Petition to Classify Alien as a Nonimmigrant Religious Worker to Perform Services as a “Deacon/Minister” Denied

On December 19,2019, the AAO denied a petition by a church to obtain an R-1 nonimmigrant visa to temporarily employ a foreign national as a deacon/minister. The INA does provide that non-profit religious organizations can seek R1 visas for foreign nationals to work as “ministers, in religious vocations, or in religious occupations in the United States.”

The case is – In Re: 5040882 Appeal of California Service Center Decision Non-Precedent Decision of the Administrative Appeals Office Date: DEC. 19, 2019 Form I-129, Petition for Nonimmigrant Worker (Religious Worker – R-1).

The Director of the California Service Center disapproved the petition because the petitioner failed to provide:

• A “currently valid determination letter from the IRS [Internal Revenue Service] showing that [it] is a tax-exempt organization”
• Proper evidence showing how it intended to compensate the minister

The petitioner then filed an appeal to the Administrative Appeals Office.

The Law

The INA law provides that petitioners can seek R1 visas for foreign nationals to work in the US as ministers and in other categories. There are specific requirements including:

• Establishing that the alien beneficiary “has been a member of a religious denomination for at least the two-year period before the date the petition is filed. Section 101(a)(15)(R) of the Act; 8 C.F.R. § 214.2(r).
• In accordance with 8 C.F.R. § 214.2(r)(9)(i)-(ii) – submitting evidence that the religious organization/church has “[a] currently valid determination letter from the IRS showing that the organization is a tax-exempt organization” or “[f]or a religious organization that is recognized as tax-exempt under a group tax-exemption, a currently valid determination letter from the IRS establishing that the group is tax-exempt.”
• Evidence regarding compensation, according to 8 C.F.R. § 214.2(r)(l 1) provides, in pertinent part:
  • That the initial evidence must show how the alien will be compensated (including the means of payment – specific monetary payment of in-kind compensation) or if the alien will support himself/herself.
  • Salaried or non-salaried compensation includes:
    • “Past evidence of compensation for similar positions
    • Budgets showing monies set aside for salaries, leases, etc.
    • Verifiable documentation that room and board will be provided”
    • Other acceptable evidence such as W-2 forms or certified tax returns

The analysis by the AAO

The tax-exempt proof requirement

Petitioner agrees that it didn’t and doesn’t now have the appropriate IRS letter. Instead, it offers an exemption letter from the Florida Department of Revenue – even though that letter specifically says, “This Florida document, however, is not an IRS determination letter and thus does not meet the regulatory requirements under 8 C.F.R. § 214.2(r)(9)(i)-(ii).”

Compensation

The petitioner, on appeal, offered a letter stating it would pay the pastor $720 bi-weekly. The Director replied that the Petitioner previously stated, “[t]he church does not compensate any of its Deacons and missionaries” and that “the church members will be donating finances and benevolence towards [the Beneficiary].” Similar references to payment by the benevolence of the church were referenced by the petitioner and in the Director’s request for evidence.

The AAO found that there were no W-2s or certified tax returns – nor an explanation for the absence of such documents as the law required. There was also no evidence of prior compensation or budgets to support the compensation requirement. At best, the statements by the petitioner indicated third-parties (such as the pastor or beneficiaries) will be paying the compensation – and not the church/petitioner.

The decision also found other defects in the Petition. The petition failed to show that the beneficiary has the requisite qualifications for a minister or religious worker position.

Conclusion

The petitioner failed, by a preponderance of the evidence, to establish that the alien is eligible for R-1 nonimmigrant classification.

Contact an experienced immigration lawyer to discuss the compensation requirements and eligibility requirements for ministers and religious workers.