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RECENT IMMIGRANT WORKER VISA PETITIONS
Compiled By Joseph P. Whalen (Monday, October 5, 2015)
LINK-FILENAME
C...
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LINK-FILENAME
CITATION OUTCOME – EXCERPTS - COMMENTS
25, 2014, the Director issued a request for evidence (RF...
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CITATION OUTCOME – EXCERPTS - COMMENTS
erroneous conclusion of law or fact in the Director's de...
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LINK-FILENAME
CITATION OUTCOME – EXCERPTS - COMMENTS
documentation of a one-time achievement or evidence that...
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LINK-FILENAME
CITATION OUTCOME – EXCERPTS - COMMENTS
__________________________________
July 2014 yet, the ve...
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CITATION OUTCOME – EXCERPTS - COMMENTS
4 We maintain de novo review of all questions of fact
an...
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CITATION OUTCOME – EXCERPTS - COMMENTS
petitioner has provided at least three types of evidence...
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CITATION OUTCOME – EXCERPTS - COMMENTS
States for at least one year prior to the petition's fil...
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CITATION OUTCOME – EXCERPTS - COMMENTS
must prove that the beneficiary primarily performs these...
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CITATION OUTCOME – EXCERPTS - COMMENTS
EB-2 Aliens Who Are Members of the Professions Holding ...
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CITATION OUTCOME – EXCERPTS - COMMENTS
Petitioner's research has had a degree of influence on ...
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CITATION OUTCOME – EXCERPTS - COMMENTS
Professional nurse means a person who applies the art a...
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CITATION OUTCOME – EXCERPTS - COMMENTS
Accordingly, the petition could not be approved in the ...
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CITATION OUTCOME – EXCERPTS - COMMENTS
SEE: Matter of Dial Auto Successor-In-Interest Test
The...
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CITATION OUTCOME – EXCERPTS - COMMENTS
regulations governing immigrant visa petitions filed by...
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CITATION OUTCOME – EXCERPTS - COMMENTS
teacher at one of its private schools. See Immigration ...
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CITATION OUTCOME – EXCERPTS - COMMENTS
In sum, the Petitioner has demonstrated that the proffe...
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RECENT IMMIGRANT WORKER PETITION AAO DECISIONS OCT 5th 2015

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RECENT IMMIGRANT WORKER PETITION AAO DECISIONS OCT 5th 2015

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RECENT IMMIGRANT WORKER PETITION AAO DECISIONS OCT 5th 2015

  1. 1. Page 1 of 17 RECENT IMMIGRANT WORKER VISA PETITIONS Compiled By Joseph P. Whalen (Monday, October 5, 2015) LINK-FILENAME CITATION OUTCOME – EXCERPTS - COMMENTS E11, EB-1A “ALIENS OF EXTRAORDINARY ABILITY” SEP042015_01B2203.pdf Matter of H-D-, ID# 13587 (AAO Sept. 4, 2015) APPEAL OF TEXAS SERVICE CENTER DECISION SUMMARILY DISMISSED The Petitioner, a volleyball coach, seeks classification as an "alien of extraordinary ability" in athletics. ……. The Petitioner has not specifically addressed the reasons stated for denial and has not provided any additional evidence. As the Petitioner did not provide any specific statement or argument regarding the basis of his appeal, the appeal must be summarily dismissed. SEP082015_01B2203.pdf Matter of M-C-R-, ID# 13190 (AAO Sept. 8, 2015) APPEAL OF NEBRASKA SERVICE CENTER DECISION SUMMARILY DISMISSED The Petitioner seeks classification as an "alien of extraordinary ability" in business. … The Petitioner filed the Immigrant Petition for Alien Worker (Form I-140) on January 14, 2014, without any supporting documentation. On August
