(b)(6)

U.S. Citizenship and Immigration Services

MATTER OF T-R-C-C-0-G-

Non-Precedent Decision of the Administrative Appeals Office

DATE: OCT. 18, 2016

MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION \

PETITION: FORM I-360, PETITION F.OR AMERASIAN, WIDOW(ER), OR SPECIAL I

IMMIGRANT

The Petitioner is a -church that seeks to employ the Beneficiary as a pastor. The special immigrant religious worker classification allows non-profit religious organizations, or their affiliates, to sponsor foreign nationals as ministers, in religious vocations, or in other religious occupations, in the United States. See Immigration and Nationality Act (the Act) sections 101(a)(27(C) and 203(b)(4), 8 U.S.C. §§ 1101(a)(27)(C), 1153(b)(4). One condition of this immigrant classification is that for ministers, the foreign national beneficiary must work solely as a minister of the sponsoring religious organization.

The Director of the California Service Center initially denied the petitiOn, concluding that the Beneficiary sought outside employment in violation of his R-1 nonimmigrant religious worker status. 1 On appeal, we withdrew the Director' s decision, but remanded the matter for her to evaluate the nature and scope ofthe Beneficiary' s secular activities, if any, and whether he sought to enter the United States solely for the purpose of working as a minister. On remand, the Director again denied the petition, finding that the Beneficiary was engaged in a business enterprise and, therefore, did not seek to enter the United States to work solely as a minister. The Director certified the decision to us for our review and we affirmed. We also denied the Petitioner's subsequent motion to reopen.

The Petitioner filed a lawsuit in the U.S. District Court for the The court remanded the matter for us to consider whether all of the evidence in the record, including testimonial evidenc~, is sufficient to meet the Petitioner' s burden of proof that the Beneficiary entered the United States solely to work as a minister.

Pursuant to the court's order, we reopened the matter on our own motion. Upon de novo review, we . will dismiss the appeal.

1 The Beneficiary first entered the United States in 2003 as a nonimmigrant visitor for pleasure. Later that year, the Petitioner successfully applied for nonimmigrant religious worker (R-1) status for him and, in 2006, filed the current Form 1-360 immigrant religious worker petition.

/

Matter ofT-R-C-C-0-G-

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 other 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 two-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 101(a)(27)(C) of the Act, 8 U.S.C. § 1101(a)(27)(C)).

The regulation at 8 C.F.R. § 204.5(m)(2) states that in order to be eligible for classification as a special immigrant religious worker, the Beneficiary must:

(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.

The regulation at 8 C.F.R. § 204.5(m)(5) further provides, in part, the following definition:

Minister means an individual who:

(A) Is fully authorized by a religious denomination, and fully trained according to the denomination's standards, to conduct such religious worship and perform other duties usually performed by authorized members of the clergy of that denomination;

(B) Is not a lay preacher or a person not authorized to perform duties usually performed by clergy;

(C) Performs activities with a rational relationship to the religious calling of the minister; and

(D) Works solely as a mm1ster in the United States, which may include administrative duties incidental to the duties of a minister.

2

(b)(6)

Matter ofT-R -C-C-0-G-

Finally, the regulation at 8 C.F.R. § 204.5(m)(7)(xi) requires prospective employers to attest that the Beneficiary "will not be engaged in secular employment, and any salaried or non-salaried compensation for the work will be paid to the alien by the attesting employer."

II. PROCEDURAL HISTORY AND EVIDENCE OF RECORD

The full procedural history of this matter is summarized in the court' s decision. See v. United States Citizenship & Immigration Servs., at

*3-8 2016). Briefly, the Petitionet filed an immigrant religious worker petition seeking to hire the Beneficiary as a pastor. After issuing two requests for evidence (RFE), the Director sent the Petitioner a notice of intent to deny (NOID) the petition, stating, among other things, that a search of public records revealed that the Beneficiary registered a company called

and that his wife owned a clothing business. The Director denied the petition in a decision we subsequently withdrew. We noted that there was an issue regarding the nature of the Beneficiary's secular activities and observed that the Act requires that the Beneficiary must seek to enter the United States solely for the purpose of working as a minister. We remanded the matter to the Director, instructing her to provide the Petitioner the opportunity to submit "first-hand" documentation, such as invoices and bank documents, to determine how much money the Beneficiary spent and received on behalf of We stated:

Because it is established and uncontested that the beneficiary registered a business name under which he purchased and shipped computers, the petitioner must submit documentary evidence that will persuasively establish that was not, and was never intended to be, a profit-generating enterprise. Testimonial claims by the petitioner, the beneficiary, and/or the ' friend in Nigeria' cannot and will not suffice in, this respect. ...

