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AAO Non Precedent Decisions for Non Immigrant Religious Worker Jan-Apr 2013

Compiled by Joseph P. Whalen (September 12, 2013)

LINKS RESULT, EXCERPTS, COMMENTARY

JAN072013_01D13101.pdf

APPEAL REJECTED AS UNTIMELY

JAN072013_02D13101.pdf

APPEAL SUMMARILY DISMISSED

The petitioner is a school and church. It seeks classification of the beneficiary as a nonimmigrant religious worker pursuant to section 101 (a)(15)(R)(1) of the Act, to perform services as a "teacher aid/Spanish teacher." The director determined that the petitioner had not that the proffered position qualifies as that of a religious occupation.

Counsel for the petitioner timely filed a form I-290B, Notice of Appeal or Motion, on which she stated that the "factual details and job description for [the beneficiary] have substantially and materially changed." Counsel also states that she would submit a brief and/or additional evidence within 30 days. As of the date of this decision, however, more than 5 months after the appeal was filed, no further documentation has been received by the AAO. Therefore, the record will be considered complete as presently constituted.

JAN092013_01D13101.pdf

APPEAL DISMISSED

The petitioner is a church. It seeks to extend the beneficiary's status as a nonimmigrant religious worker under section 101(a)(15)(R)(1) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a) (15)(R)(1), to perform services as an associate pastor of Hispanic ministries. The

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director determined that the petitioner had not established how it intends to compensate the beneficiary.

* * * * *

Beyond the decision of the director, the petitioner has failed to establish that it is a bona fide nonprofit religious organization.

JAN092013_02D13101.pdf

APPEAL DISMISSED

The petitioner is a private, nondenominational church-based Christian school. It seeks classification of the beneficiary as a nonimmigrant religious worker under section

101(a)(15)(R)(1) of the . Immigration and Nationality Act (the Act), 8 § 1101(a)(15)(R)(1), to perform services as a religious studies teacher. The director determined that the petitioner had not established that the position qualifies as that of a religious occupation.

On appeal, counsel asserts that the director "misclassified the Beneficiary's proposed employment as a nonreligious occupation." The petitioner submits a statement in support of the appeal.

* * * * * The issue presented is whether the petitioner has established that the proffered position qualifies as that of a religious occupation or vocation.

* * * * *

On the Form I-129, Petition for a Nonimmigrant Worker, filed on February 10, 2012, the petitioner stated that the duties of the position consist of "[i]nstructing students in religious studies including bible studies, preparing Classroom materials, establishing course objectives, assign lessons and administer and correct homework." In

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a February 24, 2012 request for evidence (RFE), the director instructed the petitioner to submit additional documentation regarding the proffered position, including the requirements for the position and a "detailed description of the beneficiary's work schedule, including specific class schedules, and number of hours per week performing specific work duties."

In response, the petitioner submitted a March 9, 2012letter in which it indicated that the position was that of, "teacher/Swahili." The petitioner identified the responsibilities of the position to include:

• Relate to students by loving them with the love of Christ, encouraging them to begin and/or develop a relationship with God through Christ, and challenging them to love God with all their heart, mind, soul, and strength.

• Be a role model of Christian love, faith, truthfulness, and virtue both in the classroom and in your personal life.

• Manage the class by setting clear expectations of behavior, establishing reasonable routines and promoting self-discipline based on Biblical principles.

• Apply Bible Truths and comply with school policy in administration of Behavioral. [sic]

• Teach students in a challenging, enthusiastic and age-appropriate manner using the Bible Truths. Ensure that within the year, the scope and sequence of skills assigned to the grade are taught to the students.

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• Integrate Bible Truths and utilize valid teaching techniques to achieve curriculum goals within the framework of the school's philosophy.

• Employ ·a variety of instructional aids, methods, and materials that will provide for creative teaching to teach the whole child: spiritual, mental, physical, social, and emotional·

• Prepare a Swahili curriculum that will help the students become proficient in listening, speaking, reading, and writing the Swahili language.

• Utilize storytelling as a tool for teaching Swahili language; and sharing knowledge and experience of the Kenyan culture and Christian religion.

• Incorporate cultural activities such as, foods, music, and dance, to help the students appreciate the vital cultural context of the Swahili language.

• Guide students toward insights into themselves and their own language and culture through comparisons with the Swahili language and culture.

