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CV 15
Michael E. Piston
Attorney for the Plaintiff
225 Broadway Ste 307
New York, NY 10007
Phone 646-845-9895
Fax 206-770-...
COMPLAINT
DESCRIPTION OF ACTION
1. This is an action brought pursuant to the
Administrative Procedure Act, 5 U.S.C. § 701 ...
2. The plaintiff Society is a domestic not-for-profit New York
corporation which has been granted tax-exempt status under
...
1. This Court has venue over this matter under 28 U.S.C. §
1391(e)(l)(C) in that the plaintiff resides in this judicial
di...
Society had not established that Mr. Singh had the required
two years of continuous, qualifying work experience
immediatel...
29, 43 (1983), particularly the unrebutted, credible
statements from numerous members of the Society's
congregation that M...
Section 101(a)(27)(C) of the Act, 8 U.S.C. § 1101(a)(27)(C), and set it
aside on the grounds that it is arbitrary and capr...
1
Michael E. Piston
Attorney for the Plaintiff
225 Broadway Ste 307
New York, NY 10007
Phone 646­845­9895
Fax 206­770­6350...
2
COMPLAINT
DESCRIPTION OF ACTION
1. This is an action brought pursuant to the Administrative Procedure Act, 5 
U.S.C. § 7...
3
JURISDICTION
4. This being a civil action against the United States arising under 
the Immigration and Nationality Act, ...
4
as described at Section 101(a)(27)(C) of the Act, 8 U.S.C. § 
1101(a)(27)(C), stating that Birender Singh will perform s...
5
the filing date of the petition was arbitrary and capricious in that 
it “offered an explanation for its decision that r...
6
Manpreet Kaur, A40130934318, and his children, Manjeet Kaur, 
A41405436511, Rajuinder Kaur, A40959317811 and Prabhjot 
K...
7
of status under Section 245 of the Immigration and Nationality Act, 8 U.S.C. 
§ 1255, and set them aside on the grounds ...
"
identifying data deleted to
prevent clearly unwarranted
iRvuloo ofpersonal privac}'
PUBLIC COpy
DATE: OFFICE: CALIFORNIA...
'.
Page 2
DISCUSSION: The Director, California Service Center, ("the director") denied the employment-based
immigrant visa...
Page 3
The issue here is whether the beneficiary possesses two years of continuous lawful work experience
in the country i...
Page 4
(iii) Received no salary but provided for his or her own support, and provided
support for any dependents, the peti...
Page 5
In my previous letter dated December 2, 2009 in support of Birender Singh's special
immigrant visa petition, I had ...
petitioner's proof may lead to a reevaluation of the reliability and sufficiency of the remaining evidence
offered in supp...
f
Page 7
beneficiary has been a Sikh for much longer than the two year period required by the regulation. For
this reason,...
(b)(6)
U.S. Department of Homeland Security
U.S. Citizenship and Immigration Services
Administrative Appeals Office (AAO)
...
(b)(6)
Page 2
DISCUSSION: The Director, California Service Center, denied the employment-based immigrant
visa petition. Th...
(b)(6)
Page 3
Internal Revenue Code of 1986) at the request of the organization in a religious
vocation or occupation; and...
(b)(6)
Page 4
$25,000 including free lodging and boarding valued at $15,400." These statements disagree as to
whether the ...
(b)(6)
Page 5
added $19,810 in business income to the previously reported $6,800 in salary, for a total of $26,610.
The 20...
(b)(6)
Page 6
Here, the petitioner has not met any of the Lozada requirements to establish ineffective assistance of
couns...
(b)(6)
Page 7
beneficiary's 2009 income tax return, newly submitted on motion, also shows that address (even
though the ac...
(b)(6)
U.S. Department of Homeland Security
U.S. Citizenship and Immigration Services
Administrative Appeals Office (AAO)
...
(b)(6)
NON-PRECEDENT DECISION
Page 2
DISCUSSION: The Director, California Service Center, denied the employment-based immi...
(b)(6)
Page 3
NON-PRECEDENT DECISION
(i) for at least 2 years immediately preceding the time of application for admission,...
(b)(6)
NON-PRECEDENT DECISION
Page 4
contrast, the petitioner's other statements and evidence show that the $25,000 figure...
(b)(6)
NON-PRECEDENT DECISION
Page 5
The purpose of a motion to reconsider is to contest the correctness of the original d...
(b)(6)
NON-PRECEDENT DECISION
Page 6
The AAO had previously found that the petitioner had not provided verifiable document...
(b)(6)
NON-PRECEDENT DECISION
Page 7
In his affidavit submitted with the first motion, the beneficiary stated:
I have live...
(b)(6)
U.S. Department of Homeland Security
U.S. Citizenship and Immigration Services
Administrati ve Appeals Office (AAO)...
(b)(6)
NON-PRECEDENT DECISION
Page 2
DISCUSSION: The Director, California Service Center, denied the employment-based immi...
(b)(6)
Page 3
NON-PRECEDENT DECISION
(iii) has been carrying on such vocation, professional work, or other work continuous...
(b)(6)
NON-PRECEDENT DECISION
Page 4
The petitioner submits partial copies of financial statements, the two most recent of...
(b)(6)
NON-PRECEDENT DECISION
Page 5
for IRS documentation of salaries received. As detailed in our earlier decisions, the...
(b)(6)
NON-PRECEDENT DECISION
Page 6
Furthermore, if the beneficiary had relied entirely on contributions from the congreg...
(b)(6)
'
U.S. Department ofHomeland Security
U.S. Citizenship and Immigration Service�
Administrative Appeals Office (AAO)...
(b)(6)
NON-PRECEDENT DECISION
Page 2
DISCUSSION: The Director, California Service Center, denied the employment-based immi...
(b)(6)
NON-PRECEDENT DECISION
Page3
The regulation at 8 C.F.R. § 204.5(m)(4) requires the petitioner to show that the bene...
(b)(6)
Page4
NON-PRECEDENT DECISION
typographical error occurred somewhere. I have always lived at the Temple since I
ente...
SIKH CULTURAL SOCIETY for a Kirtankar (special imm. religious worker) AAO Decisions and APA Complaints
SIKH CULTURAL SOCIETY for a Kirtankar (special imm. religious worker) AAO Decisions and APA Complaints
SIKH CULTURAL SOCIETY for a Kirtankar (special imm. religious worker) AAO Decisions and APA Complaints
SIKH CULTURAL SOCIETY for a Kirtankar (special imm. religious worker) AAO Decisions and APA Complaints
SIKH CULTURAL SOCIETY for a Kirtankar (special imm. religious worker) AAO Decisions and APA Complaints
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SIKH CULTURAL SOCIETY for a Kirtankar (special imm. religious worker) AAO Decisions and APA Complaints

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SIKH CULTURAL SOCIETY for a Kirtankar (special imm. religious worker) AAO Decisions and APA Complaints

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SIKH CULTURAL SOCIETY for a Kirtankar (special imm. religious worker) AAO Decisions and APA Complaints

  1. 1. CV 15 Michael E. Piston Attorney for the Plaintiff 225 Broadway Ste 307 New York, NY 10007 Phone 646-845-9895 Fax 206-770-6350 5158 'FILED Cl E r>~( . .. 2015 SEP -4 AH 9: 51 US ro ' '' ~ r I- I~ I i '. i •· ! . . ui;) i i l., i ... •) ., '-~ ! EASTERN OISTmc I OF HEW YORK UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK THE SIKH CULTURAL SOCIETY, INC. Plaintiff, vs. UNITED STATES CITIZENSHIP Case No.: .AND IMMIGRATION SERVICES COMPLAINT MAUSKOPF, J. Case 1:15-cv-05158-RRM Document 1 Filed 09/04/15 Page 1 of 7 PageID #: 1 I-360 was originally denied by CSC on January 12, 2010, and the Beneficiaries' I-485s were accordingly also denied. . AAO Dismissed an Appeal about the I-360 on April 23, 2012, . This APA challenge followed on September 4, 2015, after four subsequent Motions to AAO on the I-360. . All AAO Decisions are appended hereto. . The Beneficiary also filed a Complaint on June 17, 2016, about the denied I-485s.
