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SEP012015_01D2101.pdf
Matter of N-H-S-, LLC, ID#
15153 (AAO Sept. I, 2015)
MOTION OF AAO DECISION
DISMISSED
The Petitioner, a healthcare staffing and
placement company, seeks to employ the
beneficiary as a clinical coordinator and to
classify him as a nonimmigrant worker in a
specialty occupation. ..... The Director
denied the petition, concluding that the
Petitioner did not establish that the
proffered position qualifies as a specialty
occupation ….. The Petitioner submitted an
appeal of the Director's decision to us. We
reviewed the record of proceeding and
determined it did not contain sufficient
evidence to establish that the Petitioner
would employ the Beneficiary in a specialty
occupation position. We provided a
comprehensive analysis of the Director's
decision and dismissed the appeal. The
petitioner now submits the instant motion
to reconsider.
SEP022015_01D2101.pdf
Matter of B-S-S-, INC, ID#
12592 (AAO Sept. 2, 20 15)
APPEAL OF CALIFORNIA SERVICE
CENTER DECISION DISMISSED
The Petitioner, a business development and
informational services, seeks to employ the
Beneficiary as a quality analyst and to
classify her as a nonimmigrant worker in a
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specialty occupation. … The Director denied
the petition, finding that the Petitioner does
not establish that it will be a "United States
employer" having an employer-employee
relationship with the Beneficiary as an H-1B
temporary employee. Thereafter, the
Petitioner filed a motion to reopen, which
was dismissed. The matter is now before us
on appeal.
SEP032015_01D2101.pdf
Matter of S- LLC-, ID#14007
(AAO Sept. 3, 2015)
APPEAL OF CALIFORNIA SERVICE
CENTER DECISION DISMISSED
The Petitioner, a health and wellness
products business, seeks to employ the
Beneficiary as an accountant and to classify
her as a nonimmigrant worker in a specialty
occupation. …. The Director denied the
petition, finding that the evidence of record
did not establish that the proffered position
qualifies as a specialty occupation.
SEP032015_02D2101.pdf
Matter of A-I-, ID#14180 (AAO
Sept. 3, 2015)
APPEAL OF VERMONT SERVICE
CENTER DECISION DISMISSED
The Petitioner, a vocational institute, seeks
to employ the Beneficiary as an allied health
instructor and to classify her as a
nonimmigrant worker in a specialty
occupation. ….
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The Director revoked the approval of the
visa petition finding that the Petitioner had
violated the terms and conditions of the
approved petition. Specifically, the Director
noted that an administrative site visit to
verify the Beneficiary's employment
revealed that the Petitioner was not paying
the Beneficiary the proffered wage
established by the terms and conditions of
the approved petition. On appeal, the
Petitioner asserts that the Director's basis
for revocation of the approval of the petition
was erroneous.
A review of the record [sic] of U.S.
Citizenship and Immigration Services
indicates that the Beneficiary adjusted
status to that of a lawful permanent resident
on May 20, 2015. Because the Beneficiary is
presently a lawful permanent resident,
further pursuit of the matter at hand is
moot. Therefore, this appeal is dismissed.
SEP102015_01D2101.pdf
Matter of N-E-S-, LLC, ID#
13279 (AAO Sept. 10, 2015)
APPEAL OF CALIFORNIA SERVICE
CENTER DECISION DISMISSED
The Petitioner, an information technology
services firm, seeks to employ the
Beneficiary as a computer systems analyst
and to classify him as a nonimmigrant
worker in a specialty occupation. …….
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The Director denied the petition, finding the
evidence insufficient to establish that (1) the
proffered position qualifies as a specialty
occupation; and (2) the Petitioner will have
an employer-employee relationship with the
Beneficiary. ………..