In a separate statement, the petitioner stated that the qualifications for the teaching position of "language and culture" consisted of being of the Christian faith, "highly knowledgeable in the Language and Culture warranted by the position," and possession of a bachelor's degree. The petitioner provided a copy of the beneficiary's transcripts indicating that she received a bachelor's degree in commerce in 1997 from the

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[REDACTED] and copies of her July 2008 "Level 6 Professional Diploma in Marketing" and her February 2010 "Professional Postgraduate Diploma in Marketing" from the [REDACTED].

The director denied the petition, finding that the proffered position is that of a language and culture teacher, and that "[a] lay teacher who will devote most of her time to teaching secular subjects in a religious school does not qualify for nonimmigrant religious worker."

* * * * *

In the ensuing three and one-half pages or so, the AAO discusses this issue and finds

also that … [t]he petitioner provided no …. documentation to establish how it intends

to compensate the beneficiary.

JAN092013_03D13101.pdf

APPEAL DISMISSED

The petitioner is a church. It seeks to classify the beneficiary as a nonimmigrant religious worker under section 101(a)(15)(R)(1) of the Act, 8 U.S.C. § 1101(a)(15)(R)(1), to perform services as a resident pastor. The director determined that the petitioner had not established how it intends to compensate the beneficiary.

On appeal, counsel asserts that the director "erred in finding the petitioner did not establish its ability to compensate the Alien under 8 C.F.R. § 214.2(r)(2) [sic] because the petitioner submitted sufficient proof of income demonstrating its ability to compensate the Alien in accordance with 8 C.F.R. § 214.2(r)(2) [sic]." Counsel submits a brief and additional documentation in support of the appeal. Note to Counsel: it’s 8 C.F.R. § 214.2(r)(11)!

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The petitioner has failed to provide verifiable documentation of how it intends to compensate the beneficiary.

JAN092013_04D13101.pdf

APPEAL DISMISSED

The petitioner is a church. It seeks to classify the beneficiary as a nonimmigrant religious worker under section 101(a)(15)(R)(1) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(R)(1), to perform services as a minister. The director determined that the petitioner had not established how it intends to compensate the beneficiary.

The petitioner asserts on appeal that "[b]asing the ability to pay a current liability based solely on a previous years [sic] 'net income' ignores the basic principle that budgets are dynamic, and ignores the entities [sic] credit worthiness and history of meeting its obligations." The petitioner submits additional documentation in support of the appeal.

There is a ton of number-crunching for another 3.5 to 4 pages, if you care to really

get to the bottom of the issue.

JAN092013_05D13101.pdf

APPEAL DISMISSED

The petitioner seeks to classify the beneficiary as a nonimmigrant religious worker pursuant to section 101(a)(15)(R)(1) of the Act to perform services as a priest. The director determined that the petitioner had not established that it qualifies as a bona fide nonprofit religious organization

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exempt from taxation under section 501(c)(3) of the Internal Revenue Code (IRC).

On appeal, the petitioner states that it has· been in existence since 1946 and "is exempt from Federal income tax under IRC 501(c)(3)."

The petitioner submits additional documentation in supp0rt of the appeal.

* * * * *

By letter dated September 26, 2012, the petitioner provided a copy of an August 31, 2012 letter from the IRS recognizing the petitioner as tax-exempt under section 501(c)(3) of the IRC.

The petitioner must establish eligibility at the time of filing the nonimmigrant visa petition. A visa petition may not be approved at a future date after the petitioner or beneficiary becomes eligible under a new set of facts. 8 C.F.R. §§ 103.2(b)(1), (12); Matter of Michelin Tire Corp., l7 I&N Dec. 248 (Reg'l Comm'r 1978). The petitioner failed to provide a currently valid determination letter from the IRS establishing that it is a bona fide nonprofit religious organization with the petition or in response to the director's RFE. The IRS determination letter submitted by the petitioner is dated eight months after the petition was filed.

Accordingly, the petitioner failed to establish that it is a bona fide nonprofit religious organization as defined by the regulation.

In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. Here, that burden has not been met. Accordingly, the appeal will be dismissed.

