U.S. Citizenship and Immigration Services - Immigrant Religious Workers... acceptable to USCIS [United

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  • U.S. Citizenship and Immigration Services

    MATTER OF V-A-B-A-

    Non-Precedent Decision of the Administrative Appeals Office

    DATE: FEB.9,2018

    APPEAL OF CALIFORNIA SERVICE CENTER DECISION

    PETITION: FORM 1-360, PETITION FOR AMERASIAN, WIDOW(ER), OR SPECIAL IMMIGRANT

    The Petitioner, a Buddhist temple, seeks to classify the Beneficiary as a special immigrant religious worker to perform services as a monk. See Immigration and Nationality Act (the Act) section 203(b)(4), 8 U.S.C. § 1153(b)(4). The special immigrant religious worker classification allows qualifying non-profit religious organizations to employ foreign nationals as ministers, in religious vocations, or in religious occupations in the United States.

    The Director of the California Service Center denied the petition, finding that the Petitioner did not establish that the Beneficiary had the requisite two years of continuous, compensated religious work expenence.

    On appeal, the Petitioner asserts that the Beneficiary performed compensated, qualifying religious work for the two-year period immediately preceding the filing of the petition and submits additional evidence in support of its assertion.

    Upon de novo review, we will dismiss the appeal.

    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 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 2-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 10l(a)(27)(C) ofthe Act, 8 U.S.C. § 1101(a)(27)(C)).

    The implementing regulation at 8 C.F.R. § 204.5(m) provides that in order to be eligible for classification as a special immigrant religious worker, a foreign national must:

  • Matter of V-A-B-A-

    (2) Be coming to the United States to work in a full time (average of at least 35 hours per week) compensated position in one of the following occupations as they are defined in paragraph (m)(5) of this section:

    (i) Solely in the vocation of a minister of that religious denomination;

    (ii) A religious vocation either in a professional or nonprofessional capacity; or

    (iii)A religious occupation either in a professional or nonprofessional capacity.

    ( 4) Have been working in one of the positions described in paragraph (m)(2) of this section ... 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 atlect 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.

    The regulation at 8 C.F.R. § 204.5(m)(ll) addresses the evidentiary requirements to establish prior religious work experience. It provides:

    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 ... 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.

    2

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    Matter of V-A-B-A-

    (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 [United States Citizenship and Immigration Services].

    If the alien was employed outside the United States during such two years, the petitioner must submit comparable evidence of the religious work.

    II. ANALYSIS

    As noted above, the Petitioner must establish that the Beneficiary has been working as a minister, in a religious vocation, or in a religious occupation in a full-time, compensated position for at least the two-year period immediately preceding the filing of the petition. 8 C.F.R. § 204.5(m)(2), (4). In this case, the petition was filed on January 19, 2017. Therefore, the Petitioner must demonstrate that the Beneficiary has the requisite two years of qualifying prior work experience from January 19, 2015, through January 19, 2017. After a review of the entire record, including the evidence submitted on appeal, we do not find the Petitioner has submitted sufficient evidence that the Beneficiary has two years of compensated, continuous work experience immediately preceding the filing of the petition.

    The Petitioner has described the Beneficiary's employment history during the relevant two years as follows: from the beginning of the qualifying period until August 2015, the Beneficiary served the

    in Illinois; from August 2015 to May 2016, he served in Vietnam; from June to October 2016, he again served the temple m and from November 2016 onward, he served the Petitioner. The Petitioner now seeks to continue employing the Beneficiary as a Buddhist monk. It has repeatedly affirmed that the Beneficiary receives and will continue to receive non-salaried compensation consisting of housing, food, and living expenses. The Petitioner specified in Part 9, Question 6, of the petition that it provides "food, room and board, health care, transportation, book, and all other kinds of Monk's needs."

    The Director issued a request for evidence (RFE) asking for, among other things, IRS documentation of the claimed non-salaried compensation and specifically noting that if such evidence is not available, the Petitioner must submit other documentation to support its assertions regarding the past compensation. The response included support letters from the Petitioner and the Beneficiary's previous employers, describing his religious work in Vietnam and service as an R-1 nonimmigrant religious worker in prior to his transfer to the petitioning temple. In the Director's subsequent denial, she found that the support letters from the Petitioner and Vietnam temple described the Beneficiary's compensation without providing IRS documentation, clarifying whether

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    Matter of V-A-B-A-

    such evidence was unavailable, or submitting comparable evidence for his employment outside the United States,. In addition, she noted that the letter from the temple did not detail how the Beneficiary was supported during his work at their temple.

    On appeal, the Petitioner references Buddhist guidance material concerning the prohibition against monks receiving money and explains that they are instead compensated with food, clothing, and shelter from the temple. The Petitioner further contends that: 1) the Beneficiary's R-1 approval to work at the temple demonstrates USCIS acceptance of his compensation arrangement, and 2) that "when compensation is not monetary in nature, the proof that we can provide [is] our pictures of him living and working at the temples."

    As supporting evidence, the Petitioner submits copies of photographs with notations indicating that they show the Beneficiary's living quarters in and at the Petitioner's premises and depict him working at the Vietnam temple. An additional letter from the temple further details the Beneficiary' s previous work; attests that it provided room, board, and living expenses to him; and claims that the pictures demonstrate this compensation. The Petitioner does not clarify, however, the unavailability of IRS documentation to show the claimed non-salaried compensation from the petitioning and temples or comparable evidence from the Vietnam temple. Further, the provided photographs alone do not constitute sufficient evidence to support assertions that the Beneficiary continuously received housing from his employers throughout the two-year period. We also note that in the RFE response, the petitioning and Vietnam temples provided descriptions of the Beneficiary's compensation, each stating "our temple provides shelter, books, food and boarding, sangha uniform, transportation, healthcare and petty cash," without submitting examples of the purported compensation, such as evidence of the healthcare policy covering the Beneficiary, financial documents showing the disbursal of his petty cash, or receipts for books purchased for him.

    Concerning the contention that the Beneficiary' s p