Beyond Mgmt Q-1 AAO and court dismissals 2010-2011
30
Case 1:10-cv-02482-MHS Document 10 Filed 03/25/11 Page 1 of 16 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION BEYOND :MANAGEMENT, INC., Plaintiff, v. ERIC HOLDER, JR., Attorney General of the United States, et al., Defendants. ORDER CIVIL ACTION NO. 1:10-CV-2482-MHS This action is before the Court on defendants' motion to dismiss due to lack of subject matter jurisdiction or, in the alternative, for summary judgment. For the following reasons, the Court denies the motion to dismiss and grants the motion for summary judgment. Background On September 11,2008, plaintiffBeyondManagement, Inc. ("BMI''), a hotel management company, filed Form I-129, Petition for a Nonimmigrant Worker, with United States Citizenship and Immigration Services ("USCIS") Vermont Service Center seeking to be approved as an international cultural
Beyond Mgmt Q-1 AAO and court dismissals 2010-2011
1. Case 1:10-cv-02482-MHS Document 10 Filed 03/25/11 Page 1 of
16 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISIONBEYOND :MANAGEMENT, INC., Plaintiff, CIVIL ACTION
NO.v. 1:10-CV-2482-MHSERIC HOLDER, JR., AttorneyGeneral of the
United States, et al.,USCIS AAO is true defendant Defendants. ORDER
This action is before the Court on defendants motion to dismiss due
tolack of subject matter jurisdiction or, in the alternative, for
summaryjudgment. For the following reasons, the Court denies the
motion to dismissand grants the motion for summary
judgment.Background On September 11,2008,
plaintiffBeyondManagement, Inc. ("BMI), ahotel management company,
filed Form I-129, Petition for a NonimmigrantWorker, with United
States Citizenship and Immigration Services ("USCIS")Vermont
Service Center seeking to be approved as an international
cultural
2. Case 1:10-cv-02482-MHS Document 10 Filed 03/25/11 Page 2 of
16exchange program and to obtain Q-1 visas for four named
beneficiariespursuant to Section 101(a)(15)(Q) of the Immigration
and Nationality Act("INA"), 8 U.S.C. 1101(a)(15)(Q). A Q-1 status
nonimmigrant alien isdefined as "an alien having a residence in a
foreign country which he has nointention of abandoning who is
coming temporarily (for a period not to exceed15 months) to the
United States as a participant in an international culturalexchange
program approved by the Secretary of Homeland Security for
thepurpose of providing practical training, employment, and the
sharing of thehistory, culture, and traditions of the country of
the aliens nationality andwho will be employed under the same wages
and working conditions asdomestic workers." 8 U.S. C.
1101(a)(15)(Q); 8 C.F.R. 214.2(q)(2)(i). On November 3, 2008, USCIS
asked BMI "to submit additionalevidence that an international
cultural exchange program exists at yourlocation and that the
program includes all of the following requirements:(A)
Accessibility to the public .... (B) Cultural Component .... (C)
WorkComponent." Admin. R. (Defs. Mot. to Dismiss, Ex. A) at 377. On
December17, 2008, BMI responded to the request with additional
evidence. I d. at 375. 2
3. Case 1:10-cv-02482-MHS Document 10 Filed 03/25/11 Page 3 of
16 By decision dated December 24, 2008, the Director ofUSCIS
VermontService Center denied BMIs I-129 petition. The denial noted
that all fourbeneficiaries had been in the United States on J-1
visas training in thehospitality industry with an emphasis on front
desk operations and culinaryarts. The denial concluded that the
beneficiaries were "temporary workersthat your organization is
attempting to fit into the Q1 visa category," andthat the duties
they "would primarily be performing would be independentof any
claimed cultural exchange program that you claim to have at
yourorganizations [sic] locations." Admin. R. at 34. On January 21,
2009, BMI filed a timely appeal of the denial of itspetition to USC
ISs Administrative Appeal Office ("AAO"). By decision datedMay 13,
2010, the AAO affirmed the Directors decision and dismissed
BMIsappeal. Admin. R. at 1-14. The AAO first found that BMI had
failed to showthat its program qualified as an international
cultural exchange programbecause it "failed to establish that the
beneficiar[ies] would be engaged inemployment or training of which
the essential elementis the sharing with theAmerican public, or a
segment of the public sharing a common culturalinterest, of the
culture of the aliens countries of nationality." Id. at 12 3
4. Case 1:10-cv-02482-MHS Document 10 Filed 03/25/11 Page 4 of
16(emphasis in original). Second, the AAO found that the Director
had correctlydetermined that only two of the four beneficiaries,
who were all in the UnitedStates as J-1 exchange visitors at the
time of filing, had obtained waivers ofthe two-year foreign
residency requirement. I d. at 12-13. 1 Finally, the AAOfound that
BMI had failed to provide sufficient documentation supporting
theclaim that it would offer the beneficiaries wages and working
conditionscomparable to those given to local domestic workers
similarly employed. ld.at 13. On August 9, 2010, BMI brought this
action against named governmentofficials pursuant to the
Administrative Procedure Act ("APA") asking theCourt to declare
that the decisions of December 24, 2008, and May 13, 2010,were
arbitrary and capricious and in violation of the INA and the
APA.Plaintiff asks the Court to reverse or remand this matter to
the agency for adecision consistent with the evidence, to award BMI
reasonable attorneysfees and costs, and to grant such other relief
as may be just and proper. 1 The AAO noted that the other two
beneficiaries had obtained waivers afterissuance of the Directors
decision. 4
5. Case 1:10-cv-02482-MHS Document 10 Filed 03/25/11 Page 5 of
16 Defendants assert that this Court has no jurisdiction to review
thediscretionary decisions of the Director and the AAO, and that
the case shouldtherefore be dismissed. In the event the Court
determines that it does havejurisdiction, defendants contend they
are entitled to summary judgment onBMIs claims.DiscussionI. Motion
to Dismiss for Lack of Subject Matter Jurisdiction Defendants
contend that Section 242(a)(2)(B)(ii) of the INA, 8 U.S.C.
