How to Win Your Religious Worker Green Card Case (I-360 Petition)?

Contents

1. Introduction
2. Criteria for eligibility for a religious worker green card
3. Form I-360 requirements
4. What requirements for Form I-360 apply to the employer?
5. What requirements for Form I-360 apply to the employee?
6. Are site visits required
7. How does the adjustment of employee status from an R-1 visa to a religious worker green card occur?
8. New deadline requirements for non-ministers
9. Speak with an experienced special immigration religious worker lawyer today

Introduction

For many religious workers, an R-1 visa is a stepping-stone to obtaining a green card. The requirements for R-1 visas and green cards are similar but not identical. An experienced immigration lawyer understands the differences. He also understands the formalities that you need to meet to either transfer/adjust an R-1 visa to an approved green card status or to file for a green card initially.

A major difference is that green card approval based on being a religious worker requires that the applicant has worked as a religious worker for two years. The R-1 is one way for religious workers to get that experience in America. Ideally, the employer who helped the R-1 visa holder obtain the visa also helps the religious worker obtain his/her green card. Alternatively, religious workers can verify that they have two years of work experience in a foreign country and apply directly for the green card.

The Immigration and Nationality Act is codified in 8 U.S. Code § 1101

Criteria for eligibility for a religious worker green card

The USCIS eligibility criteria for a special immigration religious worker green card is as follows:

• The worker must have belonged to a religious denomination – one with “bona fide-non-profit religious organization” credentials in the US – for two years or more prior to filing the religious worker petition.
• The religious worker must seek to work:
  • “Solely as a minister of that religious denomination
  • A religious vocation either in a professional or nonprofessional capacity; or
  • A religious occupation either in a professional or nonprofessional capacity”
• The religious worker must be coming to America to work for a bonafide organization that is either:
  • A non-profit religious organization in the US
  • Is affiliated with the religious denomination in the United States
• The applicant must have been employed in one of the positions described:
  • After reaching 14 years of age
  • Either in the US or abroad
  • Continuously for at least two years immediately before filing the petition. The previous religious work doesn’t need to “correspond precisely to the type of work to be performed.” after the green card is approved.
  • A break in the two-year continuity requirement shouldn’t affect the applicant’s eligibility if all the following apply:
    • The foreigner was “still employed as a religious worker”
    • “The break did not exceed 2 years”
    • “The nature of the break was for further religious training or for sabbatical”
    • “However, the alien must have been a member of the petitioner’s denomination throughout the 2 years of qualifying employment.”

Full-time work generally means 35 hours per week.

Form I-360 Requirements

The initial step for a religious worker with an R-1 visa is to file Form I-360 with the U.S. Citizenship and Immigration Services (USCIS).

• Form I-360. This form can be used for non-religious worker purposes too so it’s important to understand precisely what information pertains to the religious worker. Generally, the employer completes its section, the employee completes the employee parts, and the employee/applicant also fills out the religious worker parts.

What Requirements for Form I-360 apply to the Employer?

A church or any religious organization that sponsors a religious worker must complete the following tasks:

Attest to specific requirements

The employer needs to attest to the following items:

• The religious organization information
• The membership and affiliations of the religious organization.
• Any other religious worker visa petitions the religious organization has filed
• The ability to pay the religious worker his/her wages. This includes W-2 forms which show how much the employee has been paid (and how much other employees have been paid), the organization’s tax returns, and other financial statements and reports.
• The details about the employment
• The details about the qualifications of the employee

Nonprofit status approval

The employees will need to supply a nonprofit determination letter from the IRS verifying the tax-exempt status of the organization – or provide similar documentation.

• A religious organization which has an IRS 501(c)(3) letter can provide a current valid IRS letter confirming the organization’s tax-exempt status
• Some religious organizations are considered tax-exempt as part of a group tax exemption. In this case, the religious organization must provide a valid IRS group tax-exemption determination letter.
• Organizations that are an “affiliated with the religious organization,” according to the USCIS, must provide all of the following:
  • “A currently valid determination letter from the IRS showing that the organization is tax-exempt”
  • Organizational literature
  • Documentation showing the organization’s religious purpose and nature
  • “A religious denomination certification, part of Form I-360.

What Requirements for Form I-360 Apply to the Employee?

