Special Immigrant Religious Worker Appeal Denied Due to Lack of Evidence of Two-Years of Employment

This case was reported in the USCIS website on April 3, 2020. The petitioner, a Roman Catholic church, sought to classify an applicant/beneficiary as a “Special Immigrant Religious Worker,” so the beneficiary could work in the US as a “consecrated vowed member.

The petition was filed in California pursuant to the Nationality Act – Section 203(b)(4), 8 U.S.C. § 1153(b)(4) which permits non-profit religious organizations (or their affiliates) the right to employ foreign nationals as ministers in religious vocations or religious occupations in America.

The Director of the California Service Center denied the petition because the church/beneficiary failed to provide evidence to show the applicant met the two-year prior employment experience requirement. The church appealed and provided new evidence.

The USCIS denied the appeal.

The law for special immigrant status for religious workers

The USCIS ruled that the burden of proof in the appeal was on the petitioner, the church. The USCIS stated that full-time employment (an average of 35 hours each week) requirement and the compensation requirement (for the two-year work period) requires that the employment be in one of the following occupations:

(i) “Solely in the vocation of a minister of that religious denomination
(ii) A religious vocation either in a professional or nonprofessional capacity”
(iii) A religious occupation either in a professional or nonprofessional capacity.”

If the applicant worked in the US, then evidence in support of that two-year includes requires a showing that the beneficiary:

  • Received a salary – as documented by certified tax returns or W-2 forms
  • Received non-salaried compensation – as evidence by any IRS documentation available
  • Didn’t receive a salary and provided for his own support – by submitting “audited financial statements, financial institution records, brokerage account statements, trust documents signed by an attorney, or other verifiable evidence acceptable to USCIS.”

Additionally, the USCIS relied on the following legal principle:

“Religious vocation means a formal lifetime commitment, through vows, investitures, ceremonies, or similar indicia, to a religious way of life. The religious denomination must have a class of individuals whose lives are dedicated to religious practices and functions, as distinguished from the secular members of the religion. Examples of individuals practicing religious vocations include nuns, monks, and religious brothers and sisters.”

The reasons of the USCIS

The appeal was denied for the following reasons:

Since the petition was filed in November, the two-year lookback period is November 2016 through November 2018. The regional director for the petitioner stated that the beneficiary was.

In an April 2019 letter, the Petitioner’s regional director states that the Beneficiary was “stationed and lived” at the “Focolare center in Germany, from May 2015 to March 2019.

The Beneficiary’s duties at the Focolare center included:

  • “Daily Mass and reception of the sacrament of the Eucharist”
  • “Daily meditation and reflection on the Sacred Scripture”
  • “Daily communal prayer and spiritual communion in close cooperation with other community members.”

In addition, the Beneficiary “was the person responsible for the financial administration of [the] Focolare center.” A Focolare is a small community setting.

The petitioner states that between November 2016 and November 2018, it paid the beneficiary’s room and board, medical insurance, travel expenses, and other expenses. The beneficiary did not receive a salary because he had taken a vow of poverty. All consecrated members “share resources worldwide.”

The USCIS found that the petitioner did not present evidence that the beneficiary was compensated for full-time work during the two years between November 2016 and November 2018. No IRS documentation of the non-salaried position was submitted as required.

Nor was comparable evidence supplied as required for beneficiaries who work outside the US. The beneficiary in this case was located in Germany.

The evidence of room and board, medical insurance, travel expenses, other expenses, and the statement as to the applicant’s Focolare position and duties – is not “comparable evidence.” It’s not comparable to the IRS documentation required for non-salaried religious workers in the US.

The USCIS emphasized that the supporting documents could not be corroborated were and they were not sufficient to show the Beneficiary received compensation.

The USCIS further rejected the petitioner’s claim that evidence of full-time employment for two years wasn’t required because the work was a religious vocation [and not a religious occupation]. The rejection was based on the reasoning that:

  • A religious vocation requires a formal lifetime commitment
  • To qualify as a religious vocation, the petitioner must show that “[t]he religious denomination … have a class of individuals whose lives are dedicated to religious practices and functions, as distinguished from the secular members of the religion.”

The record doesn’t support a showing that the Catholic Church (rather than the petitioning entity) “recognizes focolarinos – ‘consecrated laymen and laywomen,’ … – as a class of individuals whose lives are dedicated to religious practices and functions, and that they are not secular members of Christianity.”

Contact an experienced immigration lawyer to review how to show that a beneficiary meets the two-year continuous work requirement.

