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U.S. Citizenship and Immigration Services Issues Final Religious Worker Visa Rule

Immigration Law Update

December 4, 2008

The U.S. Citizenship and Immigration Services (USCIS) has issued a final rule that makes significant revisions to regulations governing the special immigrant and nonimmigrant (R-1) religious worker visa classification. Intended to reduce fraud in the religious worker program, the final rule requires that employers submit a formal petition for temporary religious workers, and provides for “increased inspections, evaluations, verifications, and compliance reviews of religious organizations.”

Petitioning and Attestation Requirements

The proposed rule required that all aliens seeking religious worker status – whether as special immigrants or nonimmigrants – have a sponsoring employer or organization submit a petition on the aliens' behalf. The final rule retains the petitioning requirement, but continues to allow an alien seeking special immigrant religious worker status to submit a petition (Form I-360) on his or her behalf. A nonimmigrant alien seeking R 1 status, however, cannot self-petition and must have an employer submit a petition (Form I 129) on his or her behalf. By implementing the petition requirement, the USCIS seeks to preserve the integrity of the program by denying petitions for fraud or other ineligibility factors. It also allows the USCIS and petitioning employer to respond to derogatory information revealed by on-site inspections before a petition is ultimately denied.

In addition to filing the required form and associated fee, the final rule also requires an authorized official of the petitioning employer to attest to a number of factors including, but not limited to: (i) that the prospective employer is a bona fide non-profit religious organization or a religious organization which is affiliated with the religious denomination and is exempt from taxation; (ii) the number of members of the prospective employer's organization, the number of aliens holding religious worker status (both special immigrant and nonimmigrant) and the number of petitions filed by the employer for such status within the preceding five years; (iii) the complete package of salaries or non salaried compensation being offered and a detailed description of the alien's proposed daily duties; and (iv) that an alien seeking special immigrant religious worker status will be employed at least 35 hours per week and an alien seeking nonimmigrant religious worker status will be employed for at least 20 hours per week.

Period of Initial Admission and Extension of Status for R-1 Workers

Under the Immigration and Nationality Act ("INA"), nonimmigrant religious workers may be admitted to the U.S. for a period not to exceed five years. Current USCIS regulations provide for an initial admission period of three years, with the opportunity to petition for an extension of stay for two additional years.

Under the final rule, however, nonimmigrant religious workers may obtain an initial period of admission of up to 30 months, with one extension of an additional 30 months, for a total of 60 months (the five-year statutory maximum). This change was implemented to allow the USCIS an earlier opportunity to review whether the terms of the visa had been met, before extending the nonimmigrant religious worker’s stay in the U.S.

Compensation Requirements

Compensation requirements for nonimmigrant and special immigrant petitions were also clarified by the USCIS in the final rule. With limited exceptions, the petitioner (i.e., the employer) must provide verifiable evidence that the beneficiary of an initial R-1 petition receives salaried or non salaried compensation. If there is to be no compensation, then the petitioner must provide verifiable evidence that the non-compensated religious worker will be participating in an established, traditionally non-compensated, missionary program within the denomination, which is part of a broader international program of missionary work sponsored by the denomination. The petitioner must also provide verifiable evidence of how the alien will be supported while participating in that program. Additionally, when applying for an extension of status, the petitioner must submit verifiable evidence of past compensation and/or support. Special immigrant petitioners must also submit verifiable evidence of: (i) how the petitioner intends to compensate the alien and (ii) past compensation and/or support received.

USCIS On-Site Inspections

The rule further provides for notification to petitioners that an on-site inspection may be conducted to verify the legitimacy of the organization and job offer. Inspections generally will require petitioners to provide more reliable documentary evidence to establish eligibility for the R-1 nonimmigrant classification.

Other Changes

In addition to the above-described changes, the new rule also:

  • Amends the definition of “religious occupation” by removing the list of occupations set forth as examples in the proposed rule, and instead defining a religious occupation as one that relates “primarily to a traditional religious function that is recognized as a religious occupation within the denomination.” Additionally, the rule requires that religious workers in a "religious vocation" "demonstrate a lifetime commitment to a religious way of life," although there is no training or education requirement. The rule also expands upon the interpretation of the “prior experience requirement” to include religious work that is not in the exact same position as the job offered and it allows for a break of less than two years in the continuity of the prior work experience required, so long as the work was authorized and for a religious purpose; and
  • Clarifies that there are two types of organizations allowed to petition for religious workers under the statute: bona fide non-profit religious organizations and non profit organizations that are affiliated with the religious denomination. Bona fide non-profit religious organizations can establish they are qualified to petition for a religious worker by submitting a currently valid determination letter from the Internal Revenue Service showing that the organization is tax exempt as a religious organization.  Affiliated organizations must establish that they are tax exempt (although not necessarily as religious organizations) and provide documentation that demonstrates their religious nature and purpose as well as a certification by a tax-exempt religious organization in their denomination.

The full text of the final rule is available at: http://edocket.access.gpo.gov/2008/E8-28225.htm.

Bottom Line

The final rule, which was published in the Federal Register on November 26, 2008, became effective upon publication. This was done so that the Special Immigrant Nonminister Religious Worker Program Act (Public Law 110-391), which was signed by President Bush on October 10, 2008, could become effective. Public Law No. 110-391, which extended the Nonminister Religious Worker Program through March 6, 2009, was contingent upon the Department of Homeland Security publishing final regulations designed to "eliminate or reduce fraud related to the granting of special immigrant status" to Nonminister Religious Workers.  Now that the Regulations have been published, the USCIS will resume processing of cases that were pending, but could not be adjudicated.