U.S. Citizenship and Immigration Services

MATTER OF T-M-T-M-, INC.

Non-Precedent Decision of the Administrative Appeals Office

DATE: DEC.19,2018

APPEAL OF CALIFORNIA SERVICE CENTER DECISION

PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER

The Petitioner, a church, seeks to classify the Beneficiary as a nonimmigrant religious worker to perform services as an audio/video producer/director. See Immigration and Nationality Act (the Act) section 101(a)(15)(R), 8 U.S.C. § 1101(a)(15)(R). This nonimmigrant classification allows non­profit religious organizations, or their affiliates, to temporarily employ foreign nationals as ministers, in religious vocations, or in religious occupations in the United States.

The Director of the California Service Center denied the petition, concluding that the record did not establish that the proffered position is in a religious occupation. On appeal, the Petitioner submits additional evidence and asserts that the record establishes eligibility for the benefit sought.

Upon de nova review, we will dismiss the appeal.

I. LAW

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

The regulation at 8 C.F.R. § 214.2(r)(3) provides that a religious occupation is one that meets all of the following requirements:

(A) The duties must primarily relate to a traditional religious function and be recognized as a religious occupation within the denomination;

(B) The duties must be primarily related to, and must clearly involve, inculcating or carrying out the religious creed and beliefs of the denomination;

(C) The duties do not include positions which are primarily administrative or support such as janitors, maintenance workers, clerical employees, fund raisers, persons solely involved in the solicitation of donations, or similar

Matter ofT-M-T-M-, Inc.

positions, although limited administrative duties that are only incidental to religious functions are permissible; and

(D) Religious study or training for religious work does not constitute a religious occupation, but a religious worker may pursue study or training incident to status.

In addition, the regulation at 8 C.F.R. § 214.2(r)(l l) discusses the requirements for compensation. It provides, in pertinent part:

Evidence relating to compensation. Initial evidence must state how the petitioner intends to compensate the alien, including specific monetary or in-kind compensation, or whether the alien intends to be self-supporting. In either case, the petitioner must submit verifiable evidence explaining how the petitioner will compensate the alien or how the alien will be self-supporting. Compensation may include:

(i) Salaried or non-salaried compensation. Evidence of compensation may include past evidence of compensation for similar positions; budgets showing monies set aside for salaries, leases, etc.; verifiable documentation that room and board will be provided; or other evidence acceptable to USCIS [U.S. Citizenship and Immigration Services]. IRS [Internal Revenue Service] documentation, such as IRS Form W-2 [Wage and Tax Statement] or certified tax returns, must be submitted, if available. If IRS documentation is unavailable, the petitioner must submit an explanation for the absence of IRS documentation, along with comparable, verifiable documentation.

II. ANALYSIS

A. Religious Occupation

Considering the record in its totality, the Petitioner has not shown the proposed position -audio/video producer/director - qualifies as a religious occupation. See 8 C.F.R. § 214.2(r)(3) ( defining "religious occupation"). The petition states that the Beneficiary "will coordinate and produce audio and video recordings of all church services, develop concepts for multiple multimedia platforms" and "conduct post-production editing" for the petitioning entity. According to the Petitioner, examples of the Beneficiary's duties include audio and video equipment setup, "edit and publish all church services in all social media pertaining to the church," and "direct and supervise the entire Media Ministry.'' On appeal, the Petitioner maintains that the "work of Digital Religious Media is very important, because it reaches many more people than our church can hold" with "an average of 30 thousand people watching" its church services. The Petitioner further contends that the offered position is not a secular profession because "this position [is] within our church, he must be a Deacon, all the people who work in our church must be a deacon in the least."

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Although the Petitioner notes that the effect of the Beneficiary's work is to enable the church to reach a wider audience, the regulatory definition of a religious occupation focuses on the nature of the duties to be performed. While some of the Beneficiary's proposed duties appear religious in nature, the Petitioner has not sufficiently shown that the duties of the position overall are "primarily relate[ d] to a traditional religious function and [are] recognized as a religious occupation within the denomination,'' as specifically required under 8 C.F.R. § 214.2(r)(3)(A). In addition, the record does not demonstrate that the proposed duties are "primarily related to, and ... clearly involve, inculcating or carrying out the religious creed and beliefs of the denomination." 8 C.F .R. § 214.2(r)(3 )(B). Finally, the Petitioner has not established that the Beneficiary's administrative and support duties will be "limited" and "only incidental to religious functions." See 8 C.F.R. § 214.2(r)(3)(C). As such, the Petitioner has not established that the position qualifies as a religious occupation.