  2. 2. Page 2 of 17 LINK-FILENAME CITATION OUTCOME – EXCERPTS - COMMENTS 25, 2014, the Director issued a request for evidence (RFE) advising the Petitioner to submit evidence to satisfy the evidentiary requirements set forth at 8 C.F.R § 204.5(h)(3), which requires documentation of a one-time achievement or evidence that meets at least three of the ten regulatory criteria. Although the RFE was properly addressed to the Petitioner's address of record, she did not respond to the RFE. The Director denied the petition on December 15, 2014, because the Petitioner had not submitted documentation meeting the evidentiary requirements at 8 C.F.R § 204.5(h)(3). The Petitioner filed the Notice of Appeal or Motion (Form I-290B) on January 16, 2015, without any supporting evidence relating to her eligibility for the classification sought. In Part 3 of the Form I- 29GB, the Petitioner checked box "l.b." indicating "[m]y brief and/or additional evidence will be submitted to the AAO within 30 calendar days of filing the appeal." Part 4 of the Form I-290B instructs the petitioner to "[p]rovide a statement that specifically identifies an erroneous conclusion of law or fact in the decision being appealed." In her statement, the Petitioner asserts that she did not receive the Director's RFE, and that she contacted U.S. Citizenship and Immigration Services to request that the RFE be re-sent. The Petitioner indicates that on November 25, 2014, the Director remailed the RFE to her address of record, and then subsequently denied the petition on December 15, 2014. The Petitioner further states that "additional documents will be submitted to the AAO in 30 days." The appeal was filed on January 16, 2015. As of this date, more than seven months later, we have received nothing further. The Petitioner's statement does not identify any
  3. 3. Page 3 of 17 LINK-FILENAME CITATION OUTCOME – EXCERPTS - COMMENTS erroneous conclusion of law or fact in the Director's decision. She does not specifically challenge any of the Director's findings or point to specific errors in the Director's determination that she had not satisfied the evidentiary requirements set forth at 8 C.F.R § 204.5(h)(3). SEP082015_02B2203.pdf Matter of B-C-, ID# 12974 (AAO Sept. 8, 2015) APPEAL OF TEXAS SERVICE CENTER DECISION DISMISSED The Petitioner, an individual, seeks classification as an individual "of extraordinary ability" in the sciences. …. ….. The Director determined that the Petitioner had not satisfied the initial evidence requirements set forth at 8 C.F.R § 204.5(h)(3), which requires documentation of a one-time achievement or evidence that meets at least three of the ten regulatory criteria. On appeal, the Petitioner submits a statement with additional and previously submitted materials. For the reasons discussed below, we agree that the Petitioner has not established his eligibility for the classification sought. …. SEP092015_01B2203.pdf Matter of R-M-R-, ID# 13044 (AAO Sept. 9, 2015) APPEAL OF TEXAS SERVICE CENTER DECISION DISMISSED The Petitioner, a violist and mandolinist, seeks classification as an "alien of extraordinary ability" in the arts. … The Director determined that the Petitioner had not satisfied the initial evidence requirements set forth at 8 C.F.R § 204.5(h)(3), which requires
  4. 4. Page 4 of 17 LINK-FILENAME CITATION OUTCOME – EXCERPTS - COMMENTS documentation of a one-time achievement or evidence that meets at least three of the ten regulatory criteria. On appeal, the Petitioner submits a brief and additional evidence. The Petitioner asserts that he meets the categories of evidence at 8 C.F.R. § 204.5 (h)(3)(i), (ii), (iii), (iv), (v), (vi), (vii), and (viii). In addition, the Petitioner states that the Director incorrectly held the petitioner to a higher standard of proof. We agree with the Petitioner that the standard of proof in this matter is "preponderance of the evidence." The "preponderance of the evidence" standard, however, does not relieve the Petitioner from satisfying the basic evidentiary requirements of the statute and regulations. Therefore, if the statute and regulations require specific evidence, the petitioner is required to submit that evidence. In most administrative immigration proceedings, the petitioner must prove by a preponderance of the evidence that he or she is eligible for the benefit sought. Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010). The truth is to be determined not by the quantity of evidence alone but by its quality. Id. at 376. In the present matter, the documentation submitted does not demonstrate by a preponderance of the evidence that the Petitioner meets at least three of the regulatory criteria at 8 C.F.R. § 204.5 (h) (3), and, therefore, that he satisfies the regulatory requirement of three categories of evidence. The Petitioner alleges that he "is being treated in a prejudicial fashion by the Service" in violation of his due process rights. The Petitioner states: "The RFE [request for evidence] which was issued in this case is dated 18