  2. 2. COMPLAINT DESCRIPTION OF ACTION 1. This is an action brought pursuant to the Administrative Procedure Act, 5 U.S.C. § 701 et. seq., by the plaintiff, The Sikh Cultural Society, Inc. (the Society) against the defendant, the United States Citizenship and Immigration Services (USCIS), requesting that the USCIS's decision in Fjl~ ·· A87 702 051 and WAC 09 234 51853, affinning the denial of the Society's Immigrant Petition for Special Immigrant Religious Worker upon behalf of Birender Singh, pursuant to Section 203(b)(4) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(4), as described at Section 101(a)(27)(C) of the Act, 8 U.S.C. § 1101(a)(27)(C), dated April 4, 2015, be held unlawful and set aside on the grounds that it was arbitrary and capricious and in accordance with law. DESCRIPTION OF THE PARTIES 2 Case 1:15-cv-05158-RRM Document 1 Filed 09/04/15 Page 2 of 7 PageID #: 2
  3. 3. 2. The plaintiff Society is a domestic not-for-profit New York corporation which has been granted tax-exempt status under section 501 (c)(3) of the Internal Revenue Code and, although registered as a "church" under sections 170(b)(l)(A)(i) and 509(a)(l} of the Internal Revenue Code, in fact operates an over 100,000 square foot gurdwara, or Sikh temple, in the city of Richmond Hill, County of Queens, State of New York. 3. The defendant USCIS is an agency of the U.S. government headquartered in Washington, D.C. JURISDICTION 4. This being a civil action against the United States arising under the Immigration and Nationality Act, 8 U.S.C. § 1101 et. seq., and the Administrative Procedure Act, 5 U.S.C. § 701 et seq., both laws of the United States, original jurisdiction over this matter is vested in this Court by 28 u.s.c. § 1331. VENUE 3 Case 1:15-cv-05158-RRM Document 1 Filed 09/04/15 Page 3 of 7 PageID #: 3
  4. 4. 1. This Court has venue over this matter under 28 U.S.C. § 1391(e)(l)(C) in that the plaintiff resides in this judicial district. CAUSE OF ACTION 2. Under the Ad1ninistrative Procedure Act (APA), the courts will hold unlawful and set aside agency decisions which are arbitrary, capricious, an abuse of discretion~ or otherwise not in accordance with law. 5 U.S.C. § 706(2). 3. The Society has filed an llnmigrant Petition for Special Immigrant Religious Worker upon behalf of Birender Singh pursuant to Section 203(b)(4) of the Immigration and Nationality Act (the Act), 8 U.S.C. § l 153(b)(4), as described at Section 10l(a)(27)(C) of the Act, 8 U.S.C. § 1101(a)(27)(C), stating that Birender Singh will perform services for it as a kirtankar, or devotional hymn singer and priest, and has provided evidence that he met all statutory requirements for this classification. 4. The director of the USCIS's California Service Center denied the petition on January 12, 2010, having determined that the 4 Case 1:15-cv-05158-RRM Document 1 Filed 09/04/15 Page 4 of 7 PageID #: 4
  5. 5. Society had not established that Mr. Singh had the required two years of continuous, qualifying work experience immediately preceding the filing date of the petition. 5. The USCIS's Administrative Appeals Office (AAO) dismissed the Society's appeal from this decision on April 23, 2012, affirming the director's decision. It subsequently reopened and reaffirmed this decision in responses to motions to~ reopen from the Society on June 24, 2013; December 3, 2013; August 29, 2014; and finally April 4, 2015, in the course ofwhich it asserted at various times that the Society's: .. petition was also not approvable because it failed to prove · that it compensated Mr. Singh during his work for the Society. 6. This Court should hold thiscecision unlawful and set it aside· . on the grounds that the USCIS's finding that the Society failed to establish that Mr. Singh had the required two years ·· · of continuous, qualifying work experience immediately preceding the filing date of the petition was arbitrary and capricious in that it "offered an explanation for its decision that runs counter to the evidence before the agency", Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 5 Case 1:15-cv-05158-RRM Document 1 Filed 09/04/15 Page 5 of 7 PageID #: 5
  6. 6. 29, 43 (1983), particularly the unrebutted, credible statements from numerous members of the Society's congregation that Mr. Singh had worked at the Society as a kirtankar for well over 2 years prior to the filing of its petition. 7. Further, the USCIS's reliance in its denial on its finding that the Society failed to establish that it compensated Mr. Singh during the 2 years preceding the petition is not in accordance with law inasmuch as there is no such requirement in the Act. Shalom Pentecostal Church v. Acting Sec'y, United States Dep't ofHomeland Sec., 783 F.3d 156, 167 (3d Cir. 2015) "As the statute is clear and unambiguous and the Regulation is inconsistent with the statute, the Regulation is ultra vires" REQUEST FOR RELIEF WHEREFORE the Society respectfully requests that this Court hold unlawful the USCIS's denial of its Immigrant Petition for Special Immigrant Religious Worker upon behalf of Birender Singh pursuant to Section 203(b)(4) of the Im.migration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(4), as described at 6 Case 1:15-cv-05158-RRM Document 1 Filed 09/04/15 Page 6 of 7 PageID #: 6
  7. 7. Section 101(a)(27)(C) of the Act, 8 U.S.C. § 1101(a)(27)(C), and set it aside on the grounds that it is arbitrary and capricious and not in accordance with law. Respectfully subn1itted this lQTH day of August, 2015. 7 Case 1:15-cv-05158-RRM Document 1 Filed 09/04/15 Page 7 of 7 PageID #: 7
  8. 8. 1 Michael E. Piston Attorney for the Plaintiff 225 Broadway Ste 307 New York, NY 10007 Phone 646­845­9895 Fax 206­770­6350 UNITED STATES DISTRICT COURT  FOR THE EASTERN DISTRICT OF NEW YORK  BIRENDER SINGH, MANPREET  KAUR, MANJEET KAUR,  RAJUINDER KAUR, AND  PRABHJOT KAUR                    Plaintiffs, vs. UNITED STATES CITIZENSHIP  AND IMMIGRATION SERVICES Defendant. Case No.:   COMPLAINT Case 1:16-cv-03258 Document 1 Filed 06/17/16 Page 1 of 7 PageID #: 1 I-360 was originally denied by CSC on January 12, 2010, and the Beneficiaries' I-485s were accordingly also denied. . AAO Dismissed an Appeal about the I-360 on April 23, 2012, . This APA challenge followed on June 17, 2016, after four subsequent Motions to AAO by Petitioner. . All AAO Decisions are appended hereto. . The Petitioner also filed a Complaint on September 4, 2015, about the denied I-360.
  9. 9. 2 COMPLAINT DESCRIPTION OF ACTION 1. This is an action brought pursuant to the Administrative Procedure Act, 5  U.S.C. § 701 et. seq., by the plaintiffs Birender Singh et al, against the  defendant, the United States Citizenship and Immigration Services  (USCIS), requesting that the USCIS’s decision denying Forms I­485,  Application to Register Permanent Residence or Adjust Status in file  numbers A87702051, pertaining to Birender Singh, A40130934318,  pertaining to Manpreet Kaur, A41405436511, pertaining to Manjeet Kaur,  A40959317811, pertaining to Rajuinder Kaur, and A40130933418,  pertaining to Prabhjot Kaur,  be held unlawful and set aside on the grounds  that they were arbitrary and capricious and not in accordance with law. DESCRIPTION OF THE PARTIES 2. The plaintiffs are citizens and nationals of India,  residing in the city of S. Richmond Hill, Queens County, New York.  3. The defendant USCIS is an agency of the U.S. government  headquartered in Washington, D.C.  Case 1:16-cv-03258 Document 1 Filed 06/17/16 Page 2 of 7 PageID #: 2
  10. 10. 3 JURISDICTION 4. This being a civil action against the United States arising under  the Immigration and Nationality Act, 8 U.S.C. § 1101 et. seq., and  the Administrative Procedure Act, 5 U.S.C. § 701 et seq., both  laws of the United States, original jurisdiction over this matter is  vested in this Court by 28 U.S.C. § 1331.  VENUE 5. This Court has venue over this matter under 28 U.S.C. §  1391(e)(1)(C) in that the plaintiffs reside in this judicial district.  CAUSE OF ACTION 6.  Under the Administrative Procedure Act (APA), the courts will  hold unlawful and set aside agency decisions which are arbitrary,  capricious, an abuse of discretion, or otherwise not in accordance  with law. 5 U.S.C. § 706(2). 7. The Sikh Cultural Society, Inc. (the Society), has filed an  Immigrant Petition for Special Immigrant Religious Worker upon  behalf of Birender Singh pursuant to Section 203(b)(4) of the  Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(4),  Case 1:16-cv-03258 Document 1 Filed 06/17/16 Page 3 of 7 PageID #: 3 I-360 Petitioner Beneficiary
  11. 11. 4 as described at Section 101(a)(27)(C) of the Act, 8 U.S.C. §  1101(a)(27)(C), stating that Birender Singh will perform services  for it as a kirtankar, or devotional hymn singer and priest, and  has provided evidence that he met all statutory requirements for  this classification. 8. The director of the USCIS’s California Service Center denied the  petition on January 12, 2010, having determined that the Society  had not established that Mr. Singh had the required two years of  continuous, qualifying work experience immediately preceding the  filing date of the petition.  9. The USCIS’s Administrative Appeals Office (AAO) dismissed the  Society’s appeal from this decision on April 23, 2012, affirming the  director's decision. It subsequently reopened and reaffirmed this  decision in responses to motions to reopen from the Society on  June 24, 2013; December 3, 2013; August 29, 2014; and finally  April 4, 2015, in the course of which it asserted at various times that  the Society’s petition was also not approvable because it failed to  prove that it compensated Mr. Singh during his work for the Society. 10.This decision was unlawful in that the USCIS’s finding that the  Society failed to establish that Mr. Singh had the required two years  of continuous, qualifying work experience immediately preceding  Case 1:16-cv-03258 Document 1 Filed 06/17/16 Page 4 of 7 PageID #: 4
  12. 12. 5 the filing date of the petition was arbitrary and capricious in that  it “offered an explanation for its decision that runs counter to the  evidence before the agency”, Motor Vehicle Mfrs. Ass'n v. State  Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). 11.Further, the USCIS’s reliance in its denial on its finding that the  Society failed to establish that it compensated Mr. Singh during the  2 years preceding the petition is not in accordance with law  inasmuch as there is no such requirement in the Act. See Shalom  Pentecostal Church v. Acting Sec'y, United States Dep't of Homeland  Sec., 783 F.3d 156, 167 (3d Cir. 2015) “As the statute is clear and  unambiguous and the Regulation is inconsistent with the statute, the  Regulation is ultra vires”. 12. On January 12, 2010, the USCIS denied Birender Singh’s  application to adjust  his U.S. immigration status under section  245 of the Immigration and Nationality Act, 8 U.S.C. § 1255, to  that of alien lawfully admitted for permanent resident, upon  information and belief , solely on the grounds that it had previously  denied the aforesaid Immigrant Petition for Special Immigrant  Religious Worker upon which it relied.  13. On approximately the same date the USCIS also denied the  applications for adjustment of status of Birender Singh’s wife,  Case 1:16-cv-03258 Document 1 Filed 06/17/16 Page 5 of 7 PageID #: 5 But THAT was not one of the reasons for denial - this is irrelevant.