10 The agency made clear long ago that
speculative employment is not permitted in
the H-1 B program. A 1998 proposed rule
documented this position as follows:
Historically, the Service has not
granted H-1 B classification on the
basis of speculative, or undetermined,
prospective employment. The H-1B
classification is not intended as a
vehicle for an alien to engage in a job
search within the United States, or for
employers to bring in temporary
foreign workers to meet possible
workforce needs arising from potential
business expansions or the expectation
of potential new customers or
contracts. To determine whether an
alien is properly classifiable as an H-1B
nonimmigrant under the statute, the
Service must first examine the duties of
the position to be occupied to ascertain
whether the duties of the position
require the attainment of a specific
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bachelor's degree. See section 214(i) of
the Immigration and Nationality Act
(the "Act"). The Service must then
determine whether the alien has the
appropriate degree for the occupation.
In the case of speculative employment,
the Service is unable to perform either
part of this two-prong analysis and,
therefore, is unable to adjudicate
properly a request for H-1B
classification. Moreover, there is no
assurance that the alien will engage in a
specialty occupation upon arrival in
this country.
63 Fed. Reg. 30419, 30419 - 30420 (June 4,
1998). While a petitioner is certainly
permitted to change its intent with regard to
non-speculative employment, e.g., a change
in duties or job location, it must nonetheless
document such a material change in intent
through an amended or new petition in
accordance with 8 C.F.R. § 214.2
(h)(2)(i)(E).
SEP142015_01D2101.pdf
Matter of B-D-C-, Corp. ID#
13323 (AAO Sept. 14, 2015)
APPEAL OF VERMONT SERVICE
CENTER DECISION DISMISSED
The Petitioner, a studio, seeks to employ the
Beneficiary as a set designer and classify her
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See: Entry Level Jobs Are Poor
Candidates for H1B Visas
as a as a nonimmigrant worker in a specialty
occupation………….
The primary issue is whether the Petitioner
has provided sufficient evidence to establish
that it will employ the beneficiary in a
specialty occupation. ……..
In the letter submitted in support of the
instant petition, the Petitioner states that it
"provides photography video and design
services for individuals and companies."
The Petitioner also states that its clients
include fashion magazine companies, fine
food restaurants, schools, designers, and
bloggers. With respect to the proffered
position, the Petitioner states that
"candidates must possess at least a
Bachelor's degree in set design or related
academic field." The Petitioner also
provided the following description of the job
duties, along with the percentage of time
spent performing each duty: ……….
The Petitioner submitted a Labor Condition
Application (LCA) in support of the instant
H-1 B. The Petitioner indicates that the
proffered position corresponds to the
occupational category "Set and Exhibit
Designers"-SOC (ONET/OES Code) 27-
1027, at a Level I (entry level) wage. ……
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SEP142015_02D2101.pdf
Matter of F-IPSM-S-, LLC, ID#
13951 (AAO Sept. 14, 20 15)
APPEAL OF VERMONT SERVICE
CENTER DECISION DISMISSED
AS MOOT
.A review of U.S. Citizenship and
Immigration Services (USCIS) records
indicates that on August 12, 2015,
subsequent to the denial of the instant
petition, the Petitioner filed another Form I-
129 seeking nonimmigrant H-1B
classification on behalf of the Beneficiary.
USCIS records further indicate that this
other petition was approved on August 24,
2015. Because the Beneficiary in the instant
petition has been approved for H-1B
employment with the Petitioner, further
pursuit of the matter at hand is moot.
SEP142015_03D2101.pdf
Matter of O-, Inc., ID# 13057
(AAO Sept. 14, 2015)
APPEAL OF VERMONT SERVICE
CENTER DECISION DISMISSED
AS MOOT
U.S. Citizenship and Immigration Services
(USCIS) records indicate that on April 13,
2015, a date subsequent to the denial of the
instant petition, the Petitioner filed another
Form I-129 seeking nonimmigrant H -1 B
classification on behalf of the Beneficiary.
USCIS records further indicate that this
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petition was approved on May 7, 2015. We
sent a letter to the Petitioner requesting
verification of its intent to pursue the appeal
on July 1, 2015, and have not received a
response.
Because the Beneficiary of the instant
petition has been approved for H-1B
employment with the Petitioner, further
pursuit of the matter at hand is moot.
SEP142015_04D2101.pdf
Matter of M-E-, Inc., ID#
13332 (AAO Sept. 14, 20 15)
MOTION OF ADMINISTRATIVE
APPEALS OFFICE DECISION
DENIED
The Petitioner, a fast-food restaurant, seeks
to employ the Beneficiary as a financial
manager and to classify him as a
nonimmigrant worker in a specialty
occupation.
