NOT FOR PUBLICATION [Dkt. No. 6] 

 

 UNITED STATES DISTRICT COURT 

 FOR THE 

 DISTRICT OF NEW JERSEY 

_____________________________ 

SHALOM PENTECOSTAL CHURCH, Civ. No. 11-4491 

et al., (RMB/AMD) 

 Plaintiffs, 

 v. OPINION

JANET NAPOLITANO, et al., 

 Defendants. 

 

 

 

Appearances: 

William A. Stock, Esquire 

Klasko, Rulon, Stock & Seltzer, LLP 

1800 John F. Kennedy Blvd. 

Philadelphia, Pennsylvania 19103 

 Attorney for Plaintiffs 

Melissa Sher Leibman, Esquire 

U.S. Department of Justice 

P.O. Box 868 

Ben Franklin Station 

 Attorney for Defendants 

BUMB, United States District Judge: 

 Plaintiffs Shalom Pentecostal Church (the “Pentecostal 

Church” or the “Church”) and its Pastor, Carlos Alencar 

(“Alencar”), filed this case challenging the decision of the 

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2 

United States Citizenship and Immigration Service (“USCIS”) to 

deny the Form I-360 special immigrant religious worker visa 

petition filed by the Church on behalf of Alencar. [See Docket 

No. 1, Complaint (“Compl.”), ¶ 1]. Plaintiffs named as 

defendants Janet Napolitano, Secretary, Department of Homeland 

Security, Alejandro Mayorkas, Director, U.S.C.I.S., Rosemary 

Langley, Melville, Director of the California Service Center of 

USCIS, and Robert P. Wiemann, Director, USCIS Administrative 

Appeals Office (collectively, the “Defendants”). Defendants 

have moved to dismiss. For the reasons that follow, that motion 

is DENIED, in part, and GRANTED, in part. 

I. Background1

A. Alencar Enters Into The United States And Works For 

The Pentecostal Church 

 On June 17, 1995, Alencar, a citizen of Brazil, entered the 

United States with his wife and two children on a B-2 

nonimmigrant visitor’s visa for pleasure. Compl., ¶ 26. 

Under the visa, Alencar and his family were authorized to stay 

in the United States until December 16, 1995. Compl., ¶ 26. 

However, Alencar could not lawfully engage in employment under 

the B-2 visa in the United States (8 U.S.C. § 1101(a)(15)(B); 8 

 

1

 The allegations contained in Plaintiff’s Complaint are accepted as true 

for purposes of the motion to dismiss. 

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C.F.R. §§ 214.2(b)(2),(e))2 and Alencar did not otherwise obtain 

employment authorization. Compl., ¶ 27. 

 Despite Alencar’s authorized status expiring in 1995 and 

lack of work authorization, Alencar has remained in unlawful 

status in the United States since then and has served as a 

religious minister for the Church since 1998. Compl., ¶¶ 28, 

29. 

B. The Pentecostal Church Submits An I-360 Petition On 

Alencar’s Behalf And It Is Denied 

 On April 1, 2009, the Pentecostal Church filed an I-360 

petition, on Alencar’s behalf, for Alencar to obtain 

classification as a “special immigrant.” Compl., ¶ 31. 

Approval of the I-360 petition and classification as a “special 

immigrant” is the first step in obtaining a “special immigrant” 

visa. Ruiz-Diaz v. U.S., 618 F.3d 1055, 1058 (9th Cir. 2010); 

Shia Ass’n of Bay Area v. U.S., 849 F. Supp. 2d 916, 918 (N.D. 

 

2

 USCIS’s regulation prohibiting employment for B-2 nonimmigrant visitor 

visa holders provides as follows: (e) Employment. A nonimmigrant in 

the United States in a class defined in section 101(a)(15)(B) of the 

Act as a temporary visitor for pleasure . . . may not engage in any 

employment. Any other nonimmigrant in the United States may not engage 

in any employment unless he has been accorded a nonimmigrant 

classification which authorizes employment or he has been granted 

permission to engage in employment in accordance with the provisions of 

this chapter. A nonimmigrant who is permitted to engage in employment 

may engage only in such employment as has been authorized. Any 

unauthorized employment by a nonimmigrant constitutes a failure to 

maintain status within the meaning of section 241(a)(1)(C)(i) of the 

Act. 8 C.F.R. § 214.1(e)(emphasis added). 