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JAN102013_01D13101.pdf

Motion Dismissed

The petitioner is a Sikh temple. It seeks to extend the beneficiary’s classification as a nonimmigrant religious worker pursuant to section 101(a)(15) (R)(l) of the Immigration and Nationality Act (the Act), to perform services as a religious priest. Based on the results of a compliance review verification visit at the petitioner's premises, the director determined that the petitioner had not established that it had extended a qualifying job offer to the beneficiary and had not satisfactorily completed an onsite inspection. The director also determined that the petitioner had failed to provide a complete attestation as required by the regulation at 8 C.F.R. § 214.2(r)(8). The AAO affirmed the director's decision. Regarding the qualifying job offer; the AAO found that the petitioner had failed [to] establish how it intends to compensate the beneficiary. The AAO found that the petitioner had failed to submit certified copies of its tax returns·, and that copies of checks written to the beneficiary by the petitioner were not processed by the bank and therefore were not evidence that the beneficiary actually received the alleged salary. On motion, counsel asserts that the petitioner "has amply demonstrated that [the beneficiary) was being $1200 per month by the gurudwara, and that the gurudwara has been paying his room and board." On motion, the petitioner submits copies of checks made payable to the beneficiary in the amount of $1,200 and-dated each month from December 2010 to May 2012. The check copies were retrieved from the bank's website on June 20, 2012, thus indicating they were processed by the bank.

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JAN152013_01D13101.pdf

Denial Withdrawn, Case Remanded for Further Proceedings

The petitioner is a church. It seeks to classify the beneficiary as a nonimmigrant religious worker under section 101(a)(15)(R)(l) of the Act, 8 U.S.C. § 1101(a)(15)(R)(l), to perform services as a religious family counsel. The director determined that the petitioner had not established how it intends to compensate the beneficiary. On appeal, counsel states that the financial statements submitted by the petitioner "are supported by the bank statements.... :" The petitioner submits copies of previously submitted documentation in support of the appeal.

* * * * * The issue. presented is whether the petitjoner has established how it intends to compensate the beneficiary. The regulation at 8 C.F.R.§ 214.2(r)(11) provides: Evidence relating to compensation. Initial evidence must state how the petitioner intends to compensate the alien, including specific monetary or in-kind compensation, or whether the alien intends to be self-supporting. In either case, The petitioner must submit verifiable evidence explaining how the petitioner will compensate the alien or how the alien will be self-supporting. Compensation may include: ·

(i) Salaried nor non-salaried compensation. Evidence of compensation 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. IRS documentation, such as IRS

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[Internal Revenue Service] Form W-2 [Wage and Tax Statement] or certified tax returns, must be submitted, if available. If IRS documentation is unavailable, the petitioner must submit an explanation for the absence of IRS documentation, along with comparable, verifiable documentation.

The petitioner indicated on the Form I-129, Petition for Nonimmigrant Worker, filed on February 13, 2012, that it had a gross annual income $400,000 and net annual income of $210,000. The petitioner also stated that it would pay the beneficiary a salary of $24,000. With the petition, the petitioner submitted copies of its monthly bank statement for August 2009, which shows a beginning balance of $102,724.04, an average balance of $114,315.49, and an ending balance of $145,752.68; for June 2010, which shows an ending "qualifying balance" of $113,775.82 in two accounts, and daily ledger balances in excess of $97 ,000; and for August 2011, which shows a beginning: balance of $540,596.23, an average ledger balance of $569,099.14, and an ending balance of$660,855.14.

* * * * * The beginning and ending balances shown on the petitioner' s bank statements reflect that it maintains a monthly balance of 9ver $100,000. The cash on hand reported by the petitioner on its unaudited financial' statements appear consistent with maintaining a healthy· bank account. The AAO finds that the financial statements together with the monthly bank statements provide

* * * * * Nonetheless, the petition cannot be approved as the record now stands. The petitioner has not established that the proffered position qualifies as that of a religious occupation.

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JAN222013_01D13101.pdf

Appeal Dismissed

The petitioner is a Roman catholic order of nuns. It seeks to classify the beneficiary as a nonimmigrant religious worker under section 101(a)(15)(R)(1) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(15) (R)(1), to perform services as a "religious sister''. The director determined that the petitioner has not established that the beneficiary had been a member of its religious denomination for two full years immediately preceding the filing of the petition.

Counsel asserts on appeal that the beneficiary's baptismal certificate was submitted with the petition, and that documentation submitted "shows the beneficiary was a member of a religious order of women in Concord, California for nine years." The petitioner submits additional documentation in support of the appeal.

