As diversity in the United States continues to grow, the need for religious workers from different religious traditions has also increased. Religious workers of various faiths and nationalities may apply for temporary and permanent status to engage in religious work in the U.S., but advanced planning by the sponsoring organization and the foreign national is required before work can begin.
Over the years, the Immigration and Nationality Act has evolved to allow for a special category of religious workers to enter the U.S. to work for religious organizations on a temporary basis through R-1 nonimmigrant status or on a permanent basis as special immigrant religious worker. The general requirements to qualify to enter the U.S. as a religious worker are met when the applicant can show that she is a member of the religious denomination or organization for the immediately preceding two years and intends to work as a minster in a religious occupation or in a religious vocation for a bona fide, nonprofit religious organization (or a tax exempt affiliate of such organization) for at least 20 hours per week, and the religious organization that she intends to work for in the U.S. demonstrates that it is a bona fide, nonprofit religious organization in the U.S.
In 2008, after an extensive review of the religious worker provisions and statute, U.S. Citizenship and Immigration Services (USCIS) announced significant changes governing the nonimmigrant (R-1) and special immigrant (I-360) permanent religious worker categories. As a result, it is now a much lengthier and more difficult process to employ religious workers. With mandatory site visits, additional application and documentation requirements and increased processing times, the changes to the Religious Worker program make it clear that employers must first plan ahead when seeking to employ foreign national religious workers.
Initial Nonimmigrant Religious Worker (R-1) Petitions: A Lengthy Process
Once it has been determined that the potential minister's or religious worker's prior membership does meet the two-year work requirement, the religious organization is required to submit a petition for nonimmigrant (R-1) status with USCIS before the foreign national can seek to enter the U.S. Once the petition has been approved, the religious worker can apply for an R-1 visa to enter the U.S. at a consulate abroad.
A foreign national may hold R-1 status for up to five years. Requirements to qualify for an R-1 visa are slightly less demanding than those to qualify for a permanent special immigrant visa. For example, for an R-1 visa, the religious organization is only required to employ a foreign national for 20 hours per week, while I-360 special immigrant applicants are required to be employed full time (at least 35 hours a week). Employers must be aware that if their employee's time in R-1 status is intended to count toward the two-year employment requirement for special immigrant visas, the R-1 employment must be full time.
Previously, foreign nationals could apply directly to a U.S. embassy, consulate or Port of Entry for an R-1 visa. Today, employers must first file the petition with USCIS at a service center in the U.S. and wait for it to be processed (processing times are currently at 5-6 months). The introduction of site visits in 2005 for the initial R-1 petitions is another attempt to cut back on fraudulent petitions but has added to processing delays.
After filing the initial R-1 application, USCIS will conduct an on-site inspection of the religious organization. The inspection may include a tour of the facility, an interview with the organization's governing officials or representatives and a review of an organization's records. Satisfactory completion of the site visit is a condition for approval of the R-1 petition. Due to the fact that a religious organization may or may not be informed that a USCIS officer will be coming for a visit, it is helpful to prepare for the site visit in advance, designating people who will speak to the officers when they arrive.
In comparison to other certain other nonimmigrant visa categories that are eligible to request expedited 15-day processing of their applications for an additional fee (called Premium Processing), religious organization are restricted in being able to access Premium Processing for R-1 status. Currently it is only available for employers that already have gone through a site inspection or who are filing for R-1 extensions. This further adds to the lengthy and cumbersome R-1 process.
Moving From Nonimmigrant to Special Immigrant Religious Worker
Religious organizations hoping to sponsor an employee for permanent residency can petition for a special immigrant (I-360) religious worker on behalf of a foreign national provided they intend to offer permanent employment as a minister, a non-minister in a religious occupation or a worker whose employment is pursuant to a religious vocation. The foreign national must have been a member of a qualifying religious organization with which the petitioning organization in the U.S. is affiliated and must have been working in that particular vocation, occupation or related occupation for two years immediately preceding the filing of the I-360 petition. Additionally, the foreign national worker must be coming to work in a full-time capacity. Once the petition is approved, the potential employee can then apply for an immigrant visa at a U.S. embassy or consulate abroad, and enter the U.S. as a permanent resident or file an I-485 Application to Adjust Status in the U.S. With no option for premium processing, I-360 processing times are now five to six months, and the foreign national is required to wait to file her application for adjustment of status or consular processing until the I-360 petition has been approved before moving to the final stage of the permanent residency process.
Special Immigrant Visa: Two-Year Work Requirement
Often times, it is the two-year work requirement that religious workers have difficulty meeting. As stated in 8 CFR § 204.5 (m) (4), a foreign national must have been working in a full-time capacity for that particular vocation, occupation or related occupation for two years immediately preceding the filing of the I-360 petition. Further, USCIS interpretation of the Immigration and Nationality Act requires a foreign national to have worked in lawful status the two years immediately prior to the filing for an immigrant visa. As stated, qualifying prior experience, "if acquired in the United States, must have been authorized under United States immigration law" (8 CFR §204.5 (m)(11)). A recent court ruling, however, challenges USCIS' interpretation. In a recent decision by the U.S. District Court for the District of New Jersey, USCIS regulations requiring the foreign national to have worked in lawful status for the two years immediately prior to filing have been ruled ultra vires. In Shalom Pentecostal Church v. Rand Beers, the judge ruled that USCIS, by requiring the employment to have been authorized under U.S. immigration law, was imposing an "ultra vires regulation that contradicts the Statute" (The statute being INA § 101(a)(27)(C)). While this ruling does not hold in other districts, that USCIS regulations have been struck down offers new possibilities for regulation interpretation in the future.
Religious organizations employing foreign nationals must also strategize on when to start down the immigrant visa and permanent residency track. If employees meet the two-year employment requirement when they first come to the U.S., it is recommended that they file for an immigrant visa as soon as possible. Unlike regulations for workers in H status, USCIS does not provide extension of R status past the allotted time (five years) for persons going through the permanent residency process and only recently has extended the recapture of time policy to R-1 visas (see USCIS Policy Memorandum from March 8, 2012). Whereas there are regulations allowing for employees in H or L status to concurrently file an immigrant visa with an application to adjust status, this allowance sunset on September 30, 2012, for religious workers. With lengthy processing times, employers must keep their employee's R-1 status expiration in mind as they file an I-360 petition and wait for it to be processed. In order for their employee to have continuous employment authorization, an I-765 Employment Authorization Document must be issued before R-1 status expires. If a foreign national's R-1 status runs out before the employment authorization is issued, he or she must not work until the authorization is issued.
Given the current processing times and inability to extend R-1 status, religious employers hoping to keep their religious workers for periods longer than five years, and/or sponsor them for permanent residency, would be wise to keep these things in mind and make an immigration plan ahead of time. Although recent USCIS memos and court rulings show a certain lightening of restrictions, it is doubtful that fraud prevention efforts will subside or that USCIS will introduce additional extension opportunities and faster routes to permanent residency any time soon.