U.S. Citizenship and Immigration Services

MATTER OF W,

Non-Precedent Decision of the Administrative Appeals Office

DATE: MAY3,2018

APPEAL OF CALIFORNIA SERVICE CENTER DECISION

PETITION: FORM l-129, PETITION FOR A NONIMMIGRANT WORKER

The Petitioner, a church, seeks to classify the Beneficiary as a nonimmigrant religious worker to perform services as its "Director' of Outreach for Women South Asians in New York City." See Immigration and Nationality Act (the Act) section IOI(a)(15)(R), 8 U.S.C. § l!Ol(a)(l5)(R). This nonimmigrant classification (R-1) allows non-profit religious organizations, or their affiliates, to temporarily employ foreign nationals as ministers, in religious vocations, or in other religious occupations in the United States.

The Director of the California Service Center initially approved the petttton. After an on-site inspection, the Director revoked approval of the petition, finding that the Petitioner no longer employed the Beneficiary in the capacity specified in the petition, and had violated the terms and conditions of the approved petition. See 8 C.F.R. § 214.2(r)(i 8)(iii)(A)(l), (3).

On appeal, the Petitioner submits additional documents, and maintains that the information gathered during the on-site inspection was obtained in violation of the Petitibner's right to counsel and that, although it now employs the Beneficiary in California, "the essential elements" of her work are the same as those proposed in the petition.

Upon de novo review, we will dismiss the appeal.

1. LAW

Non-profit religious organizations may petition for foreign nationals to work in the United States tor up to five years to perform religious work as ministers, in religious vocations, or in other religious occupations. The petitioning organization must establish that the foreign national beneficiary has been a member of a religimis denomination for at least the two-year period before the date the petition is tiled. See generally section 101(a)(15)(R) of the Act,

The regulation at 8 C.F.R. § 214.2(r)( 16) grants United States Citizenship and Immigration Services (USCIS) broad discretion to verify information supporting the petition, stating:

Inspections. evaluatiom. verifications. and compliance reviews. The supporting evidence submitted may be verified by USCIS through any means determined

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appropriate by users, up to and including an on-site inspection of the petitioning organization. The inspection may include a tour of the organization's facilities, an interview with the organization's ofticials, a review of selected organization records relating to compliance with immigration laws and regulations, and an interview with any other individuals or review of any other records that the users considers pertinent to the integrity of the organization. An inspection may include the organization headquarters, or satellite locations, or the work locations planned for the applicable employee. If USCIS decides to conduct a pre-approval inspection, satisfactory completion of such inspection will be a condition for approval of any petition.

In addition, the regulation at 8 C.F.R. § 214.2(r)(18)(iii) allows the Director to revoke approval of a petition at any time, stating:

(A) Grounds for revocation. The director shall send to the petitioner a notice of intent to revoke the petition in relevant part if he or she finds that:

(1) The beneficiary is no longer employed by the petitioner in the capacity specified in the petition;

(2) The statement of facts contained 111 the petition was not true and con-ect: ·

(3) The petitioner violated terms and conditions of the approved petition;

(4) The petitioner violated requirements of section 10l(a)(15)(R) of.the Act or paragraph (r) of [8 C.F.R. § 214.2]; or

(5) The approval of the petition violated paragraph (r) of [8 C.F.R. § 214.2] or involved gross error.

(B) Notice and decision. The notice of intent to revoke shall contain a detailed statement of the grounds for the revocation and the time period allowed for the petitioner's rebuttal. The petitioner may submit evidence in rebuttal within 30 days of receipt of the notice. The director shall consider all relevant evidence presented in deciding whether to revoke the petition.

II. BACKGROUND

According to page 4 of the petition, the Petitioner intended to hire the Beneficiary as its "Director of Outreach for Women South Asians in New York City." Page 5-of the petition indicated that she would work 40 hours a week at a location in New York. According to a .July 2016 letter from who executed the petition as the Petitioner's "Friendly Counselor for

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Pakistan ," the Beneficiary's duties would include "administration of Sunday School actiVIties to both children and adults [fo r] about 20 hours per week, teaching [the Petitioner's] doctrine from scripture to women [for] about I 0 hours per week, and initiating contact with South Asian Women in

. the New York City area and distributing and disseminating [the Petitioner' s] Christian materials to the contacts [for] about 1 0 hours per week .. " T he Director approved the peti tion in November 20 16.

In March 2017, a USCIS ofticer visited the New York, locat ion and spoke over the telephone to The officer learned during the on-site inspection and telephone conversation that the Beneficiary had not worked at the location specified in the pet ition. Instead, she had been working in California. The Director issued a notice of intent to revoke (NOIR) the petition's approval, appris ing the Petitioner that based on these findings USCIS had not been able to verify the Beneficiary's employment. In response, the Petitioner acknowledged that the Beneficiary had not held the position noted in the petition. Rather, she had been working as a "Congregational Assi stant" at the Petitioner's church located in Cal ifornia. Accordi ng to a document entitled "Job Desc.ri ption ," she "provide[d] ministerial support to the outreach to Muslims ministry." In li ght of this informati on, the Director revoked approval of the petition.