* * * * * The petitioner has failed to establish that the beneficiary was a member of its religious denomination for two full years prior to the filing of the petition.

Beyond the decision of the director, the petitioner has failed to establish that it is a bona fide nonprofit religious organization.

* * * * * Additionally, the petitioner has failed to establish that the beneficiary is qualified for the proffered position.

The regulation at 8 C.F.R. § 214.2(r)(3) defines "religious worker" as "an individual engaged in and, according to the denomination's standards, qualified for a religious occupation or vocation, whether or not in a professional capacity, or as a minister.

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The petitioner states that the proffered position is that of a "religious sister." However·, the record does not reflect that the beneficiary has been ordained as a nun within the petitioning organization or within the Catholic Church. The record contains the beneficiary's "application for admission of candidates to the postulancy" and an April 29, 2012 letter accepting the beneficiary into the petitioner’s "Postulancy Program." The letter advises the beneficiary of the beginning of the "academic year,'' that she would be responsible for her school tuition, and requires her to pay $1,000 "to support the formation program.” The record therefore reflects that the beneficiary is in training to be a nun.

JAN242013_01D13101.pdf

Appeal Dismissed The petiti0ner is a Lao Buddhist temple. If seeks to classify the beneficiary as a nonimmigrant religious worker under section 101(a)(15)(R)(1) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(R)(1), to perform services as a "Buddhist monk resident." The director determined that the petitioner had not submitted required evidence to show how it intends to compensate the beneficiary.

* * * * * USCIS understands that many religious institutions do not compensate their workers through salary payments. The petitioner stated that the beneficiary will receive "food, clothing, shelter, and regular medicine” from temple members in exchange for his performance of monastic religious duties. USCIS regulations acknowledge "non-salaried compensation" of this kind.

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Nevertheless, the regulation at 8 C.F.R. § 211.2(r) (11)(i) requires "verifiable documentation" that the employer will provide non-salaried compensation of the type described. The petitioner's assurance 'that the petitioner will receive some unspecified quantity of in-kind assistance cannot meet that requirement. Failure to submit requested evidence precludes a material line of inquiry shall be grounds for denying the benefit request. 8 C.F.R. § 103.2(b)(14). The letters submitted in response to the request for evidence are unsupported claims, father than verifiable documentation, and even then they indicate that the petitioner has provided $500 to the beneficiary over a span of more than two years--a sum that is far from sufficient to ensure the beneficiary's material support over that period. The petitioner has submitted no verifiable evidence of its ability or intention to compensate the beneficiary.

JAN252013_01D13101.pdf

Appeal Dismissed The petitioner is a religious corporation. It seeks to classify the beneficiary as a nonimmigrant. religious worker -under section 101(a)(15)(R)(1) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(R)(1); to perform services as its spiritual leader. Noting derogatory evidence obtained a result of a site visit, the director determined that the petitioner had not established how it intends to compensate the beneficiary.

* * * * * On Dece1nber 14, 2011 and December 21, 2011, an immigration officer (IO) visited the petitioner's premises, for the purpose of verifying the claims in the petition. During his first visit, the IO found the stated premises to be "a single story single-

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family house within a neighborhood." The 1IO noted "multi-color flags" but found no other signs of the organization's existence at the location. On his second visit, accompanied by another IO, the IO reported that no one responded to the doorbell or to their knocks, although there were some indicia of occupancy. The IO then telephoned Mr. [REDACTED] who had signed the petition on behalf of the petitioner. Mr. [REDACTED] informed him that the organization had "approximately 24, active. local members" but had more members "[t]hroughout the United States ... but due to distance cannot attend religious ceremonies at the organizations [sic] site." The IO reported that Mr. [REDACTED] informed him that all of the petitioner's "activities· occur in a 'home owned by one of the members" and that "the house would also be the location where the beneficiary will be residing. '

* * * * * The purpose of the R -1 nonimmigrant religious worker visa is to permit the beneficiary to work for the petitioner in the United States. The petitioner indicated on the Form I-129 that the location at which the beneficiary will work is the address it identifies as its address of record. With the petitioner's statement on appeal, however, it is not Clear, and 'the petitioner has not satisfactorily established, that the beneficiary seeks to enter the United States to work for the petitioner for at least 20 hours per week. An application or petition that fails to comply with the technical requirements of the law may be denied by the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See Spencer Enterprises, Inc. v. United States; 229 F. Supp. 2d 1025, 1043 (E.D. Cal.. 2001), aff’d, 345 F.3d 683 (9th Cir. 2003); see also Soltane v. DOJ, 381 F.3d 143, 145

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(3d Cir. 2004) (noting that the AAO conducts appellate review on a de novo basis).