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Cal. 2012).3 An immigrant whose special immigrant visa petition 

has been approved is then eligible, if other conditions are met, 

for adjustment of status to United States permanent resident. 8 

U.S.C. § 1255; 8 C.F.R. § 245.2(a)(2)(i)(B). 

 In Alencar’s case, the Church asserted that Alencar 

qualified for “special immigrant” status under 8 U.S.C. § 

1101(a)(27)(C) (the “Statute”), which provides that certain 

religious workers can qualify as special immigrants. Under that 

provision, the term “special immigrant” includes: 

(C) an immigrant, and the immigrant’s spouse and 

children if accompanying or following to join the 

immigrant, who– 

(i) for at least 2 years immediately preceding the 

time of application for admission, has been a member 

of a religious denomination having a bona fide 

nonprofit, religious organization in the United 

States; 

 

(ii) seeks to enter the United States— 

 (I) solely for the purpose of carrying on the 

vocation of a minister of that religious 

denomination, 

 (II) before September 30, 2015, in order to work 

for the organization at the request of the 

organization in a professional capacity in a 

religious vocation or occupation, or 

 

3

 8 U.S.C. § 1153(b)(4) authorizes the issuance of visas to “special 

immigrants.” 8 U.S.C. § 1154(a)(1)(G)(i) authorizes the filing of 

petitions to be classified as a “special immigrant.” 8 CFR § 204.5(a) 

sets out Form I-360 as the appropriate petition for classification as a 

special immigrant religious worker. 

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 (III) before September 30, 2015, in order to work 

for the organization (or for a bona fide 

organization which is affiliated with the 

religious denomination and is exempt from 

taxation as an organization described in section 

501(c)(3) of Title 26) at the request of the 

organization in a religious vocation or 

occupation; and 

(iii) has been carrying on such vocation, professional 

work, or other work continuously for at least the 2-

year period described in clause (i). 

The United States Department of Homeland Security has 

promulgated an additional regulatory requirement (the 

“Regulation”) for the religious worker special immigrant visa 

petition that is relevant here – that any qualifying religious 

work performed in the United States must be performed under 

lawful immigration status in the United States. 8 C.F.R. § 

204.5(m)(4)(listing, as one of the qualifications for approval 

of special immigrant religious worker visa petition, that any 

work performed in the United States be performed “in lawful 

immigration status in the United Sates”). 

 In support of the petition, the Church submitted evidence 

that the Pentecostal Church was a bona fide, non-profit 

religious organization and that Alencar had been employed by the 

Church for over two years prior to the application. Compl., ¶ 

31. However, the Pentecostal Church admitted in the I-360 

Petition, as it does in its Complaint here, that Alencar was not 

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in lawful immigration status, nor authorized to engage in 

employment within the United States. Compl., ¶ 31; Compl., Ex. 

1. 

 On July 8, 2009, the USCIS denied Plaintiff’s I-360 

Petition because Alencar had not performed qualifying full-time 

work in lawful immigration status. Compl., ¶ 32. On March 17, 

2010, the USCIS Administrative Appeals Office dismissed the 

appeal taken by the Pentecostal Church, upholding the denial of 

the petition because Alencar was not in lawful status while 

working for the Pentecostal Church as required by the 

Regulation. Compl., ¶ 33. 

C. Plaintiffs File This Action 

 On August 3, 2011 Plaintiffs filed a Complaint in this 

Court. Plaintiffs claim that the denial of the I-360 petition 

was improper because the Regulation, which was the basis for the 

denial, is itself illegal for three separate reasons: (1) 

because it an ultra vires regulation that contravenes the 

Statute, 8 U.S.C. § 1101(a)(27)(C) (Compl., ¶ 36); (2) that the 

Regulation violates the Religious Freedom Restoration Act 

(“RFRA”) (Compl., ¶ 37); and (3) that the Regulation violates 

the First Amendment and the Equal Protection Clause of the 

United States Constitution (Compl., ¶ 38). Plaintiffs claim 

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that this suit is properly brought under several acts, including 

the Administrative Procedures Act. Compl., ¶ 14. 