  13. 13. 6 Manpreet Kaur, A40130934318, and his children, Manjeet Kaur,  A41405436511, Rajuinder Kaur, A40959317811 and Prabhjot  Kaur, A40130933418, upon information and belief, directly on the  grounds of the denial of Birender Singh’s application for  adjustment of status, but ultimately because of the denial of the  aforesaid Immigrant Petition for Special Immigrant Religious  Worker upon which it relied.  14. On September 4, 2015 the Society commenced an action in the  U.S. District Court for the Eastern District of New York, Case No.  1:15­cv­05158 seeking judicial review of the denial of its form I­ 360 upon behalf of Birender Singh. 15. Inasmuch as the denial of the aforesaid Immigrant Petition for  Special Immigrant Religious Worker was not in accordance with  law and arbitrary and capricious, so likewise the denial of the  applications for adjustment of status of the plaintiffs was also not  in accordance with law and arbitrary and capricious. REQUEST FOR RELIEF WHEREFORE the plaintiffs respectfully request that this Court  hold unlawful the denial of each of the plaintiffs’ applications for adjustment  Case 1:16-cv-03258 Document 1 Filed 06/17/16 Page 6 of 7 PageID #: 6
  14. 14. 7 of status under Section 245 of the Immigration and Nationality Act, 8 U.S.C.  § 1255, and set them aside on the grounds that they are arbitrary and  capricious and not in accordance with law. Respectfully submitted this  17th  day of June, 2016.  s/Michael E. Piston Attorney for Plaintiff 225 Broadway Ste 307 New York, NY10007 Ph: (646)845­9895 Fax: (206)770­6350 Email: michaelpiston4@gmail.com Case 1:16-cv-03258 Document 1 Filed 06/17/16 Page 7 of 7 PageID #: 7
  15. 15. " identifying data deleted to prevent clearly unwarranted iRvuloo ofpersonal privac}' PUBLIC COpy DATE: OFFICE: CALIFORNIA SERVICE CENTER APR 23 2012 INRE: Petitioner: Beneficiary: U.S. Department of Homeland Security U.S. Citizenship and Immigration Services Administrative Appeals Office (AAO) 20 Massachusetts Ave., N.W., MS 2090 Washington, DC 20529-2090 U.S. Citizenship and Immigration Services PETITION: Immigrant Petition for 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), as described at Section 101 (a)(27)(C) of the Act, 8 U.S.c. § 110I(a)(27)(C) ON BEHALF OF PETITIONER: INSTRUCTIONS: Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents related to this matter have been returned to the office that originally decided your case. Please be advised that any further inquiry that you might have concerning your case must be made to that office. If you believe the law was inappropriately applied by us in reaching our decision, or you have additional information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The specific requirements for filing such a request can be found at 8 c.F.R. § 103.5. All motions must be submitted to the office that originally decided your case by filing a Form I-290B, Notice of Appeal or Motion, with a fee of $630. Please be aware that 8 c.F.R. § 103.5(a)(l )(i) requires that any motion must be filed within 30 days of the decision that the motion seeks to reconsider or reopen. Thank you, ~))bef!lJYlci.­ tr~~~!Rhew , Chief, Administrative Appeals Office www.uscis.gov
  16. 16. '. Page 2 DISCUSSION: The Director, California Service Center, ("the director") denied the employment-based immigrant visa petition on January 12, 2010. The petitioner timely filed an appeal to the denied petition. The matter is now before the Administrative Appeals Office ("AAO") on appeal. The AAO will dismiss the appeal. The petitioner is a Sikh non-profit religious organization. It seeks to classify the beneficiary as a special immigrant religious worker pursuant to section 203(b)(4) of the Immigration and Nationality Act (the Act), 8 U.S.c. § 1153(b)(4), to perform services as a kirtanker, or a devotional hymns singer. On August 28, 2009, the petitioner filed a Form 1-360 petition. On October 27, 2009, the director sent a Request for Evidence to the petitioner, who timely responded. On January 12, 2010, the director denied the petition. The director found that the petitioner failed to establish that the beneficiary had been employed full time as a religious worker for the two year period immediately preceding the filing of the petition. Additionally, the director noted a separate issue regarding the beneficiary's membership in the petitioner's denomination for the preceding two years. On appeal, the petitioner submits further documentation. Section 203(b)(4) of the Act 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), which pertains to an immigrant who: (i) for at least 2 years immediately preceding the time of application for admission, has been a member of a religious denomination having a bona fide nonprofit, religious organization in the United States; (ii) seeks to enter the United States-- (I) solely for the purpose of carrying on the vocation of a minister of that religious denomination, (II) before September 30, 2012, in order to work for the organization at the request of the organization in a professional capacity in a religious vocation or occupation, or (III) before September 30, 2012, in order to work for the organization (or for a bona fide organization which is affiliated with the religious denomination and is exempt from taxation as an organization described in section 501(c)(3) of the Internal Revenue Code of 1986) at the request of the organization in a religious vocation or occupation; and (iii) has been carrying on such vocation, professional work, or other work continuously for at least the 2-year period described in clause (i).
  17. 17. Page 3 The issue here is whether the beneficiary possesses two years of continuous lawful work experience in the country immediately prior to the filing of the Form 1-360 petition. The regulation at 8 C.F.R. § 204.5(m)(4) states that: (m) Religious workers. This paragraph governs classification of an alien as a special immigrant religious worker as defined in section 101(a)(27)(C) of the Act and under section 203(b)(4) of the Act. To be eligible for classification as a special immigrant religious worker, the alien (either abroad or in the United States) must: * * * * * (4) Have been working in one of the positions described in paragraph (m)(2) of this section, either abroad or in lawful immigration status in the United States, and after the age of 14 years continuously for at least the two-year period immediately preceding the filing of the petition. The prior religious work need not correspond precisely to the type of work to be performed. A break in the continuity of the work during the preceding two years will not affect eligibility so long as: (i) The alien was still employed as a religious worker; (ii) The break did not exceed two years; and (iii) The nature of the break was for further religious training or for sabbatical that did not involve unauthorized work in the United States. However, the alien must have been a member of the petitioner's denomination throughout the two years of qualifying employment. Further, 8 C.F.R. § 204.5(m)(11) states that: (11) Evidence relating to the alien's prior employment. Qualifying prior experience during the two years immediately preceding the petition or preceding any acceptable break in the continuity of the religious work, must have occurred after the age of 14, and if acquired in the United States, must have been authorized under United States immigration law. If the alien was employed in the United States during the two years immediately preceding the filing of the application and: (i) Received salaried compensation, the petitioner must submit IRS documentation that the alien received a salary, such as an IRS Form W-2 or certified copies of income tax returns. (ii) Received non-salaried compensation, the petltIOner must submit IRS documentation of the non-salaried compensation if available.
  18. 18. Page 4 (iii) Received no salary but provided for his or her own support, and provided support for any dependents, the petitioner must show how support was maintained by submitting with the petition additional documents such as audited financial statements, financial institution records, brokerage account statements, trust documents signed by an attorney, or other verifiable evidence acceptable to useIS. If the alien was employed outside the United States during such two years, the petitioner must submit comparable evidence of the religious work. The petitioner filed the current Form 1-360 petition on August 28,2009. According to the regulation above, the beneficiary must have been continuously working in lawful status for two years prior to the filing of the petition, from August 28, 2007 to August 28, 2009. The petitioner stated in a letter dated December 2, 2009 that the beneficiary had been working for the organization since April 12, 2003. However, the record reflects that the beneficiary has been in this country working for the petitioner since August of 2004, which is what the beneficiary stated in his Form G-325A, found in the record. Regardless, the evidence shows that the beneficiary was in the United States and working for the petitioner during the two year period immediately preceding the filing of the current petition, in lawful R-1 status. In the denial decision, the director found that the petitioner did not meet its burden of showing that the beneficiary had been working full time for the petitioner for the two year period prior to the filing of the petition. The director stated: The petitioner specifically alleges that the beneficiary has been working full time and receives an annual salary of $25,000. In addition to that, the beneficiary also receives extra income in the form of offerings from the devotees of the _temple. However, according to the beneficiary's 2008 W2, the beneficiary had a reported income of $6800. However, there was no 2007 W2 submitted. And according to the beneficiary's 2007 federal tax return Form 1040, which is not the certified copy as requested, the beneficiary's [sic] self-employed with a business income of $10,400. Both of which were substantially below the approximate $25,000 that should have appeared on the W2's for an annual income. There is no evidence or explanation provided with the response to reconcile the discrepancy. The director also noted its specific request for the number of hours per week worked and to be worked as it related to the beneficiary's breakdown of duties and detailed descriptions of work to be done. The director found that the response by the petitioner was insufficient. On appeal, a representative of the petitioner's submitted a letter dated March 12, 2010 in which he stated:
  19. 19. Page 5 In my previous letter dated December 2, 2009 in support of Birender Singh's special immigrant visa petition, I had confirmed that Mr. _receives an annual salary of $25,000 that includes free boarding and lodging valued at 15,400. This means that cost of his boarding, lodging and other expenses which comes around $15,400 per annum and are borne by our organization, is included in his salary. In simple means, his annual cash salary was approximately $10,000 per annum ($25,000 minus $15,400) at the time of issuance my previous letter. While denying Birender Singh's petition Immigration service wrongfully concluded that he was supposed to receive annual salary of $25,000. The AAO is not persuaded by the petitioner's claims on appeal. To show that the beneficiary had the requisite two years of continuous lawful work experience as prescribed by 8 C.F.R. § 204.5(m)(11), the petitioner submitted the beneficiary's 2007 Form 1040 and his 2008 Form 1040 and the beneficiary's 2008 Internal Revenue Service (IRS) Form W-2 Wage and Tax Statement. On appeal, the petitioner further submitted the beneficiary's IRS Form W-2 that the petitioner issued for 2009, and amended copies of the beneficiary's 2007 and 2008 IRS Forms 1040, U.S. Individual Income Tax Return. The AAO notes that the 2008 IRS Form W-2 the petitioner provided on behalf of the beneficiary is in the amount of $6,800, which is still below the petitioner's new stated salary of $10,000 per year, let alone the original salary quoted in the Form 1-360 petition and December, 2009 letter. Regarding the tax information for the year 2007, the AAO finds this information to be inconsistent. The AAO notes that the petitioner did not submit the beneficiary's IRS Form W-2 or Form 1099- MISC, Miscellaneous Income for 2007. All that the petitioner submitted was a 2007 tax return before the director and an amended 2007 tax return on appeal. The beneficiary's initial 2007 tax return shows that he made $10,400 and the amended return shows an income of $27,150. The beneficiary reported this income on schedule C. The lack of an IRS Form W-2 or 1099 is contradictory to all of the statements made by the petitioner stating that it would pay the beneficiary a salary, whether it is $25,000 as the petitioner stated on the Form 1-360, or $10,000 as the petitioner now states on appeal. The record does not resolve why the beneficiary reported his earnings for 2007 on schedule C. The record also does not resolve why the petitioner submitted an IRS Form W-2 for 2008 and 2009, and yet did not submit an IRS Form 1099 or an IRS Form W-2 for 2007. Matter ofHo, 19 I&N Dec. 582,591-592, states: It is incumbent on the petitioner to resolve any inconsistencies in the record by independent objective evidence, and attempts to explain or reconcile such inconsistencies, absent competent objective evidence pointing to where the truth, in fact, lies, will not suffice. On appeal, the petitioner submitted the beneficiary's amended tax returns for 2007 and 2008. The changes in the federal income tax returns showing an increase in the beneficiary's adjusted gross income based on the increased cash reported on schedule C cast doubt on the credibility of the petitioner's claims. See Matter of Ho, 19 I&N at 591 (stating that doubt cast on any aspect of the
  20. 20. petitioner's proof may lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the visa petition). A petitioner may not make material changes to a petition in an effort to make a deficient petition conform to USCIS requirements. See Matter ofIzummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 1988). Further, the amended tax return shows no evidence of submission to the Internal Revenue Service (IRS) or its receipt or acceptance by the IRS. USCIS requires IRS- certified copies of the amended return to establish that the amended return was actually received and processed by the IRS. Going on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter ofSoffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 1972)). Like a delayed birth certificate, the amended tax returns created several years after the fact raise serious questions regarding the truth of the facts asserted. Cf Matter ofBueno, 21 I&N Dec. 1029, 1033 (BIA 1997); Matter of Ma, 20 I&N Dec. 394 (BIA 1991)(discussing the evidentiary weight accorded to delayed birth certificates in immigrant visa proceedings). Because the petitioner has not provided consistent financial information for 2007 and for 2008, the AAO cannot find that the beneficiary worked continuously for the two years immediately preceding the filing of the Form 1-360 petition. The AAO further notes that although the petitioner stated on appeal that $15,400 of the beneficiary's salary would be provided in the form of room and board, the petitioner has provided no verifiable evidence to show that it provided this compensation to the beneficiary for the two years prior to the filing of the petition. The AAO also notes that the compensation for housing made up a significant part of the beneficiary's salary. The regulation at 8 C.F.R. § 204.5(m)(1l)(ii) requires that the petitioner must submit IRS documentation of the non-salaried compensation. In a Form 1-485 Application to Adjust Status and Form G-325A Biographic Information submitted contemporaneously with the Form 1-360 petition, the beneficiary stated that he lived at 95-30 11t h Street, Richmond Hill, NY 11418 since August of 2004. The petitioner however has provided no information that it owns this residence and allows the beneficiary to live there without paying rent, or that it subsidizes the beneficiary's rent payments. 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. at 165 (citing Matter of Treasure Craft of California, 14 I&N Dec. at 190). Because the petitioner has provided no information that it provided housing compensation to the beneficiary during the two year period, the AAO cannot find that the beneficiary worked continuously for the petitioner for the two years immediately preceding the filing of the petition. Therefore, the AAO will uphold the director's decision that the petitioner has not shown that the beneficiary has the requisite continuous experience during the two years period immediately prior to the filing of this petition. The director also noted that beneficiary was not a member of the petitioner's denomination for the two year period immediately preceding the filing of the Form 1-360 petition, as required by the regulation at 8 C.F.R. § 204.5(m)(1). However, there is evidence in the record showing that the