JAN302013_01D13101.pdf

Appeal Rejected as Untimely Filed at 46 days, instead of 33 as allowed.

JAN312013_01D13101.pdf

Denial Withdrawn, Case Remanded for Further Proceedings

The petitioner is a church. It seeks classification of the beneficiary as a nonimmigrant religious worker pursuant to section 101(a)(15)(R)(1) of the Act to perform services as a priest. Based on the results of an onsite inspection of the petitioner's premises, the director determined that the petitioner had not established that it is “operating in the capacity claimed on the petition and [is] a bonafide [sic] religious organization that can support the beneficiary:” The director stated that the beneficiary signed the Form I-129, Petition for a Nonimmigrant Worker, and therefore was petitioning on his own behalf. The U.S. Citizenship and Immigration Services (USCIS) regulation at 8 C.F.R. § 214.2 (r)(7) permits only "[a]n employer" to file a petition for an R-l nonimmigrant religious worker. However, a review of the· Form 1-129 reveals that while the beneficiary improperly signed the employer attestation required by the regulation at 8 C.F.R. § 214.2(r)(8), Part 7 of the Form certifying it to the truth and correctness of the signed by [REDACTED]. Therefore, the AAO withdraws this statement by the director. The director also determined that the beneficiary had violated terms of his B-2 nonimmigrant visitor's visa in that he was not authorized to work in the United States. An alien who is present in the

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United States pursuant to a B-2 visa is not authorized to work in the United States. 8 C.F.R. § 214.1(e). Any unauthorized employment by a nonimmigrant constitutes a failure to maintain status within the meaning of section 241(a)(1) (C)(i) of the Act. The issues of the beneficiary’s prior employment and maintenance of his B-2 status are significant only insofar as they relate to the application to extend that status. An application for extension is concurrent with, but separate from, the nonimmigrant petition. There is no appeal from the denial of an application for extension of stay filed on Form I-129. 8 C.F.R. § 214.1(c)(5). Because the beneficiary's past employment and maintenance of status are extension issues, rather than petition issues, the AAO lacks to decide those questions, and they will be addressed only as they impact the nonimmigrant petition. There are numerous issues to be addressed in the remand proceeding, and if adverse

is to be certified to AAO.

MAR222013_01D13101.pdf

Appeal Dismissed The petitioner seeks classification of the beneficiary as a nonimmigrant religious worker pursuant to section 101(a)(15)(R)(l) of the Act to perform services as a "religious missionary sister." The director determined that the petitioner had not established that it qualifies as a bona fide nonprofit religious organization exempt from taxation under section 501(c)(3) of the Internal Revenue Code (IRC).

* * * * * As discussed previously, on appeal, the petitioner requests additional time in which to submit documentation from the Commonwealth of Puerto

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Rico and the IRS confirming that it is not required to file for recognition as a nonprofit organization under section 501( c )(3) of the IRC. However, while the IRS may not require a church to file for official determination of its exempt status with the IRS, no such exception exists under USCIS regulations for this nonimmigrant visa classification. The regulations governing immigration under the purview of USCIS and those governing federal taxation under the purview of the IRS serve two different purposes. The Act and its implementing regulations do not require an organization to establish that it is a church to qualify as a bona fide nonprofit religious organization. However, a petitioner must establish that its tax exemption is based on its religious nature. While a currently valid letter from the IRS recognizing an organization as a church is required under USCIS regulation, the IRS automatic exemption of a church as nonprofit is unrelated to the USCIS requirements that the organization establish itself as both a religious organization and, as a nonprofit organization for immigration purposes.

* * * * * Beyond the director's decision, the petitioner has also failed to establish how it will compensate the beneficiary.

