Religious workers – The New Regime

The immigration laws provide two ways for religious workers (ministers & non-ministers) to legally work in the United States, either as a non-immigrant temporary worker under the R-1 category or as a special immigrant (Form I-360).

 Requirements of the worker

 An individual engaged in, and, according to the denomination’s standards, qualified for a religious occupation or vocation, whether or not in a professional capacity, or as a minister.  For the two years preceding the filing of the petition, the worker must also have been (and continue to be) a member in the same type of religious denomination as the U.S. religious organization where the applicant will work.

A minister of religion must be fully authorized by a religious denomination and fully trained according to the denomination’s standards to conduct religious worship, perform duties usually performed by authorized members of the clergy of the denomination.  Documentation reflecting the applicant’s education and training must be submitted.

A religious occupation (non-minister) is categorized with regard to duties, which must relate primarily to traditional religious function and be recognized as a religious occupation within the denomination. The duties must be related primarily to, and must clearly involve, carrying out the religious creed and beliefs of the denomination. Religious occupation duties cannot include positions that are primarily administrative or support in nature (i.e. janitors, maintenance workers, clerical employees).

Requirements of the religious organization

The sponsoring religious organization must be exempt from federal taxation under §501(c)(3) of the Internal Revenue Code and must provide evidence of how the worker will be compensated (salaried or non-salaried). Types of suggested evidence to include are: proof of compensation for similar positions, budgets showing monies set aside for salaries, leases, and room & board.

An authorized official of the religious organization must sign an attestation confirming that the organization is a bona fide non-profit religious organization, number members in the organization, number of employees who work at the same location, number of religious workers currently employed, title of position offered, the requisite number of hours per week, & specific location of employment, among other things.

On-site inspections

Local USCIS fraud investigators will visit the employer’s location to verify that the evidence submitted in the application.  Site visits may include a tour of the location, a review of the employer’s records, and interview with relevant personnel. A notice of inspection is not provided to the attorney representing the religious organization or to the organization itself.

Length of stay in the United States

Under the new law, non-immigrant religious workers are no longer able to consular process an R-1 application.  Rather, all R-1 cases must have a USCIS approved Form I-129. R-1 workers are admitted for 30 months (2.5 years) with a possible 30-month extension. R-1 visa holders are permitted to work at least 20 hours per week, and only allowed to work for those employers with an approved petition.

A special immigrant religious worker who intends to permanently reside in the United States as a lawful permanent resident must file a Form I-360 in addition to a Form I-485.

In Ruiz-Diaz v. United States, No. C07-1881RSL (W.D. Wash. June 11, 2009), a class action lawsuit was filed challenging the implementation by USCIS of the concurrent filing regulation at 8 C.F.R. § 245.2(a)(2)(i)(B) to individuals seeking classification as religious workers and their ability to concurrently file Form I-360 and I-485. Earlier this summer, the District Court for the Western District of Washington, found that the concurrent filing regulation at 8 C.F.R. § 245.2(a)(2)(i)(B) was invalid and unenforceable as applied to religious workers. The district court directed USCIS to accept properly filed Forms I-360, Forms I-485, and Applications for Employment Authorization from certain religious workers who may have been affected by USCIS implementation of the regulation.

The Court further directed USCIS to issue a notice to: (1) each person or entity who has a pending I-360 visa petition; (2) a list of religious, nongovernmental, and community organizations as maintained by USCIS: and (3) post such notice on the USCIS web page at www.uscis.gov.  This is a significant ruling favorably impacting religious workers.  Due to the complexity of the religious worker petitions, as well as the high level of scrutiny by the Citizenship & Immigration Services, it is advisable to contact an immigration attorney.

Nothing in this article should be taken as legal advice for an individual case or situation. The information is intended to be general and should not be relied upon for any specific situation. For legal advice, consult an attorney experienced in immigration law.

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