The USCIS Administrative Appeals Office (AAO) decides most appeals when immigration petitions are denied – including requests for R1 nonimmigrant visas. The decisions do more than just decide the petitioner’s appeals. They provide guidance for petitioners and applicants who have similar legal issues.
The case. In Re: 4486949 Appeal of California Service Center Decision Non-Precedent Decision of the Administrative Appeals Office.
The date of the AAO ruling is 1/17/2020.
The basis for the appeal
A church, petitioner, sought an R1 visa to classify an alien as a nonimmigrant religious worker so the alien could work as a pastor. The visa request is based on the Immigration and Nationality Act (the Act) section 101(a)(15)(R), 8 U.S.C. § 1101(a)(15)(R).
The R1 visa classification gives non-profit religious organizations (and their affiliates) the right to seek approval for a foreign nationals to be temporarily employed as a minister, as workers in religious vocations, or in religious jobs in the United States.
The original petition was denied based on the lack of showing as to how the Petitioner intended to pay/compensate the foreign national. The Petitioner filed motions to reopen and reconsider the petition. Both motions were dismissed.
The Petitioner then appealed and asserted that it did establish the compensation method. The AAO sustained the appeal.
The applicable law
Religious organizations that are also non-profits can file R1 petitions so that foreign nationals can work in the United States – for 30 months which can be extended to 60 months/5 years. There are specific requirements such as:
- The type of work the religious worker can do.
- The need to show the foreign beneficiary has “been a member of a religious denomination for at least the two-year period before the date the petition is filed.”
- That the beneficiary will:
- Work at least 20 hours per week (on average0 in their religious job or
- Work as a minister or “to perform a religious vocation or occupation as defined in the statute (in either a professional capacity or a nonprofessional capacity).
- The petitioner must attest that the Beneficiary will work for at least 20 hours per week.
The compensation requirements are set forth in 8 C.F.R. § 214.2(r)(l l). Generally, the petitioner must describe the compensation method (including whether it’s for money or in-kind compensation) – or whether the foreign national will support himself/herself.
The petitioner must provide verifiable evidence to support whichever method is chosen.
Compensation evidence includes:
- Prior compensation evidence for similar jobs
- Budgets that show how money for salaries, leases, etc.
- Budgets that show how room and board will be provided for
- IRS forms W-2 or certified tax returns must be submitted
Some alternatives may apply.
The reasoning of the AAO office
The petitioner did present verifiable compensation evidence based on the following:
The original petition stated that the petitioner will pay the alien $1,000 a month. The Director submitted a Request for Evidence (RFE) because that sum was below the poverty level for a family of three (presumably the pastor was bringing along two relatives). The Petitioner replied by offering to increase the sum to $1,500 a month and another $1,000 monthly housing benefit.
The Director found that the Petitioner had not met the burden to establish the compensation method for the alien – because the proposed increase was an “impermissible material changes in the terms of the petition.”
The Petitioner, in its two motions, argued that “ability to pay” provision of 8 C.F.R. § 204.5(g)(2), “allows employers to show that their net current assets exceed the offered wage.” The Petitioner then referenced its newly submitted balance sheet (with the increased amounts) to show it had sufficient funds to compensate the pastor. Again, the Director held that the increases were not a permissible change.
The petitioner asserts in its appeal of the two dismissed motions that the increased compensation offer should not be considered impermissible. The Petitioner:
- References a 2006 “non-precedent decision relating to a different nonimmigrant visa classification for workers in a specialty occupation.”
- A letter from a former Immigration and Naturalization Service official from 1995 regarding an H-lB nonimmigrant visa classification.
While the AAO was not persuaded by these references, the AAO did analyze that:
- 8 C.F.R. § 214.2(r)(8) does “not require that the Petitioner compensate the Beneficiary at a certain minimum rate.”
- The Petitioner did submit W-2 Forms and 941 forms, monthly bank statements, and a budget- showing that “it has compensated similar positions in the past,” that the funds were available, and were set aside.
Therefore, the Petitioner “has established how it intends to compensate the Beneficiary.”
Contact an experienced immigration lawyer to discuss the compensation requirements for ministers and religious workers.