MAR222013_02D13101.pdf

Appeal Dismissed The petitioner is a church. It seeks to Classify the beneficiary as a nonimmigrant religious worker under section 101(a)(15)(R)(l) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a) (15)(R)(l), to perform services as a pastor. The director determined that the petitioner had not submitted a properly completed petition, and had

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not established how it intends to compensate the beneficiary, that the beneficiary qualifies for the proffered position, or that the position qualifies as that of a religious occupation.

On appeal, the petitioner apologized for the errors in its submission, stating that it was the organization's first attempt at filing a petition. The petitioner submits a letter and additional documentation in support of the appeal.

* * * * * The petitioner has submitted sufficient documentation to establish that the beneficiary is qualified for the proffered position and we withdraw the director's determination to the contrary. However, as the petitioner has failed to submit a properly completed petition and has failed to establish how it intends to compensate the beneficiary, the petition cannot be approved.

MAR222013_03D13101.pdf

Appeal Dismissed The petitioner is a Buddhist temple. It seeks to extend the beneficiary's status as a nonimmigrant religious worker under section 101(a)(15)(R)(1) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(R)(1), to perform services as a minister. The director determined that the petitioner had not established how it intends to compensate the beneficiary. On appeal, counsel asserts that the director's decision to deny the petition "is erroneous" in that the petitioner has provided documentation of bills paid on behalf of the beneficiary and that his meals must be provided by the congregation. The petitioner submits additional documentation in support of the appeal.

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MAR272013_01D13101.pdf See also: AAO's November 5, 2012 decision, if they ever post it.

Motion Dismissed DISCUSSION: The Director, California Service Center, initially approved the employment based nonimmigrant visa petition. On further review, the director determined that the beneficiary was not eligible for the visa classification. Accordingly, the director properly served the petitioner with a Notice of Intent to Revoke (NOIR) approval of the petition and her reasons for doing so, and subsequently exercised her discretion to revoke approval of the petition on March 8, 2012. The Administrative Appeals Office (AAO) dismissed a subsequent appeal. The matter is now before the AAO on a motion to reconsider. The motion will be dismissed. The petitioner seeks to extend the beneficiary's status as a nonimmigrant religious worker under section 101(a)(15)(R)(1) of the Act, 8 U.S.C. § 1101(a)(15)(R)(1), to perform services as a Judaic studies assistant teacher. The AAO affirmed the director's decision that the beneficiary had violated the terms of her R-1 nonimmigrant religious worker status by engaging in self -employment.

APR012013_01D13101.pdf

Appeal Dismissed DISCUSSION: The Director, California Service Center, initially approved the employment based nonimmigrant visa petition. On further review, the director determined that the beneficiary was not eligible for the visa classification. Accordingly, the director properly served the petitioner with a Notice of Intent to Revoke (NOIR) approval of the petition and her reasons for doing so. The director subsequently exercised her discretion to revoke approval of the petition on October 29, 2012. The

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matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. The petitioner seeks to extend the beneficiary's status as a nonimmigrant religious worker under section 101(a)(15)(R)(1) of the Immigration and Nationality Act (the Act); 8 U.S.C. § 1101(a)(15) (R)(1), to perform services as an associate pastor. Based on the results of an onsite compliance review, the director determined that the petitioner had not established that it had employed the beneficiary since 2009. On appeal, counsel asserts that the director "lacked the good cause necessary to revoke the instant petition approval based-on [her] failure to consider probative evidence explaining the alleged evidentiary inconsistencies raised in the notice." Counsel submits a brief and- additional documentation in support of the appeal.

APR042013_01D13101.pdf

Appeal Dismissed The petitioner seeks to classify the beneficiary as a nonimmigrant religious worker pursuant to section 101(a)(15)(R)(1) of the Act to perform services as a religious education resource teacher. The director determined that the petitioner had not established that it qualifies as a bona fide nonprofit religious organization exempt from taxation under section 501(c)(3) of the Internal Revenue Code (IRC) and that the ''position meets the compensation standards for religious workers."

* * * * * The director also determined that the petitioner had failed to establish that the "position meets the compensation-standards for religious workers."

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More specifically, the director found that the petitioner had not submitted certification that the beneficiary and her family would not become a public charge. The director cites to no regulation that sets a "compensation standard" for temporary nonimmigrant religious workers. Unlike the immigrant religious worker regulation at 8 § C.F.R. § 204.5(m)(7), which requires a petitioner to attest to its ability and intention to compensate the alien at a level at which the alien and accompanying family members will not become public charges, the regulation governing nonimmigrant religious worker requires no such attestation. Furthermore, the nonimmigrant religious worker regulation at 8 C.F.R. § 214.2 (r)(11) permits the alien, under specific circumstances, to be self-supporting. Accordingly, we withdraw this determination by the director.

