A meeting with USCIS, religious worker stakeholders and the California Service Center (CSC) was held on July 14, 2011 and July 28, 2011. The discussion touched on numerous topics including Requests for Evidence, on-site inspections, and other R1 matters. Some of the questions and answers follow:
How can small religious organizations that never had to obtain a 501(c)(3) IRS letter proceed to sponsor religious beneficiaries?
Some religious organizations never had to obtain the 501(c)(3) IRS letter because they were houses of worship and nonprofits. These entities don’t file taxes, usually because they’re too small. How can they proceed to sponsor a religious worker?
To sponsor an R-1 nonimmigrant visa, the religious organization must apply for and obtain receive an IRC § 501(c)(3) determination – to prove their non-profit status. That requirement is clearly set forth in 8 C.F.R. §§ 214.2( r) (9) and 204.5(m)(8).
The response then cites an excerpt from “the Special Immigrant and Nonimmigrant Religious Workers; Special Immigrant Nonminister Religious Worker Program Act, 73 Fed. Reg 72276. at 72280 (Nov. 26, 2008).” The cite basically states that – even though the USCIS understands that not all churches need to file for a tax-exempt status determination letter from the IRS, the USCIS has decided to keep that requirement for RI visa applications. The reason for mandating this requirement is to help deter fraud. The IRS determination letter provides “verifiable documentation that the petitioner is a bona fide tax-exempt to organization or part of a group exemption.”
How broadly should the phrase “ecclesiastical government” be interpreted?
The definition of “religious denomination” was changed. The new definition is stated in 8 CFR 204.5(m)(5) and 8 CFR 214.2(r)(3). The preamble to the regulation states that the definition of the ecclesiastical government phrase should be interpreted broadly – “… the definition of ‘religious denomination’ does not require a hierarchical governing structure… USCIS is aware that some denominations officially shun such structures. The focus of the regulation is, instead, on the commonality of the faith and internal organization of the denomination.”
The regulation also adds that individual churches can meet the “ecclesiastical government” requirement of the ‘religious denomination:
- If the church shares a common creed with the other churches [in the denomination] but doesn’t’ “share a common organizational structure or governing hierarchy with other churches”
- By filing a “description of its own internal governing or organizational structure.”
The new CFR regulations also appear to have some flexibility regarding the denominational membership requirement because they define “denominational membership” as “membership during at least the two-year period immediately preceding the filing date of the petition, IN THE SAME TYPE of religious denominational as the United States religious organization where the alien will work.”
The reference to the words “Same Type” indicates this attempt to introduce flexibility.
The question is “Can you comment on how CSC views the “same denomination” requirement as applied to Christians who maintained membership in a non-denominational church outside the U.S. and who seek to enter the U.S.to work in a religious worker capacity at another non-denominational church which does not share a common ecclesiastical governing structure with the entity abroad?
The new regulations define religious domination formally as “religious group or community of believers that is governed or administered under a common type of ecclesiastical government” and includes one or more of the following:
- (A) “A recognized common creed or statement of faith shared among the denomination’s members
- (B) A common form of worship
- (C) A common formal code of doctrine and discipline
- (D) Common religious services and ceremonies
- (E) Common established places of religious worship or religious congregations; or
- (F) Comparable indicia of a bona fide religious denomination”
So, though the formal “religious denomination” definition doesn’t require a “hierarchical governing structure,” US and foreign non-denominational churches “must be governed by a common ecclesiastical government and meet one or more of the requirements reflected in conditions A-F