The US Citizenship and Immigration Services (USCIS) agency has a checklist of items that they recommend religious workers seeing a green card and the religious organizations that sponsor these religious workers review. The list is for informational purposes. The religious workers and religious organizations should review all the religious worker green card requirements with an experienced immigration attorney.
The USCIS also advises that original documents should not be sent unless they are specifically requested according to the relevant instructions and regulations. The main form that needs to be filed is uscis.gov/i-360.
If any documents are submitted (copies or original documents) that are in a foreign language, then the applicant/sponsor should include a complete English translation -and a certification from a translator stating that the translation is complete and accurate. The translator should also verify that he/she has the necessary qualifications to translate from the foreign language to English.
What’s In the Religious Worker Checklist?
Applicants for a religious green card, whether they are applying form a foreign country or they are applying from the US because they’ve already obtained an R-1 visa, should verify that they have the following documentation:
- IRS documentation. A religious organization should submit the IRS determination letter confirming that the religious organization either is tax-exempt or that the religious group that covers the religious organization has a group tax exemption – along with a showing that the religious organization is part of the group.
- If a bona fide organization doesn’t directly qualify as a religious organization but is affiliated with a religious denomination, then the organization must have documentation showing that:
- “It was granted tax-exempt status under the Internal Revenue Code (IRC) of 1986 section 501(c)(3) (or a subsequent amendment or equivalent sections of prior enactments of the IRC) as something other than a religious organization.” The documentation should include all of the following:
- “A valid determination letter from the IRS establishing the organization is a tax-exempt organization
- Documentation that establishes the religious nature and purpose of the organization
- Organizational literature describing the religious purpose and nature of the activities of the organization and
- A Religious Denomination Certification completed, signed, and dated by the religious organization certifying the petitioning organization is affiliated with the religious denomination.”
- A Prospective Employer Attestation (this attestation is part of Form I-360, Part 9) and certification by an authorized official of the employer for the employee seeking a religious green card – that is signed, dated, and completely filled out.
- Employee compensation evidence. The religious organizations should provide evidence that verifies how the organization will pay the beneficiary. Payment includes salaried compensation and non-salaried compensation.
- Membership requirements. The religious organization should provide evidence that the religious worker, for at least two years or more prior to the petition for the green card filing date, has been a member of the religious denomination.
- Continuous working requirement. The religious organization should provide documentation to show that the religious worker “has been working continuously, after turning 14 years of age, in one of the positions listed below” – either in the US or in a foreign country, for at least two years before the petition for a religious green card is filed:
- As a minister for the respective religious denomination
- In a religious job.
- The employment can be in a religious vocation – either in a professional capacity or in a non-professional capacity.
- Worker qualifications. The religious organization/beneficiary must provide evidence to show the religious worker/ beneficiary has the qualifications necessary to “perform the duties of the offered position.”
Ameeting 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?
The question
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?
The answer/response
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 question
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 answer/response
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.
Some of the additional questions discussed at a meeting among USCIS, the California Service Center, and the religious worker stakeholders include the following:
Is there anything that can be done to relieve the burden of an overly burdensome Request for Evidence (RFE)?
The question
An example was given for this question for the situation where there was a previous visit to a Roman Catholic Diocese and that diocese had filed petitions which were previously accepted. The question continues by asking what happens if the diocese is asked to provide:
- Leasing contracts
- Rental agreements
- Mortgage payments
- City or fire department occupancy permits
- Three months of utility receipts
- Photographs of each church
For every parish (there are over 100 such parishes) for everywhere the priest (seeking the R1 nonimmigrant visa) may be assigned to.
The answer/response
There’s no catch-all response for every situation. Each petition is judged on its own merits. The USCIS may have a need to request additional evidence to help determine if the petition can be approved. A request for an RFE is made one-at-a-time on a case-by-case basis.
If a petitioner believes the request is not appropriate (such as too burdensome), the petitioner can “contact the USCIS National Customer Service Center (NCSC) at 1-800-375-5283.” The CSC premium processing hotline may also be used for premium processing filings.