Nonetheless, the regulation at 8 C.F.R. § provides, in pertinent part:

Evidence relating to compensation……..

APR112013_01D13101.pdf

Denial Withdrawn, Case Remanded for Further Proceedings

DISCUSSION: The Director, California Service Center, initially approved the employment based nonimmigrant visa petition. On further review, the director determined that the beneficiary was not eligible for the visa classification. Accordingly, the director properly served the petitioner with a Notice of Intent to Revoke (NOIR) approval of the petition and her reasons for doing so, and subsequently exercised her discretion to revoke approval of the petition on May 16, 2012. The matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will withdraw the director's decision and will remand the petition for further action and consideration.

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The petitioner seeks classification of the beneficiary as a nonimmigrant religious worker under section 101(a)(15)(R) of the Act, 8 U.S.C. § 1101(a)(15)(R), to perform services as a Buddhism preacher. Based on the results of compliance reviews, the director determined that the beneficiary was not qualified for the proffered position.

* * * * * [The beneficiary] started her religious education with the [REDACTED] since Feb, 2005. For the purpose of pursuing a higher level of Buddhism Dharma, she went to Hong Kong for training in Buddhism Dharma Level One through Level Three and Buddhism Preacher Training Courses from January 2006 to February 2007. She was ordained by the [REDACTED] as a tonsured Buddhism Preacher on February 13, 2007, after her completion of required religious training and according to her moral character, soundness of doctrine and administrative capability for the work of the temple. Since then [the beneficiary] has continuously ministered in the Buddhism Temples in both Hong Kong and overseas, and has devoted herself to the teaching, studying and preaching of the traditional Buddhism dharma and sutras.

* * * * * The director initially approved the petition on January 18, 2012. Following a May 31, 2011 verification review of the petitioner's premises in connection with an immigrant religious worker petition filed on behalf of another beneficiary, immigration officers reviewed all of the petitions filed by the petitioner; including the instant one. The review caused USCIS to question the beneficiary's qualifications for the proffered position.

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In her March 26, 2012 NOIR, the director advised the petitioner: [A] review of the U.S. Department of State Consular Consolidated Database indicates that the beneficiary applied for and was issued a B1/B2 visa on September 14, 2006. Information obtained from that database contradicts information contained in the petition. According to the U.S. Department of State [the beneficiary's] current occupation was listed as a "Banker" and her employment was shown to be with the [REDACTED] Hong Kong Branch." The information establishes that [the beneficiary] was working as a banker during the period it is claimed she was training to be ordained. Therefore it appears the petitioner/beneficiary has misrepresented material facts and doubt is cast upon the validity of the ordination certificate. Fabrication of the certificate would indicate [the beneficiary] is not a qualified religious Worker. In addition, the petitioner submitted a copy of the beneficiary's B1/B2 visa, issued September 14, 2006, that depicts a photograph of the beneficiary with long hair, a condition typically not associated with nuns/monks of the Buddhist religion.

* * * * * The matter will be remanded. The director may request any additional evidence deemed warranted and should allow the petitioner to submit additional evidence in support of its position within a reasonable period of time. As always in these proceedings, the burden of proof rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361.

Multiple issues to be addressed.

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APR122013_01D13101.pdf This is a case involving an R-1 nonimmigrant religious worker, not an immigrant petition.

Appeal Dismissed The petitioner is an Islamic cultural center. It seeks to extend the beneficiary's classification as a special immigrant religious worker pursuant to section 101(a)(15)(R) of the Act to perform services as an imam. The director determined that beneficiary has reached the statutory maximum period for which he can qualify as an R-1 nonimmigrant religious worker. Counsel asserts on appeal that the petitioner has "submitted evidence that the Beneficiary did not remain in the United States permanently and that his previous R-1 stay was intermittent." Counsel also asserts that "INA 101(a)(15)(R) does not contain a prohibition on extending a period of stay in the U.S. for a R-1 religious worker." Counsel stated on the Form I-290B, Notice of Appeal or Motion, that he would submit a brief and/or additional evidence within 30 days. As of the date of this decision, seven months after the appeal was filed; no further documentation has been received by the AAO. Therefore, the record will be considered complete as presently constituted.