  21. 21. f Page 7 beneficiary has been a Sikh for much longer than the two year period required by the regulation. For this reason, the AAO will withdraw this part of the director's decision. Beyond the director's decision, the AAO also finds that petitioner failed to establish its ability to compensate the beneficiary. An application or petition that fails to comply with the technical requirements of the law may be denied by the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd, 345 F.3d 683 (9th Cir. 2003); see also Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. 2004) (noting that the AAO conducts appellate review on a de novo basis). The regulation at 8 C.F.R. § 204.5(m)(10) requires that the petitioner submit verifiable evidence of how the petitioner intends to compensate the alien. In the present case, as discussed above, the petitioner had to show that it can compensate the beneficiary. One of the ways of doing this is by submitting past IRS Forms W-2 as proof that it has been doing this previously, which is indicative of future ability. The petitioner submitted IRS Forms W-2 for 2009 and 2008, but no IRS Form W-2 for 2007. Further, the petitioner submitted no verifiable documents regarding its claim of providing room and board to the beneficiary and no financial records or statements in the form of taxes or audited financial statements from 2007 to 2009 to show that it had the ability to compensate the beneficiary or to establish that it had been and would in the future provide the beneficiary with room and board. For this reason as well, the petition will be denied. The petition will be denied for the above stated reasons, with each considered as an independent and alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.c. § 1361. Here, that burden has not been met. ORDER: The appeal is dismissed.
  22. 22. (b)(6) U.S. Department of Homeland Security U.S. Citizenship and Immigration Services Administrative Appeals Office (AAO) 20 Massachusetts Ave., N.W., MS 2090 Washington, DC 20529-2090 U.S. Citizenship and Immigration Services DATE: OFFICE: CALIFORNIA SERVICE CENTER FILE: JUN 2 4 2013 INRE: Petitioner: Beneficiary: PETITION: Immigrant Petition for 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), as described at Section 10l(a)(27)(C) of the Act, 8 U.S.C. § 1101(a)(27)(C) ON BEHALF OF PETITIONER: SELF-REPRESENTED INSTRUCTIONS: Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents related to this matter have been returned to the office that originally decided your case. Please be advised that any further inquiry that you might have concerning your case must be made to that office. If you believe the AAO inappropriately applied the law in reaching its decision, or you have additional information that you wish to have considered, you may file a motion to reconsider or a motion to reopen in accordance with the instructions on Form J-290B, Notice of Appeal or Motion, with a fee of $630. The specific requirements for filing such a motion can be found at 8 C.P.R. § 103.5. Do not file any motion directly with the AAO. Please be aware that 8 C.P.R. § 103.5(a)(l)(i) requires any motion to be filed within 30 days of the decision that the motion seeks to reconsider or reopen. Thank you, ))D-tY'1~ /'Ron Rosenberg UActing Chief, Administrative Appeals Office www.uscis.gov
  23. 23. (b)(6) Page 2 DISCUSSION: The Director, California Service Center, denied the employment-based immigrant visa petition. The Administrative Appeals Office (AAO) dismissed the petitioner's appeal. The matter is now before the AAO on a motion to reopen and reconsider. The AAO will dismiss. the motion to reconsider, grant the motion to reopen, and affirm the dismissal of the appeal. The petitioner is a gurdwara (sometimes spelled gurudwara), or Sikh temple. It seeks to classify the beneficiary as a special immigrant religious worker pursuant to section 203(b)(4) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(4). The petitioner claims that the beneficiary will perform services as a kirtankar, or devotional hymn singer and priest. The director determined that the petitioner had not established that the beneficiary had the required two years of continuous, qualifying work experience immediately preceding the filing date of the petition. In affirming that finding, the AAO cited an additional ground for denial relating to the beneficiary's compensation. In this decision, the term "prior counsel" shall refer to , who represented the petitioner at the time the petitioner filed the petition. The petitioner filed the motion on its own behalf, and refers to "[p]revious counsel" on motion, indicating that no longer represents the petitioner. There is no new Form G-28, Notice of Entry of Appearance as Attorney or Representative, or other indication that the petitioner has secured new counsel in this proceeding. The petitioner is, therefore, considered to be self-represented. On motion, the petitioner submits statements, photographs, and supporting documents. Section 203(b)(4) of the Act 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), which pertains to an immigrant who: (i) for at least 2 years immediately preceding the time of application for admission, has been a member of a religious denomination having a bona fide nonprofit, religious organization in the United States; (ii) seeks to enter the United States- (I) solely for the purpose of carrying on the vocation of a minister of that religious denomination, (II) before September 30, 2015, in order to work for the organization at the request of the organization in a professional capacity in a religious vocation or occupation, or (III) before September 30, 2015, in order to work for the organization (or for a bona fide organization which is affiliated with the religious denomination and is exempt from taxation as an organization described in section 501(c)(3) of the
  24. 24. (b)(6) Page 3 Internal Revenue Code of 1986) at the request of the organization in a religious vocation or occupation; and (iii) has been carrying on such vocation, professional work, or other work continuously for at least the 2-year period described in clause (i). The U.S. Citizenship and Immigration Services (USCIS) regulation at 8 C.P.R. § 204.5(m)(4) requires the petitioner to show that the beneficiary has been working as a minister or in a qualifying religious occupation or vocation, either abroad or in lawful immigration status in the United States, continuously for at least the two-year period immediately preceding the filing of the petition. The USCIS regulation at 8 C.F.R. § 204.5(m)(ll) reads: Evidence relating to the alien's prior employment. Qualifying prior experience during the two years immediately preceding the petition or preceding any acceptable break in the continuity of the religious work, must have occurred after the age of 14, and if acquired in the United States, must have been authorized under United States immigration law. If the alien was employed in the United States during the two years immediately preceding the filing of the application and: (i) Received salaried compensation, the petitioner must submit IRS [Internal Revenue Service] documentation that the alien received a salary, such as an IRS Form W-2 or certified copies of income tax returns. (ii) Received non-salaried compensation, the petitioner must submit IRS documentation of the non-salaried compensation if available. (iii) Received no salary but provided for his or her own support, and provided support for any dependents, the petitioner must show how support was maintained by submitting with the petition additional documents such as audited financial statements, financial institution records, brokerage account statements, trust documents signed by an attorney, or other verifiable evidence acceptable to USCIS. If the alien was employed outside the United States during such two years, the petitioner must submit comparable evidence of the religious work. The petitioner filed the Form I-360 petition on August 28, 2009. On the employer attestation that accompanied the petition, the petitioner stated that the beneficiary would receive an "annual salary [of] $25000 plus free boarding & lodging." An accompanying letter from then president of the petitioning temple, included this passage: "[the beneficiary] has been employed by our religious organization as a Kirtankar in the United States since April 7, 2004 to the present time. [The beneficiary] receives an annual salary of
  25. 25. (b)(6) Page 4 $25,000 including free lodging and boarding valued at $15,400." These statements disagree as to whether the value of the beneficiary's food and lodging is included in the $25,000 sum, or m addition to it. On October 27, 2009, the director issued a request for evidence, instructing the petitioner to submit certified copies of the beneficiary's income tax returns and a copy of the beneficiary's IRS Form W-2 Wage and Tax Statement for 2007, and to provide further details regarding the beneficiary's experience and work schedule. The director also requested other evidence and information. Prior counsel stated that the petitioner's response included a copy of its 2006 membership list and copies of the beneficiary's IRS Forms W-2 for 2007 and 2008. Prior counsel asserted that the beneficiary "works 40 hours during the weekdays and then extra hours during the special weekend programs." The petitioner submitted uncertified copies of the beneficiary's IRS Form 1040 Individual IIicome Tax Returns for 2007 and 2008, showing that the beneficiary earned $10,400 in business income in 2007, and $6,800 in salary in 2008. A copy of an IRS Form W-2 corroborated the figure for 2008, but the petitioner's submission did not include an IRS Form W-2 or 1099 for 2007. The petitioner did not explain the absence of the Form W-2 that the director had specifically requested. The petitioner also did not explain why the beneficiary's 2008 salary was less than the proffered salary. The petitioner also submitted a letter from The original date printed on the letter was March 15, 2007; however, the date was obscured with correction fluid, and a handwritten date of December 2, 2009 was substituted. stated that the beneficiary "works approximately 40 hours during the weekdays during which he works 4 hours each during the morning and evening services [on a] daily basis. In addition to that he works flexible hours during the special weekend services." .. The director denied the petition on January 12, 2010, stating that the submitted evidence does not consistently show continuous, full-time employment. The director noted that the petitioner paid the beneficiary significantly less than the stated salary in 2008, and did not submit any acceptable IRS documentation of the beneficiary's 2007 compensation. The director also noted the absence of the beneficiary's name from the 2006 member list, which was not consistent with the claim that the beneficiary was already working at the petitioning temple before 2006. On appeal from that decision, stated that the $25,000 salary figure "includes free boarding and lodging valued at $15,400," leaving an "annual cash salary [of] approximately [$]10,000 per annum." He also stated: "our organization has fixed his salary at $10,400 per annum from 2009 onwards.... Previously [the beneficiary] was receiving lesser salary but he has always been our full time employee since April 2003." The petitioner submitted new tax documentation. An uncertified copy of the beneficiary's 2007 income tax return, prepared January 21, 2010, showed $27,150 in business income. Under Part II, "Explanation of Changes," the beneficiary stated: "part of income not reported earlier now reported." An uncertified and undated copy ofthe beneficiary's amended income tax return for 2008
  26. 26. (b)(6) Page 5 added $19,810 in business income to the previously reported $6,800 in salary, for a total of $26,610. The 2008 return showed his home address as Richmond Hill, New York. The beneficiary left the "Explanation of Changes" blank on the amended 2008 return. An IRS Form W-2 for 2009 indicated that the petitioner paid the beneficiary $10,400 in salary. Regarding the beneficiary's schedule, stated: "Morning service starts at the dawn around 4.30 am and concludes at 8.30 am. Evening service goes from 5 pm to 9 pm." With respect to the membership list, stated: "this membership list is only for the voting purpose[s] and normally salaried employees of our organization ... do not participate in the election process. Hence their names are not on this list." The AAO dismissed the petitioner's appeal on April 23, 2012, stating that the beneficiary's IRS Form W-2 for 2008 showed a salary "below the petitioner's new stated salary of$10,000 per year," and that the petitioner had submitted inconsistent evidence regarding the beneficiary's 2007 compensation. The AAO stated that amended tax returns, filed after the director raised concerns about the beneficiary's compensation, have diminished evidentiary weight. The AAO also found that the petitioner had not provided verifiable documentation that it has provided, or will provide, room and board to the beneficiary (such as documentary evidence that it owns the property where the beneficiary resides). In addition to upholding the director's stated basis for denial, the AAO added that, given the petitioner's underpayment of the beneficiary, the petitioner had not established how it intends to compensate the beneficiary as required by the USCIS regulation at 8 C.P.R. § 204.5(m)(10). In making that finding, the AAO noted that, on Form G-325A, Biographic Information, the beneficiary claimed to have resided at Richmond Hill, New York, since August 2004. The AAO stated that the petitioner had not established its ownership or control of the property at that address. On motion, successor as president of the petitioning temple, states: "Previous counsel provided ineffective assistance of counsel by failing to obtain a provide [sic] W-2 or 1099 statements for all years in question demonstrating that the Beneficiary was paid by the Petitioner. Such statements are enclosed." 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 counsel's ethical or legal responsibilities, and if not, why not. Matter ofLozada, 19 I&N Dec. 637 (BIA 1988), aff'd, 857 F.2d 10 (1st Cir. 1988).
