Interim Decision #2797 

MATTER OF ITARUGFIESE 

In Deportation Proceedings 

A-21582322 

Decided by Board June 6, 1980 

(1) In determining whether or not one has been ordained as a minister and has carried 

on the vocation of a minister of a recognized religious denomination, acceptable 

evidence includes a letter or other appropriate statement signed by the Superior or 

Principal of the religious denomination. 

(2) The respondent, a full-time student seeking an adjustment of status, has not established that he qualities tot "special iumligraur status as a min' ister under section 

101(a)(27)(C) of the Immigration and. Nationality Act, 8 U.S.C. 1101(a)(27)(C), when 

his work at the church has been of a voluntary nature delegated to him by the 

minister. 

(3) Although the respondent preaches every other Sunday and sometimes takes the 

offering when the deacons do not come to the Service, he has not carried on the 

vocation of minister of the church as defined by section 101(a)(21)(C) of the Immigration and Nationality Act, 8 U.S.C. 1101(a)(27)(C), when only 9 hours per week are 

devoted to church activities, and he is not compensated. 

CHARGE: 

Orden Act of 1952—Sec. 241(a)(2) [8 U.S.C. 1251(a)(2)j—Nonimmigrant—remained 

longer than, permitted 

ON BEHALF OF RESPONDENT: Pro se 

BY: Milhollan, Chairman; Maniatis, Appleraan, Maguire, and Farb, Board Members. 

In a decision dated July 25, 1978, the immigration judge found the 

respondent deportable as charged, denied his application for adjustment of status under section 245 of the Immigration and Nationality 

Act, 8 U.S.C. 1255, and granted him the privilege of voluntary departure in lieu of deportation. The respondent has appealed from that 

decision. The appeal will be dismissed. 

The respondent is a 38-year-old male native and citizen of India who 

was allegedly ordained as a minister in India in 1968. He entered the 

United States at New York on August 5, 1973, as a non-immigrant 

student authorized to remain until June 20, 1977. On June 24, 1977, the 

Church of God Chapel sought to confer preference status upon the 

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respondent as a minister. 

In a Service interview on September 1, 1977, the respondent averred 

that he did not do any work for the Church of God but only attended 

worship services. When the petition was approved, however, he would 

be the mission director, sending the gospel to other countries and 

keeping records. 

The District Director predicated his, denial of the petition on the fact 

that the respondent had not been employed since his entry on August 

5, 1973, and, therefore, had not been primarily engaged in a religious 

occupation for 2 years prior to seeking adjustment based upon a labor 

certification, as required by 20 C.F.R. 656.22(e). 

On appeal to the Regional Commissioner, the decision of the District 

Director was affirmed on May 3, 1978. The Regional Commissioner 

found that the respondent/beneficiary had not been primarily engaged 

as a minister for, the previous 2 years. 

On July 11, 1978, an Order to Show Cause was issued charging the 

respondent with deportability under section 241(a)(2) of the Act, 8 

U.S.C. 1251(a)(2), as an alien who had remained longer than permitted. 

A deportation hearing was held on July 25, 1978. The respondent 

denied that his student visa had expired on. June 20, 1977, and that he 

had remained beyond that date without authorization. He testified 

that he started working for the Church of God Chapel in June 1976, 

without compensation. His job entailed spending every other Sunday 

preaching and leading prayer meetings on Wednesdays. He spent 

approximately 9 hours per week at the church. In addition, he maintained 12 semester hours of classroom work at Southwestern College. 

Upon adjustment of his status to that of a minister, the Church agreed 

to pay him $25 per week for his work as a mission director. 

The immigration judge treated his denied visa petition as an application for adjustment of status under section 245 of the Act. He found 

the respondent deportable as charged in that the respondent's ArrivalDeparture Card, Form 1-94, clearly indicated that the respondent was 

authorized to remain in the United States until June 20, 1977. The 

immigration judge found that the respondent did not qualify for 

adjustment of status as a minister under section 101(a)(27)(C) of the 

Act, 8 U.S.C. Ll01(a)(27)(C), inasmuch as he had not been principally 

engaged in religious work. He further found the respondent ineligible 

for relief under section 245 of the Act based upon section 245(c) of the 

Act. Because the respondent had worked without permission of the 

Service, he was precluded from adjusting his status pursuant to section 245 of the Act. The respondent was granted 5 months voluntary 

departure to complete the fall semester at the university. 

On appeal, the respondent contends that 1) his petition should have 

been approved, 2) he was unable to extend his stay in the United States 

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because the Service had his 1-94, and 3) the law is contradictory in that 

a nonimmigrant student cannot work without permission of the Service. Therefore, he could never obtain the requisite 2 years experience. 

Pursuant to 8 C.F.R. 3.1(b)(5), this Board is without jurisdiction to 

review the denial of a preference petition based upon a profession or 

occupation under section 203(a)(3) or 203(a)(6) of the Act, 8 U.S.C. 

1153(a)(3) or 1153(a)(6). The respondent may sue for review in the 

United States District Court. 