  5. 5. Page 5 of 17 LINK-FILENAME CITATION OUTCOME – EXCERPTS - COMMENTS __________________________________ July 2014 yet, the very envelope in which these very important documents were mailed to the undersigned has a postmark of 21 July 2014." The record reflects that the Director dated-stamped the RFE on Friday, July 18, 2014, but it was not postmarked until Monday, July 21, 2014. As the RFE was mailed rather than personally served, the Director afforded the Petitioner an additional three days in which to submit his response in accordance with the regulation at 8 C.F.R. § 103.8(b). Page 10 of the RFE stated: "You must submit the requested information within eighty four (84) days from the date of this letter (87 days if this notice was received by mail)." As the Petitioner was afforded an additional three days and his RFE response was timely received by the Director on October 10, 2014, the Petitioner has not shown that his ability to file a timely and meaningful response was affected by the mailing delay of one business day or how the delay demonstrates that he was treated in a prejudicial fashion by USCIS in violation of his due process rights. For the reasons discussed below, we agree that the Petitioner has not established his eligibility for the exclusive classification sought. … Had the Petitioner submitted the requisite evidence under at least three evidentiary categories, in accordance with the Kazarian opinion, the next step would be a final merits determination that considers all of the evidence in the context of whether or not the Petitioner has demonstrated: (1) a "level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the field of endeavor," and (2) "that the alien has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise." 8 C.F.R. §
  6. 6. Page 6 of 17 LINK-FILENAME CITATION OUTCOME – EXCERPTS - COMMENTS 4 We maintain de novo review of all questions of fact and law. See Soltane v. United States Dep 't of Justice, 381 F.3d 143, 145 (3d Cir. 2004). In any future proceeding, we maintain the jurisdiction to conduct a final merits determination as the office that made the last decision in this matter. 8 C.F.R. § 103.5(a)(1)(ii); see also INA§§ 103(a)(l), 204(b); DHS Delegation Number 0150.1 (effective March 1, 2003); 8 C.F.R. § 2.1 (2003); 8 C.F.R. § 103.1(t)(3)(iii) (2003); Matter of Aurelio, 19 I&N Dec. 458,460 (BIA 1987) (holding that legacy INS, now USCIS, is the sole authority with the jurisdiction to decide visa petitions). 204.5(h) (2) and (3); see also Kazarian, 596 F.3d at 1119-20. As the Petitioner has not done so, the proper conclusion is that the Petitioner has failed to satisfy the antecedent regulatory requirement of presenting evidence that satisfied the initial evidence requirements set forth at 8 C.F.R § 204.5(h)(3) and (4). Kazarian, 596 F.3d at 1122. Nevertheless, although we need not provide the type of final merits determination referenced in Kazarian, a review of the evidence in the aggregate supports a finding that the Petitioner has not demonstrated the level of expertise required for the classification sought. 4 …. SEP112015_01B2203.pdf Matter of H-S-, ID# 13009 (AAO Sept. 11, 2015) District Judge RICHARD A. JONES presided over Rijal v. USCIS, and he stated that “…USCIS Erred in Its Determination That Mr. Rijal Had Not Satisfied Any of the Alternate Evidentiary Criteria.” “… Both Mr. Rijal and the USCIS often seem to assume that satisfying three criteria is the end of the "extraordinary ability" inquiry. They are mistaken. Id. at 1121 (noting that "whether APPEAL OF TEXAS SERVICE CENTER DECISION DISMISSED The Petitioner, an individual who works in the field of business development and commercialization, seeks classification as a person "of extraordinary ability" in business. … The classification the Petitioner seeks makes visas available to foreign nationals who can demonstrate their extraordinary ability through sustained national or international acclaim and whose achievements have been recognized in their field through extensive documentation. The Director determined that the Petitioner had not satisfied the initial evidence requirements set forth at 8 C.F.R § 204.5(h)(3), which requires documentation of a one-time achievement or evidence that meets at least three of the ten regulatory criteria.
