Matter of Church Scientology International
| Decision Date | 15 March 1988 |
| Docket Number | A-26781336.,Interim Decision Number 3052 |
| Citation | 19 I&N Dec. 593 |
| Parties | MATTER OF CHURCH SCIENTOLOGY INTERNATIONAL. In Visa Petition Proceedings. |
| Court | U.S. DOJ Board of Immigration Appeals |
The director, Western Regional Service Center, denied the sixth-preference immigrant visa petition and certified his decision to the Commissioner for review. The Commissioner affirmed the director's decision.
Counsel now moves the matter be reconsidered. The matter will be reconsidered. The decisions of the director and the Commissioner will be affirmed.
The petitioner is the Mother Church of the Church of Scientology. It seeks the beneficiary's services as an establishment executive.
The petitioner claims the beneficiary is eligible for a Schedule A, Group IV, labor certification under 20 C.F.R. § 656.10(d)(1) (1988). That regulation relates to an alien in the United States who was admitted to the United States to work in, and is currently working in, a managerial or executive position with the same international corporation or organization with which he or she was continuously working as a manager or executive for 1 year immediately prior to admission. For 1 year prior to her admission to the United States, the beneficiary worked as a deputy commanding officer for tours for the Church of Scientology, Inc. in Sydney, Australia.
The director and the Commissioner both determined the beneficiary does not qualify for a Schedule A, Group IV, labor certification. This is based on their findings that the United States and foreign entities are not part of the same international corporation or organization for purposes of such a labor certification.
Counsel seeks reconsideration on the following four grounds:
(1) The petitioner (the Mother Church of a hierarchical religion) and the foreign entity (another church of the same religion) satisfy the requirements of a qualifying affiliate relationship because of the nature of ecclesiastical control in a hierarchical religion.
(2) The test and standards of proof applied to the petitioner are arbitrary and capricious.
(3) Denial of the petition constitutes religious discrimination in violation of the due process and equal protection clauses of the fifth and fourteenth amendments to the United States Constitution.
(4) Denial of the petition violates the first amendment to the Constitution.
Although the beneficiary was found ineligible for a Schedule A, Group IV, labor certification on the ground that the United States and foreign entities are not part of the same international corporation or organization, there is another issue in this proceeding which was not previously explored. This issue is whether or not the beneficiary is eligible for such a labor certification as a manager or executive. Each issue will be addressed separately.
Applicability of "L-1" standards to Schedule A, Group IV
A person seeking a Schedule A, Group IV, labor certification must meet all eligibility requirements for "L-1" nonimmigrant intra-company transferee classification as a manager or executive pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(L) (1982), including those relating to a qualifying relationship between the entities for which the person has been and would be employed. Title 20 C.F.R. § 656.22(f)(1) (1988) states:
Aliens seeking labor certifications under Group IV of Schedule A shall meet, at the time of filing the application, the eligibility requirements of the Immigration and Nationality Act for an L-1 nonimmigrant visa classification as a manager or an executive.
Similarly, the Department of Labor's Technical Assistance Guide, No. 656, Labor Certifications (1981) ("TAG"), provides on pages 14 and 15:
The only aliens who qualify for Group IV of Schedule A are those in executive or managerial positions who can qualify to enter the United States under an "(L)" visa.
In an advisory opinion dated January 10, 1986, contained in the record of proceeding, the Department of Labor reasserts its view that this is the correct standard for Schedule A, Group IV.
Criteria for a qualifying relationship between entities
Case law has confirmed that ownership and control are the factors for establishing a qualifying relationship between United States and foreign entities for purposes of "L-1" classification. Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (Comm. 1986); Matter of Hughes, 18 I&N Dec. 289 (Comm. 1982); see also Matter of Tessel, Inc., 17 I&N Dec. 631 (Acting Assoc. Comm. 1981). Accordingly, to establish the existence of such a relationship, a petitioner must demonstrate ownership and control.
Ownership refers to the direct or indirect legal right of possession of the assets of an entity with full power and authority to control. Control means the direct or indirect legal right and authority to direct the establishment, management, and operations of an entity. See the definitions of the terms "ownership" and "control" in the Immigration and Naturalization Service Operations Instructions 214.2(1)(4). See also Matter of Hughes, supra. While an entity is usually in the form of a corporation, partnership, or sole proprietorship and is either a profit or nonprofit organization, the nature and form of the entity are not relevant. Johnson-Laird, Inc. v. INS, 537 F. Supp. 52 (D. Or. 1981).
The ownership and control of both entities must be the same for a finding of a same employer, parent/subsidiary, or affiliate relationship, as required by the statute. In each case, the Service must determine whether the same individual(s) or organization owns enough of the assets of both entities to enable the individual(s) or organization to control the management and operations of both entities.
Qualifying relationship between religious organizations
The "L-1" classification was originally created for business, not religious, personnel. House of Representatives Report No. 91-851 () states the purpose of the "L-1" provisions is to facilitate the admission of "key personnel" and "managerial personnel" of international businesses. H.R. Rep. No. 851, 91st Cong., 2d Sess., reprinted in 1970 U.S. Code Cong. & Ad. News 2750. According to the report:
This amendment would help eliminate problems now faced by American companies having offices abroad in transferring key personnel freely within the organization. This proposal would meet the objectives of American industry which has been seriously hampered in transferring personnel.
The report, however, makes no mention of religious organizations. The Service does not believe that Congress intended "L-1" visas to be used by employees of religious organizations. There are other statutory and regulatory provisions to facilitate the entry of persons engaged in religious activities.
Nonetheless, the lack of a provision for employees of religious organizations to obtain "L-1" visas does not preclude their obtaining these visas if they are otherwise qualified. The following interpretation of the Department of State specifically indicates they are allowed to do so:
An organized religious, charitable, service, or other nonprofit organization is considered to be `. . . a firm or corporation or other legal entity or an affiliate or subsidiary thereof . . .' for purposes of section 101(a)(15)(L) of the Act.
Vol. 9, Foreign Affairs Manual, Part II, 22 C.F.R. § 41.67 note 2.9 ("FAM").
The main thrust of counsel's argument is that a hierarchical religion such as that of the Church of Scientology, in which the Mother Church exercises control over the theology and doctrines of other Scientology churches, has the necessary qualifying relationship between its entities to meet the requirements for "L-1" classification. Counsel argues further that, since members of a religious organization, unlike stockholders in a business enterprise, do not own any property, ecclesiastical and doctrinal control, not ownership should be the standard for determining whether or not there is a qualifying relationship between religious entities.
Additionally, counsel submits a copy of an unpublished Service decision (NYC-N-109090) where a qualifying structural link between two separate Catholic religious orders was found for purposes of "L-1" classification based on the fact that the transfer of the beneficiary (a Roman Catholic nun) required and received the administrative approval of the Vatican bureaucracy. Counsel also notes the standards for determining qualifying relationships between entities have, in the...
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