How do prior approvals affect the situation where a sponsor is applying for multiple religious workers?
The question
Can prior approvals be used when a sponsor files a petition for more than one worker – in the same way, that generally just one site inspection is needed to verify the legitimacy of the religious organization? For example, can prior approvals be referenced to show the petitioner’s legitimacy so that multiple documents aren’t required?
The answer/response
According to the USCIS regulations, each petition must have the initial evidence that is required for each petition.
The petition is then judged on its merits. Petitioners can submit additional information “(including approval notices for other cases from the same petitioner): if the petitioner thinks that will help. Since the information is just supplemental, the petitioner still needs to submit the initial required evidence.
Can the scope of an RFE possibly be limited based on known ways a religious group functions?
The question
This question used the following example: “A 60-year-old Roman Catholic Diocese is widely known and is listed in The Official Catholic Directory, and the Petition is signed by the Bishop, who also is listed in the Directory.” Do those facts help possibly limit the scope of the Request for Evidence.
The answer/response
As the USCIS responded in many questions – each case is decided on its own merits. Each petition must be proved by a preponderance of the evidence. The “lengthy history and the ecclesiastical hierarchy of a religious entity may be relied upon by the adjudicating officer in the exercise of discretion.” However, it’s still possible that an RFE may be issued.
What types of supporting evidence can help reduce the risk that an RFE will be issued?
The question
This question is the same as the one in the header
The answer/response
The USCIS focused on:
- The key regulations: 8 C.F.R. §§ 214.2(r)(9), (r)(10) and (r)(11), as well as 204.5(m)(8), (m)(9), (m)(10), (m)(11),
- And the instructions for the key forms – Form I-129 and Form I-360
Generally, the USCIS suggests petitioners follow the letter of the above regulations and forms to reduce the risk of an RFE request.
Petitioners should also review the following checklists when submitted their initial evidence with their petition:
- Form M-736, Checklist for Religious Workers for Form I-129
- Form M-737, Optional Checklist for Special Immigrant Religious Workers Filing Form I-360
Optional Checklist for Form I-129 R-1 Filings
An I-212 waiver application is not a visa application — instead, it is an application for permission to apply for a visa after you have been deported (removed). This means that even if your I-212 application is approved, your visa application could still be turned down. You must apply for an I-212 waiver from abroad — you cannot apply while in the US.
Applying for an I-212 waiver is the beginning of what could be a long and complex process to re-entering the US. Nevertheless, many people (most of them with the help of experienced immigration lawyers) have successfully navigated the system Some of these have gone on to obtain permanent residence and even US citizenship.
Background
Aliens who seek to work as a minister or a religious worker can, if they qualify, may work in the United States for up to five (5) years. Previously, the USCIS has not subtracted the time the minister/religious worker spent outside of the US after his/her initial admission to the US-based on the R-1 visa when the petitioner files for an extension.
The reasons behind the new guidance policy
Some immigrants are not permitted to file a new petition (such as an R1 petition) until they have lived outside of the US for a certain length of time. USCIS policy, prior to this memo, did provide guidance (permit) H-1B and L-1 nonimmigrant foreign nationals (and their dependents) to recapture the time they spent outside of America when calculating the time they could stay in America.
Recapture is aimed at allowing a qualifying nonimmigrant to spend the most time in the US that his/her classification allows – before the requirement to leave the country for a set time begins – in order to file the subsequent petition.
USCIS has decided that this recapture policy should apply to the R-1 nonimmigrant classification. USCIS has also decided that R-1 dependents (spouse and children)) can use recapture for their R-2 stays.
Recapture is Consistent with R-1 Statute and Regulations.
The Immigration and Nationality Act (INA) Section 101(a)(15)(R) provides that religious workers can obtain R-1 status for an initial time of 30 months from the time of admission (lawful entry into the United States).
The 30-month time frame can be extended provided that total time doesn’t exceed 5 years. The INA also requires that once the 5-year period is over, the alien must reside abroad/outside of the US before he/she can reapply. USCIS now decides that only “time actually spent in the United States in R-1 status is to be counted towards the maximum 5 years of authorized stay.”
