Chapter 5 - Adjudication

Officers must carefully review each petition for a nonimmigrant religious worker (R-1) to ensure compliance with the intent of the R-1 nonimmigrant category to allow religious workers to temporarily work in the United States. Officers should apply a “preponderance of the evidence” standard when evaluating eligibility for the benefit sought.^[1] The burden of proving eligibility for the benefit sought rests entirely with the petitioner.^[2]

A. Decision

1. Approvals

If the petitioner properly filed the Petition for a Nonimmigrant Worker (Form I-129) and the officer is satisfied that the petitioner has met the required eligibility standards, the officer should approve the petition. The approval period should not exceed the maximum period of stay allowed.^[3]

The table below provides a list of the classifications for R nonimmigrants.

Once USCIS approves the petition, the officer must notify the petitioner of the action taken using a Notice of Action (Form I-797).^[4]

2. Denials

If the petitioner does not meet the eligibility requirements, the officer must deny the petition.^[5] If the officer denies the petition, he or she must prepare a final notice of action, which includes information explaining why the petition is denied.^[6] Additionally, officers should include information about appeal rights and the opportunity to file a motion to reopen or reconsider in the denial notice. The office that issued the decision has jurisdiction over any motion and the Administrative Appeals Office (AAO) has jurisdiction over any appeal.^[7]

B. Revocations^[8]

USCIS may revoke the approval of a petition at any time. USCIS automatically revokes the approval of the petition if the petitioner ceases to exist or files a written withdrawal of the petition.^[9] A notice of intent to revoke (NOIR) is necessary where there is no regulatory provision that would allow for an automatic revocation, such as where:

• The beneficiary is no longer employed by the petitioner in the capacity specified in the petition;

• The statement of facts contained in the petition was not true and correct;

• The petitioner violated the terms and conditions of the approved petition;

• The petitioner violated the statutory or regulatory requirements; or

• The approval of the petition violated the regulations or involved gross error.^[10]

The NOIR should contain a detailed statement of the grounds for the revocation and the time period allowed for the petitioner’s rebuttal.[11]

USCIS must consider all relevant evidence presented in deciding whether to revoke the approval of the petition.^[12]

The petitioner may appeal the decision to revoke the approval of a petition to the AAO if the petition’s approval was revoked on notice. Automatic revocations may not be appealed.^[13] 

Footnotes

[^ 1] See INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) (defining “more likely than not” as a greater than 50 percent probability of something occurring). See Matter of Chawathe (PDF), 25 I&N Dec. 369, 376 (AAO 2010) (citing Matter of E-M- (PDF), 20 I&N Dec. 77, 79-80 (Comm. 1989)).

[^ 2] See Matter of Brantigan (PDF), 11 I&N Dec. 493 (BIA 1966).

[^ 3] See Chapter 7, Period of Stay [2 USCIS-PM O.7].

[^ 4] See 8 CFR 103.2(b)(19).

[^ 5] See 8 CFR 103.2(b)(8).

[^ 6] See 8 CFR 103.2(b)(19). See 8 CFR 103.3. See 8 CFR 214.2(r)(17).

[^ 7] See 8 CFR 103.3(a)(2).

[^ 8] See 8 CFR 214.2(r)(18)-(19).

[^ 9] See 8 CFR 214.2(r)(18)(ii). See Chapter 7, Period of Stay [2 USCIS-PM O.7].

[^ 10] See 8 CFR 214.2(r)(18)(iii).

[^ 11] For more information on timeframes for Notices of Intent to Revoke, see Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 10, Post-Decision Actions, Section D, Revocation, Rescission, or Termination [1 USCIS-PM E.10(D)].

[^ 12] See 8 CFR 214.2(r)(18)(iii)(B).

[^ 13] See 8 CFR 214.2(r)(19).