  27. 27. (b)(6) Page 6 Here, the petitioner has not met any of the Lozada requirements to establish ineffective assistance of counsel. affidavit did not set 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 petitioner in this regard. There is no evidence that the petitioner informed prior counsel of the allegations against him, or that the petitioner filed a complaint with appropriate disciplinary authorities (or explained why it did not do so). On motion, the petitioner submits IRS Forms W-2 from 2008, 2009 and 2011. The petitioner had previously submitted the forms for 2008 and 2009, and the 2011 form falls outside the two-year qualifying period immediately preceding the petition's August 28, 2009 filing date. The petitioner still has not submitted the 2007 IRS Form W-2, which the director specifically requested before denying the petition.1 In a newly submitted affidavit, the beneficiary states: At all times since I have been employed by the Petitioner, I have been paid the salary which was set forth in the visa petition. Copies of W-2 forms are attached which demonstrate this. I have lived at an apartment located in the Temple since I began working for the . The temple is located at Richmond Hill, New York. I was told that USCIS stated that I claimed on a biographic data form to live at . I do not know if USCIS made an error in stating that in its decision, if my attorney erroneously completed the form, or if I made an error in providing the address to my attorney. It is obvious from being only one street number off that a typographical error occurred somewhere. I have always lived at the Temple since I entered the United States. in a separate affidavit, repeated the assertion that the beneficiary has always resided within the temple. The petitioner submitted several photographs purporting to show the beneficiary's apartment inside the temple. It is plausible that' " is, as claimed, a typographical error for the petitioner's very similar address, '' " However, the beneficiary has repeatedly claimed another address that cannot be explained in this manner. When the petitioner originally submitted copies of the beneficiary's 2007 and 2008 income tax returns, both returns showed the beneficiary's address as , Richmond Hill, New York. The same address appears on the beneficiary's amended 2007 tax return. A copy of the 1 Future submission of the 2007 Form W-2 would not overcome the denial of the petition. Cf Matter of Soriano, 19 I&N Dec. 764, 766 (BIA 1988); Matter of Obaigbena, 19 I&N Dec. 533, 537 (BIA 1988) (if the petitioner fails to submit specifically requested evidence in response to a request from the director, USCIS will not accept that evidence if submitted later on appeal).
  28. 28. (b)(6) Page 7 beneficiary's 2009 income tax return, newly submitted on motion, also shows that address (even though the accompanying IRS Form W-2 for 2009 shows the address as ·· 1. The same address also appears on a newly submitted copy ofthe beneficiary's IRS Form W-2 for 2011. Because the beneficiary's housing is said to be an integral element of his compensation, and both the petitioner and the beneficiary have asserted that this housing is within the temple building itself, the repeated use of an address in a completely different building (on the other side of I casts serious doubt on the credibility ofthe petitioner's and the beneficiary's claims. The petitioner has submitted copies of real estate documents to establish its ownership of the temple property, but these documents do not show that the petitioner owns the property at Richmond Hill, New York. The petitioner has never stated that the beneficiary lived in a house near the temple. Rather, the petitioner, as well as the beneficiary, claimed that the beneficiary lived in an apartment located inside the temple itself. When discussing discrepancies on the beneficiary's income tax returns, it is noted that the 2007 and 2008 returns list his filing status as "single" with no dependents, whereas his 2009 return shows his status as "married" (to j with three children. On Form G-325A, the beneficiary stated that he married in March 2003, which indicates that he misrepresented his marital status on at least two tax returns. Doubt cast on any aspect of the petitioner's proof may lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the visa petition. Matter ofHo, 19 I&N Dec. 582, 591 (BIA 1988). It is incumbent upon the petitioner to resolve any inconsistencies in the record by independent objective evidence, and attempts to explain or reconcile such inconsistencies, absent competent objective evidence pointing to where the truth, in fact, lies, will not suffice. !d. at 582, 591-92. The petitioner's assertions regarding the beneficiary's compensation have been inconsistent and contradictory, and therefore lack credibility. Given these discrepancies, even if the petitioner had successfully made an ineffective assistance of counsel claim, it is not clear that the outcome of these proceedings would have been any different. The petitioner has not shown that the AAO's decision was incorrect at the time of its issuance, and therefore the motion does not qualify as a motion to reconsider under 8 C.P.R. § 103.5(a)(3). The petitioner has submitted new evidence on appeal, in the form of real estate records and other materials, which meets the requirements of a motion to reopen under 8 C.P.R. § 103.5(a)(2), but that evidence does not overcome the stated grounds for denial of the petition. The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. The petitioner has not met that burden. Accordingly, the AAO will affirm its dismissal of the appeal. ORDER: The AAO's decision dated April 23, 2012 is affirmed. The appeal remains dismissed, and the petition remains denied.