II. Analysis 

 As discussed above, Defendants have moved to dismiss the 

case. They argue that dismissal is warranted on two grounds. 

First, they argue, that Plaintiffs’ claims must be dismissed 

under Federal Rule of Civil Procedure 12(b)(1)4 because 

Plaintiffs lack standing.5 Second, they argue that Plaintiffs 

have failed to state a claim under Federal Rule of Civil 

Procedure 12(b)(6). The Court addresses each argument below. 

A. Standing 

To bring suit in federal court, a plaintiff must establish 

standing under Article III of the United States Constitution. 

Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 101 

(1998); Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 

(1992). The requirements for Article III constitutional 

standing “ensure that plaintiffs have a personal stake or 

interest in the outcome of the proceedings, sufficient to 

 

4

 Because standing is a jurisdictional matter, lack of standing is 

properly asserted under Fed. R. Civ. P. 12(b)(1) as Defendants have 

done. In re Schering Plough Corp. Intron/Temodar Consumer Class 

Action, 678 F.3d 235, 243 (3d Cir. 2012). 

5

 Defendants originally only sought the dismissal of Alancar on standing 

grounds. However, on March 7, 2012, at a hearing on Defendants’ motion 

to dismiss, Defendants expanded their standing argument to include the 

Pentecostal Church and the Court ordered, and the parties completed, 

supplemental briefing to address the issue. 

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warrant their invocation of federal court jurisdiction and to 

justify exercise of the court’s remedial powers on their 

behalf.” Ballentine v. United States, 486 F.3d 806, 814 (3d 

Cir. 2007)(citing Khodara Envtl., Inc. v. Blakely, 376 F.3d 187, 

193 (3d Cir. 2004)). 

 Article III standing has three elements: 

(1) “the plaintiff must have suffered an injury in fact – 

an invasion of a legally protected interest which was 

(a) concrete and particularized, and (b) actual or 

imminent, not conjectural or hypothetical”; 

2) “there must be a causal connection between the injury 

and the conduct complained of”; and 

(3) “it must be likely, as opposed to merely speculative, 

that the injury will be redressed by a favorable 

decision.” Lujan, 504 U.S. at 560-61. 

Injury in fact requires more than an injury to a cognizable 

interest; it requires that the party seeking review be among the 

injured. Id. at 563. A party must show a “substantial 

likelihood” that the relief sought would redress the alleged 

injury. Lujan, 504 U.S. at 561. 

 Where, like here, the suit is under the Administrative 

Procedures Act, the plaintiff must, in addition to demonstrating 

constitutional standing under Article III, show that he has 

“prudential standing” by demonstrating that the interest “he 

asserts [is] arguably within the zone of interests to be 

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protected or regulated by the statute that he says was 

violated.” Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians 

v. Patchak, 132 S.Ct. 2199, 2210 (2012)(quotation and citation 

omitted). That test “is not meant to be especially demanding” 

and “forecloses suit only when a plaintiff’s interests are so 

marginally related to or inconsistent with the purposes implicit 

in the statute that it cannot reasonably be assumed that 

Congress intended to permit the suit.” Id. (quotation and 

citation omitted). 

 Defendants make two standing arguments. First, they argue 

that Alencar, as merely a beneficiary of the I-360 Petition, has 

not suffered a constitutional concrete injury in fact, as 

necessary for standing. This Court disagrees. To be sure, a 

number of courts have held that the beneficiary of a visa 

petition, like Alencar, has no standing to challenge visa 

petition proceedings. Echevarria v. Keisler, 505 F.3d 16, 18 

(1st Cir. 2007)(holding that beneficiary of Form I-130 relative 

petition did not have standing to challenge petition denied 

based on marriage fraud); Kale v. U.S. I.N.S., 37 F. App’x 90, 

at *2 (5th Cir. 2002); George v. Napolitano, 693 F.Supp.2d 125, 

130 (D.D.C. 2010); Li v. Renaud, 709 F. Supp. 2d 230, 236 n.3 

(S.D.N.Y. 2010); Zhong v. Novak, No. 08-4597, 2010 WL 3302962, 

at *7 n.12 (D.N.J. Aug. 18, 2010); Ibraimi v. Chertoff, No. 07-

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cv-3644, 2008 WL 3821678, at *3 (D.N.J. Aug. 12, 2008); Blacher 

