MATTER OF P-H-0-D-G-C-

Non-Precedent Decision of the Administrative Appeals Office

DATE: NOV. 21, 2016

MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION

PETITION: FORM I-360, PETITION FOR AMERASIAN, WIDOW(ER), OR SPECIAL IMMIGRANT

The Petitioner, a Pentecostal church, file,d the Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, seeking to classify the Beneficiary as a special immigrant religious worker to perform services as a director of music. See Immigration and Nationality Act (the Act) § 203(b)(4), 8 U.S.C. § 1153(b)(4). This classification allows non-profit religious organizations, or their affiliates, to employ foreign nationals as ministers or in other religious occupations or vocations in the United States.

The Director of the California Service Center denied the petition. The Director concluded that the Petitioner did not establish that it qualifies as a bona fide non-profit religious organization as defined in the regulation. We upheld the Director's finding on appeal and denied a subsequent motion to reopen and motion to reconsider.

The matter is now before us on a second motion to reopen and motion to reconsider. In its motions, the filing party submits additional evidence and argues that it qualifies as a bona fide non-profit religious organization in the United States. We will deny the motions.

I. LAW

Non-profit religious organizations may petition for foreign nationals to immigrate to the United States to perform full-time, compensated religious work as ministers, in religious vocations, or in other religious occupations. The petitioning organizations must establish that the foreign national beneficiary meets certain eligibility criteria, including membership in a religious denomination and continuous religious work experience for at least the two-year period before the petition filing date. Foreign nationals may self-petition for this classification. See generally section 203(b )( 4) of the Act (providing 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)).

The regulation at 8 C.F.R. § 204.5(m)(8) requires, in pertinent part:

Evidence relating to the petitioning organization. A petition shall include the following initial evidence relating to the petitioning organization:

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Matter of P-H-0-D-G-C-

(i) A currently valid determination letter from the Internal Revenue Service (IRS) establishing that the organization is a tax-exempt organization; or

(ii) For a religious organization that is recognized as tax-exempt under a group tax-exemption, a currently valid determination letter from the IRS establishing that the group is tax -exempt ....

A motion to reopen must state the new facts to be provided and to be supported by affidavits or other · documentation. 8 C.F.R. § 103.5(a)(2). However, any new facts must relate to eligibility at the time

a petitioner filed the petition. See 8 C.F.R. § 103.2(b)(1), (12); see also Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). A motion to reconsider must offer 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 U.S. Citizenship and Immigration Services (USCIS) policy. 8 C.F.R. § 103.5(a)(3). A motion to reconsider is based on the existing record and a petitioner may not introduce new facts or new evidence relative to his or her arguments. A motion to reconsider contests the correctness of the original decision based on the previous factual record, as opposed to a motion to reopen which seeks a new hearing based on new materials. Compare 8 C.F.R. § 103.5(a)(3) an4 8 C.F.R. § 103.5(a)(2).

II. ANALYSIS

The issue within these motions relates to whether the Petitioner was recognized as tax-exempt by the IRS. See 8 C.F.R. § 204.5(m)(5), (8). The Director determined that the Petitioner had not submitted required evidence to establish that it was a qualifying organization. Specifically, the Director found that the record lacked evidence showing that the Petitioner possessed a valid Internal Revenue Service (IRS) determination letter designating it as a tax-exempt organization. Our appeal dismissal affirmed the Director's decision. We denied a subsequent motion, finding that the entity that filed the petition was dissolved. We further found that the

an entity that subsequently changed its name to that of the Petitioner, did not establish that it was the petitioning entity.1 Within the present motions, the filing party claims that it is tax-exempt as a bona fide non-profit religious organization and, in essence, the same entity that filed the petition.

For context, two corporate entities Petitioner and the

this petition follows:

are involved in this proceeding. The two entities are the both of which have utilized the'\name

A timeline of events relating to the relevant organizations and

• August 15, 1968: the was created and registered with the North Carolina Department of the Secretary of State (Secretary of State);

1 For clarity, we will refer to this entity as

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• December 21, 2000: the IRS issued a 501(c)(3) tax exemption letter to the • September 22, 2004: the Petitioner was incorporated and registered with the Secretary of

State under the name • July 25, 2013: the Petitioner filed the Form I-360 with USCIS; • November 28, 2014: the Director denied the Form I-360; • December 31, 2014: the Petitioner registered a change of its name with the Secretary of

State, officially changing it to • December 31, 2014: the registered a change of its name with the Secretary

of State, officially amending the organization's title to

• January 8, 2015: the Petitioner registered its articles of dissolution with the Secretary of State.2

The IRS assigned the the Employer Identification Number (EIN) XX-XXX and the Secretary of State assigned this entity the ID The record lacks a letter from the IRS demonstrating that it assigned the Petitioner an EIN number; however, the Secretary of State assigned it the ID

A brief accompanying the first motion explained that the wished to change its name in 2004, but instead inadvertently created the petitioning entity:

The confusion surrounding the Corporations exempt status arises from the following:

1. At the [t]ime the Church decided to change its name it did not file with the [S]ecretary of State of North Carolina "Articles of Amendment for a Nonprofit Corporation" to change its name.