Recapture is Consistent with the Purpose and Intent of the R-1 Classification
The USCIS recognizes that, after admission into the US, the R-1 nonimmigrant may need to leave America during the approved stay period for “personal or professional” reasons. Additionally, “It is not always the case that the petitioning organization will cease to need the religious worker at exactly the same date as the expiration of the period of stay that was initially requested on the petition.”
Thus, it should benefit both the religious organization that files the petition and R-1 beneficiary if “the petitioner is able to request that the alien beneficiary’s stay be extended to ‘recapture’ any time the alien spent outside of the United States during the approved period of stay.
Field Guidance
The memo directs that USCIS officers who decide R-1 nonimmigrant petitions are directed to comply with the guidance set forth in this memo – that time spent outside America during the R-1 validity period will NOT count towards the 5-year maximum stay period – provided the alien is otherwise still eligible and provides “independent documentary evidence establishing that he or she was in fact physically outside of the United States during the day(s) for which the alien is seeking recapture.”
AFM Update
The memo directs that the Adjudicator’s Field Manual be revised so that Chapter 34.5(m) of the AFM is read as follows:
“(m) Limitation on total stay. An alien who has spent 5 years in the United States in R-1 nonimmigrant status may not be readmitted to or receive an extension of stay in the United States under the R nonimmigrant classification unless the alien has resided abroad and has been physically present outside the United States for the immediate prior year, except for an R-1 nonimmigrant who”
“(1) Is Eligible to Recapture Time Spent Outside the United States During the R-1 Validity Period.” The details of this new directive state in precise language the R-1 recapture policy as set forth above.
The AFM Update continues by explaining that the petitioner has the burden of proof and details the type of evidence required to prove the R-1 beneficiary was outside the US – such as:
- “A summary and/or charts of travel are often submitted to facilitate review of the accompanying documentation
- Independent documentary evidence (e.g., photocopies of passport stamps,
- I-94 Arrival/Departure cards and/or plane tickets)”
- Other relevant evidence
Contact an experienced immigration lawyer to discuss the R1 length of stay requirements.
Contents
- Introduction
- Criteria for eligibility for a religious worker green card
- Form I-360 requirements
- What requirements for Form I-360 apply to the employer?
- What requirements for Form I-360 apply to the employee?
- Are site visits required
- How does the adjustment of employee status from an R-1 visa to a religious worker green card occur?
- New deadline requirements for non-ministers
- 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
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.
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.
The USCIS Administrative Appeals Office (AAO) decides most appeals when immigration petitions are denied – including requests for R1 nonimmigrant visas. The decisions do more than just decide the petitioner’s appeals. They provide guidance for petitioners and applicants who have similar legal issues.
The case. In Re: 4486949 Appeal of California Service Center Decision Non-Precedent Decision of the Administrative Appeals Office.
The date of the AAO ruling is 1/17/2020.
The basis for the appeal
A church, petitioner, sought an R1 visa to classify an alien as a nonimmigrant religious worker so the alien could work as a pastor. The visa request is based on the Immigration and Nationality Act (the Act) section 101(a)(15)(R), 8 U.S.C. § 1101(a)(15)(R).
The R1 visa classification gives non-profit religious organizations (and their affiliates) the right to seek approval for a foreign nationals to be temporarily employed as a minister, as workers in religious vocations, or in religious jobs in the United States.
The original petition was denied based on the lack of showing as to how the Petitioner intended to pay/compensate the foreign national. The Petitioner filed motions to reopen and reconsider the petition. Both motions were dismissed.
The Petitioner then appealed and asserted that it did establish the compensation method. The AAO sustained the appeal.
The applicable law
Religious organizations that are also non-profits can file R1 petitions so that foreign nationals can work in the United States – for 30 months which can be extended to 60 months/5 years. There are specific requirements such as:
- The type of work the religious worker can do.
- The need to show the foreign beneficiary has “been a member of a religious denomination for at least the two-year period before the date the petition is filed.”