v. Ridge, 436 F. Supp. 2d 602, 606 n.3 (S.D.N.Y. 2006). These 

Courts, however, have grounded that finding in the regulatory 

requirement that only the petitioner, and not the petition’s 

beneficiary, are considered an “affected party” with “legal 

standing” to file an appeal of an unfavorable visa petition 

decision. Id. (relying on 8 C.F.R. § 103.3(a)(1)(iii)(B)). But 

whether a litigant has constitutional standing to sue in federal 

court “is not dependent on any agency regulation.” Ore v. 

Clinton, 675 F. Supp. 2d 217, 223 (D. Mass. 2009). And, here, 

Alencar clearly suffered a concrete injury - the denial of the 

I-360 Petition. Id.; Abboud v. I.N.S., 140 F.3d 843, 847 (9th 

Cir. 1998)(holding that beneficiary of Form I-130 relative 

petition had standing to challenge petition denied based on 

death of petitioner); Bangura v. Hansen, 434 F.3d 487, 500 (6th 

Cir. 2006); Ghaly v. I.N.S., 48 F.3d 1426, 1434 (7th Cir. 1995); 

Taneja v. Smith, 795 F.2d 355, 358 (4th Cir. 1986). 

 And, while Defendants have not raised a prudential standing 

argument, this Court cannot say that the interests of the 

intended beneficiaries of special immigrant visas “are so 

marginally related to or inconsistent with the purposes implicit 

in the statute that it cannot reasonably be assumed that 

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Congress intended to permit” them to sue. Bangura, 434 F.3d at 

499-500 (concluding that beneficiaries were within zone of 

interest of statute); Ghaly, 48 F.3d at 1434 n.6 (same); Taneja, 

795 F.2d at 357 n.7 (same); Velasquez v. U.S. D.O.J., No. C98-

3934, 1999 WL 300686, at *3 n.6 (N.D. Cal. May 1, 1999)(finding 

that immigration petition beneficiary had standing to sue 

because she had been adversely affected by agency action within 

the meaning of the statute for purposes of 5 U.S.C. § 702); 

Sanchez-Trujillo v. I.N.S. of U.S. Dep’t of Justice, 620 F. 

Supp. 1361, 1362-63 (D.C.N.C. 1985). 

 Second, Defendants argue that both Plaintiffs lack standing 

because their injuries are not redressable. They argue that 

Plaintiffs truly seek to obtain some form of legal status for 

Alencar, but that Alencar is: (1) statutorily ineligible for 

adjustment of status based on his unauthorized employment in the 

United Sates and failure to maintain a continued lawful status 

in the United States; and (2) subject to a 10-year bar from 

obtaining a visa overseas because he was unlawfully present in 

the United States for more than one year. See 8 U.S.C. §§ 1255; 

1201(g)(1); 1182(a)(9)(B)(i)(II). With no route to legal status 

for Alencar, Defendants argue, Plaintiffs’ claims are not 

redressable. 

 Although Defendants are correct that Alencar is not able to 

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obtain the redress of legal status, this Court disagrees that 

Plaintiffs lack standing on this basis. Plaintiffs’ Complaint 

discretely seeks the approval of Plaintiffs’ I-360 Petition. 

This Court is capable of granting that specific and limited 

relief assuming that, as alleged, Plaintiffs are entitled to 

such relief aside from the Regulation’s bar. While, accepting 

Defendants’ arguments, any victory by Plaintiffs would be 

pyrrhic, that does not alter the fact that this Court can grant 

them the relief they do seek. 