After issuing another NOID and receiving new documentation from the Petitioner, the Director again denied the petition and certified the decision to us for review. We upheld the Director's denial as well as denied the Petitioner's subsequent motion to reopen, concluding that the Petitioner "fail [ ed] to provide documentary evidence, as opposed to testimonial evidence, to support its assertions and to establish that the beneficiary was not engaged in business for profit with or

The court rejected our approach to the evidence. See at * 12. The court stated that, while we were not required to accept testimonial evidence as

true if we found it lacked credibility, we could not reject or disregard evidence simply because it was testimonial. ld. According to the court, among otherthings, two affidavits from the Beneficiary' s friends indicated that conducted a single transaction and that the Beneficiary never intended to profit from this "one-time request for computers." !d. at * 13. The court acknowledged that, although there were some inconsistencies in the record, "[t]he receipts, commercial invoice, bank statements, wire transfer requests, tax returns, and clerk records were all consistent with the testimonial evidence." !d. The court remanded the case for us to "clarify whether [we]

3

(b)(6)

Matter ofT-R-C-C-0-G-

considered the testimonial evidence the submitted in response to [our] remand order. If not, the agency should reevaluate [our] conclusion that [the Beneficiary] intended to profit from the computer sale in light of that evidence." I d. at * 14.

Pursuant to the court's order, we reopened the matter on our own motion, and granted the Petitioner additional time to submit a brief and/or additional evidence. See 8 C.F.R. § 1 03.5(a)(5)(ii). We informed the Petitioner that certain documents in the record, including copies of invoices, wire transfers, bank account statements, a Notice to Appear (Form I-862), and a Record of Deportable/Inadmissible Alien (Form I-213), indicated that the Beneficiary was not engaged in a single transaction, but multiple business dealings. We notified the Petitioner, in particular, that a Form 1-213 in the record showed that 40 laptop computers were seized by U.S. Customs and Border Protection (CBP) for an export violation on 2008. We stated that the Form 1-213 showed that the Beneficiary told CBP officers that he was a partner in a computer business and that he received two money transfers of $9,975 and $6,782 for his last shipment of 20 computers. We further informed the Petitioner that other evidence in the record, including copies of wire transfers and bank account statements, showed additional business activities in August, September, October, and December of2007, as well as in November of2008.

In response, the Petitioner submitted a letter and updated affidavits from the Beneficiary, the Beneficiary's friend in Nigeria named (to whom the computers were sent), and the Beneficiary's friend in the United States, (a co-owner of with the Beneficiary). The Beneficiary's updated affidavit explains that a CBP officer, called to tell him that CBP was holding 40 computers because they were being shipped without a commercial invoice. The Beneficiary states that he told that he had been engaged in computer shipments "about four times, 'three previous times plus the current one."' The updated affidavit from likewise indicates that there were four computer shipments, and that they were paid for by him and a friend.

states in his new affidavit that he is the owner of Because his business was struggling, he explains that he asked the Beneficiary to

purchase and send him laptop computers to Nigeria so he could "sell them fast and make some profit to raise cash flow." He indicates that the first transaction was in August 2007 for 14 computers, and three subsequent purchases were for 20 computers, 1 computer, and 40 computers, respectively. He adds that, when the 40 computers were delayed by CBP prices dropped, and "it was not profitable anymore." He indicated that after this transaction, the Beneficiary and informed him it would be the last.

We have reviewed all of the evidence in the record, including the new evidence submitted in response to our reopening, in reaching our decision.

