The USCIS has implemented new rules as of November 21, 2008 designed to stem fraud in the US religious worker program. Addressing both the "Special Immigrant" and "R-1 nonimmigrant" religious worker petitions, the new rules create additional requirements for classification in these categories and limit the types of workers that may seek admission as religious workers. The religious worker program is currently set to expire in March 2009, but there is little doubt that Congress will extend the program early next year.
Under the Immigration & Nationality Act, there are generally two types of "workers" that may seek admission to the US as either R-1 Nonimmigrants or Special Religious Worker Permanent Residents. These include ordained ministers and those workers performing services in a "religious occupation." In either case, the worker must be petitioned by a US-based non-profit religious organization or a non-profit organization affiliated with a religious organization. Generally, such organizations have proof of "tax exempt" status issued by the Internal Revenue Service and the tax boards of the States in which they are headquartered.
Traditionally, an R-1 nonimmigrant would have to show that he had been a member of a specific religious denomination for at least two years, and sought admission to the US in order to carry out duties as a Minister or other Religious worker for an organization in the US in the same religious denomination. Those applicants seeking Special Immigrant admission would have to establish that they had not only been members of the denomination for two years, but that they had been performing duties as a minister or in a religious occupation for the two years preceding the filing of the petition. The USCIS frequently took issue with Petitioners’ designations of various denominations, since the regulation was flexible--and consequently somewhat unclear--to avoid discriminating against newer and less traditional religious organizations.
Under the new rule, the petitioning organization must show that the Petitioner and the denomination to which the religious worker belonged share the same "ecclesiastical government." This requires a detailed description of the organization’s internal structure, even if the organization does not have a "central government," such as is found in the Catholic Church and other traditionally recognized religious denominations.
Prior to the new rule, an individual seeking admission as an R-1 Religious worker could apply directly for the R-1 Visa at the US State Department (DOS) Embassy or Consulate in his home country. Provided he met the requirements, he could be issued a visa rather swiftly and be admitted to the US. The new rule requires that all R-1 Visa applicants first obtain approval of an I-129R Visa Petition from the USCIS in the United States prior to applying for a visa at the Embassy. This requirement will add several months to the process, but the USCIS apparently changed the rule because the USCIS’ local offices in the US are better able to investigate petitions and root out fraud than the DOS offices overseas.
The rule also amends the definition of "religious occupation" by eliminating the basic examples of "religious occupations" offered in the previous rule. Now, Petitioners must be prepared to show how the proposed occupation relates to a "traditional religious function" as recognized within the religious denomination. How this change will affect new Petitions in practice remains to be seen and any abrupt departure from the USCIS’ previous policies in the adjudication of such petitions will most likely be met with fierce protest from the religious communities.
The new rule appears at best to be an overreaction to a spate of fraud in the filings of religious worker petitions over the past several years. There seems to be no legitimate basis for the additional requirements and restrictions in the case of large, traditional religious organizations with readily confirmable physical locations and legitimate worker needs in the US. Nonetheless, the new rule puts a premium on Petitioners’ due diligence in seeking qualified counsel to understand the changes, avoid pitfalls and prepare petitions in observance of all applicable rules.
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Daniel P. Hanlon is a California State Bar Certified Specialist in Immigration and Nationality Law and a principal of Hanlon & Greene, a Professional Corporation, located at 225 S. Lake Ave., 11th Floor in Pasadena, California; tel. No. (626) 585-8005. Hanlon & Greene is an immigration and full-service law firm. E-mail: This e-mail address is being protected from spambots. You need JavaScript enabled to view it and www.hanlon-greene.com
( Published on December 6, 2008 in Asian Journal Los Angeles p. C3 )
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