1252(a)(2)(B)(ii), bars this Court from reviewing USCISs denial
ofBMIs I-129 petition. That provision states in pertinent part that
"no court shall havejurisdiction to review ... any ... decision of
the Attorney General or theSecretary of Homeland Security the
authority for which is specified underthis subchapter to be in the
discretion of the Attorney General or theSecretary ofHomeland
Security . ..." 8 U.S. C. 1252(a)(2)(B)(ii) (emphasissupplied). fhe
subchapter to which the statute refers is subchapter II ofChapter
12 of Title 8, 8 U.S.C. 11511378. Zafar v. U.S. Atty Gen., 461F.3d
1357, 1361 (11th Cir. 2006). It therefore includes 8 U.S.C. 1184,
whichgoverns nonimmigrant visa petitions such as the I-129 at issue
here. 5
6. Case 1:10-cv-02482-MHS Document 10 Filed 03/25/11 Page 6 of
16 Section 1184 provides in pertinent part that "[t]he admission to
theUnited States of any alien as a nonimmigrant shall be for such
time andunder such conditions as the Attorney General may by
regulationsprescribe . . . . " 8 U.S.C. 1184(a)(l) (emphasis
supplied). Defendantscontend that the discretiongranting "may" in
the statutory language meansthat the authority for deciding whether
to admit nonimmigrant aliens,including Ql status nonimmigrants, is
"specified" to be in the discretion ofthe Attorney General, and
that judicial review of such decisions is thereforebarred under 8
U.S.C. 1252(a)(2)(B)(ii). Neither the Eleventh Circuit nor any
other circuit has addressed thisissue specifically in the context
of a Ql visa application. However, in NatlCollegiate Recreation
Servs. v. Chertoff, 447 F. Supp. 2d 527 (D. S.C. 2006),the district
court addressed the identical issue presented here. In that
case,the court opted for a narrower interpretation of Section
1252(a)(2)(B)(ii),holding that it "bars judicial review only of
determinations of the AttorneyGeneral which Subchapter II of the
INA specifies as being in his discretion."Id. at 532 (emphasis in
original). The court rejected the governmentsbroader interpretation
(the same interpretation defendants urge in this case), 6
7. Case 1:10-cv-02482-MHS Document 10 Filed 03/25/11 Page 7 of
16which would have applied the jurisdiction-stripping prov1s10n "to
allinherently discretionary determinations, not just determinations
madepursuant to provisions specified as being within the discretion
of the AttorneyGeneral." l!;i. at 531. Although "plausible," the
court found the governmentsreading of the statute contrary to
principles of statutory constructionrequiring (1) clear and
convincing evidence of legislative intent to restrictaccess to
judicial review, (2) a strong presumption in favor of judicial
reviewof administrative action, and (3) construction of ambiguities
in deportationstatutes in favor of the alien. I d. at 532. Applying
the narrower interpretation, the court found that "becauseneither
the relevant Subchapter of the INA, nor the Regulations
passedpursuant to the INA, specify that the Attorney Generals
decision to approveQ-1 international cultural exchange programs is
in his discretion, section1252(a)(2)(B)(ii) does not bar this court
from reviewing the Governmentsdenial." Id. (footnote omitted). This
Court finds the district courts decisionin Natl Collegiate
Recreation Servs. to be well-reasoned and persuasive. 7
8. Case 1:10-cv-02482-MHS Document 10 Filed 03/25/11 Page 8 of
16 Contrary to defendants argument, this case is not controlled by
theEleventh Circuits decision in Zafar. In that case, the court
held that Section1252(a)(2)(B)(ii) did not bar court review of an
Immigration Judges decisionto deny a motion to continue a removal
hearing because authority for thatdecision was not found in the
relevant statutory provisions of the INA. Zafar,461 F.3d at 1360.
The court noted several examples of statutorily
specifieddiscretionary powers of the Attorney General, including
one that, like 8U.S.C. 1184(a)(1), does not contain "in his
discretion" language but onlyspecifies that the Attorney General
"may authorize immigration officers" totake certain actions. Id. at
1361 (quoting 8 U.S.C. 1221(c)) (emphasissupplied). The court,
however, acknowledged that these statutory provisions"[are] not
before us," and concluded that decisions under these statutes
would"presumably" not be reviewable by any court. Id. Thus, the
language onwhich defendants rely is mere dicta and does not control
the decision in thiscase. The Court concludes that it has
jurisdiction to review defendantsdenial of plaintiffs I -129
petition. Therefore, the Court denies defendantsmotion to dismiss.
8
9. Case 1:10-cv-02482-MHS Document 10 Filed 03/25/11 Page 9 of
16II. Motion for Summary Judgment Summary judgment is appropriate
when "there is no genuine issue asto any material fact ... and the
movant is entitled to judgment as a matterof law." Fed. R. Civ. P.
56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322(1986). The Court
must construe the evidence and all inferences drawn fromthe
evidence in the light most favorable to the non-moving party.
WSB-TVv. Lee, 842 F.2d 1266, 1270 (11th Cir. 1988). "However, even
in the contextof summary judgment, an agency action is entitled to
great deference."Preserve Endangered Areas of Cobbs History. Inc.
v. U.S. Army Corp. ofEngrs, 87 F.3d 1242, 1246 (11th Cir. 1996).
Under the APA, district court review of a visa petition denial is
limitedto a determination of whether the decision was "arbitrary,
capricious, anabuse of discretion, or otherwise not in accordance
with law." 5 U.S.C. 706(2)(A); Sunshine Co. Food Distrib .. Inc. v.
U.S. Citizenship andImmigration Servs., 362 Fed. Appx 1, 2 (11th
Cir. 2010). The "focal point" ofthe Courts review "should be the
administrative record." PreserveEndangered Areas of Cobbs History,
Inc., 87 F.3d at 1246. "The role of thecourt is not to conduct its
own investigation and substitute its own judgment 9
10. Case 1:10-cv-02482-MHS Document 10 Filed 03/25/11 Page 10
of 16for the administrative agencys decision." Id. (citation
omitted). Instead, thecourt is "to decide, on the basis of the
record the agency provides, whether theaction passes muster under
the appropriate APA standard of review." Id.(quoting Florida Power
& Light Co. v. Lorion, 470 U.S. 729, 744 (1985)). In this case,
the administrative record fully supports the USCISsdenial of BMIs
I-129 petition. Therefore, the Court grants defendantsmotion for
summary judgment. 2 First, the record supports the finding that BMI
failed to establish thatits program qualifies as an international
cultural exchange program pursuantto 8 C.F.R. 214.2(q)(3) because
it failed to establish that the beneficiarieswould be engaged in
employment or training of which the essential element1s sharing the
culture of the aliens country of nationality. 3 The AAO 2 In light
of this ruling, the Court finds it unnecessary to address
defendantscontention that Attorney General Holder is not a proper
party to this case. 3 The regulation provides in pertinent part: An
international cultural exchange program must meet all of the
followingrequirements: (continued. ..) 10
11. Case 1:10-cv-02482-MHS Document 10 Filed 03/25/11 Page 11
of 16correctly noted that BMI failed to provide "any detailed
description of thespecific duties to be performed by the four
beneficiaries ... , what specifichotel or resort occupations they
w[ould] fill ... , [or] the location or locationsat which the
beneficiaries w[ould] be placed." Admin. R. at 9-10. The AAOalso
correctly pointed out that evidence in the record showed that
"programparticipants perform the same basic job functions as
regular hotel staff, [andthat] the cultural aspects of the
participants activities appear to betangential to their tasks as
hotel employees responsible for the daytodayoperations of the front
desk and other departments." Id. at 10. The AAOcorrectly noted that
BMI had failed to document certain aspects of its claimedcultural
program, and that other cultural events that had been documented 3
(. .. continued) (B) Cultural component. The international cultural
exchange program must have a cultural component which is an
essential and integral part of the international cultural exchange
visitors employment or training.... (C) Work component. The
international cultural exchange visitors employment or training in
the United States may not be independent of the cultural component
of the international cultural exchange program. The work component
must serve as the vehicle to achieve the objectives of the cultural
component ....8 C.F.R. 214.2(q)(3)(iii). 11
12. Case 1:10-cv-02482-MHS Document 10 Filed 03/25/11 Page 12
of 16were "conducted independently from the participants assigned
hotelpositions" and occurred only infrequently. Id,. at 11.
Finally, the AAOacknowledged the expert opinion of Dr. Michael
Sturman of CornellUniversity, on which BMI relied, but found that
he spoke only in generalterms using language that appeared to be
derived from BMIs own letters,and that he failed to explain the
basis for his opinion or to indicate that hehad reviewed the
statutory and regulatory requirements pertaining to Q-1VIsas.