4

(b)(6)

Matter ofT-R-C..:C-0-G-

III. ANALYSIS

As noted above, ministers must enter the United States for the sole purpose of working as a minister, (although they may perform administrative duties incidental to the duties of a minister). See section 101(a)(27)(C)(ii)(I) of the Act; 8 C.P.R. §§ 204.5(m)(2)(i) and(m)(5). In addition, the regulation at 8 C.P.R. § 204.5(m)(7)(xi) prohibits ministers from being "engaged in" any secular employment.

It is the Petitioner' s burden to establish the Beneficiary's eligibility for the immigration visa sought. Section 291 ofthe Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). As described below, is the evidence in the record shows' that the Beneficiary has been engaged in secular employment and has not worked solely as a minister. For the reasons stated below, we conclude that the Petitioner has not met that burden.

The record shows that the Beneficiary has registered businesses with the Texas, clerk's office on three separate occasions: 1) which he registered with his wife on July 19, 2007; 2) on September 14, 2004; and 3) again, on June 19, 2007, this time with

as co-owner. First, regarding the Form I-213 in the record reflects that, when the Beneficiary was questioned by CBP officers in of 2008, he had in his possession a

credit card. Although the Beneficiary states in his updated affidavit that he has never used this card, he has not addressed why he applied for, received, and carried in his possession this business credit card if he never had any intention of using it to conduct business. The Beneficiary' s wife submitted a statement that her husband was involved in "not for administrative purpose[s] , but just the courtesy of a woman that wants the backing of her spouse." The record shows the Beneficiary's wife had previously registered as a sole owner in October of 2006 (as well as a business called · in March of 2004 ). Neither the Beneficiary nor his wife elaborated on the kind of "backing" he provided to or why this backing was not desired or needed when the business was originally registered, or apparently needed in conjunction with More importantly, the Petitioner has not submitted statements from the credit card company to support the Beneficiary's claim that he never used this card.

Second, with respect to initial registration in September of 2004, the Beneficiary' s statement submitted in support of the earlier motion to reopen indicated that he started the business to e~able him to buy five computers for to re-sell \ n Nigeria. He claimed that businesses, but not individuals, were permitted to buy more than five computers at a time. He did not specify who (e.g. , the Nigerian government, the U.S. government, or placed the restrictions on this transfer. added in his updated statement that, although Nigeria imposes a limit on the amount of money it allows individuals to transfer, the limit does not apply to businesses. However, the record contains no corroborating evidence to support the Beneficiary's statement that an individual is prohibited from purchasing five computers. Further, although references Nigeria's Anti-Money Laundering Act in his updated affidavit as the reason he asked the Beneficiary to establish a business, the Petitioner has not submitted a copy of this law and has not specified how much money it limits for transfers between individuals as opposed to businesses.

5

(b)(6)

Matter ofT-R-C-C-0-G-

Third, regarding the 'Beneficiary's subsequent registration of m June of 2007 with according to all three of the updated affidavits, there were four separate computer

shipments made to Nigeria for resale after this time. Accordirtg to timeline, the first transaction occurred in August of 2007 and the last transaction occurred just prior to the CPB seizure of 40 computers in of 2008. The record therefore clearly reflects that, in the span of eight months· from August of 2007 to of 2008, conducted at least four business transactions.

Indeed, the record contains ample documentation that there were at least four business transactions. For example, the record contains:

• A

• A paid

wire transfer notice indicating that, on August 23, 2007, $6,941.94 for the "purchase of notebook computers less charges."

wire transfer notice dated September 26, 2007, reflecting that paid $13 ,301.76.

• A copy of October 2007 bank account statement that shows activity on a regular basis, including three customer deposits totaling $3,995, a wire transfer deposit of $1 ,838, and seven withdrawals/checks paid during the month.2

• A order confirmation reflecting that purchased four computers for $3,217.20 on December 14, 2007.

• A wire transfer notice indicating that received wire transfers of_ $9,975 and $6,792 from on December 13, 2007, and December 31, 2007, respectively, "for computers less charges."3

.