  7. 7. Page 7 of 17 LINK-FILENAME CITATION OUTCOME – EXCERPTS - COMMENTS petitioner has provided at least three types of evidence" is merely an "antecedent procedural question"). That mistake is repeated throughout the USCIS's May 2009 decision. For example, the USCIS concluded that that UNICEF prize was an "internationally recognized award of excellence in the petitioner's field." AR at 117. Nonetheless, USCIS ruled that Mr. Rijal had not provided "[d]ocumentation of [his] receipt of lesser nationally or internationally recognized prizes or awards for excellence in [his] field of endeavor," 8 C.F.R. § 204.5(h)(3)(i), because, in its view, "[a] single prize, awarded four years prior . . ., does not provide evidence of the petitioner's sustained acclaim and is not sufficient to establish that he meets this criterion." This was an error. The evidentiary criterion does not require that the "lesser" prize demonstrate sustained acclaim. It merely requires the receipt of the prize, a showing that USCIS concedes that Mr. Rijal made. The inquiry into sustained acclaim is part of the "final merits determination" of whether the evidence demonstrates extraordinary ability. Kazarian, 596 F.3d at 1121 ****** The submission of evidence relating to at least three criteria, however, does not, in and of itself, establish eligibility for this classification. See Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010) (discussing a two-part review where the evidence is first counted and then, if satisfying the required number of criteria, considered in the context of a final merits determination). See also Rijal v. USCIS, 772 F. Supp. 2d 1339 (W.D. Wash. 2011) (affirming our proper application of Kazarian), aff'd, 683 F.3d. 1030 (9th Cir. 2012); Visinscaia v. Beers, 4 F.Supp.3d 126, 131-32 (D.D.C. 2013) (finding that we appropriately applied the two-step review); Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010) (holding that the "truth is to be determined not by the quantity of evidence alone but by its quality" and that U.S. Citizenship and Immigration Services (USCIS) examines "each piece of evidence for relevance, probative value, and credibility, both individually and within the context of the totality of the evidence, to determine whether the fact to be proven is probably true"). [Bullshit! Rijal did not affirm proper application! It was harmless error!] E13, EB-1C CERTAIN MULTINATIONAL EXECUTIVES & MANAGERS SEP102015_01B4203.pdf Matter of S-S-, Inc., ID# 13216 (AAO Sept. 10, 2015) APPEAL OF NEBRASKA SERVICE CENTER DECISION DISMISSED The Petitioner, an exporter of granite and marble, seeks to classify the beneficiary as a multinational manager or executive. … The Director denied the petition on January 13, 2010, concluding that the Petitioner did not establish that it had been doing business in the United
  8. 8. Page 8 of 17 LINK-FILENAME CITATION OUTCOME – EXCERPTS - COMMENTS States for at least one year prior to the petition's filing date, or that the Beneficiary's duties, either with his former foreign employer or in the United States, were in a qualifying managerial or executive capacity. SEP112015_01B4203.pdf Matter of C-S-, Inc., ID# (AAO Sept. 11, 2015) APPEAL OF TEXAS SERVICE CENTER DECISION DISMISSED The Petitioner, a company engaged in software development and sales, seeks to classify the Beneficiary, its chief executive officer, as a multinational manager or executive. …. The Director determined that the record did not establish that the Beneficiary will be employed in a qualifying managerial or executive capacity. On appeal, the Petitioner asserts that the company's small size is not a disqualifying factor, and that the Beneficiary has contributed to the beneficiary's growth in his role as its CEO. The Petitioner submits a legal brief and supporting exhibits. ************ B. Analysis For the reasons to be discussed below, we find that the Petitioner has not established that the Beneficiary will be employed in a qualifying managerial or executive capacity. The definitions of executive and managerial capacity each have two parts. First, the petitioner must show that the beneficiary performs the high level responsibilities that are specified in the definitions. Second, the petitioner
  9. 9. Page 9 of 17 LINK-FILENAME CITATION OUTCOME – EXCERPTS - COMMENTS must prove that the beneficiary primarily performs these specified responsibilities and does not spend a majority of his or her time on day-to- day functions. Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 1991 WL 144470 (9th Cir. July 30, 1991). The Petitioner devotes a considerable portion of the appeal to the assertion that the company has grown as a result of the Beneficiary's leadership. Evidence of growth would not, by itself, demonstrate that the Beneficiary qualifies as a multinational manager or executive. Further, the record does not support the Petitioner's claim. The Petitioner asserts that the response to the RFE included "evidence of significant growth of the company." The record does not support this assertion. …. SEP112015_02B4203.pdf Matter of X-D-M-E-, LLC, ID# 13192 (AAO Sept. 11, 2015) APPEAL OF NEBRASKA SERVICE CENTER DECISION DISMISSED The Petitioner, a real estate developer, seeks to permanently employ the Beneficiary under the immigrant classification of multinational executive or manager. ….. The Director denied the petition on December 15, 2014, concluding that the Petitioner has not established that the Beneficiary has been or will be employed in a qualifying managerial or executive capacity. On appeal, the Petitioner submits a legal brief, supported by copies of previously submitted materials. The Petitioner contends that the Beneficiary has worked and will work in a qualifying managerial capacity, and that the Director's decision is not consistent with the evidence of record.