Second, the record supports the finding that two of the four
namedbeneficiaries were not eligible for Q-1 status at the time
ofthe initial denialof the 1-129 petition because they were already
in the United States and hadnot yet obtained waivers of the foreign
residency requirement. Third, the record supports the AAOs
determination that BMI failed toestablish that it would offer the
beneficiaries wages and working conditionscomparable to those
accorded local domestic workers similarly employed. Therecord
indicates that BMI intended to pay the beneficiaries a
totalcompensation package valued at $1,155.00 per month. Admin. R.
at 79. At 12
13. Case 1:10-cv-02482-MHS Document 10 Filed 03/25/11 Page 13
of 16the time of the filing of the petition, however, the federal
minimum wage was$6.55 per hour, or $1,222.67 per month, based on a
forty-hour work week.Thus, even assuming that comparable local
domestic workers received onlyminimum wage, BMIs proposal failed to
meet the laws requirements. BMI disputes the finding that itfailed
to specifY what the duties of thecultural exchange participants
would be. However, BMI fails to provide anycitation to the record
to support this argument. Moreover, BMI is precludedfrom disputing
this fact because it failed to respond to defendants Statementof
Undisputed Material Facts, which states in part: "Plaintiffs
submissionsdo not describe the specific duties ofthe four proposed
beneficiaries for whomit petitioned via the I -129 submitted on or
about September 11, 2008." Defs.Statement of Undisputed Material
Facts -,r 22 (emphasis in original); see LR56.1B(2), NDGa. (absent
any response, court will deem each of summaryjudgment movants facts
as admitted). BMI also argues that it submitted sufficient
documentation of thecultural component of the program. BMI claims
that it "provided a list ofcultural activities which were carried
out by each program participant every 13
14. Case 1:10-cv-02482-MHS Document 10 Filed 03/25/11 Page 14
of 16day." Pl.s Oppn at 17. Once again, however, this argument is
not supportedby any citation to the record. BMI also argues that it
submitted "voluminousevidence" that cultural events actually
occurred and that the public wereinvited to and participated in the
events. Id. The AAO, however, did not findthat cultural events did
not occur or that the public were not invited or didnot
participate. Instead, it found that the documented cultural
eventsoccurred only infrequently and were conducted independently
from theparticipants assigned hotel positions. Admin. R. at 11. BMI
has cited noevidence to challenge this finding. BMI argues that
defendants applied the Q1 visa regulations differentlyto it as
compared to major amusement parks. The Court will not address
thisclaim because BMI did not pursue it administratively. See
Dresser Indus ..Inc. v. United States, 596 F.2d 1231, 1238 (5th
Cir. 1979) (holding thatAPA,5 U.S.C. 704, imposes an exhaustion of
administrative remediesrequirement). BMI claims that it did raise
this claim at the administrativelevel, citing its response to
USCISs request for additional evidence. Thisresponse, however,
consists of hundreds of pages of documents, and BMIprovides no
specific citation of the document(s) purportedly supporting this
14
15. Case 1:10-cv-02482-MHS Document 10 Filed 03/25/11 Page 15
of 16claim. The Court notes that BMIs cover letter to its response,
whichdescribes the enclosed documentation in some detail, does not
mention anyclaim of disparate treatment. Admin. R. at 37475.
Finally, BMI argues that the AAO miscalculated the wages it paid
toprogram participants and incorrectly used this as a basis for the
denial. BMIcites Part 5 of Form I-129, where it indicated that
beneficiaries would receive$7.00/hour plus housing, transportation,
and other benefits worth$6,600/year. Admin. R. at 53. BMI, however,
fails to explain the inconsistentinformation submitted in support
of the I 129, which indicated that programparticipants would
receive total monthly benefits of $1,155.00 anderroneously stated
that this exceeded the minimum wage requirement inGeorgia. Admin.
R. at 79. BMI also fails to explain its failure to identify
theactual locations where the named beneficiaries would be
working,information that was essential to determining whether
beneficiaries wouldbe employed under the same wages and working
conditions as local domesticworkers. Its claim that the
beneficiaries work location was the same asBMIs offices in Tucker,
Georgia, is clearly disingenuous since it hasconsistently contended
that "the cultural exchange program will take place 15
16. Case 1:10-cv-02482-MHS Document 10 Filed 03/25/11 Page 16
of 16at several hotels and resorts throughout metropolitan Atlanta,
Georgia andSouth Carolina." Admin. R. at 68.Summary For the
foregoing reasons, the Court DENIES defendants motion todismiss
[#71], GRANTS defendants motion for summary judgment [#72],and
DISMISSES this action. IT IS SO ORDERED, this ?t J::t- day of
March, 2011. arvin . hoob, Senior Judge United Sta s District Court
Northern Di rict of Georgia 16
17. U.S. Department of Homeland Security identifying data
deleted to U.S. Citizenship and Immigration Services prevent
clearly unwarranted Office ofAdministrative Appeals, MS 2090
Washington, DC 20529-2090 invasion of personal privac} U.S.
Citizenship and Immigration Services
PlmiJCCOPthttp://www.uscis.gov/err/D10%20-%20International%20Cultural%20Exchange%20Visitor%20(Q)/Decisions_Issued_in_2010/May132010_01D10101.pdfCLICK
FOR CLEAN COPY OF DECISION FILE: EAC 08 242 50930 Office: VERMONT
SERVICE CENTER Date: MAY 1 3 zmo INRE: Petitioner: Beyond Mgmt,
Inc. (BMI) Beneficiaries: 4 nonimmigrants: (originally J-1s, 2 had
212(e) waivers at time of filing and the other two later obtained
212(e) waivers) [They should have applied for H2-Bs instead, maybe
capo was met?] PETITION: Petition for Nonimmigrant Worker Pursuant
to Section lOl(a)(lS)(Q)(i) of the Immigration and Nationality Act,
8 U.S.C. 1101(a)(l5)(Q)(i) ON BEHALF OF PETITIONER: INSTRUCTIONS:
Enclosed please find the decision of the Administrative Appeals
Office in your case. All of the documents related to this matter
have been returned to the office that originally decided your case.
