U.S. Citizenship and Immigration Services

MATTER OF G-R-D-S-C-0-V-A-P-

Non-Precedent Decision of the Administrative Appeals Office

DATE: JUNE 12, 2017

MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION

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

The Petitioner, a Sikh temple, seeks to classify the Beneficiary as a nonimmigrant religious worker to perform services as a minister. This nonimmigrant classification allows non-profit religious organizations to temporarily employ foreign nationals as ministers, in religious vocations, or in other religious occupations in the United States. See Immigration and Nationality Act (the Act) section·101(a)(l5)(R), 8 U.S.C. § 1101(a)(l5)(R).

The Director of the California Service Center denied the Form I-129, Petition for a Nonimmigrant Worker, and we dismissed a subsequent appeal, finding the Petitioner had not established how it intends to compensate the Beneficiary. The matter is now before us on a motion to reopen and a motion to reconsider. On motion, the Petitioner submits additional evidence and asserts that it has shown how it will compensate the Beneficiary.

In December 2016, we issued a notice of intent to deny (NOID) the motions and a request for evidence (RFE), to which the Petitioner has since responded. For the reasons discussed below, we will deny the motions and further find that the Petitioner and Beneficiary have sdught to procure an immigration benefit through willful misrepresentation of a material fact.

I. LAW

A motion to reopen is based on documentary evidence of new facts, and a motion to reconsider is based on an incorrect application of law or policy. The requirements of a motion to reopen are located at 8 C.F~R. § 1 03.5(a)(2), and the requirements of a motion to reconsider are located at 8 C.F.R. § 103.5(a)(3). We may grant a motion that satisfies these requirements and demonstrates eligibility for the requested immigration benefit.

II. ANALYSIS

A. Willful Misrepresentation

Section 212(a)(6)(C) of the Act provides:

Misrepresentation. -

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(i) In general. - Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act is inadmissible.

For an immigration officer to find a willful material misrepresentation in a visa petition proceeding, the officer must determine that a beneficiary or a petitioner: (1) procured, or sought to procure, a benefit under U.S. immigration laws; (2) willfully made a false representation to a U.S. government official, generally an immigration or consular officer; and (3) the false representation was material. Matter ofY-G-, 20 I&N Dec. 794,796 (BIA 1994).

The Petitioner signed the petition, certifying under penalty of perjury that the petition and evidence submitted were true and correct. However, information has come to light that compromises the credibility of the Petitioner's claims.

On the petition, the Petitioner attested that the Beneficiary was qualified for the position as required under 8 C.F.R. § 214.2(r)(8)(ii). As supporting evidence of the Beneficiary' s qualifications for the position, the Petitioner provided an "experience certificate" and a "training certificate." The experience certificate, dated May 27, 2015, was identified as being from '

in India. This experience certificate stated the Beneficiary "has been employed with us as a Sikh Priest from April 2011 to Present Date." With respect to the training certificate, it stated that the Beneficiary completed two years of course work at '

" in India, from 1995 to 1997.

However, on December 15, 2106, an officer from U.S. Citizenship and Immigration Services (USCIS) visited ' in and met with Mr. president of the temple since 2013. According to Mr. . the Beneficiary was never employed at the temple, the certificate is fake, the letterhead of the certificate (which included an extra "u" in

) is fabricated, and the stamp at the bottom of the certificate is not the official stamp. Mr. · provided USCIS with a signed statement on official letterhead stating that the Beneficiary was never employed there. Regarding the Beneficiary's purported course work, the USCIS officer spoke to several local residents in ) none of whom had heard of _

In addition, according to the police station with jurisdiction over as well as the Municipality Office, does not exist.

Our NOID included this information, noting that it appeared the Petitioner presented false documents in order to obtain an immigration benefit by willfully misrepresenting a material fact. 1 In its response to our NOID, the Petitioner submits a letter from the Beneficiary, a letter from the president ofthe temple in and an affidavit attesting to the veracity of the training certificate. The Beneficiary argues in his letter that he "has been doing temporary duty in place of [another] employee [who] went on leave." According to the Beneficiary, the " " does not keep

\ 1 We note that the Petitioner submitted similar documentation in support of a petition on behalf of another beneficiary.

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Matter of G-R-D-S-C-0- V-A-P-

records of people who work temporary jobs. Furthermore, the Beneficiary argues he took a two-year Tabla training course at m , but that the institution is now closed.

