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U.S. Department of Homeland Security 20 Mass. Ave., N.W.: Rm. A3042 Washington, DC 20529
U. S. Citizenship and Immigration
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DISCUSSION: The Director, Texas Service Center, initially approved the employment-based immigrant visa petition. On further review, the director determined that the petitioner was not eligible for the visa preference classification. Accordingly, the director properly served the petitioner with a Notice of Intent to Revoke the approval of the preference visa petition and her reasons therefore, and subsequently exercised her discretion to revoke the approval of the petition on March 25, 2004. Counsel appealed the decision by filing a Form EOIR-29, Notice of Appeal to the Board of Immigration Appeals of Decision of an INS Officer. Pursuant to 8 C.F.R. 5 204.5(n)(2), jurisdiction for an appeal of the denial of an employment based visa petition lies with the Associate Commissioner of Examinations (the Administrative Appeals Office (AAO)). The petition is now before the AAO on appeal. The appeal will be dismissed.
The petitioner is a church. 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. 5 1153(b)(4), to perform services as a minister. The director determined that the petitioner had not established that it qualified as a bona fide nonprofit religious organization. The director also determined that the petitioner had not established that the beneficiary had been engaged continuously in a qualifying religious vocation or occupation for two full years immediately preceding the filing of the petition, that the position qualified as that of a religious worker, or that the petitioner had the ability to pay the proffered wage.
On appeal, counsel submits additional documentation. We note that counsel delayed sending a supporting brief, "awaiting" the schedule of the Board of Immigration Appeals (BM). As noted above, the BIA does not have jurisdiction over this employment-based petition, and no brief has been received by the AAO in support of this appeal. Therefore, the record will be considered complete as presently constituted.
Counsel also requested oral argument.
The regulations provide that the requesting party must explain in writing why oral argument is necessary. Furthermore, Citizenship and Immigration Services (CIS) has the sole authority to grant or deny a request for oral argument and will grant argument only in cases involving unique factors or issues of law that cannot be adequately addressed in writing. See 8 C.F.R. 5 103.3(b). In this instance, counsel identified no unique factors or issues of law to be resolved. In fact, counsel set forth no specific reasons why oral argument should be held. Moreover, the written record s f proceedings fully represents the facts and issues in this matter. Consequently, the request for oral argument is denied.
Section 205 of the Act, 8 U-.S.C. 8 1155, states that the Secretary of the Department of Homeland Security, "may, at any time, for what he deems to be good and sufficient cause, revoke the approval of any petition approved by him under section 204."
Regarding the revocation on notice of an immigrant petition under section 205 of the Act, the BIA has stated:
In Matter of Estime, . . . this Board stated that a notice of intention to revoke a visa petition is properly issued for "good and sufficient cause" where the evidence of record at the time the notice is issued, if unexplained and unrebutted, would warrant a denial of the visa petition based upon the petitioner's failure to meet his burden of proof. The decision to
revoke will be sustained where the evidence of record at the time the decision is rendered, including any evidence or explanation submitted by the petitioner in rebuttal to the notice of intention to revoke, would warrant such denial.
Matter ofHo, 19 I&N Dec. 582, 590 (BIA 1988)(citing Matter of Estime, 19 I&N 450 (BIA 1987)).
By itself, the director's realization that a petition was incorrectly approved is good and sufficient cause for the issuance of a notice of intent to revoke an immigrant petition. Id.
The regulation at 8 C.F.R. 5 204.5(m)(3)(i) states, in pertinent part:
(3) Initial evidence. Unless otherwise specified, each petition for a religious worker must be accompanied by:
(i) Evidence that the organization qualifies as a nonprofit organization in the form of either:
(A) Documentation showing that it is exempt fiom taxation in accordance with 5 501(c)(3) of the Internal Revenue Code of 1986 as it relates to religious organizations (in appropriate cases, evidence of the organization's assets and methods of operation and the organization's papers of incorporation under applicable state law may be requested); or
(B) Such documentation as is required by the Internal Revenue Service to establish eligibility for exemption under 8 501(c)(3) of the Internal Revenue Code of 1986 as it relates to religious organization.
To meet the requirements of 8 C.F.R. fj 204.5(m)(3)(i)(A), a copy of a letter of recognition of tax exemption issued by the Internal Revenue Service (IRS) is required. In the alternative, to meet the requirements of 8 C.F.R. $ 204.5(m)(3)(i)(B), a petitioner may submit such documentation as is required by the IRS to establish eligibility for exemption under section 501(c)(3) of the Internal Revenue Code (IRC) of 1986 as it relates to religious organizations. This documentation includes, at a minimum, a completed IRS Form 1023, the Schedule A supplement, if applicable, and a copy of the organizing instrument of the organization that contains a proper dissolution clause and which specifies the purposes of the organization.
In a memorandum dated December 17, 2003, ~ s s o c i a t e Director of Operations for Citizenship and Immigration Services (CIS), provided additional guidance on the requirements of 8 C.F.R. 5 204.5(m)(3)(i)(B) in instances where the petitioner does not have a letter from the IRS granting it tax-exempt status as a religious organization or where the petitioner's status as a religious organization is not clear.
The memorandum requires the following documentation to establish "the religious nature and purpose of the organization":
(1) A. properly completed IRS Form 1023, (2) A properly completed Schedule A supplement, if applicable,
(3) A copy of the organizing instrument of the organization that contains he appropriate dissolution clause required by the IRS and that specifies the purposes of the organization, and
(4) Brochures, calendars, flyers and other literature describing the religious purpose and nature of the activities of the organization.
The memorandum does not state that the petitioner must provide one item from the above list. Rather, all of the listed documents, "at a minimum," are necessary to establish the religious nature of the petitioner's activities.
With the petition, the petitioner submitted a copy of a June 18, 1996 letter from the IRS to the Assembleia de Deus de Boston, mailed to an attorney's address in Fall River, MA. The letter notified the organization that it had been granted tax-exempt status under section 501(c)(3) of the IRC as an organization described in sections 509(a)(l) and 170(b)(l)(A)(i). The copy of the letter was of extremely poor quality.
In a request for evidence (RFE) dated November 19, 1997, the director again requested the petitioner to submit evidence of its tax-exempt status. The director did not, however, further specify the reason for her request. In response, the petitioner submitted a copy of Certificate of Exemption granted to it by the state of Massachusetts. The director subsequently approved the petition on April 1, 1998.
The petitioner filed the petition on September 26, 1997. At that time, a t t o r n e represented the petitioner as counsel. Subsequently, on May 23, 2003, Javier E. Lopera was convicted on several counts relating to immigration fraud. Because a s involved in facilitating numerous fraudulent immigration petitions, the director instructed the petitioner to submit additional documentation to establish that the petitioner had, in fact, filed a credible visa petition based on a bona fide job offer.
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. 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 lies, in fact lies, will not suffice. Mutter of Ho, 19 I&N Dec. 582, 586 (BIA 1988). The director indicated that the approval of the petition would be revoked unless the petitioner was able to provide credible documentation in response to the Notice of Intent to Revoke approval of the visa petition (NOIR). The director subsequently found that the petitioner was unable to overcome the grounds for revocation and revoked approval of the petition.
The first issue on appeal is whether the petitioner established that it qualified as a bona fide nonprofit religious organization.
In her NOlR dated June 23, 2003, the director again requested information regarding the petitioner's tax- exempt status. In response, the petitioner submitted a copy of an April 28, 1998 letter from the IRS informing the petitioner