  10. 10. Page 10 of 17 LINK-FILENAME CITATION OUTCOME – EXCERPTS - COMMENTS EB-2 Aliens Who Are Members of the Professions Holding Advanced Degrees or Aliens of Exceptional Ability & Applicant for a National Interest Waiver (NIW) of Job Offer & PERM Labor Certification SEP102015_01B5203.pdf Matter of H-N-N-B-, ID# 14524 (AAO Sept. 10, 2015) APPEAL OF TEXAS SERVICE CENTER DECISION SUSTAINED The Petitioner, an individual, seeks classification as a member of the professions holding an advanced degree. … The Petitioner seeks employment as an Assistant Professor of Geography and Geographic Information Science researcher. The Petitioner asserts that an exemption from the requirement of a job offer, and thus of a labor certification, is in the national interest of the United States. The Director found that the Petitioner qualifies for classification as a member of the professions holding an advanced degree, but that the Petitioner has not established that an exemption from the requirement of a job offer would be in the national interest of the United States. ************** The Petitioner filed the Immigrant Petition for Alien Worker (Form I-140) on March 3, 2014. The Director determined that the Petitioner's impact and influence on his field did not satisfy the third prong of the NYSDOT national interest analysis. Regarding his planned research activities, the Petitioner stated: "I intend to continue my investigations on how we could improve the methods used to characterize land cover[,] land use[,] and water resources by integrating geospatial techniques with landscape spatial complexity metrics and machine learning algorithms." ************ The aforementioned letters of support and extensive citation of the Petitioner's work by others in the field are sufficient to demonstrate that the
  11. 11. Page 11 of 17 LINK-FILENAME CITATION OUTCOME – EXCERPTS - COMMENTS Petitioner's research has had a degree of influence on the field of geographic information science. The evidence in the record establishes the significance of this Petitioner's research, as opposed to the general area of research, and identifies specific benefits attributable to his work that have influenced the field as a whole. We therefore find that the Petitioner's past record of achievement justifies projection that he will serve the national interest to a significantly greater degree than would an available U.S. worker having the same minimum qualifications. SEP112015_01B5203.pdf This one lipped through the cracks. It was not assigned a citation spring and is in the old style. DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Texas Service Center (Director). It is now on appeal before the Administrative Appeals Office (AAO). The case will be remanded to the Director for further consideration and the issuance of a new decision. The petitioner describes itself as a staffing and recruitment company. … ************** The petition is for a Schedule A occupation. A Schedule A occupation is one codified at 20 C.F.R. § 656.5(a) for which the U.S. Department of Labor (DOL) has determined that there are not sufficient U.S. workers who are able, willing, qualified and available, and that the wages and working conditions of similarly employed U.S. workers will not be adversely affected by the employment of aliens in such occupations. The current list of Schedule A occupations includes professional nurses. Id. "Professional nurse" is defined in 20 C.F.R. § 656.5(a)(3)(ii) as follows:
  12. 12. Page 12 of 17 LINK-FILENAME CITATION OUTCOME – EXCERPTS - COMMENTS Professional nurse means a person who applies the art and science of nursing which reflects comprehension of principles derived from the physical, biological and behavioral sciences. Professional nursing generally includes making clinical judgments involving the observation, care and counsel of persons requiring nursing care; administering of medicines and treatments prescribed by the physician or dentist; and participation in the activities for the promotion of health and prevention of illness in others. A program of study for professional nurses generally includes theory and practice in clinical areas such as obstetrics, surgery, pediatrics, psychiatry, and medicine. Petitions for Schedule A occupations do not require the petitioner to test the labor market