In support of the Beneficiary's assertions, the Petitioner submits a February 2017 foreign language letter purportedly from the temple in and signed by its president, ' _ " According to an accompanying translation, Mr. states that after the USCIS site visit, "later on we got enquired from some members of Managing Committee and came to know that [the Beneficiary] had been doing temporary duty in this since 2011 .... " It explains that because there is no record of the Beneficiary working on temporary duty, it could not give any information to the USCIS officer at the time of the site visit. It concludes that it "hereby certif[ies] that [the Beneficiary] has done temporary duty with us."

The Petitioner also submits an affidavit from who asserts he ran a "small classical institute" named _ in starting in 1994, but closed it in 2000. Mr. contends that the Beneficiary was a student at his institution from 1995 to 1997, earning a certificate after successfully completing his Tabla training. According to Mr. the institute was not recognized or registered with any local or government institute and that there is no one else who can testify regarding the Beneficiary's training at his institute.

The Petitioner must resolve these inconsistencies with independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Unresolved material inconsistencies may lead us to reevaluate the reliability and sufficiency of other evidence submitted in support of the requested immigration benefit. !d. In this case, we find the Petitioner's response insufficient to overcome the findings of the site visit or to resolve the inconsistencies in the record regarding the Beneficiary's experience. ·

The initial experience certificate was written in English and clearly asserted that the Beneficiary "has been employed with us as a Sikh Priest from April 2011 to Present Date [May 27, 2015]." The Petitioner's response to the NOID has an English translation which asserts only that the Beneficiary has worked temporarily at the temple, but at the same time, concedes that "there is no record of the employee work[ing] on temporary duty with us." In addition, the letter obtained by the USCIS officer during the site visit was signed by the temple's president Mr. the letter submitted in response to the NOID identifies Mr. as the president and does not indicate when he became president. Even assuming it is the same individual, no one - not the Petitioner, the Beneficiary, or the president of the temple - addresses the fabricated letterhead or the fake stamp on the initial experience certificate. We further note that the experience certificate initially submitted spelled

' by including an extra "u," which is not the spelling used by the temple on its actual letterhead but matches the spelling the Beneficiary uses in his letter.

Regarding the Beneficiary's purported two-year Tabla training, even if the institute ran from 1994 until its closure in 2000 as Mr. asserts, he does not explain how he is able to remember the particular dates of the Beneficiary's training from more than twenty years ago. Mr. does not,

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Matter of G-R-D-S-C-0-V-A-P-

for example, claim he referred to attendance records or that he relied on the training certificate initially submitted with the petition. Aside from his own statement, there is no documentary evidence of the institute's existence or of his role in it, such as a copy of an old brochure or its mission statement. Mr. does not provide any specifics regarding the number of students or teachers the institute purportedly taught.

Considering the evidence in its totality, including the findings during the site VISit, the letter submitted to the USCIS officer during the site visit, and the Petitioner' s response to the NOID, we find the Petitioner and Beneficiary willfully misrepresented a material fact (i.e., the Beneficiary' s qualifications) in order to obtain an immigration benefit. 2

B. Compensation

The Petitioner is required to submit evidence to establish how it intends to compensate the Beneficiary. The regulation at 8 C.F.R. § 214.2(r)(ll) provides:

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. 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.

The Director concluded that the Petitioner did not show how it intends to compensate the Beneficiary. On appeal, the Petitioner submitted financial materials and bank account statements that differed from previously offered evidence, which had reflected a deficit of funds. As an explanation for the change in balances, the Petitioner provided a letter from an accountant stating that members of the temple converted their loans to the church into contributions or donations for the church, totaling $130,000. In our appellate decision, we found that the Petitioner did not offer

2 A "material" misrepresentation is a false representation concerning a fact that is relevant to eligibility for an immigration benefit A misrepresentation or a concealment is material if it has a natural tendency to influence, or was capable of influencing, the decisions of the decision-making body. See Kungys v. United States, 485 U.S. 759, 770 ( 1988).

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material to corroborate the assertion that previous loans had turned into donations. We also determined that the Petitioner's evidence of past compensation for similar positions was insufficient. We identified inconsistencies regarding the past compensation for three past nonimmigrant religious

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workers, and noted that the Petitioner had also filed petitions for three new nonimmigrant religious workers (including the instant petition) without providing information regarding what it would pay the other beneficiaries. Based on these shortcomings, we concluded the Petitioner did not establish how it intended to compensate the Beneficiary.