On May 12, 2011, the Director of the
Vermont Service Center denied the
nonimmigrant visa petition. The Petitioner
appealed this denial to the Administrative
Appeals Office (AAO), and we dismissed the
appeal on November 7, 2012. On December
6, 2012, the Petitioner filed a motion to
reopen and reconsider, which we denied on
July 14, 2014. On August 14, 2014, the
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Petitioner again filed a motion to reopen and
reconsider, which we denied on February 6,
2015. The matter is once again before us on
a motion to reopen and reconsider. The
combined motion will be denied pursuant to
8 C.F.R.§ 103.5(a)(2), (3), and (4).
SEP102015_01D7101.pdf
Matter of B-I-U- Corp., ID#
13168 (AAO Sept. 10, 2015)
MOTION OF AAO DECISION
DENIED
The Petitioner, a corporation organized in
the State of New Jersey that engages in the
wholesale of general merchandise, seeks to
extend the employment of its vice-president
as an L-1 A nonimmigrant intracompany
transferee. See section 101(a)(15)(L) of the
Immigration and Nationality Act (the Act),
8 U.S.C. § 1101(a)(15)(L). The Director,
Vermont Service Center, denied the
petition. The Petitioner has subsequently
filed a total of three appeals and nine
motions with the Administrative Appeals
Office (AAO). Most recently, we dismissed
the Petitioner's motion to reopen and
reconsider in a decision dated January 8,
2015. The matter is again before us on a
motion to reopen and reconsider. The
motion will be denied.
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The Director denied the petition on
February 24, 2004, concluding that the
Petitioner did not establish that the
Beneficiary would be employed in a
primarily managerial or executive capacity
under the extended petition. ……
SEP102015_02D7101.pdf
Matter of K-I-, Inc., ID# 13257
(AAO Sept. 10, 2015)
APPEAL OF VERMONT SERVICE
CENTER DECISION DISMISSED
The Petitioner, a New Jersey corporation
operating a comprehensive software
consulting business, seeks to employ the
Beneficiary as an L-1B nonimmigrant
intracompany transferee. ……..
…….. The Petitioner seeks to employ the
Beneficiary in the position of Technical
Recruiter for a period of two years.
The director denied the petition, concluding
that the Petitioner did not establish that: (1)
the Beneficiary's employment abroad was in
a position that was managerial, executive, or
involved specialized knowledge, (2) the
Beneficiary possesses specialized
knowledge, and (3) the Beneficiary's
position in the United States involves
specialized knowledge.
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SEP112015_01D7101.pdf
Matter of H-G-, LLC, ID#
13706 (AAO Sept. 11, 2015)
APPEAL OF VERMONT SERVICE CENTER DECISION
SUMMARILY DISMISSED
The Petitioner, an entity that operates as an
importer and exporter of feeder stock, seeks
to employ the Beneficiary in the position of
director of international sales. …….
On December 15, 2014, the Director issued a
decision denying the petition based on the
conclusion that the Petitioner does not have
a qualifying relationship with the
Beneficiary's former employer abroad and is
therefore ineligible for the immigration
benefit sought herein.
The Petitioner subsequently filed an appeal.
However, the Petitioner submitted no
evidence or information addressing the
actual grounds for denial; nor did the
Petitioner dispute the ground for denial.
………….
SEP112015_02D7101.pdf
Matter of U-S-A-M-, Inc., ID#
13739 (AAO Sept. 11, 2015)
APPEAL OF VERMONT SERVICE
CENTER DECISION DISMISSED
The Petitioner, a business engaged in the
production and distribution of baked goods,
seeks to classify the beneficiary as an
intracompany transferee. ….. It seeks to
employ the Beneficiary as its "Operations
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Manager" for a period of one year in order
to open a new office in the United States.
The Director denied the petition, concluding
that the Petitioner did not establish that the
Beneficiary has been or will be employed in
a primarily managerial or executive
capacity.