B. Failure to State A Claim 

 In addition to lack of standing, Defendants argue that the 

Complaint fails to state a claim. To survive a motion to 

dismiss for failure to state a claim, “a complaint must contain 

sufficient factual matter, accepted as true, to state a claim to 

relief that is plausible on its face.” Sheridan v. NGK Metals 

Corp., 609 F.3d 239, 262 n.27 (3d Cir. 2010) (quoting Ashcroft 

v. Iqbal, --- U.S. ---, 129 S.Ct. 1937, 1949 (2009) (internal 

quotations omitted)). 

 Here, Defendants argue that: (1) Plaintiffs have not shown 

that the Regulation is ultra vires; and (2) Plaintiffs have not 

alleged facts establishing RFRA or constitutional violations. 

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The Court addresses each argument in turn.6

 1. Ultra Vires Claim 

 In determining whether the Regulation is ultra vires, this 

Court must assess the Regulation under the principles of Chevron 

U.S.A., Inc. V. Natural Resources Def. Council, Inc., 467 U.S. 

837 (1984). Under step one of the Chevron analysis, the Court 

must ask whether Congress has spoken to the question at issue or 

“has explicitly left a gap for the agency to fill.” 467 U.S. at 

843-44. In determining whether the language is plain or 

ambiguous, “the text of a statute must be considered in the 

larger context or structure of the statute in which it is 

found.” Alli v. Decker, 650 F.3d 1007, 1012 (3d Cir. 

2011)(quotation and citation omitted). If Congress has spoken 

to the issue unambiguously, then the Court must accept that 

statement as controlling. Chevron, 467 U.S. at 843-44. 

However, if the statute at issue is either silent or ambiguous, 

 

6

 This Court sua sponte raised an additional potential basis for 

dismissal for failure to state a claim that was not raised by the 

Defendants. [Docket No. 23]. The Court observed that, under the 

statute, “special immigrant” religious worker status appears limited to 

individuals not already in the United States and Alencar has been 

present in the United States at all relevant times. 8 U.S.C. § 

1101(a)(27)(C)(ii)(limiting special immigrant status to one who 

prospectively “seeks to enter the United States”). [Docket No. 24]. 

Because the parties had not addressed this issue, the Court ordered 

supplemental briefing on it. [Docket No. 23]. In that briefing 

[Docket Nos. 24, 25], the parties agreed, however, that this was not an 

obstacle to Plaintiffs’ claims. Therefore, the Court declines to 

dismiss on this basis and considers any arguments that dismissal on 

this basis is warranted to be waived. 

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the Court must proceed to step two and consider whether the 

agency’s interpretation is a reasonable and permissible 

construction of the statute. Id. Where the agency’s 

interpretation is reasonable, the Court must defer to the 

agency. Id. at 842-43. 

 Here, Plaintiffs claim that the Regulation is ultra vires

because it improperly imposes an additional requirement beyond 

those mandated by the Statute. Specifically, while the Statute 

merely requires that the immigrant be an individual who has been 

“carrying on” work for the past two years, the Regulation 

requires that any qualifying work performed in the United States 

be work that was performed under lawful immigration status.7 

Defendants argue that the “carrying on” language of the Statute 

is ambiguous or silent on the status of the work performed and 

that the Regulation supplies a reasonable construction of the 

statute to which this Court must defer. This Court disagrees 

with the Defendants. 

 

7

 Compare 8 U.S.C. § 1101(a)(27)(C)(defining “special immigrant” as 

someone who, among other qualifications, has been “carrying on such 

vocation, professional work, or other work for at least” two years 

before a petition is filed) with 8 C.F.R. § 204.5(m)(4) and 8 C.F.R. § 

204.5(m)(11)(requiring, to be eligible for classification as a special 

immigrant religious worker, that an alien must have been working in a 

qualified religious occupation, “either abroad or in lawful immigration 

status in the United States, . . . continuously for at least the twoyear period preceding the filing of the petition” and that “qualifying 

experience during the two years immediately preceding the petition[,] . 

. . if acquired in the United States, must have been authorized under 

United States immigration law.”)(emphasis added). 

