Asian Journal- The Filipino-American Community Newspaper

U.S. Citizenship and Immigration Services (USCIS) published the final rule on the special immigrant and nonimmigrant religious worker visa categories on November 26, 2008.   This rule became effective immediately on the date of publication. 

USCIS published an initial set of questions and answers related to the final religious worker rule on November 21, 2008.   Below are a supplemental group of questions and answers that provide additional details on the program.

Supplemental Qs and As

Part 1 – Special Immigrant Religious Workers (I-360 petitions)

Q1. The final religious worker rule contains a stipulation that any unauthorized employment in the United States does not count towards and interrupts the two-year continuous period of experience required for classification as a special immigrant religious worker.   Does this provision conflict with section 245(k) of the Immigration and Nationality Act (Act), which allows individuals who have been out of status and/or worked without authorization for up to 180 days to apply for adjustment of status to that of a permanent resident? 

A1. No.   The provisions in the final religious worker rule governing the eligibility requirements for special immigrant religious workers, specifically the experience requirements, do not negate the statutory provisions of section 245(k) of the Act relating to the subsequent adjustment of status application.   Section 245(k) of the Act applies to adjustment of status (I-485) applications, and 8 CFR 204.5(m)(4) applies to special immigrant (I-360) petitions.  Because the final rule was enacted largely to combat fraud, any employment in the United States that the religious worker seeks to have counted towards the 2-year experience requirement to qualify as a special immigrant religious worker must be authorized.  Unauthorized employment in the United States will break the continuity of the required religious work experience for the purpose of I-360 adjudications.  If the two-year period is interrupted, the qualifying period of employment must re-start but   may be completed in the United States or abroad.  If the applicant is in the United States once the I-360 petition for special immigrant religious worker classification is approved, and if he/she is in valid status or has been out of status for less than 180 days in the aggregate, he/she may proceed with applying for adjustment of status and may utilize section 245(k) of the Act, if applicable.

Q2. Does any break in employment in the United States disrupt the two-year continuous period of qualifying experience for special immigrant classification?

A2. No.   USCIS regulations at 204.5(m)(4) state that a break in the continuity of the work during the preceding two years will not affect eligibility so long as: (i) the beneficiary was still employed as a religious worker; (ii) the break did not exceed two years; and (iii) the nature of the break was for further religious training or for sabbatical that did not involve unauthorized work in the United States.   However, the beneficiary must have been a member of the petitioner’s denomination throughout the two years of qualifying employment.  Additionally, as a point of clarification, the supplemental information section to the final rule published on November 26, 2008 indicates that events such as sick leave, pregnancy leave, spousal care, and/or vacations are typical in the normal course of any employment and will not be seen as a break of the two-year requirement as long as the beneficiary is still considered employed during that time and such employment is pursuant to a valid employment authorization.