SEP142015_01D7101.pdf
Matter of M-I-, LLC, ID# 13130
(AAO Sept. 14, 20 15)
APPEAL OF VERMONT SERVICE
CENTER DECISION DISMISSED
The Petitioner, an import and export
company trading in automobiles and
automobile parts, seeks to employ the
Beneficiary as an L-1 A nonimmigrant
intracompany transferee. …….. The Director
denied the petition, concluding that the
evidence of record did not establish that the
Beneficiary will [be] employed in a
qualifying managerial or executive position
within one year of approval of the petition,
or that the new office "will be able to meet its
financial obligations the first year of
operation."
Although we will affirm the Director's
finding that the Petitioner did not establish
by a preponderance of the evidence that it
will employ the Beneficiary in a qualifying
managerial or executive capacity within one
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year, we will withdraw the Director's
observation that the Petitioner did not
establish that it "will be able to meet its
financial obligations the first year of
operation." Upon review, the Petitioner
provided sufficient evidence to establish
that it has funding to cover its startup costs
and initial operating expenses, and it
provided adequately supported sales
projections to demonstrate how it intends to
cover costs accrued during the initial year of
operations. The Petitioner does not need to
establish that all projected first year
operating costs and expenses will be covered
by an initial investment made prior to the
time of filing. Nevertheless, for the reasons
discussed above, we find that the record
does not establish that the Beneficiary
would be employed in a qualifying
managerial or executive capacity within one
year of the petition approval. Accordingly,
the appeal will be dismissed.
III. ADDITIONAL ISSUE
The remaining issue addressed by the
Director is the Beneficiary's foreign
employment in a qualifying capacity.
Specifically, the Director stated: "Although
not addressed in the RFE, if you choose to
appeal this decision you will need to
establish the beneficiary has been employed
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in a qualifying managerial or executive
capacity ... for one (1) year in the past three
(3) years."
On appeal, the Petitioner summarizes the
evidence submitted to establish that the
Beneficiary was employed in a qualifying
capacity by its Nigerian affiliate. The
Petitioner asserts that "Since this was not
an issue that was included in the RFE
in the initial petition, this cannot be a
reason for denial of the case, and
bringing the issue up in one sentence
as a matter of fact in the denial
decision is arbitrary, capricious and
against USCIS policy."
We agree with the Petitioner that the
Director did not properly deny the petition
on this basis. When denying a petition, a
director has an affirmative duty to explain
the specific reasons for the denial; this duty
includes informing a petitioner why the
evidence failed to satisfy its burden of proof
pursuant to section 291 of the Act, 8 U.S.C.
§ 1361. See 8 C.F.R. § 103.3(a)(l)(i). As the
Director did not provide the Petitioner with
information regarding specific evidentiary
deficiencies or even clearly deny the petition
based on a finding that Petitioner did not
establish that the Beneficiary was employed
by the foreign entity in a qualifying capacity,
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we will withdraw the Director's comment
and will not address this issue further.
SEP152015_01D7101.pdf
Matter of R-A-A-, Inc., ID#
14030 (AAO Sept. 15, 2015)
APPEAL OF VERMONT SERVICE
CENTER DECISION SUSTAINED
The Petitioner, an architectural planning
and design company, seeks to employ the
Beneficiary as an architect/parametric
design specialist under the L-1B
nonimmigrant classification. …..
…….. Upon reviewing the entire record of
proceeding as supplemented by the
Petitioner's submission on appeal, we
conclude that the record now contains
sufficient evidence to overcome the bases for
the Director's decision.
Specifically, the totality of the evidence
now establishes that the Beneficiary has
special knowledge of the Petitioner's
techniques in international markets and
that his special knowledge is distinct in
comparison to the general modeling and
architectural design skills that are generally
found within the Petitioner's group.
Additionally, the totality of the evidence
establishes that the Beneficiary is one of the
few employees within its organization who
possesses advanced knowledge of the
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Petitioner's processes and procedures in his
area of expertise, as the record shows that he
contributed to the development of such
processes during his tenure with the
Petitioner's group overseas. Finally, the
totality of the record establishes that the
Beneficiary has been employed abroad and
will be employed in the United States in a
position requiring this specialized
knowledge.