Please be advised that any further inquiry that you might have
concerning your case must be made to that office. If you believe
the law was inappropriately applied by us in reaching our decision,
or you have additional information that you wish to have
considered, you may file a motion to reconsider or a motion to
reopen. The specific requirements for filing such a request can be
found at 8 C.P.R. 103.5. All motions must be submitted to the
office that originally decided your case by filing a Form I-290B,
Notice of Appeal or Motion, with a fee of $585. Please be aware
that 8 C.P.R. 103.5(a)(l)(i) requires that any motion must be filed
within 30 days of the decision that the motion seeks to reconsider
or reopen . .. Perry Rhew Chief, Administrative Appeals Office
www.uscis.gov
18. EAC 08 242 50930Page2DISCUSSION: The Director, Vermont
Service Center, denied the nonimmigrant visa petition. The matter
isnow before the Administrative Appeals Office (AAO) on appeal. The
AAO will dismiss the appeal.The petitioner filed the nonimmigrant
petition seeking approval of its program as an international
culturalexchange program and classification of the beneficiaries as
international cultural exchange visitors pursuant to theprovisions
of section 10l(a)(l5)(Q)(i) of the Immigration and Nationality Act
(the Act), 8 U.S.C. 110l(a)(l5)(Q)(i). The petitioner states that
it is engaged in hotel management, cultural exchange
programs,information technology and construction management. The
petitioner seeks to employ the beneficiariestemporarily in the
United States as cultural exchange coordinators for a period of 15
months, and indicates thatthey will be placed at hotels. All four
beneficiaries were in the United States in J-1 status at the time
of filing.The director denied the petition concluding that the
petitioners program is not eligible for designation by UnitedStates
Citizenship and Immigration Services (USCIS) as an international
cultural exchange program under section10 I (a)( 15)(Q)(i) of the
Act. In denying the petition, the director determined that the
petitioner failed to establishthat its cultural exchange program
has a cultural component that is designed, on the whole, to exhibit
or explainthe attitude, customs, history, heritage, philosophy, or
traditions of the international cultural exchange visitorscountry
of nationality, or that such component is an essential and integral
part of the international culturalexchange visitors employment or
training, as required by the regulation at 8 C.F.R.
214.2(q)(3)(iii)(B). Thedirector further determined that only two
of the four beneficiaries had received a waiver of the two-year
foreignresidency requirement applicable to J-1 exchange visitors
and would therefore be otherwise ineligible for therequested change
of status.The petitioner subsequently filed an appeal. The director
declined to treat the appeal as a motion and forwardedthe appeal to
the AAO. On appeal, counsel asserts that the directors decision
contains multiple errors of fact andlaw. Counsel contends that the
director disregarded the applicable standard of proof and the
"enormous amount ofprobative evidence offered by the petitioner."
Counsel claims that, contrary to the directors finding,
thebeneficiaries will not be performing the duties of "regular
hotel employees," but will "spend the vast majority oftheir day
engaging in tasks which further the educational and cultural goals
of the exchange program." Counselsubmits a brief in support of the
appeal.I. TheLawSection 10 1(a)(l5)(Q)(i) of the Immigration and
Nationality Act defines a nonimmigrant in this classification as:
an alien having a residence in a foreign country which he has no
intention of abandoning who is coming temporarily (for a period not
to exceed 15 months) to the United States as a participant in an
international cultural exchange program approved by the Attorney
General for the purpose of providing practical training,
employment, and the sharing of the history, culture, and traditions
of the country of the aliens nationality and who will be employed
under the same wages and working conditions as domestic workers.The
regulation at 8 C.F.R. 214.2(q)(3) provides:
19. EAC 08 242 50930Page 3 International cultural exchange
program. -- (i) General. A United States employer shall petition
the Attorney General on Form 1-129, Petition for a Nonimmigrant
Worker, for approval of an international cultural exchange program
which is designed to provide an opportunity for the American public
to learn about foreign cultures. The United States employer must
simultaneously petition on the same Form 1-129 for the
authorization for one or more individually identified nonimmigrant
aliens to be admitted in Q-1 status. These aliens are to be
admitted to engage in employment or training of which the essential
element is the sharing with the American public, or a segment of
the public sharing a common cultural interest, of the culture of
the aliens country of nationality. The international cultural
exchange visitors eligibility for admission will be considered only
if the international cultural exchange program is approved. * * *
(iii) Requirements for program approval. An international cultural
exchange program must meet all of the following requirements: (A)
Accessibility to the public. The international cultural exchange
program must take place in a school, museum, business or other
establishment where the American public, or a segment of the public
sharing a common cultural interest, is exposed to aspects of a
foreign culture as part of a structured program. Activities that
take place in a private home or an isolated business setting to
which the American public, or a segment of the public sharing a
common cultural interest, does not have direct access do not
qualifY. (B) Cultural component. The international cultural
exchange program must have a cultural component which is an
essential and integral part of the international cultural exchange
visitors employment or training. The cultural component must be
designed, on the whole, to exhibit or explain the attitude,
customs, history, heritage, philosophy, or traditions of the
international cultural exchange visitors country of nationality. A
cultural component may include structured instructional activities
such as seminars, courses, lecture series, or language camps. (C)
Work component. The international cultural exchange visitors
employment or training in the United States may not be independent
of the cultural component of the international cultural exchange
program. The work component must serve as the vehicle to achieve
the objectives of the cultural component. The sharing of the
culture of the international cultural exchange visitors country of
nationality must result from his or her employment or training with
the qualified employer in the United States. II. The Petitioners
Cultural Exchange Program
20. EAC 08 242 50930 Page 4 The first issue in this proceeding
is whether the petitioner established that its proposed program is
eligible for designation by USCIS as an international cultural
exchange program under section 101(a)(l5)(Q)(i) of the Act. The
director determined, in part, that the petitioner failed to
establish that its cultural exchange program has a cultural
component that is designed, on the whole, to exhibit or explain the
attitude, customs, history, heritage, philosophy, or traditions of
the international cultural exchange visitors country of
nationality, or that such component is an essential and integral
part ofthe international cultural exchange visitors employment or
training, as required by the regulation at 8 C.P.R.
214.2(q)(3)(iii)(B). The petitioner filed the Form I-129, Petition
for a Nonimmigrant Worker, on September 11, 2008, accompanied 1 by
the following supporting documentation regarding the petitioners
cultural program: A letter dated September 10, 2008 from the
petitioners Global. Recruitment Manager, describing its program.
Copies of Form 1-797 Approval Notices, issued to for Q-1
classification petitions approved by USCIS between 2003 and 2008.
The petitioners International Cultural Exchange Visitor Program
Structured Training Plan (GSTP), which includes a weekly schedule
for the 15-month program. A copy of the petitioners "Daily Cultural
Activity Checklist" listing 25 activities to be completed by
program participants, to be monitored by the property manager and
the petitioners manager. Evidence related to the "latest shows"
held by the petitioner in Hilton Head, Myrtle Beach and Atlanta,
GA. 2 Evidence of previous cultural shows and presentations held by
Global Hospitality Exchange between 2003 and 2007; Testimonials and
affidavits from prior Global Hospitality Exchange Q-1 program
participants regarding their cultural exchange activities in the
United States; Letters from participating host properties and other
cultural program partners; 1 The petitioner, I stated that it is
one of four "wings" in- which is described as a management company
that offers services in hotel management, constructionmanagement,
cultural exchange, and computer information technology. The
petitioner explained that thecultural exchange wing is managed by
in collaboration with " The petitioner stated that the
beneficiaries will be working directly for GHE, butemphasized that
the groups various "wings" are not separate companies and all have
the same Federal taxidentification number.2 The evidence consisted
of web site advertisements, photographs, copies of flyers and other
documentationrelated to the following events: a "Graduation Event"
held August 27, 2008 at the Sands Ocean Dunes Resortin Myrtle
Beach; a "Fall Kickoff with Beyond" featuring "daily cultural
villages" at Myrtle Beach propertiesbetween September 5 and 26,
2008 in Myrtle Beach; "Jamaica, Jamaica, Jamaica" featuring
cultural villagesand managers receptions between August 7 and
August 20, 2008; a "Multicultural Week" held at SandsResorts,
Myrtle Beach in August 2008; "Rang Tarang" cultural evening held in
March 2008 at the SandsOcean Dunes Conference Center in Myrtle
Beach.