and obtain a certified ETA Form 9089 from· the DOL prior to filing the petition with U.S. Citizenship and Immigration Services (USCIS). Instead, the petition is filed directly with USCIS with an uncertified ETA Form 9089 in duplicate. See 8 C.F.R. §§ 204.5(a)(2) and (k)(4); see also 20 C.F.R. § 656.15.1 ___________________ 1 The instant petition was filed without the requisite ETA Form 9089. The petitioner furnished an uncertified ETA Form 9089 in duplicate on July 26, 2013, in response to the Director's Notice of Intent to Deny (NOID) the petition. ************* The Director concluded that the proffered position, because of its supervisory elements, cannot be considered a Schedule A occupation.
  13. 13. Page 13 of 17 LINK-FILENAME CITATION OUTCOME – EXCERPTS - COMMENTS Accordingly, the petition could not be approved in the absence of a DOL- certified ETA Form 9089. The petitioner filed a timely appeal on September 12, 2013, accompanied by a brief from counsel and supporting documentation. The petitioner asserts that the Director erred in finding that the proffered nursing position is not a Schedule A occupation simply because there are supervisory components in the job. According to the petitioner, the practice of "registered nursing" includes supervision and management. **************** In reviewing the decision, we find that the job description might be reviewed in consideration of specific duties to determine whether such duties may be encompassed within the definition of a professional nurse. The Director may wish to issue a Request for Evidence to obtain further information about the issue and the issues identified below, allowing the petitioner a reasonable time to respond. Accordingly, this petition will be remanded to the Director for further review. The Director should take into consideration any materials submitted by the petitioner in response to any request. The Director shall then issue a new decision. EB-3 PROFESSIONAL or SKILLED WORKERS or OTHER WORKERS SEP152015_01B6203.pdf Matter of V-B-H-S-, ID# 13157 (AAO Sept. 15, 2015) APPEAL OF NEBRASKA SERVICE CENTER DECISION REMANDED The Petitioner, a healthcare business, seeks to permanently employ the Beneficiary in the United States as a registered nurse for immigrant classification as a professional. …. The petition is for a Schedule A occupation. ….
  14. 14. Page 14 of 17 LINK-FILENAME CITATION OUTCOME – EXCERPTS - COMMENTS SEE: Matter of Dial Auto Successor-In-Interest Test The petition was initially filed on September 12, 2006 and approved on July 2, 2007. On October 14, 2014, the Director issued a notice of intent to revoke (NOIR) the approval of the petition because information indicated that a change in business structure may have occurred. On December 25, 2014, the Director revoked the approval of the petition, noting that no response was received to the NOIR and that according to 9 FAM (Foreign Affairs Manual) 40.51 N4.6-1, a new Form I-140 should have been filed due to the buyout or merger of your organization with another company. You appealed this decision to the Administrative Appeals Office (AAO). ******* First, we note that the Petitioner asserts it did not receive the Director's NOIR and the record indicates that this NOIR was sent to the Petitioner's former counsel. See Matter of Arias, 19 I&N Dec. 568 (BIA 1988) and Matter of Estime, 19 I&N Dec. 450 (BIA 1987). The record also indicates that the Director then issued the Petitioner another NOIR to the Petitioner's former counsel on December 23, 2014, giving the Petitioner 30 days to respond. However, the Director issued the decision revoking the approval of the petition on December 25, 2014, to the Petitioner's current counsel two days after the NOIR was resent to the Petitioner on December 23, 2014. Therefore, the matter will be remanded to the Director to reissue a notice of intent to revoke and allow the Petitioner and current counsel an opportunity to respond. Second, related to the question of successorship, the record does not fully document the nature of the buyout and the restructuring that took place relating to the Petitioner's parent company. USCIS has not issued