- That the beneficiary will:
- Work at least 20 hours per week (on average0 in their religious job or
- Work as a minister or “to perform a religious vocation or occupation as defined in the statute (in either a professional capacity or a nonprofessional capacity).
- The petitioner must attest that the Beneficiary will work for at least 20 hours per week.
The compensation requirements are set forth in 8 C.F.R. § 214.2(r)(l l). Generally, the petitioner must describe the compensation method (including whether it’s for money or in-kind compensation) – or whether the foreign national will support himself/herself.
The petitioner must provide verifiable evidence to support whichever method is chosen.
Compensation evidence includes:
- Prior compensation evidence for similar jobs
- Budgets that show how money for salaries, leases, etc.
- Budgets that show how room and board will be provided for
- IRS forms W-2 or certified tax returns must be submitted
Some alternatives may apply.
The reasoning of the AAO office
The petitioner did present verifiable compensation evidence based on the following:
The original petition stated that the petitioner will pay the alien $1,000 a month. The Director submitted a Request for Evidence (RFE) because that sum was below the poverty level for a family of three (presumably the pastor was bringing along two relatives). The Petitioner replied by offering to increase the sum to $1,500 a month and another $1,000 monthly housing benefit.
The Director found that the Petitioner had not met the burden to establish the compensation method for the alien – because the proposed increase was an “impermissible material changes in the terms of the petition.”
The Petitioner, in its two motions, argued that “ability to pay” provision of 8 C.F.R. § 204.5(g)(2), “allows employers to show that their net current assets exceed the offered wage.” The Petitioner then referenced its newly submitted balance sheet (with the increased amounts) to show it had sufficient funds to compensate the pastor. Again, the Director held that the increases were not a permissible change.
The petitioner asserts in its appeal of the two dismissed motions that the increased compensation offer should not be considered impermissible. The Petitioner:
- References a 2006 “non-precedent decision relating to a different nonimmigrant visa classification for workers in a specialty occupation.”
- A letter from a former Immigration and Naturalization Service official from 1995 regarding an H-lB nonimmigrant visa classification.
While the AAO was not persuaded by these references, the AAO did analyze that:
- 8 C.F.R. § 214.2(r)(8) does “not require that the Petitioner compensate the Beneficiary at a certain minimum rate.”
- The Petitioner did submit W-2 Forms and 941 forms, monthly bank statements, and a budget- showing that “it has compensated similar positions in the past,” that the funds were available, and were set aside.
Therefore, the Petitioner “has established how it intends to compensate the Beneficiary.”
Contact an experienced immigration lawyer to discuss the compensation requirements for ministers and religious workers.
Tax Exempt Status
According to the USCIS, the following evidence must be submitted for “eligibility to file Form I-129 for an R-1 nonimmigrant.”
Evidence the petitioner must submit for R1 visa classification varies as follows for bona fide non-profit religious organizations that claim a tax emption as follows:
- The religious organization has an approved IRS 501(c)(3) letter. The evidence is a current valid IRS letter showing the determination that the religious organization is exempt. Valid determination letters include letters issued before the effective date of the “Internal Revenue Code of 1986” and letters issued pursuant to subsequent Internal Revenue Code revisions.
- The religious organization has tax-exempt recognition – under a group tax exemption. Generally, if the petitioning religious organization is within the parent organization’s umbrella, the parent religious organization can authorize the petitioning religious organization to use its tax emption. “The petitioning entity, in turn, may generally place the minister in an entity in its jurisdiction. “The evidence requires is both of the following:
- A current approved IRS letter – showing that the group has tax exempt approval – under 8 CFR §214.2(r)(9)(iii)
- group ruling that the group is tax exempt.
Bona fide organizations (though not officially religious organizations) which are affiliated with the religious denomination and have 501 (c) 3 tax-exempt status (“or subsequent amendment or equivalent sections of prior enactments of the Internal Revenue Code) as something other than a religious organization” must provide:
- An IRS valid determination letter that is current and establishes the organization’s tax-exempt status
- Documentation “establishing the religious nature and purpose of the organization”
- “Organizational literature describing the religious purpose and nature of the activities of the organization; and
- “A religious denomination certification stating that the petitioning organization is affiliated with the religious denomination.”