21. EAC 08 242 50930Page 5 An e-mail message dated September
30, 2004 from the Vice Consul of the United States Embassy in
Seoul, Korea, addressed to the petitioner, stating that the
petitioner "is meeting all the criteria set forth by the Foreign
Affairs Manual," apparently referencing four Q-1 visa applicants
sponsored by GHE.In its supporting letter dated September 10, 2008,
the petitioner explained that its cultural exchange program
takesplace at various hotels and resorts operated by its "Affiliate
Cultural Partners" (ACPs). The petitioner emphasizedthat the
beneficiaries will be assigned to hotels and resorts "throughout
metropolitan Atlanta, Georgia and SouthCarolina" that are "located
near major highways and interstates that are easily accessible to
the American public."The petitioner further noted that "[a]ll
guests that stay at one of our properties are introduced to
variousinternational cultures and presentations in interesting and
creative ways that adapt naturally to a hotel or resort."The
petitioner indicates that cultural activities are the prime reason
for the presence of the participant at theproperty, while "the
employment only serves as a tool" to implement the cultural
program. The petitioner notesthat it recruits exchange visitors who
are currently enrolled in hospitality duties programs abroad, or
who arealready experienced hospitality workers, so that they can
easily adjust to the hotel atmosphere and "feel confidentabout
sharing their culture with the guests."According to the petitioners
plan, it "presents foreign cultures to the American public during
the course of anormal business day" by encouraging program
participants to wear "culturally proud nametags," and native
dresson national holidays, to display maps and souvenirs of their
home country, to provide hotel guests withinternational recipes and
brochures, to play international music over the hotels sound
system, and to plan andstage celebrations of their own culture. The
petitioner stated that by displaying symbols of their cultural
heritage,the program participants evoke questions from the hotel
guests, thereby providing an opportunity for culturalexchange. The
petitioner further indicated that the participants are expected to
invite ethnic groups andassociations to the property to put on
cultural exhibits, to invite international speakers for seminars
and lectures,and to host cultural book discussion events.As an
example of its cultural events, the petitioner stated that it holds
a cultural history month at ACP properties,during which
participants "assemble a model village of artifacts, artwork,
flags, music, figurines" in a high trafficarea of the hotel. The
petitioner stated that the cultural model village is promoted to
the general public by theACP property and GHE. The petitioner
stated that program participants also participate in a "managers
receptionpresentation" at 5:00 p.m. on most weekdays, which provide
a chance for them to talk and mingle with hotelguests and serve
international foods. Finally, the petitioner indicated that program
participants coordinate an"Around the World in Just One Day," event
at the ACP properties on a monthly basis, which is "open to
thegeneral public." The record shows that the petitioner sometimes
sponsors cultural events at other locationsbesides the ACP
properties and resorts, sometimes with co-sponsors.The petitioners
Structured Training Plan includes the following program
description: Participants work within various departments of these
hotel properties to share their culture with hotel guests, gain
work experience and hospitality skills. The program is accessible
to the American public solely for the purpose of cultural exchange
and the participants work and
22. EAC 08 242 50930Page 6 position cannot be independent of
the commitment to share their respective culture with the hotel
guests, fellow staff and all contacts.According to the program
schedule, the beneficiaries spend one week upon arrival in the
United States at thepetitioners headquarters undergoing orientation
and cultural exchange program training, and begin shadowingcurrent
program participants at their assigned property, before beginning
to work independently during the fourthweek, at which time they
will dress in their native costumes, wear nametags, complete a
daily checklist, decoratethe work environment, and interact with
hotel guests. Each month includes one week devoted to planning
andimplementing a managers reception. During the second month, the
participants are to "organize ideas for culturalpresentations" and
develop "cultural exchange nametags" to reflect their home country
and flag. During monththree, the participants form a committee for
an International Food Festival and hold the festival for
"propertyguests and public." During the fourth month, the
participants are expected to develop cultural history projects
andbulletin boards, and during the sixth month, the participants
are expected to deliver a cultural customspresentation for guests
and public. In the seventh month, the participants are expected to
deliver a "culture intravel and tourism" power point presentation
in the hotel lobby. During the ninth month, the participants
wouldhold a cultural dress and fashion show at the property after
planning, marketing and promoting it. In the eleventhmonth, the
participants are expected to create an "International Gesture
Dictionary" for use by the property andshare it with staff members.
During the 12th month, the participants are to hold a "Seasons
Greeting culturalevent." The participants have a "final cultural
exchange program presentation" due at the end of the
fourteenthmonth of the program.The director issued a request for
additional evidence on November 3, 2008. The director advised the
petitionerthat USCIS was not persuaded that the work component
serves as a vehicle to achieve the objectives of thecultural
component of the petitioners program, but rather appears to be
independent of the cultural component.The director requested
additional evidence to establish that the petitioner operates an
international culturalexchange program that meets the public
accessibility, work, and cultural components set forth at 8 C.F.R.
214.2(q)(3)(iii).In response to the RFE, the petitioner submitted a
slightly revised Jetter further explaining how its culturalexchange
program satisfies the requirements set forth at 8 C.F.R.
214.2(q)(3)(iii). The petitioner emphasizedthat "all guests that
stay in one of our properties are introduced to various
international cultures and presentationsin interesting and creative
ways that adapt naturally to a hotel or restaurant environment."
The petitioner furthernoted that the program is not only available
to paying guests of the hotel, but to the general public sharing
acommon cultural understanding. The petitioner indicated that it
spends thousands of dollars on a monthly basispromoting its
cultural events that take place daily in its partner hotels and
resorts by advertising through mailinglists, Facebook ads,
newspaper ads, radio ads and Chamber of Commerce newsletters. The
petitioner also statedthat "other than the hotel guest, there is a
majority of general public that visits our cultural locations to
attendmanagers receptions, cultural weeks, book expos and culinary
classes."With respect to its programs work component, the
petitioner emphasized that, "unlike a regular hotel employee atACP,
our participant is engaged in structured cultural activities with
the sole objective of sharing his or herCountrys history, culture
and traditions." The petitioner described the daily activities of a
participant, noting thathe or she might start her day by preparing
a breakfast dish from his or her native country, decorating the
hotels
23. EAC 08 242 50930Page 7restaurant to reflect the
international environment, ensure that the name of the dish and
country of origin aredisplayed, distribute flyers with the recipe,
serve the dish in his or her native costume, and play
internationalmusic in the background as they interact with guests.
The petitioner noted that other program participants mayprepare
traditional snacks or sweets for guests to sample at other
locations, such as check in/check out, and laterprepare hors
doeuvres for a managers reception, while also decorating the hotel
lounge to reflect an internationalenvironment.The petitioner
emphasized that the cultural component is the primary focus of its
program and that many of itsguests visit its hotels and resorts
"not merely for sleeping accommodations, but to actually feel and
get first handinformation about the international culture and to
discuss cultural and ethnic themes and issues, to hold seminarsand
lectures, discussion groups and classes."The petitioners response
to the RFE included an evaluation of its cultural exchange program
bySturman, professor of hotel administration and human resources at
Cornell University, who states his opinion thatthe petitioners
program participants "clearly quality for a Q-1 visa." states: The
cultural interaction, and ultimately cultural education of the
guests, is well structured and organized. Guests are not simply
staying at the hotels; they are being given a planned and thorough
cultural experience. The Cultural Program is extensively marketed,
and the American public is encouraged to attend the shows, book
expos and seminars and attend the events specifically planned as
part of the program. As such, the duties of those hired for the
Culture Program are inherently and completely connected with the
program. Job duties of those hired for this program are fully
integrated with the requirements of the program. For example, while
a front desk clerk brought in under the program will have to
perform the regular duties associated with this position (answer
phones, check in guests, handle guest complaints), the position
requires the individual to focus on talking about his or her
culture, talking about the decorations at the front desk, promoting
the next cultural event, and so forth. All aspects of the job
duties are perform [sic] with the goals of the cultural exchange
program in mind. As another example, the F&B Cultural Exchange
Coordinator has very different duties from other F&B :fanagers.