On motion, the Petitioner stated that it was unable to get records of past compensation for its previous employees. It provided two bank account statements for May of 2016 and a property information sheet showing it owns property valued at $83,100. As questions remained regarding

. how the Petitioner intends to compensate the Beneficiary, we issued an RFE specifically requesting additional documentation to substantiate the claim that previous loans had been forgiven and were considered donations. We also requested additional bank statements covering more than a one-month time period in order to show that the Petitioner has sufficient funds to cover the Beneficiary' s wages, compensation for two additional religious workers for whom it had filed petitions, and its other expenses. We asked that the Petitioner clarify the rate that it intends to pay to the Beneficiary as well as the other two religious workers it petitioned for. And we asked for clarification regarding donations from the temple's members to determine whether these donations are included in the Beneficiary's stated salary, or are in addition to it, and evidence of the manner in which the donations are distributed to each priest.

In response to our RFE, the Petitioner submitted two statements from its chairman, and bank account statements. According to Mr. the petitioning organization will pay the

Beneficiary $800 per month and provide room, board, and transportation. In a separate statement, Mr. lists the names of eight members, including himself, who gave loans to the petitioning organization totaling $130,000. Mr. asserts that all loans were converted into contributions on June 30,2015, and therefore, the Petitioner is "debt free."

We do not find that the Petitioner has sufficiently resolved the discrepancies noted in our previous decision. As our prior decision noted, the Petitioner initially submitted a financial statement that showed $130,000 in current liabilities and $395,307 in long-term liabilities, but then a new financial statement submitted on appeal for the same time period showed zero current liabilities and $356,412 in long-term liabilities ($38,895 less than originally reported). Although the Petitioner's accountant and chairman assert that the $130,000 had been loans that were converted into contributions, despite our specific request for evidence that sufficiently corroborates the debt forgiveness (such as letters from each temple member providing the amount of his or her loan and the date the member forgave the debt), the Petitioner has not provided such evidence. Moreover, there is no explanation for why long-term liabilities decreased by more than $38,000.

In addition, the Petitioner has not addressed all of the issues outlined in our RFE. First, because the Petitioner had also filed petitions for two other nonimmigrant religious workers, we explicitly asked for the rate at which the Petitioner intended to pay each of its employees. The Petitioner did not

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provide this information. As such, there is not enough information to evaluate whether there are available funds sufficient to provide the offered compensation to the Beneficiary. C.f Patel v. Johnson, 2 F.Supp.3d 108, 124 (D. Mass. 2014) ("while they [the financial documents] are sufficient (in most years) to pay [the Beneficiary] alone, they would not cover the additional [15] sponsored workers").

Second, the Petitioner has not addressed the numerous inconsistencies we identified in our previous decision regarding past compensation for three of the Petitioner's past nonimmigrant religious workers, but rather, states only that it is unable to get all record of past compensation. Finally, the Petitioner neither addressed our request for clarification regarding whether temple donations were included in the Beneficiary's salary, or given to him in addition to his salary, nor discussed the manner in which these donations were distributed to each priest.

After considering the'entire record, including the additional documents submitted on motion and in response to our NOID and RFE, we do not find the Petitioner has adequately addressed the deficiencies in our last decision. It has not submitted sufficient verifiable evidence to demonstrate how it will compensate the Beneficiary as claimed, as required under 8 C.P.R. § 214.2(r)(l1). As such, it has not submitted new facts to warrant a granting of its motion to reopen under 8 C.P.R. § 103.5(a)(2). We further conclude that the Petitioner has not met the requirements of a motion to reconsider, as it has not established that our decision was based on an incorrect application of law or policy and that the decision was incorrect based on the evidence in the record of proceedings at the time ofthe decision. 8 C.P.R.§ 103.5(a)(3).

III. CONCLUSION

The Petitioner and Beneficiary have sought to procure an immigration benefit through willful misrepresentation of a material fact. In addition, the Petitioner has not sufficiently demonstrated how it intends to compensate the Beneficiary.

ORDER: The motion to reopen is denied.

FURTHER ORDER: The motion to reconsider is denied.

Cite as Matter ofG-R-D-S-C-0-V-A-P-, ID# 12403 (AAO June 12, 2017)

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