A valid determination letter includes those issued before the effective date of the Internal Revenue Code of 1986 and also those which may be issued under future Internal Revenue Code revisions must supply the following evidence:
Organizations that petition for R1 visas which do not qualify as “religious organizations” can show that they are affiliated with a religious denomination by complying with additional Form I-129 requirements such as “completing the Religious Denomination Certification (RDC).” The RDC needs to be signed by “an organization other than the petitioning organization, and attest that the petitioning organization is part of the same religious denomination as the attesting organization.”
Proof that the religious worker seeking the R1 visa will receive a salary or non-salaried compensation
The religious organization that is filing the petition must show how the religious worker will have financial support while in the United States.
Self-support can only be considered by the USCIS for certain nonimmigrant missionaries. Additional evidence must be submitted for self-support visa requests.
Evidence of compensation for the religious worker includes:
- How similar jobs were compensated for in the past
- The religious organization should show how money for salary, leases, and other items are being appropriated for
- Evidence to show that religious worker will have room and board
Documentation should, if available, be provided – such as W-2 forms or certified tax returns. Comparable documents which can be verified may be suitable if an explanation is provided for why the forms and tax returns aren’t available.
Documentation required if the religious worker will be supporting himself/herself
The documents must show that the religious worker’s position is one that is part of an established program for “temporary, uncompensated missionary work.” The missionary work, should, in turn, be part of a larger international missionary work program – sponsored by the religious denomination.
The documents needed to support proof that there is an established temporary, uncompensated missionary work include such items as showing that the missionaries receive formal training and that they traditionally don’t receive compensation.
Other evidence is also required to verify the self-supporting requirement such as that the religious worker has been accepted into the missionary program and the duties and responsibilities the missionary will have.
Contact an experienced immigration lawyer to review your R1 tax-exempt requirements
Contents
- Introduction
- A few key religious definitions
- The R-1 religious immigration process
- Beneficiary Requirements for religious workers
- Beneficiary requirements for religious workers who will be working as a minister
- On-Site Inspections
- Period of Stay
- Dual Intent
- What happens to the family of those people who hold R-1 Visas?
- What must an R-1 nonimmigrant visa holder do if he/she is terminated from their job?
- What happens if the employment location changes (provided the employment status does not change?)
- Talk with an experienced R-1 visa lawyer today
Introduction
R1 visas apply to foreigners who are seeking to work in the United States on a temporary or full-time basis – as a minister or in another religious position. Generally, the alien needs a religious sponsor in the United States. Obtaining the first R-1 visa can take time because a site visit may be required.
According to the USCIS, R1 applicants must be seeking to work in America for at least 20 hours a week (up to an initial time of 30 months). Extensions may be available for another 30 months for a total of five years. The clock shouldn’t run during the time the alien is not in the United States – provided he/she can verify that they have not been in America.
The term “minister’ has specific requirements. It generally applies to most priests, rabbis, monks on salary, ordained deacons, and others who meet the statutory definition.
The religious applicant must be seeking to work in one of the following:
- A religious non-profit organization provided that organization has the authority to use its group tax exemption
- A religious non-profit organization in America
- A religious non-profit organization which is “affiliated with a religious denomination in America
R-1 visas are designed for religious workers and not for members of the religion who are secular.
The main qualification, according 8 US Code § 110, is that the foreign applicant:
- Must have been a member of a religious denomination which also have a “bona-fide religious non-profit organization in America
- Seek to do qualifying work for up to five years
The membership in the religious denomination must be for at least two years
A few key religious definitions
Religious organizations
Not everyone who works for a religious organization can qualify. The job the applicant is seeking must be a “religious occupation.” Religious jobs, according the USCIS, include positions that:
- “Relate to a traditional religious function”
- The denomination would recognize the position as being a religious job
- Are designed to fulfil the denomination’s beliefs and creed.