  29. 29. (b)(6) U.S. Department of Homeland Security U.S. Citizenship and Immigration Services Administrative Appeals Office (AAO) 20 Massachusetts Ave., N.W., MS 2090 Washington, DC 20529-2090 U.S. Citizenship and Immigration Services DATE: DEC 032013 OFFICE: CALIFORNIA SERVICE CENTER FILE: INRE: Petitioner: Beneficiary: PETITION: Immigrant Petition for 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), as described at Section 101(a)(27)(C) of the Act, 8 U.S.C. § 1101(a)(27)(C) ON BEHALF OF PETITIONER: INSTRUCTIONS: Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this decision. Please review the Form I-290B instructions at http:Uwww.uscis.gov/forms for the latest information on fee, filing location, and other requirements. See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. Thank you, )J/JudnJL- ( Ron Rosenberg <' Chief, Administrative Appeals Office ·www.uscis.gov
  30. 30. (b)(6) NON-PRECEDENT DECISION Page 2 DISCUSSION: The Director, California Service Center, denied the employment-based immigrant visa petition. The AAO dismissed the petitioner's appeal. The petitioner then filed a motion to reopen and reconsider. The AAO granted the motion to reopen, dismissed the motion to reconsider, and affirmed the previous decision. The matter is now before the AAO on a second motion to reopen and reconsider. The AAO will grant the motion to reopen, dismiss the motion to reconsider, and affirm the denial of the petition. The petitioner is a gurdwara (sometimes spelled gurudwara), or Sikh temple. It filed Form 1-360, Petition for Amerasian, Widow(er), or Special Immigrant, on August 28, 2009, seeking 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). The petitioner claims that the beneficiary will perform services as a kirtankar, or devotional hymn singer and priest. The director denied the petition on January 12, 2010, having determined that the petitioner had not established that the beneficiary had the required two years of continuous, qualifying work experience immediately preceding the filing date of the petition. The AAO dismissed the appeal on April 23, 2013, citing the original ground for denial as well as a lack of required evidence regarding the beneficiary's compensation. The petitioner filed a motion to reopen and reconsider on May 23, 2012. The AAO dismissed the motion to reconsider but granted the motion to reopen, and affirmed the denial of the petition on June 24,2013. A motion to reopen must state the new facts to be proved in the reopened proceeding and be supported by affidavits or other documentary evidence. 8 C.F.R. § 103.5(a)(2). A motion to reconsider must state the reasons for reconsideration and be supported by any pertinent precedent decisions to establish that the decision was based on an incorrect application of law or USCIS policy. A motion to reconsider a decision on an application or petition must, when filed, also establish that the decision was incorrect based on the evidence of record at the time of the initial decision. 8 C.F.R. § 103.5(a)(3). A motion that does not meet applicable requirement~ shall be dismissed. 8 C.F.R. § 103.5(a)(4). On motion, the petitioner submits a statement co-signed by counsel and by president of the petitioning entity. They state: "the Petition is approvable in view of the present] y clarified evidence that proves the essential requirements of the 1-360 petition as supplemented by the attached corroboration." The accompanying evidence includes Internal Revenue Service (IRS) documentation regarding the beneficiary's past earnings; a statement signed by several members of the petitioner's congregation; and documentation relating to the site of the petitioning temple and nearby properties. Section 203(b)(4) of the Act 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), which pertains to an immigrant who:
  31. 31. (b)(6) Page 3 NON-PRECEDENT DECISION (i) for at least 2 years immediately preceding the time of application for admission, has been a member of a religious denomination having a bona fide nonprofit, religious organization in the United States; (ii) seeks to enter the United States- (I) solely for the purpose of carrying on the vocation of a minister of that religious denomination ... ; and (iii) has been carrying on such vocation, professional work, or other work continuously for at least the 2-year period described in clause (i). 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 continuously for at least the two-year period immediately preceding the filing of the petition. The USCIS regulation at 8 C.F.R. § 204.5(m)(ll) reads, in pertinent part: Evidence relating to the alien's prior employment. ... If the alien was employed in the United States during the two years immediately preceding the filing of the application and: (i) Received salaried compensation, the pet1t10ner must submit IRS [Internal Revenue Service] documentation that the alien received a salary, such as an IRS Form W-2 or certified copies of income tax returns. (ii) Received non-salaried compensation, the petitioner must submit IRS documentation of the non-salaried compensation if available. The USCIS regulation at 8 C.P.R. § 204.5(m)(10) states: Initial evidence must include verifiable evidence of how the petitioner intends to compensate the alien. Such compensation may include salaried or non-salaried compensation. This evidence may include past evidence of compensation for similar positions; budgets showing monies set aside for salaries, leases, etc.; verifiable documentation that room and board will be provided; or other evidence acceptable to USCIS. If IRS documentation, such as IRS Form W-2 or certified tax returns, is available, it must be provided. If IRS documentation is not available, an explanation for its absence must be provided, along with comparable, verifiable documentation. Prior AAO decisions provided details about the chronology of the proceeding. The present decision will limit discussion to issues raised or addressed on motion. The petitioner had originally claimed, on the employer attestation that accompanied the petition, that the beneficiary would receive an "annual salary [of] $25000 plus free boarding & lodging." In
  32. 32. (b)(6) NON-PRECEDENT DECISION Page 4 contrast, the petitioner's other statements and evidence show that the $25,000 figure is inclusive, not exclusive, of food and lodging. In the 2010 appeal, then president of the petitioning entity, claimed that the "organization has fixed [the beneficiary's] salary at $10,400 per annum from 2009 onwards" although he received a "lesser salary" in earlier years. The petitioner had previously submitted uncertified copies of the beneficiary's IRS Form 1040 Individual Income Tax Returns for 2007 and 2008, showing that the beneficiary earned $10,400 in business income in 2007, and $6,800 in salary in 2008. In 2010, the beneficiary filed amended income tax returns, now showing business income of $27,150 for 2007 and $19,810 in business income (plus the originally claimed salary figure) for 2008. In the April 2012 dismissal notice, the AAO stated that the beneficiary's IRS Form W-2 for 2008 showed a salary "below the petitioner's new stated salary of $10,000 per year," and that the petitioner had submitted inconsistent evidence regarding the beneficiary's 2007 compensation. The AAO stated that amended tax returns, filed after the director raised concerns about the beneficiary's compensation, have diminished evidentiary weight. The etitioner, on motion from that decision, had asserted that its prior attorney of record, had failed to procure the required IRS documentation. The petitioner itself, however, would have been responsible for maintaining the relevant records relating to the compensation of its workers. Counsel and Mr. assert that the petitioner "directed the Beneficiary (to] receive additional remuneration by donations directly from its congregants" rather than through the petitioner, so that, for tax purposes, the beneficiary could declare the additional income as business income rather than as salary paid through the petitioner. The regulation at 8 C.F.R. § 204.5(m)(7)(xii) requires the intending employer to attest to its "ability and intention to compensate the alien," and the regulation at 8 C.P.R. § 204.5(m)(10) requires the petitioner to submit "verifiable evidence of how the petitioner intends to compensate the alien." These regulations show that the compensation must come from the petitioning employer, not from third parties (such as members of the congregation) who have made no binding commitment to support the beneficiary, and who have not made their financial information available for users to review. Counsel and Mr. assert that the variations in the petitioner's compensation are "not a legal basis for denying the Petition, as the Beneficiary has clearly been paid ... as required by regulation." The amounts originally reported as the beneficiary's compensation were contradictory, and fell short of the claimed annual amount. This discrepancy raises legitimate questions about the extent of the beneficiary's past work and the petitioner's intent and ability to compensate him. As explained in the AAO's April 2012 decision, the petitioner cannot overcome this issue by amending the beneficiary's income tax returns after the fact. The petitioner provided no verifiable, contemporaneous evidence to show that the figures on the amended returns are more reliable than the original numbers. The petitioner's latest submission on motion does not establish any error of fact or law in the AAO's prior decision of June 2013, with respect to the petitioner's prior compensation.
  33. 33. (b)(6) NON-PRECEDENT DECISION Page 5 The purpose of a motion to reconsider is to contest the correctness of the original decision based on the previously established factual record. A motion to reconsider based on a legal argument that could have been raised earlier in the proceedings will be denied. See Matter of Medrano, 20 I&N Dec. 216, 219-20 (BIA 1990, 1991). The "reasons for reconsideration" that may be raised in a motion to reconsider should flow from new law or a de novo legal determination reached by the AAO in its decision that could not have been addressed by the party. Matter of 0-S-G-, 24 I&N Dec. 56, 58 (BIA 2006). Further, a motion to reconsider is not a process by which a party may submit, in essence, the same brief presented on appeal and seek reconsideration by generally alleging error in the prior decision. !d. at 58. Instead, the moving party must specify the factual and legal issues raised on appeal that were decided in error or overlooked in the initial decision or must show how a change in Jaw materially affects the prior decision. !d. at 60. .A motion to reopen must state the new facts to be provided and be supported by affidavits or other documentary evidence. 8 C.F.R. § 103.5(a)(2). Newly printed IRS transcripts of the beneficiary's amended 2007-2009 income tax returns introduce no new facts into the proceeding, except to support the uncertified copies submitted earlier. With respect to the beneficiary's prior compensation, the petitioner's latest submission does not meet the requirements of a motion to reopen or a motion to reconsider. The petitioner submits a statement jointly signed by 45 members of its congregation, attesting to "the religious duties of [the beneficiary as a] full time Granthi/Priest . . . since February 2004." (In previous correspondence, Tehal Singh had stated that the petitioner hired the beneficiary in April 2003 and in April 2004.) The signers attested to making additional donations beyond the beneficiary's base salary. USCIS has not disputed the beneficiary's involvement with the ;petitioner in some capacity; the dispute concerns the extent of that involvement. The statement does not establish that members of the congregation were or are in a position to have personal knowledge that the beneficiary's employment has been and continues to be full-time. The petitioner's first motion included the beneficiary's IRS Forms W-2 from 2008, 2009 and 2011. The AAO, in its June 2013 decision, noted that copies of the Forms W-2 for 2008 and 2009 were already in the record, and that "[t]he petitioner still has not submitted the 2007 IRS Form W-2, which the director specifically requested before denying the petition." The AAO added that, because the director had already specifically requested the 2007 Form W-2, [f]uture submission of the 2007 Form W-2 would not overcome the denial of the petition. Cf Matter of Soriano, 19 I&N Dec. 764, 766 (BIA 1988); Matter of Obaigbena, 19 I&N Dec. 533, 537 (BIA 1988) (if the petitioner fails to submit specifically requested evidence in response to a request from the director, USCIS will not accept that evidence if submitted later on appeal). An "Index of Exhibits" submitted with the current motion indicates that the motion includes copies of the beneficiary's "W-2 Forms for 2007, 2008 and 2009." The motion includes only the forms for 2008 and 2009, both submitted previously.
  34. 34. (b)(6) NON-PRECEDENT DECISION Page 6 The AAO had previously found that the petitioner had not provided verifiable documentation that it has provided, or will provide, room and board to the beneficiary (such as documentary evidence that it owns the property where the beneficiary resides). As described in previous AAO decisions, at various times the petitioner and/or the beneficiary have indicated that the be!leficiary resides within the temple itself at Concerning the discrepancies in the beneficiary's residential address, counsel and Mr. Kang state: The denial cites that the Beneficiary's 2007 and 2008 income tax returns show his address as (owned by the Petitioner as evidenced by the attached copy of the deed); and that his 2009 return shows an address of (leased by the petitioner as evidenced by the attached copy of the lease for the said premises), the same address as on the Beneficiary's Form W-2. This is fully consistent with the Beneficiary's having been provided free room and board by the Petitioner, as is corroborated by its attached September 1, 2008 to August 31, 2010 rental agreement specifically identifying the Beneficiary as the occupant in his function of "Priest." The joint statement also contends that the petitioner rented the property in anticipation of the arrival of the beneficiary's family in September 2008. The petitioner documents the arrival date on motion. Because the present motion is the petitioner's first opportunity to address the AAO's stated concerns regarding documentation of the petitioner's ownership of that property establishes a new fact. The documentation demonstrates that the petitioner has owned the property since 2003, but it is silent as to whether the beneficiary lived there. Unresolved concerns remain on this point, to be explained below. The petitioner submits a copy of a lease agreement between the petitioner, as tenant, and as landlord, indicating that the beneficiary would be the occupant at beginning September 1, 2008. This document contradicts previous claims by the petitioner and by the beneficiary. As noted in prior AAO decisions, the beneficiary executed Form G-325A, Biographic Information, in conjunction with a Form 1-485 Application to Register Permanent Residence or Adjust Status that he filed in 2009. On that form, the beneficiary indicated that he had resided at since August 2004, more than four years before the September 1, 2008 date shown on the newly submitted lease agreement. The petitioner's first motion to reopen and reconsider included affidavits from and from the beneficiary, both dated May 20, 2012. Neither affidavit referred to an apartment across the street from the temple, leased from stated: "The Beneficiary is provided living accommodations at our Temple as part of his compensation. Photographs of the living accommodations are attached." The petitioner submitted several color photographs with the handwritten annotation "Beneficiary's apartment in temple."