The religious organization must also complete the following information about the employee application for the religious green card:

• Proof of the employee’s membership in the religious denomination: This documentation should cover the prior two years (or more) before the filing date of the I-360 petition. For example, a letter from a church official such as a pastor should be adequate.
• Educational and ordination documents if the applicant is a minister. The following documentation is required, according to the USCIS,:
  • “A copy of the religious worker’s certificate of ordination or similar documents”
  • Evidence confirming the religious organization accepts the religious workers’ qualifications to work as a minister in the religious denomination – and evidence verifying the religious worker who is applying for a religious green card has “completed any course of prescribed theological education at an accredited theological institution normally required or recognized by that religious denomination.” This evidence should include transcripts, the course of study, and accreditation documentation for the theological institution – showing the institution is accredited by the denomination
• For religious organizations without formal theological education requirements, the form should include documentation, according to the USCIS,:
  • Explaining the religious denomination’s ordination process and the religious denomination’s requirements for ordination to minister;
  • The religious denomination’s requirements for ordination to minister
  • The denomination’s levels of ordination, if any
  • “A list of duties performed by virtue of ordination”
  • Confirmation the employee/applicant has met those requirements.
• Proof that the employee did work for two years: The religious employer must provide documentation confirming how it will pay the religious worker – including monetary compensation or in-kind compensation. Acceptable documentation, according to the USCIS, generally includes:
  • “Past evidence of compensation for similar positions”
  • Organizational budges showing funds have been set aside for salaries, leases, etc.
  • Documentation showing that the religious worker’s room and the board will be paid
  • W-2 forms, certified tax returns, and other IRS documentation documenting prior compensation
  If IRS documents are not available, the religious organization should explain why the documents aren’t available and provide comparable, verifiable documentation

Form I-360 requires payment of the filing fee for the year it is filed. The fee for 2019 was $435.

Are site visits required

If you’re seeking a religious green card and you haven’t previously been approved for an R-1 visa, the USCIS will usually require an on-site inspection of the religious organization – to verify its legitimacy. On-site visits include an inspection of the religious organizations’ main and branch sites, a review of the appropriate documents, and interviews with the officials and employees of the religious organization.

How does the adjustment of employee status from an R-1 visa to a religious worker green card occur?

Once an I-360 application is approved by USCIS, the employee seeking a religious green card must do one of the following:

• File a 1-485 application – so their status can be adjusted. Current employees and employees approved for employment based on I-360 form approval – who are in the United States and in approved immigration status – can submit I-485. Spouses and children under 21 who are dependents of the employee applicant can also use form I-485
• Apply for an immigrant visa – which should generate a green card when the applicant enters the US through the foreign US consulate. If the applicant is in a foreign country and they are pursuing a Form I-360 application, the prospective employee will process through application, with the help of experienced religious worker immigration lawyers, through the US National Visa Center (NVC).
  Essentially the applicant and family members go to the US consulate in their country go obtain an immigrant visa. This immigrant visa is equivalent to a green card. The formal green card is mailed to the applicant at their address in the United States soon after they arrive in the country.

Religious workers qualify as fourth-preference (EB-4) visas. These visas are available, according to the USCIS, for ministers and non-ministers in “religious vocations and occupations.”

New deadline requirements for non-ministers

The USCS notes that the EB-4 non-minister special immigrant religious worker program has been extended through September 30, 2020. Non-minister special immigration religious workers can be employed in either a professional or non-professional capacity. The September 30, 2020 end-date, commonly called a sunset date, applies to the spouses and children of non-minister special immigrant religious worker applicants.

The September 30, 2020 end-date does not apply the people seeking special immigration status based on their work as a minister.

Applicants who believe that one of the Form I-360 requirements places too great a burden on the religious organization’s exercise of religion can request an exemption through the Religious Freedom Restoration Act (RFRA). The request must be in writing, must have supporting documentation, and must explain how the requirements are unduly burdensome.

Speak with an experienced special immigration religious worker lawyer today

If you are a religious organization seeking to employ a religious worker or you are the religious worker yourself, know that the Herman Legal Group has the experience and skills to help you file the correct forms and to provide the accompanying documentation. Herman Legal Group helps with R-1 adjustments and with original special immigration religious worker green card requests. Our immigration attorneys are based in America and work across America. Our lawyers speak different languages and understand different cultures.

For help obtaining a religious worker green card, call Herman Legal Group at +1-216-696-6170 or complete our contact form to speak with us.