* * * * * Counsel cites to no regulation or case law to support his assertion that an alien may be approved for R-1 status an unlimited number of times provided that any stay is for less than five years. Despite counsel's assertion, such an interpretation is not within the plain. meaning of the statute, which states that an alien may enter the United States for a period not to exceed five years. The beneficiary has spent more than five years in the United States in R-1 status, and the petitioner has not established that the regulatory limitation on total stay does not apply in this case. As a result, this cannot be approved.

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APR302013_01D13101.pdf

Gabbai

A gabbai is a lay person

who volunteers to perform

various duties in

connection with Torah

readings at religious

services. Serving as a

gabbai is a great honor,

and is bestowed on a

person who is thoroughly

versed in the Torah and

the Torah readings.

A gabbai may do one or

more of the following:

choose people who will receive an aliyah (the honor of reciting a blessing over the Torah reading)

read from the Torah

stand next to the person who is reading from the Torah, checking the reader's pronunciation and chanting and correcting any mistakes in the reading

Appeal Dismissed The petitioner seeks to extend the beneficiary's classification beneficiary as a nonimmigrant religious worker pursuant to section 101(a)(15)(R) of the Act to perform services as a "gabbai." The director determined that the petitioner had not established that it qualifies as a bona fide nonprofit religious organization exempt from taxation under section 50l(c)(3) of the Internal Revenue Code (IRC). ' Counsel asserts on appeal that the director "erred in denying the request for R-1 classification for the beneficiary by ignoring the automatic tax exemption for churches without the need to file for designation as a 50l(c)(3) exempt organization" and that "the statute at INA section 101(a)(15)(R) makes no mention of a need to possess a determination letter from the Internal Revenue Service (IRS), but rather only states that the religious organization must be a bona fide nonprofit organization." Counsel submits a brief and additional documentation in support of the appeal.

* * * * * With the petition, filed on May 1, 2012, the petitioner submitted a copy of a. May 22, 2009 letter from the IRS advising the petitioner of its employee identification number (EIN). The letter advised the petitioner that "An EIN does not indicate that a non-profit organization is tax exempt. Organizations that want to be recognized as exempt from Federal income tax must file Form 1023 or Form 1024, with limited exceptions." The letter further states:

Churches, their integrated auxiliaries, and conventions or associations of churches that meet the qualifications for exemption are

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Gabbai From Wikipedia, the free

encyclopedia

For other people of the same

name, see Yisroel Meir Gabbai.

Shames in Biała (Poland, 1926)

A gabbai (Hebrew: יגבא ),

also known as a shamash

sometimes spelled) ששמ

shamas) or warden(UK, similar

to churchwarden) is

a beadle or sexton, a person who

assists in the running of

synagogue services in some way.

The role may be undertaken on

a voluntary or paid basis. A

shamash (literally "servant") can

also mean an assistant to a rabbi

(particularly the secretary or

personal assistant to

a Hassidic Rebbe).

automatically considered tax exempt under section 501(c)(3) of the Code without applying for formal recognition of such status. No determination letters are issued to those organizations. Refer to Publication 1828, Tax Guide for Churches and Religious Organizations, Publication 557, Tax Exempt Status for Your Organization, and our website... for the organizational and operational requirements if you feel you meet these requirements.

The regulations governing immigration under the purview of the USCIS and those governing federal taxation under the purview of the IRS serve two different purposes. While the IRS regulations may automatically exempt churches as nonprofit organizations for the purpose of determining whether such an organization is required to file a federal tax return and pay taxes, the USCIS regulation offers no such exemption for those organizations who seek benefits under immigration laws. The AAO notes that while IRS Publication 18281 states that churches "are automatically considered tax exempt and are not required to apply for and obtain recognition of tax-exempt status from the IRS," the publication also includes the following advisory:

Although there is no requirement to do so, many churches seek recognition of tax-exempt status from the IRS because such· recognition assures church leaders, members, and contributors that the church is recognized as exempt and qualifies for related tax benefits.

Thus, the IRS recognizes that there may be reasons why a church may want to obtain official IRS recognition as a tax;-exempt organization although under IRS regulations, the church is not required to do so.