The Petitioner states that the Beneficiary "is already a Deacon .... and the position of deacon fits within the criteria to be [ eligible for] the religious visa" and submits the Beneficiary's August 2017 "Certificate of Ordination" as a deacon for the first time on appeal. However, the Petitioner does not clarify whether it is now seeking to hire the Beneficiary as a deacon instead of an audio/video producer/director. Assuming, arguendo, that the petitioning entity seeks on appeal to hire him as a deacon, the submitted evidence does not show that the proffered position primarily consists of duties related to a deacon position. For example, in its March 2018 letter, the Petitioner stated that the Beneficiary will "occupy the position of Director of Media Ministry, in the position of religious occupation in the ministry of audio/video director.'" Though the letter also indicated that the Beneficiary will serve as "a deacon/cooperator" at the church, the detailed job duties related to the audio/video producer/director position, as likewise noted on the petition.

Similarly, if the Petitioner is seeking to employ the Beneficiary in a ministerial capacity, the evidence does not establish his proposed duties primarily relate to a ministerial position or that he is qualified to work in a minister position. While a religious organization may set its own qualifications for its ministers, it must establish that the position conforms with the definition of a minister at 8 C.F.R. § 214.2(r)(3). The Petitioner has not shown that the Beneficiary meets this definition. For example, the record does not demonstrate that he is "fully authorized by a religious denomination, and fully trained according to the denomination's standards, to conduct religious worship and perform other duties usually performed by authorized members of the clergy of that denomination" and "[i]s not a lay preacher or a person not authorized to perform duties usually performed by clergy." See 8 C.F.R. § 214.2(r)(3)(A), (B).

In addition, 8 C.F.R. § 214.2(r)(10)(ii) requires "evidence that the [Beneficiary] has completed any course of prescribed theological education at an accredited theological institution normally required or recognized by that religious denomination, including transcripts, curriculum. and documentation that establishes that the theological institution is accredited by the denomination." For denominations that do not require a prescribed theological education, 8 C.F.R. § 2 l 4.2(r)(l 0)(iii) requires documentation of the denomination's requirements for ordination to minister; the duties allowed to be performed by virtue of ordination; the denomination's levels of ordination, if any; and the completion of the denomination's requirements for ordination.

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Matter ofT-M-T-M-, Inc.

The record contains the Petitioner's statement of beliefs, statement of faith, and a description of "responsibilities of distinct positions within the church." However, the Petitioner has not submitted evidence to show whether it requires a prescribed theological education, or in the alternative, the denomination' s ordination requirements to minister, associated ministerial duties, and ordination levels. Further, the record does not contain evidence that the Beneficiary completed any prescribed theological education or otherwise met the denomination's ordination requirements to serve as a minister. See 8 C.F.R. § 214.2(r)(l 0).

B. Compensation

Because the Petitioner has not demonstrated that the Beneficiary will be employed in a qualifying position as required under 8 C.F.R. § 2 l 4.2(r)(3), it has not established eligibility for the benefit sought and we need not consider additional grounds for dismissal. However, we briefly note, though not discussed by the Director, that the Petitioner has not established how it intends to compensate the Beneficiary. Although the Petitioner indicates on the petition that it will "provide room and board to the Beneficiary and pay him $500 per week," the record does not contain sufficient, verifiable evidence to show how it intends to compensate the Beneficiary. Specifically, the record does not contain adequate documentation to comply with 8 C.F.R. § 214.2(r)(l l). For example, the Petitioner has not provided IRS documentation, such as IRS Forms W-2, or an explanation of its absence, as required by 8 C.F.R. § 214.2(r)(l l)(i). 1 The Petitioner has also not submitted verifiable proof of past compensation for similar positions. See 8 C.F.R. § 214.2(r)(l l)(i).

In addition, the unaudited 2016-2017 profit and loss statements submitted with the initial filing are not sufficiently corroborated by verifiable documentation in the record. Specifically, the Petitioner's December 2017 checking account statement does not adequately support their figures to demonstrate how the church will provide the offered compensation in addition to meeting all other ongoing expenses. We also note that the record contains a February 2018 letter signed by the Petitioner and

stating that the Beneficiary will receive room and board at a specified address. the landlord, agreed to "receive payment from [the Petitioner] to cover room and board

expenses." However, the letter, and record as a whole, does not specify the amount of these expenses.

III. CONCLUSION

The Petitioner has not demonstrated how it intends to compensate the Beneficiary or that he 1s coming to the United States to work in a qualifying position.

1 The Petitioner indicated on page 30 of the petition that it has eight employees and page 31 specifies three positions: administrative worker, counselor, and worship pastor.

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ORDER: The appeal is dismissed.

Cite as Matter o.fT-M-T-M-, Inc., ID# 1838124 (AAO Dec. 19, 2018)

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