III. ANALYSIS

The Director properly revoked the petition' s approval based on information USCIS obtained during the on-site inspection - which included a telephone conversation with - and the Petitioner's statements in response .to the NOIR. The record demonstrated that a fter the Director approved the petition in November 2016, the Beneficiary did not work as the Petitioner's "Director of Outreach for Women South Asians in New York City" for 40 hours a week in New York . These were the terms and conditions of the approved petition, which the Petitioner vio lated when it employed the Beneficiary as a "Congregational Assistant" in Cali lornia. 1 This violation supports the Director' s revocation of the approval under 8 C.F.R. § 2 14.2(r)( 18)(ii i)(A)(J). S imilarl y, as the Petitioner did not hire the Beneficiary in the same position, wi th the matching duties, as specified in the petition, the Director properly revo ked the approval under 8 C.F.R. § 2 14.2(r)( 18)(iii )(A)(/).

On appeal, the Petitioner has not submitted suffic ient evidence to overcome the Director's grounds for revocation. Instead, it acknowledges that the Beneficiary has not been employed in the position or at the location specified in the petition, because "initiating a ministry in New York,] would requi re more volunteer support than could be exp.ected there, and a more-successful etTort could be commenced in an existi ng [church] location in CA." Regardless

1 In addition, while not discussed in the Director"s decision, it appears that the Petitioner is not compensat ing the Beneficiary as speci fied in the petition. The Petitioner indicated on the petition that it would provide the Beneficiary wages of S I ,200 per month in addit ion to health insurance and a housing allowance of S 1.000 per month. However. according to a March 20 I 7 email trom which the Petitioner presents on appeal, the Beneficiary has been working as a "Staff Minister for Women and an Evangelist" and "her compensation is provided through her husband who receives a good sa lary and benefits."

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of the reasons for the changes in the Benefi ciary's employment, it remains that she has not worked in the capacity specific<.! in the pet ition or in accord<\nce with the terms and condit ions or the approved peti tion. See 8 C.F. R. ~ 214.2(r)( 18)(iii)(A)(/), (J). We will therefore dismiss the appeal.

We \Vi ii now address additional issues that the Petitioner has rai sed on appea l.

A. On-Site Inspection

Citing 8 C.F.R. § 103.2(a)(3), a March 201 1 USCIS internal doctiment,2 and a 2007 unpublished federa l district court case, the Petitioner mai ntai ns that USCIS should have contacted its counsel before conducting the on-site inspecti on and calling In addition, it submits multiple emai ls between and counsel discussing the Petitioner's response to the Director's request for evidence and the on-site inspection.3 The submitted evidence does not demonstrate that the Director erred by revoking the peti tion's approval.

The regulation at 8 C.F.R. § I 03.2(a)(3) states that a petitioner "may be represented by an attorney" or "by an accredited representative .... " This provision does not specifica lly address on-site inspecti ons, which arc discussed under 8 C.F.R. § 214.2(r)( 16) affording USC IS broad discretion to verify "supporting evidence ... through any means determined appropriate by USCIS, up to and including an on-site inspection of the petitioning organization." The regulation ex pla ins that an on­site inspection " may include a tour of the orgal)ization's faci lities, an interview with the organization's o llicials, a review of selected organization records relating to compliance with immigrati on laws and regulations, and an interview with any other individuals or review of any other records that the USCIS considers pertinent to the integrity of the organization." 8 C.F·.R. § 2 14.2(r)( 16) ..

T he Petitioner has acknowledged USCIS 's Specificall y, on page 6 of the petition, Petitioner, stating:

broad discretion in conduct ing on-si te inspections . executed a declaration, on behalf of the

... I also recognized that any supporting evidence ·submitted in support of this petition may be verified by USCIS through any means determi ned apprqpriate by USCIS, including but not limited to, on-site compliance reviews.

The Petitioner also references a March 20 II USC IS interna l document, claiming it required an USClS officer to "cease contact with [an] individual" if he or she "requests to speak to an attorney ." The Petitioner, however, acknowledges that a 2007 unpublished federal district court case, Osunsanya v. USCIS, No. 06-1 0625- R WZ, 2007 WL 484864 (D. Mass. Feb. 12, 2007), held that

1 The Petitioner indicates that the document is entitled " Fraud Detection Standard Operat ing Procedures." 3 On appeal. the Petitioner also submits email correspondence relating to a non immigrant religious worker petition that the Petitioner had tiled for the Beneficiary' s spouse. This evidence is not relevant in this case.