SEP142015_01D8101.pdf
Matter of W-V-T-USA-; LLC,
ID# 13265 (AAO Sept. 14,
2015)
1 Pursuant to 8 C.F.R. § 214.2(o)(12)(ii), an
extension of stay may be authorized in
increments of up to one year for an 0-1
beneficiary to continue or complete the
same activity for which he or she was
admitted plus an additional 10 days to
allow the beneficiary to get his or her
personal affairs in order. A five-year
extension of stay cannot be granted.
APPEAL OF VERMONT SERVICE
CENTER DECISION DISMISSED
The Petitioner, a baseball instruction and
coaching business, seeks to classify the
Beneficiary as a foreign national of
extraordinary ability in athletics. See
Immigration and Nationality Act (the Act) §
101(a)(15)(0)(i), 8 U.S.C. § 1101(a)(15)(0)(i).
The Director, Vermont Service Center,
denied the petition. ……
The Petitioner currently employs the
Beneficiary as a baseball coach pursuant to
an approved O-1 petition. The Petitioner
seeks to extend the Beneficiary's
employment for a period of five years. 1 After
issuing two requests for evidence (RFEs)
and then considering the record, the
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Director denied the petition, concluding
that the Petitioner did not establish that the
Beneficiary has achieved the required
national or international acclaim in his field.
Specifically, the Director determined that
the Petitioner had not satisfied the initial
evidentiary requirements set forth at 8
C.F.R. § 214.2(o)(3)(iii), which requires
documentation of a one-time achievement
or materials that meets at least three of the
eight regulatory criteria. On appeal, the
Petitioner submits a brief and additional
documentation. For the reasons discussed
below, the Petitioner has not satisfied the
plain language requirements of at least three
criteria.
SEP032015_01D9101.pdf
Matter of F-I-G-, Inc., ID#
11762 (AAO Sept. 3, 2015)
APPEAL OF VERMONT SERVICE
CENTER DECISION DISMISSED
The Petitioner, a talent management
company, seeks to classify the Beneficiaries
as members of an internationally recognized
entertainment group. See the Immigration
and Nationality Act (the Act) §
101(a)(15)(P)(i), 8 U.S.C. § 1101(a)(15)(P)(i).
The Director, Vermont Service Center,
denied the petition. …..
On appeal, the Petitioner asserts that it has
established that the Beneficiaries are an
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internationally recognized entertainment
group. The Petitioner submits additional
documentary evidence in support of the
appeal. On May 5, 2015, we issued a notice
of derogatory information and intent to
dismiss (NOID) pertaining to the
Petitioner's corporate status. The Petitioner
responded. Upon review, and for the
reasons stated herein, while the Petitioner
has overcome the concerns in our NOID, we
concur with the Director's determination
that the Petitioner has not established the
Beneficiaries' eligibility for the requested
classification.
SEP032015_01D13101.pdf
Matter of C-G-S-E-O-, ID#
14799 (AAO Sept. 3, 2015)
APPEAL OF CALIFORNIA SERVICE
CENTER DECISION DISMISSED
AS MOOT
On August 19, 2015, the Petitioner requested
that the appeal and petition be cancelled
because the job offered is no longer
available. The regulation at 8 C.F .R. § 103
.2(b)( 6), however, indicates that an
application or petition may not be
withdrawn once a decision is issued by U.S.
Citizenship and Immigration Services.
Nonetheless, as the request to withdraw the
original petition was received before the
issuance of our decision in this matter, the
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issues in this proceeding are now moot, and
the appeal will be dismissed on this basis.
SEP082015_01D13101.pdf
Matter of B-T-F-, ID# 13869
(AAO Sept. 8, 2015)
MOTION OF ADMINISTRATIVE
APPEALS OFFICE DECISION
DENIED
The Petitioner, a Hindu temple, seeks to
employ the Beneficiary as a nonimmigrant
religious worker to perform services as a
temple paricharaka (chef). See Immigration
and Nationality Act (the Act) §
101(a)(15)(R), 8 U.S.C. § 1101(a)(15)(R). The
Director, California Service Center, denied
the petition and we dismissed a subsequent
appeal. The matter is now before us on a
motion to reopen and reconsider. The
motion will be denied.