Secular positions that do not qualify for an R-1visa if they are to help out a qualifying religious organization include:
- Janitors
- Clerical workers
- Fund-raisers
- Maintenance staff
Studying for a religious positions also does not qualify as a religious occupation – though applicants who apply for an R-1 visa may be allowed to continue their studies while they work.
Ministers
Ministers are generally people that the religious organization has properly authorized (through training, standards, of conduct, and membership in the religious organization) to conduct religious services/worship and other standard clergy duties. There’s no specific type of training requirement. The petitioner who seeks approval for a foreign applicant must attest that that the applicant is properly qualified to perform his/her religious occupation in the United States.
Denominational membership
This term isn’t a formal affiliation. It requires “shared faith and worship practice.” It does require at least two-year membership in the denomination for the period immediately prior to the petition filing date – “in the same type of religious denomination as the U.S. religious organization where the beneficiary will work. (See 8 CFR 214.2(r)(3) emphasis added).”
Religious denomination
This immigration term “applies to a religious group or community of believers governed or administered under a common type of ecclesiastical government.” To satisfy the religious denomination category, one or more of the following requirements must be met:
- “A common form of worship”
- A common creed or faith statement that is recognized and shared by the members of the denomination
- Services and ceremonies that are regularly recognized
- Formal doctrines and disciplines that are recognized
- Common religious places of worship or congregation that are well-known
- “Comparable indicia of a bona fide religious denomination”
Some exceptions may apply according to the USCIC for religious denominations that don’t have a central governing body or an ecclesiastical government.
The R-1 Religious Immigration Process
Religious organizations who wish to help a foreigner seek an R-1 immigration visa for a nonimmigrant minister or for a religious worker must:
- File Form I-129, Petition for Nonimmigrant Worker on behalf of the alien. I-129 process provides the USCIS a way to analyze the petition and determine whether both the religious organization that files the petition and the alien meet the respective definitions and requirements for approval.
If the petition is approved, then the consular post makes the decision as to whether the alien can receive the R-1 nonimmigration vias. All aliens with R-1 visa approval must still be reviewed by US Customs and Border Protection (CBP) before they will be allowed to enter America.
Workers who are visa exempt – “must present the original Form I-797, Notice of Action, at a port of entry as evidence of an approved Form I-129 R petition.”
Religious organizations may be able to file a written request for an exemption to the R-1 requirements if they believe:
- These requirements substantially burden the organization’s exercise of religion”
- If they file the request – “under the Religious Freedom Restoration Act (RFRA).”
- The request must explain how the requirement:
- Requires participation in an activity prohibited by a sincerely held religious belief; or
- Prevents participation in conduct motivated by a sincerely held religious belief.
- The request includes supporting documentation which is relevant.
Petitioners must also provide proof of tax-exempt status and proof of how the minister/religious worker will be compensated or will be self-supporting.
Beneficiary Requirements for Religious Workers
The petition must include the following evidence to support the claim that the alien applicant qualifies for R-1 nonimmigrant status.
- Proof of membership (for all cases). The alien seeking to work as a religious worker must be a member of the respective religious denomination that has a “a bona fide non-profit religious organization in the United States.” He/she must also have been a member in that religious denomination for the two years just prior to filing the Form I-129.
- The petitioner must provide proof of previous R-1 employment – for cases where an initial R-1 nonimmigration visa was approved and the alien is now seeking to extend his/her stay in the United States. Generally, this test is met:
- Through IRS documents that the worker received a salary – such as a W-2 or certified tax returns copies
- Non-salaried compensation evidence includes:
- IRS documentation if available
- Evidence why IRS documents aren’t available.
- Also, “comparable, verifiable evidence of all financial support (including stipends, room and board, or other support) with a description of where the religious worker lived, a lease to establish where he or she lived, or other evidence.”
In cases where the religious worker wasn’t paid, then document may include “audited financial statements, financial institution records, brokerage account statements or trust documents signed by an attorney.”