That is, the F&B Cultural Exchange Coordinator focuses on
promoting the featured ethnic dishes, inviting people to receptions
where the ethnic dishes are displayed, etc. Similar examples can be
provided for all positions to be filled under the cultural exchange
program: all duties are performed with the purpose of promoting and
enhancing the cultural exchange. As such, it is clear that the work
component of those to be brought in under the cultural exchange
program is not independent of Cultural Exchange and they are both
fully integrated with each other.The petitioner submitted
additional letters from recent program participants who have worked
in the positions ofchef, food and beverage worker, restaurant
server, bartender, front desk assistant, food and beverage
supervisor,
24. EAC 08 242 50930Page 8housekeeping supervisor, and sales
director, who discuss how they shared their culture while
performing their jobduties.The petitioner also submitted affidavits
from several of the hotels that host the petitioners cultural
exchangecoordinators, as well as correspondence the petitioner
received from guests who attended some of the petitionerscultural
events. In addition, the petitioner provided evidence that its
major events have been publicized on thepetitioners own web site
and Facebook page, on Chamber of Commerce web sites, through flyers
and signsplaced at the hosting property, in local newspapers,
through a mailing list, mailed invitations and "other
marketingmailings."Finally, the petitioner compared its Q-1 program
to those offered by other organizations in the hospitality
industryin hotels and resorts, noting that the petitioners program
meets or exceeds the qualifications of similar programsthat have
been consistently approved by USCIS.The director denied the
petition on December 24, 2008, concluding that the beneficiaries
primary work dutieswould be independent of any cultural duties in
which they would be involved. The director noted that all
fourbeneficiaries have been in the United States on J-1 visas
training in the hospitality industry, with an emphasis onfront desk
operations and culinary arts. The director concluded that the
beneficiaries with prior experience infront desk operations would
serve as front desk clerks performing duties such as answering the
phone, checkingin guests and handling guest complaints, while
participants trained in the culinary arts would be preparing
foodand beverages to be served to resort guests.On appeal, counsel
for the petitioner asserts that "even the most cursory examination
of the evidence reveals thatall of the program participants job
functions or training are used as a platform to enhance the publics
knowledgeof their native culture." Counsel emphasizes that the
petitioner provided "a detailed letter explaining the duties ofeach
beneficiary and how these duties were an integral part of the
exchange program." Counsel states that thedirector "made a clear
error of fact" when he concluded that the beneficiaries would be
performing the regularduties associated with front desk operations,
and further explains how the petitioners work component serves as
avehicle to achieve the objectives ofthe cultural program, as
follows: Although a program participant may be assigned to work
alongside a regular front desk clerk; he or she does not replace
that front desk clerk, nor does he or she share the same objectives
as a front desk clerk, whose sole goal would be to greet chests,
handle check outs and make reservations (and ultimately increase
hotel profits.) A program participant may be responsible for
greeting guests however, the cultural program participant is
expected to greet a guest wearing national costume and informing
the guest of the associates country of origin. Furthermore, the
cultural program participant is trained and expected to engage
guests in conversations about their home country, invite guests to
cultural events being staged at the hotel and educate the guest
about their country of origin.Counsel asserts that "clearly the
cultural heritage of the program participant is expressed if he or
she greets aguest in their native tongue while wearing a native
costume," and that "each member of the public who is greeted
25. EAC 08 242 50930Page9by a cultural program participant will
be introduced to the unique culture of the program participant
through theparticipants performance ofthe assigned duties."Counsel
further contends that the director "erroneously found that the
beneficiaries would be preparing food andbeverages to be served to
guests." Counsel emphasizes that "[a]lthough the beneficiaries may
assist in mealpreparation they are not kitchen assistants," but
rather "will devise ethnic menus reflecting their own culture
andheritage, assist in their preparation, create display cards
describing the dish and discuss the meal and its originswith guests
and customers." Counsel asserts that the preparation of such dishes
expresses the participants ethnicheritage and leads to the sharing
of the culinary traditions of their home countries.Counsel claims
that, during the "vast majority of their time," program
participants are "engaging in tasks that arepurely cultural, for
example, the staging of cultural exhibits." Counsel asserts that
the director erred by requiringthat "any and all tasks be purely
cultural in nature," noting that the regulations "clearly permit
the dualfunctionality of any task or duty to be performed by the
program participant," such that a task or duty which has acultural
function as well as a work or training function is permissible
according to the language of the regulation.Finally, counsel
contends that the director applied a higher standard of proof than
the "preponderance of theevidence" standard applicable in
immigration proceedings, and "held the petitioner to a much higher
standardthan any other similarly situated petitioners."
Specifically, counsel states that [t]he denial of Petitioners
petitionon the basis of inadequate proof that the work component
was an integral part of the cultural exchange programamounts to an
abuse of discretion because there is no rational explanation for
the finding," in light of the"mountain of evidence" submitted.
Counsel stresses that the director "held petitioner to an
impossibly highstandard of proof requiring that it must provide the
Service with evidence that the work component is
completelydependent on the cultural component of that program."Upon
review, and for the reasons discussed herein, the AAO concurs with
the directors determination that thepetitioner failed to establish
that its program qualifies for designation as an international
cultural exchangeprogram pursuant to the provisions of 8 C.P.R.