• Order confirmations from and a wire transfer notice show that on February 7, 2008, purchased a total of 40 computers for $31 ,285.56.4

In addition to the documents listed above, the record also contains a commercial invoice from dated July 11, 2008, charging $42,000 for 40 computers. This commercial invoice (presumably created in response to CBP's seizure of the computers for being shipped without one), shows the computers were initially intended to be sold at a profit. This did not happen, however. As

explained in his first affidavit, he returned only $28,548 to in three installments in November of 2008 because he had to "sell them off very fast" at a ' 'discount" as a result of the delay with CBP. Copies of foreign funds transfer request forms from

updated statement contends he "made withdrawals from the Account at different times to recover [his] funds," but does not address the deposits made into the account. 3 A copy of bank account statement for December of 2007 shows these two wire transfers as deposits. This evidence corroborates the information on the Form 1-213 reflecting that the Beneficiary told CBP that he received two money transfers of $9,915 and $6,782 (although this is $10 less than indicated on the wire transfer) for his last shipment of20 computers. " · 4 The record shows two order confirmations. The first order (order number shows that 24 computers were bought for $18,771.34. The second order (order number shows that another 16 computers were bought for $12,514.22, for a total charge of$31 ,285.56 for 40 computers.

6

(b)(6)

Matter ofT-R-C-C-0-G-

corroborate this explanation, showing that on November 7, 14, and 24, 2008, ' requested that $10,000, $10,000, and $8,548, respectively, be transferred to bank account. A

copy of bank account statement confirms that these three wire transfers were deposited (less a $75 fee). Therefore, as maintained in his updated .affidavit, the computers were sold "at a loss" and he had to pay a $500 penalty. The fact that the computers were ultimately sold at a loss, however, does not diminish the evidence that the transaction was intended to be a profitable one or that the Beneficiary was engaged in secular employment.

The evidence in the record accordingly does not support the Beneficiary's claim that his role in was limited to a one-time transaction to help a friend. All of the order confirmations from list the Beneficiary's name as the billing and delivery contact for As describes in his updated affidavit, it was the Beneficiary who contacted shipping agent to arrange for the computers to be sent to Nigeria. The record therefore shows that, at a minimum, the Beneficiary twice registered with the clerk's office, ordered more than 60 computers from for over $47,000 on at least four separate occasions over an eight-month time period, arranged for them to be shipped to Nigeria, and was the billing and delivery contact person for all of the transactions.

Notably, a co-owner of n~ver says that was started with no intention of making a profit, and the record makes clear he has never met and does not know According to updated affidavit, he paid for the computers himself, "in addition to the money [he] got from another friend of [his]." Therefore, agreed to become a registered co-owner of a business, used his own money to purchase computers, and enlisted a friend to help purchase additional computers so that a stranger to could make a profit. Considering these factors, the evidence does not support the Beneficiary's contention that never intended to make a profit.

We acknowledge the Petitioner's letter submitted in response to our reopening, attesting to the Beneficiary's work as a pastor at the petitioning organization and his volunteer work at a hospital. Nonetheless, considering the totality of all the evidence in the record, we conclude that the Petitioner has not met its burden of rebutting the fact that the Beneficiary has registered businesses on three occasions, engaged in multiple commercial transactions worth tens of thousands of dollars intended to make a profit, and thus has been engaged in secular employment before, during, and after the filing of the religious worker immigrant petition. 5 As a result, the Petitioner has not met its burden

5 The Beneficiary may also have been involved in another business called The Form 1-213 indicated the Beneficiary had in his possession a business credit card. According to the Form 1-213, "he stated that his wife is the owner of a clothing busine:;;s in which she sews and designs items .... " The Beneficiary explains in his updated affidavit:

is a company that sells fashion design tools. Because my wife was studying Fashion Merchandising in at the time, and fashion design was a part of her Course curriculum, and she did not have a job. She needed to purchase some design tools. I therefore applied for personal credit card and used it once to purchase a design tool for my wife when she was still in College. This does not mean that I was trading in fashion tools.

7

Matter ofT-R-C-C-0-G-

to show that the Beneficiary came to the United States to work solely in the vocation of a minister as specified under section 101(a)(27)(C)(ii)(I) ofthe Act, 8 U.S.C. § 1101(a)(27)(C)(ii)(I). The petition remains denied.

IV. CONCLUSION

It is the Petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met.

ORDER: The appeal is dismissed.

Cite as Matter ofT-R-C-C-0-G-, ID# 11894 (AAO Oct. 18, 2016)

The record does not contain any other information regarding this company.

8