  15. 15. Page 15 of 17 LINK-FILENAME CITATION OUTCOME – EXCERPTS - COMMENTS regulations governing immigrant visa petitions filed by a successor-in- interest employer. Instead, such matters are adjudicated in accordance with Matter of Dial Auto Repair Shop, Inc., 19 I&N Dec. 481 (Comm'r 1986) ("Matter of Dial Auto") a binding, legacy Immigration and Naturalization Service (INS) decision that was designated as a precedent by the Commissioner in 1986. Considering Matter of Dial Auto and the generally accepted definition of successor-in-interest, a petitioner may establish a valid successor relationship for immigration purposes if it satisfies three conditions. · First, the petitioning successor must fully describe and document the transaction transferring ownership of all, or a relevant part of, the beneficiary's predecessor employer. Second, the petitioning successor must demonstrate that the job opportunity is the same as originally offered on the labor certification. Third, the petitioning successor must prove by a preponderance of the evidence that it is eligible for the immigrant visa in all respects. The record does not contain sufficient evidence establishing the details of the buyout to demonstrate whether it resulted in either: (1) a change in the Petitioner's name but not a change in the Petitioner's Employer Identification Number (EIN); or (2) an organizational change and a change in EIN that would give rise to a successorship, or multiple successor issues. SPECIAL IMMIGRANT RELIGIOUS WORKER SEP112015_01C1101.pdf Matter of C-S-C-, ID# 13817 (AAO Sept. 11, 2015) APPEAL OF CALIFORNIA SERVICE CENTER DECISION SUSTAINED The Petitioner, a church, seeks to employ the Beneficiary as a special immigrant religious worker to perform services as a Mennonite school
  16. 16. Page 16 of 17 LINK-FILENAME CITATION OUTCOME – EXCERPTS - COMMENTS teacher at one of its private schools. See Immigration and Nationality Act (the Act) § 203(b)(4), 8 U.S.C. § 1153(b)(4). The Director, California Service Center, denied the petition, finding that the Petitioner did not establish that the proffered position qualifies as a religious occupation. …. Section 203(b)(4) of the Act, 8 U.S. C. § 1153(b)(4), provides classification to qualified special immigrant religious workers as described in section 101(a)(27)(C) of the Act, 8 U.S.C. § 1101(a)(27)(C), …. We find that the record in this case, as a whole, supports [Petitioner’s] contention that teaching in their religious school is an activity considered by the church to constitute the practice of religion and that educating their children is considered a sacred religious duty within the church. Considering the curriculum and lesson plans submitted, in conjunction with the church's prioritization of a private school for all of its children to the extent that most of its congregations operate their own religious school that are entirely staffed by church members, we conclude that the proffered position involves duties primarily related to a traditional religious function and involves carrying out the religious beliefs of the Mennonite religion. Further, the record shows that being a Mennonite school teacher is recognized as a religious occupation within the denomination. The duties of the position primarily relate to, and clearly involve, inculcating or carrying out the beliefs of the Mennonite religion. Accordingly, the Petitioner has established that the proffered position is a religious occupation as defined in 8 C.F.R. § 204.5(m)(5).
  17. 17. Page 17 of 17 LINK-FILENAME CITATION OUTCOME – EXCERPTS - COMMENTS In sum, the Petitioner has demonstrated that the proffered position of Mennonite school teacher qualifies as a religious occupation as defined in 8 C.F.R. § 204.5(m)(5). With respect to the Petitioner's assertion that USC IS has been inconsistent in granting and denying petitions with the identical proffered position, we note that each petition is considered on a case-by- case basis and this decision should not be interpreted to be a blanket holding that being a Mennonite school teacher is a religious occupation. In addition, USCIS is not required to approve applications or petitions where eligibility has not been demonstrated, merely because of prior approvals that may have been erroneous. See, e.g Matter ofChurch Scientology International, 19 I&N Dec. 593,597 (Comm'r 1988). This compilation is only accurate as of date and time of posting.

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