214.2(q)(3) because the petitioner failed to establish that
thebeneficiary would be engaged in employment or training of which
the essential element is sharing the culture ofthe aliens country
of nationality.To be eligible for designation as an international
cultural exchange program under section 101(a)(l5)(Q)(i) of theAct,
the petitioner must establish that its proposed program satisfies
all of the requirements at 8 C.F .R. 214.2(q)(3) pertaining to the
programs public accessibility, cultural component and work
component. Thedirector found that the petitioner failed to
establish that its program satisfies the work component requirement
setforth at 8 C.P.R. 214.2(q)(3)(iii)(C).As a threshold issue, the
AAO notes that the petitioner has not submitted a detailed letter
explaining the duties ofeach beneficiary and how these duties were
integral to the cultural exchange program, as claimed by counsel
onappeal. The petitioner has not provided any detailed description
of the specific duties to be performed by thefour beneficiaries as
"cultural exchange coordinators," nor has it identified what
specific hotel or resortoccupations they will fill, such as front
office clerk or food and beverage positions. Going on record
withoutsupporting documentary evidence is not sufficient for
purposes of meeting the burden of proof in these
26. EAC 08 242 50930Page 10proceedings. Matter of Soffici, 22
I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft
ofCalifornia, 14 I&N Dec. 190 (Reg. Comm. 1972)). While the
petitioner maintains that it does not place itsprogram participants
in back office, housekeeping, maintenance or other roles that do
not have direct contact withhotel guests, the AAO notes that
previous participants have stated that they served in roles such as
housekeepingsupervisor and sales director. It appears that the
director assumed that the beneficiaries would be serving inculinary
or front desk positions based on the stated purpose of their recent
periods of training in J-1 status.However, the AAO notes that it is
the petitioners burden to establish what types of roles and duties
will constitutethe work component of its program for the individual
beneficiaries included in the petition.Furthermore, the petitioner
has also failed to identify the location or locations at which the
beneficiaries will beplaced. The petitioner merely stated that the
program will take place "at several hotels and resorts
throughoutmetropolitan Atlanta, Georgia and South Carolina." The
AAO finds it reasonable to expect the petitioner toidentify the
specific host properties that will receive the beneficiaries, and
to submit documentation related to theimplementation of its
cultural exchange program at these specific properties.Although the
record indicates that the program participants are required to
"share their culture" with hotel guestsand staff, the petitioner
has also indicated that it recruits hospitality students and
professionals who are alreadyexperienced in the hotel industry, and
assign them to traditional hospitality industry roles, such as
front deskpositions or food and beverage positions. Counsel claims
on appeal that although the petitioners programparticipants may
"perform certain duties at the reception desk of the hotel," they
are not front desk clerks becausethey "wear international dress and
name tags" and engage guests in conversations about their home
countries,while any assistance they provide to guests is
"incidental." However, other evidence in the record confirms
thatthat the petitioners program participants do in fact perform
the same basic job functions as "regular" hotel staff.For example,
Dr. Sturman states in his evaluation that "a front desk clerk
brought in under the program will haveto perform the regular duties
associated with this position (answer phones, check in guests,
handle guestcomplaints)," duties that do not appear to be
incidental. In addition, prior participants have provided
affidavits inwhich they identify their roles as "restaurant
server," "front desk assistant," "food and beverage supervisor,"
and"housekeeping supervisor." The petitioner has not established
how guest service or other regular duties inherent tosuch positions
would be "incidental" to such roles.The evidence in the record is
insufficient to establish that the foreign program participants
share their respectivecultures with the public on a regular basis
as an essential element of their work-related responsibilities.
Rather,the cultural aspects of the participants activities appear
to be tangential to their tasks as hotel employeesresponsible for
the day-to-day operations of the front desk and other departments.
While counsel correctly statesthat the statute and regulations do
not require the program to be purely cultural, the regulation
specifies that theprograms cultural component must be wholly
designed to exhibit or explain the attitude, customs,
history,heritage, philosophy, or traditions ofthe exchange visitors
country of nationality. 8 C.F.R. 214.2(q)(3)(iii)(B).The evidence
does not demonstrate that petitioners cultural component is wholly
designed to exhibit or explainany ofthese aspects of Nepalese or
Indian culture. Daily interactions with hotel guests such as
wearing a country-specific nametag or native dress, handing out a
recipe or brochure, decorating the hotels front desk,
displayingflags and maps, or playing international music, are
merely casual and unstructured cultural exchanges. Suchinteractions
must be deemed secondary to the beneficiaries employment as hotel
workers. The petitioner has not
27. EAC 08 242 50930 Page 11 established that the daily
cultural interactions of the participants would be part of a
structured program truly designed to share the history, culture,
and traditions of the country of the aliens nationality.
Furthermore, while the petitioner indicates on appeal that the
beneficiaries would spend the majority of their time while on duty
engaging in cultural interactions, the record shows that the
beneficiaries are responsible for performing the same basic job
duties as other hotel workers working in the same hotel
departments, which would reasonably limit the amount of time they
could spend interacting with individual guests. The AAO is not
persuaded that the beneficiaries, in their roles as front desk
agents or servers, for example, would realistically spend less than
half of their time actually performing the regular duties of the
position to which they are assigned. Finally, certain aspects of
the petitioners claimed cultural program simply have not been
documented. Although the petitioner claims to invite guests and
speakers for presentations, book discussions, seminars, courses,
language and culinary classes, the petitioner has not submitted
evidence that any of these more formal means of cultural exchange
have taken place at any of its properties. The petitioner claims
that the participants take part in daily "managers receptions," at
the host properties, however, the petitioners Structured Training
Plan indicates that managers receptions are held only once per
month. Regardless, it is unclear how any of these functions would
be carried out as a part of the beneficiaries regular front desk or
food and beverage responsibilities. The evidence shows that the
petitioners program participants do engage in more formal and
structured cultural events such as "cultural week" events, and the
East Meets West and Rang Tarang events documented in the record.
However, these events are conducted independently from the
participants assigned hotel positions and occur with much less
frequency. The AAO cannot conclude that any beneficiary
participating in the program would participate in one of these
structured cultural events more than a few times during a 15-month
stay in the United States. The AAO acknowledges the expert opinion
from which was submitted in response to the request for evidence.
Although is well-credentialed m the fields of human resources and
hotel management, his letter does not speak directly to the
critical question in this case - whether the beneficiaries will be
primarily engaged in qualifying cultural exchange activities during
the course of their regular work day, or whether their work as
front desk clerks or food and beverage workers will be independent
of the cultural program. Instead,-~ speaks in general terms
regarding the petitioners program, using language that at times
appears to be derived almost verbatim from the petitioners own
letters. Furthermore, his description of the work component of the
program undermines counsels claim on appeal~rogram participants
"are not performing the duties of regular hotel employees." As
noted above,.-specifically states that "a front desk clerk brought
in under the program will have to perform the regular duties
associated with this position." Finally, it is unclear on what
basis he rendered his opinion, as he has not identified what
documentation was provided by the petitioning company, nor has he
indicated that he has reviewed the statutory and regulatory
requirements pertaining to Q-1 visas. The AAO may, in its
discretion, use as advisory opinion statements submitted as expert
testimony. However, where an opinion is not in accord with other
information or is in any way questionable, the AAO is not required
to accept or may give less weight to that evidence. Matter of Caron
International, 19 I&N Dec. 791 (Comm. 1988).
28. EAC 08 242 50930Page 12Based on the foregoing discussion,
it must be concluded that the petitioner failed to establish that
its programqualifies for designation as an international cultural
exchange program pursuant to the provisions of 8 C.F.R. 214.2(q)(3)
because the petitioner failed to establish that the beneficiary
would be engaged in employment ortraining of which the essential
element is the sharing with the American public, or a segment of
the public sharinga common cultural interest, of the culture of the
aliens countries of nationality. The presence of the
foreignemployees may contribute to some guests overall experience
at the participating hotels and resorts. However, thefact remains
that the participants will be spending the majority of their time
on a daily basis performing thestandard duties of hotel workers,
during which periods their cultural interaction with resort guests
will be limitedto informal and unstructured cultural
exchanges.Based on the foregoing discussion, the petitioner has not
established that its cultural exchange programsatisfies the
cultural and work components set forth at 8 C.F.R.