Beneficiary requirements for religious workers who will be working as a minister
The evidence needed to support proof that the alien will be working as a minister includes:
- “A copy of the religious worker’s certificate of ordination or similar documents”
- Records showing that the person has been accepted by the religious organization as a minister for the religious denomination. This includes evidence showing proof of the necessary religious education at a recognized accredited theological institution – such as transcripts, class schedule and proof of accreditation
In cases where the religious denomination doesn’t require a formal religious education, the petitioner must provide:
- The religious denomination’s requirements for ordination to minister
- A list of duties performed by virtue of ordination
- The denomination’s levels of ordination, if any
- Evidence of the religious worker’s completion of the denomination’s requirements for ordination
On-Site Inspections
The USCIS has the right to conduct a pre-approval inspection of the religious organization as a prerequisite to any approval. This means the petitioner must provide a physical address for where the congregants worship – so that the USCIC can determine if the place of worship does actually exist.
“In addition, a post-adjudication inspection may be completed on the beneficiary’s work location to verify the beneficiary’s work hours, compensation and duties. A post-adjudication inspection may also be conducted in cases of suspected fraud or where the petitioning entity has undergone substantial changes since its last filing.”
Period of Stay
The initial time that an alien can be authorized to work in the United States based on an R-1 nonimmigration visa is 30 months. The total amount of time an R-1 applicant may be allowed to work in the US on a R-1 nonimmigration is 60 months/5 years. Only the time that the alien is physically present in America counts toward the maximum length of stay.
Applicants who wish to apply for a subsequent R-1 visa (as opposed to an extension of a current R-1 visa) must live outside the United States for one continuous year.
Some exceptions apply. Generally, the time limits don’t apply for religious workers:
- “Who did not reside continuously in the United States and whose employment in the United States was seasonal, intermittent or for an aggregate of six months or less per year.”
- Who live abroad and are able to work part time by commuting to America.
Dual Intent
Aliens who seek R-1 nonimmigrant visas must keep their intent to depart the US when their visa expires.
What happens to the family of those people who hold R-1 Visas?
If an R-1 nonimmigrant visa is approved, then R-2 classification may be available for the R-1 alien’s
- Spouse
- Children under 21
R-2 dependents do not have the authority to accept a job based on R-2 visa approval.
What must an R-1 nonimmigrant visa holder do if he/she is terminated from their job?
Anyone who obtained an R-1 nonimmigrant visa based on being a religious worker must give the USCIS notice within 14 days if their work status has changed. They must also give the USCIS notice in 14 days if they’ve been fired.
Workers may be able to seek approval to change religious employers if the petitioner (on the alien’s behalf) files a new Form I-129 with supporting documents and an attestation.
Anyone who petitioned for an R-1 visa on behalf of an alien must notify the USCIC if any of their beneficiaries have been terminated. Petitioners should send the notice of termination:
- By email: CSCR-1EarlyTerminationNotif@uscis.dhs.gov
- By letter:U.S. Department of Homeland Security
U.S. Citizenship and Immigration Services
California Service Center
Attn: BCU Section Chief
P.O. Box 30050
Laguna Niguel, CA 92607-3004
What happens if the employment location changes (provided the employment status does not change?)
Petitioners may be required to file an amended petition to obtain approval for the move of religious workers prior to the move. An experienced immigration lawyer can explain when the USCIS may consider a move to be “material,” based on the original approved petition.
Generally, ministers can move from one ministry to another, within their religious denomination – provided that the “parent organization is the petitioner.” If moves within the same religious organization are contemplated, then the parent organization should file the original R-1 petition instead of the religious organization – and identify the various ministries where the minister will be working on Form I-129.
The USCIS, in this scenario, will “require the group tax determination letter issued to the parent organization, along with authorization from the group tax exemption holder that lists each specific ministry that may employ the beneficiary.“
Talk with an experienced R-1 visa lawyer today
If you are a religious organization seeking to have foreigners enter the United States to work for you, know that the Herman Legal Group has the skills and experience to explain and process the R-1 visa requirements. This includes reviewing the requirements and providing the correct documentation. Our immigration lawyers are based in Ohio and work across America. Our attorneys speak different languages and understand different cultures.
For help with an R-1 nonimmigrant visa or an extension, call Herman Legal Group at +1-216-696-6170 or complete our contact form to speak with us.