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 The Court must first assess whether the statute speaks 

directly to the question at issue. It does. Surveying both the 

plain text of the Statute and the statutory context in which it 

is found, the Statute is neither ambiguous, nor silent, and 

Congress did not leave a gap for regulations to fill. First, 

with respect to the text of the Statute itself: 

(1) though “carrying on” has a broad and inclusive 

meaning, its plain meaning is unambiguous (See Empire 

Kosher Poultry, Inc. v. U.S. Dep’t of Agriculture, 475 

F. App’x 438, 443 (3d Cir. 2012)(finding the term 

“express” to have an unambiguous meaning)); 

(2) the Statute is not “silent” as to the legal status of 

work performed in the United States - it is inclusive 

of all work performed inside and outside the United 

States, whether lawful or unlawful8; and 

(3) because the Statute is unambiguous, it does not 

contain a “gap” for the agency to fill (U.S. v. Home 

Concrete & Supply, LLC, 132 S.Ct. 1836, 1843 

(2012)(“The fact that a statute is unambiguous means 

that there is no gap for the agency to fill and thus 

no room for agency discretion.”)(quotation and 

citation omitted)). 

Second, examining the statutory context does not reveal any 

latent ambiguity. Rather, it confirms that a plain reading of 

the statute is warranted. Congress has demonstrated its ability 

to draft legislation that delineates between time spent in the 

United States “lawfully” and unlawfully in the specific context 

 

8

 Agencies “are not free to create exceptions to statutes” and then claim 

that “the statute is silent as to whether the exception exists.” Ad Hoc 

Shrimp Trade Auction Committee v. U.S., 596 F.3d 1365, 1373-74 (Fed. 

Cir. 2010)(in dissent). This is exactly what the Defendants have done. 

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of determining eligibility for “special immigrant” status. See 

8 U.S.C. § 1101(27)(a)(defining special immigrant as “an 

immigrant, lawfully admitted for permanent residence, who is 

returning from a temporary visit abroad”)(emphasis added). And, 

more generally, Congress has shown its ability to draft 

immigration legislation that bars relief for aliens who engaged 

in unauthorized employment or are present unlawfully. 8 U.S.C. 

§ 1255(k)(2)(prohibiting adjustment of status for aliens who 

“engaged in unauthorized employment”); 8 U.S.C. § 

1182(a)(9)(B)(i)(II)(prohibiting admission for 10 years for 

aliens unlawfully present in the United States for 1 year or 

more). That it did not specifically do so here, in defining the 

class of religious workers eligible for special immigrant status 

(8 U.S.C. § 1101(27)(c)), is “compelling evidence” that 

Congress’ word choice was intentional. Alli, 650 F.3d at 1012. 

 This leaves the Court to assess the plain text of the 

statute. That text is inconsistent with the Regulation because 

the plain text of the statute solely requires that the alien 

have “carr[ied] on” work without regard to the legal status of 

that work. Brown v. Gardner, 513 U.S. 115, 116-120 

(1994)(concluding that imposition of regulatory “fault” 

requirement on statute that required compensation for any 

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“injury,” without regard to fault, was inconsistent with the 

plain language of statute). Under these circumstances, the 

Regulation is ultra vires. Shia, 849 F. Supp. 2d at 923. 

Therefore, on the facts alleged, Plaintiffs have plausibly 

stated an ultra vires claim and Defendants’ motion to dismiss 

this claim must be denied. 

 2. RFRA And Constitutional Claims 

 In contrast to Plaintiffs’ ultra vires claim, Plaintiffs 

have failed to plausibly allege RFRA and constitutional claims. 

These claims instead solely consist of insufficient conclusory 

allegations. Because conclusory allegations are insufficient on 

a motion to dismiss (Santiago v. Warminster Twp., 629 F.3d 121, 

130 (3d Cir. 2010)), these claims are dismissed, without 

prejudice. 

III. Conclusion 

 For all these reasons, Defendants’ motion to dismiss is 

GRANTED, in part, and DENIED, in part, as described above. 

 s/Renée Marie Bumb 

 RENÉE MARIE BUMB 

 United States District Judge 

Dated: January 14, 2013 

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