214.2(q)(3)(ii)(B) and (C). Accordingly,the appeal will be
dismissed.The second issue addressed by the director is whether the
four beneficiaries, who were all in the United Statesas J-1
exchange visitors at the time of filing, have obtained the required
waiver of the two-year foreignresidency requirement and are
eligible for the requested change of status.Section 212(e) of the
Act bars an alien in J-1 nonimmigrant status from applying for an
immigrant visa,permanent residence, or nonimmigrant H or L status,
until the alien has resided in his or her country ofnationality for
at least two years after leaving the United States. In addition,
section 248(a)(3) of the Act barsexchange visitor aliens from
changing nonimmigrant classification to anything other than A or G
diplomaticvisa status. See also Matter of Kim, 13 I&N Dec. 316
(Reg. Comm. 1968). Section 212(e) concludes byproviding for a
discretionary waiver of the two-year foreign residence requirement
if, among other grounds,the departure from the United States would
impose exceptional hardship upon the aliens U.S. citizen spouseor
child.The director determined that the petitioner submitted
approval notices for Form I-612, Application to WaiveForeign
Residence Requirement, for only two of the four beneficiaries.On
appeal, the petitioner asserts that three beneficiaries, and werein
receipt of approved J-1 foreign residency requirement waivers and
that evidence of the approved waiverswas provided to USCIS prior to
the denial of the petition. Counsel asserts that the fourth
beneficiary is inreceipt of a U.S. State Department "no objection"
letter and will be eligible to change her status or consularprocess
should the 1-129 petition be approved.Upon review-the AAO notes
that the petitioner submitted evidence of approved waivers for only
twobeneficiaries, and prior to the adjudication of the petition.
The petitionerprovided a copy of a State Department "No Objection"
statement and a USCIS receipt number for the Form 1-612 application
filed by USCIS records show that this application (EAC 09 057
40959)was filed on November 26, 2008 and approved on December 31,
2008, one week after the directors decisionwas issued. Therefore
the director correctly determined that this beneficiary was not
eligible for the requestedchange of status as of December 24, 2008.
Although counsel indicates on appeal that the remaining
29. EAC 08 242 50930Page 13beneficiary, has received a State
Department "no objection" statement and "will be eligible tochange
her status," the petitioner has not submitted any documentary
evidence related to her waiverapplication other than statements
from the Indian government. USCIS records do showfiled a Form I-612
with USCIS on January 8, 2009, and the application was on February
2, 2009(EAC 09 100 40523). Therefore, the director correctly
determined that not eligible for achange of status as of December
24, 2008. The AAO notes for the record that, as ofF ebruary 2,
2009, all fourbeneficiaries had received waivers of their two-year
foreign residency requirement.Beyond the decision of the director,
the AAO finds that the petitioner failed to establish that it will
offer thebeneficiaries wages and working conditions comparable to
those accorded local domestic workers similarlyemployed, as
required by 8 C.F.R. 214.2(q)(4)(D).The petitioner indicates that
it intends to pay the beneficiaries as follows: a $600 monthly
stipend; fullyfurnished housing valued at $350 per month; and
utilities, cable, phone, transportation, and housekeepingservices
valued at $205 per month, for a total compensation package valued
at $1,155.00. The petitionerstated that the minimum wage in Georgia
is $5.15 per hour or $892.67 per month. However, as noted above,the
petitioner has not identified the actual work locations of any of
the beneficiaries and it cannot bedetermined whether the salary
offered should be compared to local domestic workers in Georgia.
Regardless,even assuming that all employees would work in Georgia,
the petitioner relied upon an outdated minimumwage figure for
Georgia. The federal minimum wage was increased in 2007 pursuant to
the Fair LaborStandards Act (FLSA), as amended, in a three-step
process. 3 As of July 24, 2008, the federal minimum wagewas
increased to $6.55 per hour, or $1,222.67 per month, based on a 40
hour workweek.Thus, the total compensation offered is actually less
than the minimum wage and therefore cannot beconsidered comparable
to local domestic workers. Furthermore, the petitioner has not
submitted evidencethat minimum wage is standard pay for the
positions offered, as it has not identified the exact positions to
beheld. Some of the participants in the petitioners program, based
on the evidence submitted, are actuallyexperienced hospitality
workers who would not necessarily be expected to work at the
entry-level wage forthe industry, much less at minimum wage. For
these additional reasons, the petition will be denied.An
application or petition that fails to comply with the technical
requirements of the law may be denied by theAAO even if the Service
Center does not identify all of the grounds for denial in the
initial decision. SeeSpencer Enterprises, Inc. v. United States,
229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), a.ffd. 345 F.3d
683(9th Cir. 2003). The AAO maintains plenary power to review each
appeal on a de novo basis. 5 U.S.C.557(b) ("On appeal from or
review of the initial decision, the agency has all the powers which
it would havein making the initial decision except as it may limit
the issues on notice or by rule."); see also, Janka v. USDept.
ojTransp., NTSB, 925 F.2d 1147, 1149 (9th Cir. 1991). The AAOs de
novo authority has been longrecognized by the federal courts. See,
e.g. Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004).3 See
"Minimum Wage Change"
http://www.dol.state.ga.us/spotlight/sp_minimum_wage_change_2007.htm,(accessed
on Aprill6, 2010).
30. EAC 08 242 50930Page 14The AAO acknowledges that USCIS has
previously approved Q-1 cultural exchange program petitions filedby
the petitioners claimed affiliate. It is worth emphasizing that
that eachpetition filing is a separate proceeding with a separate
record. See 8 C.P.R. 103.8(d). In making adetermination of
statutory eligibility, USCIS is limited to the information
contained in the record ofproceeding. See 8 C.F .R. 103 .2(b )(
16)( ii).If the previous nonimmigrant petitions were approved based
on the same assertions that are contained in thecurrent record, the
approvals would constitute material and gross error on the part of
the director. The AAOis not required to approve applications or
petitions where eligibility has not been demonstrated,
merelybecause of prior approvals that may have been erroneous. See,
e.g. Matter of Church ScientologyInternational, 19 I&N Dec.
593, 597 (Comm. 1988). It would be absurd tosuggest that USCIS or
any agencymust treat acknowledged errors as binding precedent.
Sussex Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090(6th Cir.
1987), cert. denied, 485 U.S. 1008 (1988). Despite any number of
previously approved petitions,USCIS does not have any authority to
confer an immigration benefit when the petitioner fails to meet
itsburden of proof in a subsequent petition. See section 291 of the
Act.Furthermore, the AAOs authority over the service centers is
comparable to the relationship between a courtof appeals and a
district court. Even if a service center director had approved the
nonimmigrant petitions filedby the petitioner, the AAO would not be
bound to follow the contradictory decision of a service
center.Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785
(E.D. La.), ajjd, 248 F.3d 1139 (5th Cir. 2001),cert. denied, 122
S.Ct. 51 (200 1). Based on the lack of required evidence of
eligibility in the current record,the AAO finds that the director
was justified in departing from the previous petition approvals by
denying theinstant petition.The petition will be denied and the
appeal dismissed for the above stated reasons, with each considered
as anindependent and alternative basis for the decision. When the
AAO denies a petition on multiple alternativegrounds, a plaintiff
can succeed on a challenge only if it is shown that the AAO abused
its discretion withrespect to all of the AAOs enumerated grounds.
See Spencer Enterprises, Inc. v. United States, 229 F. Supp.2d at
1043.In visa petition proceedings, the burden of proving
eligibility for the benefit sought remains entirely with
thepetitioner. Section 291 ofthe Act, 8 U.S.C. 1361. Here, that
burden has not been met.ORDER: The appeal is dismissed.