  35. 35. (b)(6) NON-PRECEDENT DECISION Page 7 In his affidavit submitted with the first motion, the beneficiary stated: I have lived at an apartment located in the Temple since I began working for the Society. The temple is located at I was told that USers stated that I claimed on a biographic data form to live at 95-30 11ih Street. I do not know if users made an error in stating that in its decision, if my attorney erroneously completed the form, or if I made an error in providing the address to my attorney. It is obvious from being only one street number off that a typographical error occurred somewhere. I have always lived at the Temple since I entered the United States. In the present motion, the petitioner has abandoned the claim that the beneficiary resided "in the Temple" and "that a typographical error occurred somewhere," and made the new claim that, beginning in September 2008, the petitioner leased an apartment at for the beneficiary's use. These conflicting assertions cast doubt on the petitioner's claims and on the authenticity of the newly submitted lease agreement. Doubt cast on any aspect of the petitioner's proof may lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the visa petition. Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). It is incumbent upon the petitioner to resolve any inconsistencies in the record by independent objective evidence, and attempts to explain or reconcile such inconsistencies, absent competent objective evidence pointing to where the truth, in fact, lies, will not suffice. !d. at 582, 591-92. The petitioner has submitted independent, objective evidence regarding its control of various residential properties, but the petitioner has made conflicting claims regarding the beneficiary's use of those properties. Both the beneficiary and the president of the petitioning entity previously asserted, in sworn affidavits, that the beneficiary resided "in the Temple" or "at [the] Temple," with the beneficiary disclaiming the address as "a typograohical error" while other materials give divergent dates as to when the beneficiary moved in to the As housing is an essential part of the petitioner's stated compensation provided to the beneficiary, these discrepancies preclude a finding that the petitioner has met its burden of proof and established the beneficiary's eligibility for the benefit sought. The petitioner has not overcome the AAO's earlier finding that "[t]he petitioner's assertions regarding the beneficiary's compensation have been inconsistent and contradictory, and therefore lack credibility." The petitioner has not submitted verifiable documentary evidence of its intent and ability to compensate the beneficiary. The AAO will affirm the denial of the petition for the above stated reasons. In visa petitiOn proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, the petitioner has not met that burden. ORDER: The AAO's decision dated June 24, 2013, is affirmed. The petition remains denied.
  36. 36. (b)(6) U.S. Department of Homeland Security U.S. Citizenship and Immigration Services Administrati ve Appeals Office (AAO) 20 Massachusetts Ave., N.W., MS 2090 Washington, DC 20529-2090 U.S. Citizenship and Immigration Services DATE: AUG 29 2014 OFFICE: CALIFORNIA SERVICE CENTER FILE: INRE: PETITION: Petitioner: Beneficiary: Immigrant Petition for 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), as described at Section 101(a)(27)(C) of the Act, 8 U.S.C. § 1101(a)(27)(C) ON BEHALF OF PETITIONER: INSTRUCTIONS: Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency policy through non-precedent decisions. If you believe the AAO incorrectly applied current liiw or policy to your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this decision. Please review the Form I-290B instructions at http:ijwww.uscis.gov/fonns for the latest information on fee, filing location, and other requirements. See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. T~~1~~Ron Rosenberg Chief, Administrative Appeals Office www.uscis.gov
  37. 37. (b)(6) NON-PRECEDENT DECISION Page 2 DISCUSSION: The Director, California Service Center, denied the employment-based immigrant visa petition. The Administrative Appeals Office (AAO) dismissed the petitioner's appeal. The petitioner then filed a motion to reopen and reconsider. We granted the motion to reopen, dismissed the motion to reconsider, and affirmed the previous decision. We then granted a second motion to reopen, dismissed a second motion to reconsider, and again affirmed the denial of the petition. The matter is now before us on a third motion to reopen and reconsider. We will grant the motion to reopen, dismiss the motion to reconsider, and affirm the denial of the petition. The petitioner is a Sikh temple. It filed Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, on August 28, 2009, seeking 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). The petitioner claims that the beneficiary will perform services as a kirtankar, or devotional hymn singer and priest. The director denied the petition on January 12, 2010, having determined that the petitioner had not established that the beneficiary had the required two years of continuous, qualifying work experience immediately preceding the filing date of the petition. We dismissed the appeal on April 23, 2013, citing the original ground for denial as well as a lack of required evidence regarding the beneficiary's compensation. We issued our subsequent decisions on June 24, 2013 and December 3, 2013. A motion to reopen must state the new facts to be proved in the reopened proceeding and be supported by affidavits or other documentary evidence. 8 C.F.R. § 103.5(a)(2). A motion to reconsider must state the reasons for reconsideration and be supported by any pertinent precedent decisions to establish that the decision was based on an incorrect application of law or USCIS policy. A motion to reconsider a decision on an application or petition must, when filed, also establish that the decision was incorrect based on the evidence of record at the time of the initial decision. 8 C.F.R. § 103.5(a)(3). A motion that does not meet applicable requirements shall be dismissed. 8 C.F.R. § 103.5(a)(4). On motion, the petitioner submits a brief; a letter from petitioning entity; and copies of various financial documents. president of the Section 203(b)(4) of the Act 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), which pertains to an immigrant who: (i) for at least 2 years immediately preceding the time of application for admission, has been a member of a religious denomination having a bona fide nonprofit, religious organization in the United States; (ii) seeks to enter the United States- (I) solely for the purpose of carrying on the vocation of a minister of that religious denomination ... ; and
  38. 38. (b)(6) Page 3 NON-PRECEDENT DECISION (iii) has been carrying on such vocation, professional work, or other work continuous!y for at least the 2-year period described in clause (i). The U.S. Citizenship and Immigration Services (USCIS) regulation at 8 C.P.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 continuously for at least the two-year period immediately preceding the filing of the petition. The USCIS regulation at 8 C.P.R. § 204.5(m)(ll) reads, in pertinent part: Evidence relating to the alien 's prior employment. ... If the alien was employed in the United States during the two years immediately preceding the filing of the application and: (i) Received salaried compensation, the petitioner must submit IRS [Internal Revenue Service] documentation that the alien received a salary, such as an IRS Form W-2 [Wage and Tax Statement] or certified copies of income tax returns. (ii) Received non-salaried compensation, the petitioner must submit IRS documentation of the non-salaried compensation if available. The USCIS regulation at 8 C.P.R. § 204.5(m)(10) states: Initial evidence must include verifiable evidence of how the petitioner intends to compensate the alien. Such compensation may include salaried or non-salaried compensation. This evidence may include past evidence of compensation for similar positions; budgets showing monies set aside for salaries, leases, etc.; verifiable documentation that room and board will be provided; or other evidence acceptable to USCIS. If IRS documentation, such as IRS Form W-2 or certified tax returns, is available, it must be provided. If IRS documentation is not available, an explanation for its absence must be provided, along with comparable, verifiable documentation. Except where necessary for context, this decision will not repeat details about the chronology of the proceeding that appeared in earlier decisions. The present decision will limit discussion to issues raised or addressed in the latest motion. Our most recent prior decision, issued December 3, 2013, affirmed and reinforced prior findings that the petitioner had not adequately documented the beneficiary's past compensation, and that the lack of such evidence also cast doubt on claims of the beneficiary's past qualifying employment. The brief submitted with the latest motion indicates that the petitioner now "submits its audited financial statements for fiscal years June 30, 2007 - June 30, 2012 inclusive. These statements demonstrate that the petitioner had at the time of filing and continues to have sufficient net revenues and/or current net assets to pay the beneficiary the offered wage."
  39. 39. (b)(6) NON-PRECEDENT DECISION Page 4 The petitioner submits partial copies of financial statements, the two most recent of which do not refer to any audit of the petitioner's books and which therefore do not appear to be "audited financial statements." The new evidence submitted on motion meets the requirements of a motion to reopen at 8 C.F.R. § 103.5(a)(2). The petitioner asserts that the newly submitted financial documents establish the petitioner's ability to compensate the beneficiary. The relevant regulatory requirement at 8 C.F.R. § 204.5(m)(10) concerns not just the petitioner's ability to compensate the beneficiary, but its intention to do so. The evidence (or lack thereof) regarding petitioner's past payments to the beneficiary is directly material to the question of the petitioner's intention to compensate the beneficiary. The petitioner initially stated in August 2009 that it would provide the beneficiary with compensation worth at least $25,000 per year- more if, as indicated on the petitioner's employer attestation, the $25,000 figure did not include room and board. On July 25, 2011, the petitioner filed Form I-129, Petition for a Nonimmigrant Worker, indicating that the beneficiary's salary would be $12,950 per year plus "free boarding/lodging/food & monetary benefits in the form of offerings by devotees or congregation." The petitioner's assertions have been inconsistent. When we dismissed the petitioner's appeal of the denial of the Form I-129 petition, we found that the petitioner had submitted an altered IRS Form W-2. Our decision of June 28, 2013 describes the alterations. The petitioner has, therefore, made conflicting claims and submitted altered documentation in seeking immigration benefits for the beneficiary. Doubt cast on any aspect of the petitioner's proof may lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the visa petition. Matter ofHo, 19 I&N Dec. 582, 591 (BIA 1988). It is incumbent upon the petitioner to resolve any inconsistencies in the record by independent objective evidence, and attempts to explain or reconcile such inconsistencies, absent competent objective evidence pointing to where the truth, in fact, lies, will not suffice. Id. at 582, 591-92. The brief on motion states: Without ever directly saying so, the AAO's decision occasionally implies that it may be dismissing the petitioner's appeal on the grounds that it failed to establish that the beneficiary had the requisite experience as well.... [The language of the decision] implies that the AAO may be holding that the petition is deniable because the petitioner has failed to establish that he has two years of continuous full time experience preceding the filing of the petition but ... nowhere does the decision say so outright. Our prior decision, issued in December 2013, indicated that "the petitioner had not established that the beneficiary had the required two years of continuous, qualifying work experience immediately preceding the filing date of the petition," and our decision affirmed that holding. The December 2013 decision discussed the petitioner's failure to establish not only the petitioner's ability to pay the beneficiary, but also to establish past employment. Under the USCIS regulation at 8 C.F.R. § 204.5(m)(ll), the petitioner must establish the beneficiary's past employment by documenting the compensation the beneficiary received at the time. The regulation at 8 C.F.R. § 204.5(m)(ll)(i) calls
  40. 40. (b)(6) NON-PRECEDENT DECISION Page 5 for IRS documentation of salaries received. As detailed in our earlier decisions, the IRS documentation of the beneficiary's compensation has been incomplete and inconsistent. The petitioner does not address this point on motion. The assertion that the petitioner was able to fully compensate the beneficiary does not establish that the petitioner actually did so. The regulation at 8 C.F.R. § 204.5(m)(ll)(ii) requires documentation of the beneficiary's past non- salaried compensation, which would include housing. As described in our earlier decisions, the petitioner and the beneficiary have offered several contradictory accounts as to where, and under what circumstances, the beneficiary lived during the two years immediately preceding the filing of the petition. At various times, the petitioner and/or the beneficiary have claimed that the beneficiary resided: (1) in "an apartment located in the Temple ... at ; (2) in an apartment owned by the pet1t10ner at and (3) at The petitioner and the beneficiary have made conflicting claims regarding the third listed address. In a statement submitted with the first motion, the beneficiary noted the similarity between the two addresses, · and stated: "It is obvious from being only one street number off that a typographical error occurred somewhere. I have always lived at the Temple since I entered the United States." Subsequently, the petitioner contradicted the beneficiary's claim by submitting a copy of a lease for an apartment at stating that the beneficiary moved to that address in order to provide room for his family. The petitioner also provided conflicting dates for the beneficiary's claimed use of that address, with some documents indicating the beneficiary planned to move to the apartment in September 2008, and others placing him there as early as 2004. The petitioner's brief on motion does not directly address these inconsistent claims. Instead, it states: Here since the AAO has identified a discrepancy which "raises legitimate doubts" regarding whether the beneficiary actually received a salary from the petitioner, therefore by providing evidence of his financial support by the congregation the petitioner has mooted those doubts by showing that even if in fact the beneficiary received no salary and no living quarters from the petitioner during the two years prior to the filing of the petition, still he has managed to support himself with contributions from the members of the petitioner' s congregation. The petitioner, above, acknowledges "a discrepancy" but does not directly address it, and submits nothing to resolve it or to explain the petitioner's and the beneficiary's contradictory claims. The discrepancy relating to the beneficiary's past housing, therefore, remains as a factor that casts doubt on the petitioner's claim to have compensated the beneficiary with housing prior to the filing of the petition. The petitioner, on motion, has not overcome the finding that the petitioner has not submitted adequate evidence of non-salaried compensation as required by the regulation at 8 C.F.R. § 204.5(m)(ll)(ii).