In order to properly file a motion to reopen
or reconsider, the regulation at 8 C.F.R. §
103.5(a)(1)(i) provides that a petitioner
must file the complete motion within 30
days of service of the unfavorable decision.
If the decision was mailed, the motion must
be filed within 33 days. See 8 C.F.R. § 103.8
(b). The date of filing is not the date of
mailing, but the date of actual receipt. See 8
C.F .R. § 103.2(a)(7)(i). For a motion to
reopen, the regulation grants U.S.
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Citizenship and Immigration Services
(USCIS) the discretion to excuse a
reasonable delay that is beyond the control
of the petitioner. See 8 C.F.R. § 103.5
(a)(1)(i). There is no regulation allowing for
an untimely motion to reconsider. A motion
that does not meet applicable requirements
shall be dismissed. 8 C.F.R. § 103.5(a)(4).
In this case, the record reflects that our
decision dismissing the appeal was issued
on January 16, 2015. Our decision indicated
that any motion must be filed within 33 days
of the date of the decision and stated in bold,
"Do not file a motion directly with the AAO."
Nonetheless, the Petitioner submitted the
motion, without fee, directly to our office on
February 26, 2015, forty-one days after the
decision was issued. We returned the
documentation to the petitioner with
instructions as to where to file the motion
and informed the petitioner that the filing
fee for a Form I-290B, Notice of Appeal or
Motion, was $630. On March 20, 2015, the
USCIS Phoenix Lockbox rejected the
petitioner's motion as filed without the
proper fee. The motion with the appropriate
fee was filed with USCIS on March 31, 2015,
74 days after we issued our decision.
Although the regulation at 8 C.F.R. § 103.5
(a)(1)(i) allows us to excuse a reasonable
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delay that is beyond the control of the
applicant in the exercise of discretion for
motions to reopen, the Petitioner has not
addressed the untimely filing in this case.
Therefore, the motion will be denied.
SEP082015_02D13101.pdf
Matter of M-M-A -C-, ID#
13334 (AAO Sept. 8, 20 15)
MOTION OF ADMINISTRATIVE
APPEALS OFFICE DECISION
DENIED
The Petitioner, a church, seeks to employ
the Beneficiary as a nonimmigrant religious
worker to perform services as a pastor. See
Immigration and Nationality Act (the Act) §
101(a)(15)(R), 8 U.S.C. § 1101(a)(15)(R). The
Director, California Service Center, denied
the petition, concluding that the Petitioner
did not establish how it intends to
compensate the Beneficiary. The matter is
now before us on appeal. The appeal will be
dismissed. ……………………..
Considering the record in its totality, the
Petitioner has not met its burden of
establishing by a preponderance of the
evidence its intent to compensate the
Beneficiary as stated.
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AAO I-129 Non-Immigrant Worker Non-Precedent Decisions (New Format) Posted As Of Thursday, October 1, 2015
Compiled By Joseph P. Whalen
HYPERLINK CITATION
NATURE OF PROCEEDING OUTCOME/COMMENTS
SEP102015_01D13101.pdf
Matter of B-F-J-S-D-A-C-M-,
ID# 12710 (AAO Sept. 10, 2015)
APPEAL OF CALIFORNIA SERVICE
CENTER DECISION DISMISSED
The Petitioner, a church, seeks to classify the
Beneficiary as a nonimmigrant religious
worker to perform services as a "Religious
Bible Worker." See 101(a)(15)(R) of the
Immigration and Nationality Act (the Act),
8 U.S.C. § 1101(a)(15)(R). The Director,
California Service Center, initially approved
the employment-based nonimmigrant visa
petition on November 29, 2011. On further
review, the Director determined that the
Beneficiary was not eligible for the visa
preference classification. Accordingly, the
Director served the Petitioner with a notice
of intent to revoke (NOIR) the approval of
the preference visa petition stating the
reasons therefore and subsequently
exercised her discretion to revoke the
approval of the petition on December 9,
2014. The matter is now before us on appeal.
We will dismiss the appeal.
Please note that this is only current as of date and time of posting.