrant religious workers aao decisions 2010 6 22-2011
Special immigrant religious workers aao decisions 2010 6 22-2011
Special immigrant religious workers aao decisions 2010 6 22-2011
Special immigrant religious workers aao decisions 2010 6 22-2011
Special immigrant religious workers aao decisions 2010 6 22-2011
Special immigrant religious workers aao decisions 2010 6 22-2011
Special immigrant religious workers aao decisions 2010 6 22-2011
Special immigrant religious workers aao decisions 2010 6 22-2011
Special immigrant religious workers aao decisions 2010 6 22-2011
Special immigrant religious workers aao decisions 2010 6 22-2011
Special immigrant religious workers aao decisions 2010 6 22-2011
Special immigrant religious workers aao decisions 2010 6 22-2011
Special immigrant religious workers aao decisions 2010 6 22-2011
Special immigrant religious workers aao decisions 2010 6 22-2011
Special immigrant religious workers aao decisions 2010 6 22-2011
Special immigrant religious workers aao decisions 2010 6 22-2011
Special immigrant religious workers aao decisions 2010 6 22-2011
Special immigrant religious workers aao decisions 2010 6 22-2011
Special immigrant religious workers aao decisions 2010 6 22-2011
Special immigrant religious workers aao decisions 2010 6 22-2011
Special immigrant religious workers aao decisions 2010 6 22-2011
Special immigrant religious workers aao decisions 2010 6 22-2011
Special immigrant religious workers aao decisions 2010 6 22-2011
Special immigrant religious workers aao decisions 2010 6 22-2011
Special immigrant religious workers aao decisions 2010 6 22-2011
Special immigrant religious workers aao decisions 2010 6 22-2011
Special immigrant religious workers aao decisions 2010 6 22-2011
Special immigrant religious workers aao decisions 2010 6 22-2011
Special immigrant religious workers aao decisions 2010 6 22-2011
Special immigrant religious workers aao decisions 2010 6 22-2011
Special immigrant religious workers aao decisions 2010 6 22-2011
Special immigrant religious workers aao decisions 2010 6 22-2011
Special immigrant religious workers aao decisions 2010 6 22-2011
Special immigrant religious workers aao decisions 2010 6 22-2011
Special immigrant religious workers aao decisions 2010 6 22-2011
Special immigrant religious workers aao decisions 2010 6 22-2011
Upcoming SlideShare
Loading in...5
×

Special immigrant religious workers aao decisions 2010 6 22-2011

2,262

Published on

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

  • Be the first to like this

No Downloads
Views
Total Views
2,262
On Slideshare
0
From Embeds
0
Number of Embeds
1
Actions
Shares
0
Downloads
15
Comments
0
Likes
0
Embeds 0
No embeds

No notes for slide

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

  1. 1. 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
  2. 2. 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
  3. 3. 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
  4. 4. 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
  5. 5. 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
  6. 6. 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
  7. 7. 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
  8. 8. “.... 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
  9. 9. 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
  10. 10. 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
  11. 11. 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
  12. 12. 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
  13. 13. 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
  14. 14. 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
  15. 15. 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
  16. 16. 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
  17. 17. 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
  18. 18. 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
  19. 19. 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
  20. 20. 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
  21. 21. 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
  22. 22. 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
  23. 23. 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
  24. 24. “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
  25. 25. 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
  26. 26. 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
  27. 27. 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
  28. 28. 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
  29. 29. 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
  30. 30. 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
  31. 31. “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
  32. 32. 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

×