In order to establish an alien's deportability as an "overstay," the 

Service need only show that the alien was admitted as a nonimmigrant 

"... for a temporary period, that the period has elapsed, and that the 

nonimmigrant has not departed." Milande v. I.Na 484 F.2d 774, 776 (7 

Cir. 1973); Matter of Teberen, 15 I&N Dec. 689 (BIA 1976). It is clear to 

this Board that the Service has established that the respondent is an 

overstay and is therefore deportable. 

The immigration judge erroneously considered the respondent's 

eligibility for adjustment of status as if an adjustment application had 

been filed. Nevertheless, in order to avoid leaving the respondent in 

doubt, through no fault of his own, we shall address the issue of 

adjustment of status. 

In order to he eligible for adjustment of status, the respondent must 

establish that he is eligible to receive an immigrant visa, that he is 

admissible to the United States for permanent residence, and that an 

immigrant visa is immediately available to hint at the time his application for adjustment is filed. An alien seeking an adjustment of status 

to that of a permanent resident is assimilated to the position of an 

alien seeking entry to the United States for permanent residence. 

Campos v. INS, 402 11 .2d 758 (9 Cir_ 1968), cert.. denied, 429 U.S. 999 

(1976), citing Amarante v. Rosenberg, 326 F.2d 58 (9 Cir. 1964); Ambra 

v. Ahrens, 325 F.2d 468 (5 Cir. 1963). 

The respondent has based his application for adjustment of status 

on the contention that he is a "minister" of a religious denomination 

and thus classifiable as a special immigrant pursuant to section 

101(a)(27)(C)(i) of the Act. Section 101(a)(27)(C)(i) defines, in pertinent 

part, a special immigrant as: 

an immigrant who continuously for at least two years immediately preceding the time 

of his application for admission to the United States has been, and who seeks to enter 

the United States solely for the purpose of carrying on the vocation of minister of a 

religious denomination, and whose services are needed by such religious denomination 

having a bona fide organization in the United States. 

The Act does not provide a definition of the term minister. State 

Department regulation 22 C.F.R. 42.25, however, contains the following elaboration: 

(b) The term "minister", as used in section 101 (a)(2t)(C) of the Act, means a person 

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duly authorized by a recognized religious denomination having a bona fide organization in the United States to conduct religious worship, and to perform other duties 

usually performed by a regularly ordained pastor or clergyman of such denomination. 

The term shall not include a lay preacher not authorized to perform the duties usually 

performed by a regularly ordained pastor or clergyman of the denomination of -which 

he is a member, and shall not include a nun, lay brother, or cantor. 

In Matter of Rhee, 16 I&N Dec. 607 (BIA 1978), we reaffirmed our 

authority to consider an alien's qualifications for special immigrant 

status as a minister of religion under section 101(a)(27)(C) of the Act. 

Compare Matter of Wiesinger, 16 I&N Dec. 480 (BIA 1978). 

We agree with the conclusion of the immigration judge insofar as he 

found that the respondent does not meet the requirements of section 

101(a)(27)(C) of the Act. Since his arrival in the United States, until he 

sought to adjust his status, the respondent was a full-time student.' 

Further, it is unclear as to whether or not the respondent was ever 

ordained as a minister in India and carried on the vocation of a 

minister of a recognized religious denomination in that country. Acceptable evidence that an individual meets the qualifications of a 

minister, when applying for admission to this country, includes a letter 

or other appropriate statement signed by the Superior or Principal of 

the religious denomination in the United States. The respondent has 

merely alleged that he was ordained as a minister in India. 

His religious duties, if any, with the Church of God in Oklahoma 

City have been of a voluntary nature delegated to him by the minister 

of the chnrch. He testified that sometimes he preaches every other 

Sunday when the minister doesn't preach, and sometimes he takes the 

offering when the deacons do not come to the service. He has been 

performing such services without compensation since 1976. The respondent has not carried on the vocation of minister with the Church 

of God.' Matter of Rhee, supra; Matter of isulca,10 I&N Dec. 712 (R.C. 

1963). 

We agree with the immigration fudge that the respondent, while 

earryitig a full-time school schedule, cannot claim 9 hours per week in 

church activities as continuously carrying on the vocation of minister 

so as to satisfy the requirements of the Aet. Moreover, while failure to 

offer proof of his ordination might be corrected if all else were satisfactory, it is immaterial here. 

We do not reach the propriety of the immigration judge's finding 

8 C.F.R. 214.2(f)(1a) provides that a full course of study at a college consists of at least 

12 hours of instruction a week. 

Although the church allegedly provided him with a "preaching license," he has not 

been ordained by the church (Tr. p. 11). Accordingly, we question whether a preaching 

license provided by the Church of God is tantamount to authorization by a religious 

denomination, as provided in 22 C.F.R. 42.25(b). 

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that the respondent is ineligible to adjust his status in that he was 

employed without permission of the Service. 

The appeal will be dismissed. 

ORDER: The appeal is dismissed. 

FURTHER ORDER: The respondent is permitted to depart from 

the United States within 30 days from the date of this order or any 

extension beyond that time as may be granted by the District Director; 

and in the event of failure so to depart, the respondent shall be 

deported as provided in the immigration judge's order.