  41. 41. (b)(6) NON-PRECEDENT DECISION Page 6 Furthermore, if the beneficiary had relied entirely on contributions from the congregation, this would not "moot" our concerns about the credibility of the petitioner's evidence. Instead, it would confirm those concerns. The petitioner claimed, originally, to have paid the beneficiary a salary and to have provided him with an "apartment located in the temple." The petitioner has since changed this claim, asserting that the beneficiary lived at nearby apartments owned or leased by the temple, including one apartment at an address that the beneficiary himself had dismissed as a "typographical error." The assertion that the beneficiary relied solely on donations from temple members, therefore, would amount to yet another substantive and fundamental change regarding the nature of the beneficiary's claimed past compensation. The petitioner on motion observes that the regulations contain no express requirement that the beneficiary's prior experience must have been full-time. There has been no prior finding that the beneficiary's employment was part-time and therefore non-qualifying. The issue is relevant, however, insofar as it pertains to general questions of credibility. Throughout this proceeding, officials of the petitioning temple have asserted that the beneficiary has worked full-time for the temple. Several witnesses, identified as temple members, made the same claim in a statement discussed in our December 2013 decision. The question of whether the beneficiary worked full- time, therefore, speaks directly to the accuracy (and thus the credibility) of the petitioner's statements and evidence. The petitioner has not established that the previous decision was based on an incorrect application of law or USCIS policy, or that the decision was incorrect based on the evidence of record at the time of the initial decision. Therefore, the motion does not meet the requirements of a motion to reconsider at 8 C.F.R. § 103.5(a)(3), and we will dismiss that motion. We will affirm the denial of the petition for the above stated reasons. In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, the petitioner has not met that burden. ORDER: The motion to reopen is dismissed. The AAO's decision dated December 3, 2013, is affirmed. The petition remains denied.
  42. 42. (b)(6) ' U.S. Department ofHomeland Security U.S. Citizenship and Immigration Service� Administrative Appeals Office (AAO) 20 Massachusetts Ave., N.W., MS 2090 Washington, DC 20529-2090 U.S. Citizenship and Immigration Services DATE: MAR 0 4 2015 OFFICE: CALIFORNIA SERVICE CENTER FILE: IN RE: PETITION: Petitioner: Beneficiary: Immigrant Petition for 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), as described at Section 101(a)(27)(C) of the Act, 8 U.S.C. § 110l(a)(27)(C) ON BEHALF OF PETITIONER: INSTRUCTIONS: Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this decision. Please review the Form I-290B instructions at http:Uwww.uscis.gov/forms for the latest information on fee, filing location, and other requirements. See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. www.uscis.gov
  43. 43. (b)(6) NON-PRECEDENT DECISION Page 2 DISCUSSION: The Director, California Service Center, denied the employment-based immigrant visa petition. We dismissed the petitioner's appeal. The petitioner then filed three motions to reopen and to reconsider. In each instance, we granted the motion to reopen, dismissed the motion to reconsider, and affirmed the previous decision. The matter is now before us on a fourth motion to reopen. We will grant the motion to reopen and affirm the denial of the petition. The petitioner is a Sikh temple. It filed Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, on August 28, 2009, seeking 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). The petitioner states that the beneficiary will perform services as a kirtankar, or devotional hymn singer and priest. The director denied the petition on January 12, 2010, having determined that the petitioner had not established that the beneficiary had the required two years of continuous, qualifying work experience immediately preceding the filing date of the petition. We dismissed the appeal on April 23, 2012, affirming the director's decision and finding an additional ground for dismissal based on the lack ofrequired evidence regarding the beneficiary's compensation. We issued our subsequent decisions on June 24, 2013; December 3, 2013; and August 29, 2014. A motion to reopen must state the new facts to be proved in the reopened proceeding and be supported by affidavits or other documentary evidence. 8 C. F.R. § 103.5(a)(2). With the current motion, the petitioner submits a statement, a new affidavit from the beneficiary, copies of property records, a letter from a member of the petitioning congregation, and copies of Internal Revenue Service (IRS) documents. Except where necessary for context, this decision will not repeat details about the chronology of the proceeding that appeared in earlier decisions. In the present decision, we will generally limit discussion to issues raised or addressed in this latest motion. I. Law Section 203(b)(4) of the Act provides classification to qualified special immigrant religious workers as described in section 101(a)(27)(C) of the Act, 8 U.S.C. § 110l(a)(27)(C), which pertains to an immigrant who: (i) for at least 2 years immediately preceding the time of application for admission, has been a member of a religious denomination having a bona fide nonprofit, religious organization in the United States; (ii) seeks to enter the United States- (I) solely for the purpose of carrying on the vocation of a minister of that religious denomination . .. ; and (iii) has been carrying on such vocation, professional work, or other work continuously for at least the 2-year period described in clause (i).
  44. 44. (b)(6) NON-PRECEDENT DECISION Page3 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 continuously for at least the two-year period immediately preceding the filing of the petition. The regulation at 8 C.F.R. § 204.5(m)(11) reads, in pertinent part: Evidence relating to the alien ·s prior employment. . .. If the alien was employed in the United States during the two years immediately preceding the filing of the application and: (i) Received salaried compensation, the petitioner must submit IRS documentation that the alien received a salary, such as an IRS Form W-2 [Wage and Tax Statement] or certified copies of income tax returns. (ii) Received non-salaried compensation, the petitioner must submit IRS documentation of the non-salaried compensation if available. The regulation at 8 C.F.R. § 204.5(m)(10) states: Initial evidence must include verifiable evidence of how the petitioner intends to compensate the alien. Such compensation may include salaried or non-salaried compensation. This evidence may include past evidence of compensation for similar positions; budgets showing monies set aside for salaries, leases, etc. ; verifiable documentation that room and board will be provided; or other evidence acceptable to USCIS. If IRS documentation, such as IRS Form W-2 or certified tax returns, is available, it must be provided. If IRS documentation is not available, an explanation for its absence must be provided, along with comparable, verifiable documentation. II. Compensation A. Housing As discussed in our previous decisions, the petitioner and the beneficiary have offered conflicting assertions regarding the beneficiary's past housing arrangements. Our August 29, 2014, decision reads, in pertinent part: At various times, the petitioner and/or the beneficiary have claimed that the beneficiary resided: (1) in "an apartment located in the Temple . . . at (2) in an apartment owned by the petitioner at and (3) at The petitioner and the beneficiary have made conflicting claims regarding the third listed address. In a statement submitted with the first motion, the beneficiary noted the similarity between the two addresses, and stated: "It is obvious from being only one street number off that a
  45. 45. (b)(6) Page4 NON-PRECEDENT DECISION typographical error occurred somewhere. I have always lived at the Temple since I entered the United States." Subsequently, the petitioner contradicted the beneficiary's claim by submitting a copy of a lease for an apartment at stating that the beneficiary moved to that address in order to provide room for his family. The petitioner also provided conflicting dates for the beneficiary's claimed use of that address, with some documents indicating the beneficiary planned to move to the apartment in September 2008, and others placing him there as early as 2004.... The petitioner ... acknowledges "a discrepancy" but does not directly address it, and submits nothing to resolve it or to explain the petitioner's and the beneficiary's contradictory claims. The discrepancy relating to the beneficiary's past housing, therefore, remains as a factor that casts doubt on the petitioner's claim to have compensated the beneficiary with housing prior to the filing of the petition. The petitioner, on motion, has not overcome the finding that the petitioner has not submitted adequate evidence of non-salaried compensation as required by the regulation at 8 C.F.R. § 204.5(m)(ll)(ii). In his May 23, 2012, affidavit, the beneficiary stated: I have lived at an apartment located in the Temple since I began working for the The temple is located at I was told that USCIS stated that I claimed on a biographic data form to live at I do not know if USCIS made an error in stating that in its decision, if my attorney erroneously completed the form, or if I made an error in providing the address to my attorney. It is obvious from being only one street number off that a typographical error occurred somewhere. I have always lived at the Temple since I entered the United States. When filing the motion that included the beneficiary's affidavit, president of the petitioning temple, stated on Form I-290B, Notice of Appeal or Motion, that the motion included: A statement from the Beneficiary confirming that the address of was in fact a typographical error, because he clearly intended to state ' which was the address of the Temple where he was employed, and where he was provided living accommodations. In an accompanying affidavit, Mr. stated: "The Beneficiary is provided living accommodations at our Temple as part of his compensation. Photographs of the living accommodations are attached." The May 2012 motion also included several photographs, captioned "Beneficiary's apartment in temple."

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