In Ruiz-Diaz v. U.S., the U.S. District Court for the Western District of Washington has found that the bar against concurrent filings on behalf of religious workers for adjustment of status is invalid and unenforceable. The court ordered USCIS to begin accepting concurrently filed special immigrant religious worker petitions and adjustment of status applications, along with related employment authorization applications.

Ruiz-Diaz potentially provides religious workers who have filed I-360 petitions with the ability to concurrently file adjustment of status applications. This would allow religious workers whose underlying R visa status is expiring (the R is valid for five years) to remain in the United States as adjustment of status applicants while the green card process is pending. At present, the I- 360 approval process is lengthy due in part to the need to conduct a site investigation on each filing. Because religious workers are ineligible to file the adjustment application until the I-360 is approved, many religious workers run out of time in R visa status and must depart the United States—or risk deportation—before they become eligible to file the adjustment application.

In a related case, Seyfarth Shaw’s pro bono client, Monk Phra Bunphithak Jomthong, was featured in the June 9, 2009 edition of the Wall Street Journal in the article “Buddhist Monk Faces Worldly Green-Card Matters.” The article discussed how the U.S. government is threatening to deport Mr. Jomthong, who entered the United States four years ago on a religious visa and has since devoted himself to serving the Buddhist community in Southern California. According to the article, the U.S. government recently denied him permanent U.S. residency, or a green card, on the grounds that he was employed without authorization after his temporary religious visa lapsed.

Mr. Jomthong, who is a citizen of Thailand, is now fighting in federal district court and immigration court for the right to remain in the country.

Angelo Paparelli, partner and immigration attorney at Seyfarth Shaw, who is representing Mr. Jomthong, noted that at issue is the meaning of “employment.” Angelo commented that “[t]he monk may work at his religious labors but he is not employed by the temple. He took an oath of poverty and doesn’t receive wages.” The article also discussed how the monk’s situation illustrates that “an increasingly backlogged and cautious immigration system can trip up some applicants striving to obey the law.” Angelo further noted how, in Mr. Jomthong’s case, the government isn’t alleging fraud; just illegal employment. Angelo asserted in the article that the monk can’t be considered an “employee” of Wat Buddhapanya Temple and therefore can’t be deported on the grounds of working illegally. Angelo added that Mr. Jomthong’s work is of a voluntary nature and he “doesn’t receive any wages or other remuneration.”

Most recently, the government denied Mr. Jomthong a green card again, maintaining in the decision that he had been “remunerated since [his] admission, albeit on a modest, non-salaried basis.…” Since then, Angelo filed a lawsuit against the government asking that the judge reverse the green card denial and send the case back to the government with a legal finding that volunteer and unpaid religious services aren’t disqualifying forms of employment.

The Ruiz-Diaz case is available here. The Wall Street Journal Article is available here (subscription required). Angelo Paparelli’s blog post about the Jomthong case is available here.