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· USCIS officers' interview of a petitioner was proper because she "did not ask for a lawyer when immigration officers arrived at her home and began asking her questions."

Here, the Petitioner has not shown that requested to speak to the Petitioner's counsel during the telephone conversation. Instead, according to a March 2017 email that he sent to the Petitioner's attorney, he spoke with the USC!S officer for approximately 15 minutes about the petition and the Beneficiary before ending the call to catch a tlight. The email does not mention that he had wished to speak to the Petitioner's counsel during the call or that the officer continued the conversation after learning desire to end the communication. In short, the Petitioner has not established any l~lctual or legal basis showing that a users officer may interview

only in the presence of the Petitioner's counsel, that had requested the presence of the Petitioner's counsel during the telephone conversation, or that USCIS erred in conducting the on-site inspection, which included the telephonic interview. See 8 C.F.R. ~ 214.2(r)(\6).

B. Changes to the Terms and Conditions of the Beneficiary's Employment

The Petitioner contends that while it has changed the Beneficiary's work location, "the essential elements" of her work are the same as those proposed in the petition and therefore this change does not constitute a proper basis for revocation under 8 C.F.R. § 214.2(r)(l8)(iii)(A)(J), (J). The Petitioner notes that, in response to a question raised during a 2011 stakeholder engagement, USClS indicated the following:

The petitioner may be required to file an m~ended petition and receive an approval prior to the beneficiary's commencement of employment at the location from that listed on the original approved R-1 petition if there is a material change in the terms or conditions of employment or the beneficiary's eligibility as specified in the original approved petition . . . . Changes in location of employment may constitute material changes to the terms and conditions of employment as specified in the original approved pctition.4

The Petitioner emphasizes the use of the term "niay" in the language above and contends that, in this case, the terms and conditions of the Beneficiary's employment "have not changed materially." The language cited by the Petitioner does not relate to revocation of a petition's approval; rather, it advises stakeholders that in cases involving material changes, a petitioner may file a new petition thaLamends information contained in the original petition. The Petitioner has not submitted a new petition for the Beneficiary, and has not shown that an opportunity to tile a new petition invalidates the revocation of a petition's approval for a different position.

4 See "Questions and Answers. Religious Worker National Stakeholder Engagement. July 14, 2011 & July 28, 20 l L" U.S. Citizenship and I mrn igration Services. https://www .uscis.gov/sites/default/fi les/U SCI S/Outreach/Upcoming%20 National%20Engagements/National%20Engagement%20Pages/20 II %20Events/July%2020 11/R W%20National%20Sta keholder%20Engagement%20QA. pdf

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To the extent the Petitioner contends that it effectively continues to employ the Beneficiary according to the terms and conditions of the approved petition, the record does not support this assertion .. Specifically, in addition to a location change, the Beneficiary's current job title and the associated duties are not the same as those specified in the petition. The petition indicated that she would work as the Petitioner's "Director of Outreach for Women South Asians in New York City."

explained that she would be a "religious teacher as well as [a] religious administrator," and would be "engaged in the teaching and administration of Sunday School activities to both children and adults [for] about 20 hours per week .... "

As discussed, the Beneficiary never worked at the proposed position or in the location specified in the petition. Instead, she has been working as a "Congregational Assistant" in California, providing "ministerial support to the outreach to Muslims ministry .... " Her duties include "conduct[ing] visits to the sick, hospitalized and home bound members interested in hearing about the Gospel and the work she is involved in"; "assist[ing] with the congregations [sic] structured youth programs"; and completing "other duties as assigned by the lead pastor. " The record does not illustrate that her position includes duties of a religious admini strator or that she is managing Sunday school activities. While her duties, such as her outreach responsibilities, share some similarities with those stated in the petition, there are many aspects of her job that are different from the proposed employment. In light of these differences, the Beneficiary 's position is not the one described in the petition.

C. Allegation of Fraud

The Petitioner claims on appeal that the Director made "an implicit charge of fraud ." The record does not support this statement, as the Director's revocation decision does not include a finding of fraud or misrepresentation of a material fact. Rather, as we have discussed above, her revocation is based on a determination that the Petitioner does not employ the Beneticiary in the capacity specified in the petition, and has violated the terms and conditions of the approved petition. See 8 C.F.R. § 214.2(r)(l8)(iii)(A)(/), (3). We will therefore not address the Petitioner's contention that the Director " has not presented a scintilla of evidence to prove fraud or fraudulent intent."

IV. CONCLUSION

For the reasons discussed above, the Petitioner has not established that the Director's revocation of the petition's approval was improper. Accordingly, we will dismiss the appeal.

ORDER: The appeal is dismissed.

Cite as Malter (~lW-, 10# 1030169 (AAO May 3, 20 18)

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