2. Instead, the church filed "Articles of Incorporation for a Nonprofit Corporation" thus [c]reating a new corporation with the desired name in error.

We find nothing in the record to conflict with this explanation, nor do we question the credibility of the parties involved. The issue is that the Petitioner, a separate entity from the did not possess an IRS determination letter establishing its tax-exempt status as required under the regulations, and the entity has since dissolved.

As cited above, the regulation at 8 C.F.R. § 204.5(m)(8) requires the submission of a currently valid IRS determination letter establishing the tax-exempt status of a petitioning organization. The IRS

2 While the Petitioner did not supply the Articles of Dissolution for that it referenced on appeal, the website for the Secretary of State confirms that this corporation is dissolved. See https://www.secretary.state.nc.us/Search/filin~ accessed November 21, 2016, and incorpprated into the

record of proceedings. 3 See https://www.sosnc.gov/Search/profcorp/ 4 See https://www.sosnc.gov/Search/profcorp/

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has exclusive jurisdiction over the validity of its determination letters. The IRS has held that, when a new legal entity is created, each new entity must establish its own exemption. Rev. Rul. 67-390, 1967-2 C.B. 179 (1967). A subsequent Tax Court decision, American New Covenant Church v. Commissioner, 74 T.C. 293,299 n.5 (T.C. 1980), cited the 1967 revenue ruling and reaffirmed the core principle that each legal entity requires a separate determination by the IRS. In the 1980 case, an unincorporated association applied for recognition of tax-exempt status. While its application was pending, the association filed articles of incorporation. The IRS determined that a new entity had been formed by the filing of these articles of incorporation. It concluded that 1) the newly formed corporation was distinct from the unincorporated association that had previous! y filed an application for exemption, and 2) the newly formed corporation needed to file its own application for exemption. The Tax Court agreed, ruling "that the two organizations [should] be treated as separate, independent legal entities." !d. at 302.

A statement included as an attachment to the motion to reconsider contends that the above rulings do not apply because the Petitioner and the "were and remain one and the same entity." The above analysis, however, indicates that the 1968 incorporation of and the 2004 incorporation of the Petitioner each formed· a distinct entity that must establish its own respective exemption. The December 2000 IRS letter, which only addressed t4e tax-exempt status granted to the was insufficient to establish the tax-exempt status of the Petitioner, as was th~ reissuance of this letter in May 2016, which we discuss below. The record does not show that the Petitioner was at any time in possession of a valid IRS determination letter designating it as a tax­exempt organization. The regulations do not contain any exceptions to the requirement of a currently valid IRS determination letter, and we have no discretion to set aside any of the relevant regulatory provisions.

In our decision on the first motion, we determined that the petitioning entity no longer existed because it dissolved after changing its name to While the

changed its name to we found that this name change did not make it the petitioning entity. Evidence accompanying the present motions includes a statement from IRS vouchers, and a May 12, 2016, letter from the IRS. The IRS letter is addressed to and states: "We issued you a determination letter in December 2000, recognizing you as tax­exempt .... "

The statement accompanying the present motion argues that the May 2016 letter confirms the IRS has allowed the Petitioner to use the same EIN number and determination letter that it issued in December 2000 to the We do not agree with this statement. The IRS letter refers to the recognition of the as tax-exempt in 2000, and indicates that the IRS continues to recognize this same entity as tax-exempt following its name change. The statement does not explain how the IRS letter could recognize the Petitioner as tax-exempt when that corporation was already dissolved when the letter was issued in May 2016.

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In addition, the statement on motion contends that it is implicit within the May 2016 IRS letter that it recognizes that both the and the Petitioner are the same legal entity. We also do not agree with this statement. Rather, the IRS determination letters from both December 2000 and May 2016 recognize the tax-exempt status of the The December 2000 letter is addressed to, and names the While the May 2016 letter is addressed to

it is referring to the same entity named in the previous IRS determination letter. The IRS could not have recognized the Petitioner as tax-exempt in May 2016, as that entity was dissolved in 2014.

III. CONCLUSION

The instant filing does not demonstrate the tax-exempt status of the petitioning organization and the record does not support the contention that the Petitioner and the are the same corporate entity. Accordingly, eligibility for the benefit sought has not established. Section 291 of the Act,~ U.S.C. § 1361; Matter ofOtiendeJ 26 I&N Dec. 127, 128 (BIA 2013).

ORDER: The motion to reopen is denied.

FURTHER ORDER: The motion to reconsider is denied.

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Cite as Matter of P-H-0-D-G-C-, ID# 10476 (AAO Nov. 21, 2016)

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