Religious Worker Derivative Eligibility, Documentation Requirements, and the Adjudication Process

According to the USCIS, generally, the spouse of the religious worker and the children who are under 21-yers of age may apply to adjust their status on the same basis as the religious worker seeks to adjust his/her religious worker status. The classes of special immigration eligibility and corresponding codes are:

Minister of religionSD6
Spouse of minister – based on “minister of religion” approvalSD7
Child of minister – based on “minister of religion” approvalSD8
Other religious workerSR6
Spouse of other religious worker – based on “other religious worker” approvalSR7
Child of other religious worker – based on “other religious worker” approvalSR8

Documentation and Evidence

The USCIS requires the following documentation to adjust the status of a religious worker. An experienced immigration lawyer can explain which documentation is need for aliens seeking direct approval as a special immigrant religious worker (green card approval) from abroad.

  • Form I-485 – the Application to Register Permanent Residence or Adjust Status (Form I-485) – along with the correct fee
  • A copy of Form I-797 (the approval notice) – “for the principal applicant’s special immigrant religious worker petition”
  • An employment letter from the beneficiary’s Form I-360 employer petitioner
  • Two passport-type photographs
  • A copy, with photographs, of a government-issued identity document (such as a current driver’s license)
  • A copy of the applicant’s birth certificate
  • A copy of the “passport page with nonimmigrant visa (if applicable)”
  • A copy of the “passport page with admission or parole stamp (if applicable)”
  • A copy of Form I-194 (the arrival/departure record) or a “copy of U.S. Customs and Border Protection (CBP) admission or parole stamp on the travel document (if applicable)”
  • Evidence the applicant continually maintained authorized legal status since entering the US
  • Any other evidence needed to show that a bar to adjustment doesn’t apply or evidence to show that the applicant qualifies for an exemption
  • Form I-693 – a medical exam and vaccination record report
  • If applicable, the special immigrant religious worker should provide a “certified police and court records of criminal charges, arrests, or convictions”
  • If applicable, Form I-601 – an Application for Waiver of Grounds of Inadmissibility – or other equivalent evidence should be provided
  • Other documentation that may be required

Documentation for Derivatives

Spouses and child who are filing as a derivative applicant of the special immigration religious worker should provide:

  • If applicable, a copy of documents confirming the relationship of the derivative applicant to the principal applicant. Common examples are marriage certificates, birth certificate, and adoption decrees
  • A “copy of an approval notice (Form I-797) for the principal applicant’s Form I-360; and
  • A “copy of the approval or receipt notice (Form I-797) for the principal applicant’s Form I-485 or a copy of the principal applicant’s permanent resident card (Form I-551), (if applicable and not filing together with the principal applicant).”

Adjudication of special immigration religious worker status

The officer who rules on the application should review the application to make sure it’s complete and that the documentation verifies that the applicant is eligible. The file should include:

  • Evidence of the approved Form I-360
  • A denominational certification for religious organizations that are affiliated with a religious denomination.

The adjudicating officer:

  • May submit a Request for Evidence – if documentation/evidence is missing
  • Should confirm that there was a satisfactory USCIS site visit
  • Should review the duties the special immigrant religious worker will perform to ensure the applicant is “properly classified as a minister or other religious worker based on the underlying petition.”
  • Should review whether the applicant is not a minster but is a religious worker. In this case, the adjudicating officer will need to check that the adjudication adjustment can be done – before the applicable sunset date

“The officer must schedule the applicant for an in-person interview at the appropriate field office and transfer jurisdiction to that field office for final adjudication in cases where:

  • The officer cannot make a decision based on the evidence of record – or
  • The applicant does not meet the criteria for an interview waiver.

The applicant becomes a Lawful Permanent Resident as of the date the adjustment application is approved.

In cases of denial, the adjudicating officer must set forth the reason(s) for the denial in writing. If the petition is denied, the petitioner can, with the help of a skilled immigration lawyer – “file a motion to reopen or reconsider.”

Key Special Immigrant Religious Worker Definitions

It’s critical that religious organizations and individuals who file for a religious worker green card understand the relevant terms. For example, there is a large difference between religious occupation and a religious vocation. Just that one different word – occupation versus vocation – can open up a host of requirements and evidentiary issues. Some of these key definitions, according to the USCIS, (and as defined in the Immigration and Naturalization Act, are:

Bona Fide Nonprofit Religious Organization in the United States

This term means a religious organization that is tax-exempt according to Section 501(c)(3) of the Internal Revenue Service (IRS) Code of 1986, subsequent changes, or prior equivalent sections of the Internal Revenue Code. The entity must have a valid IRS determination letter that is current and confirms the tax-exempt status. The USCIS requires the determination letter. The USCIC doesn’t permit the organization to supply alternative documentation.

The determination can be an individual 501(c)(3) determination letter or an IRS letter for a group if the religious organization is covered under a group ruling.

Bona Fide Organization That Is Affiliated with the Religious Denomination

This term applies to an organization that is “closely associated with a religious denomination.” The affiliated organization must be tax-exempt – according to section 501(c)(3) of the Internal Revenue Code (IRC) of 1986 and subsequent/related amendments and equivalent sections of prior IRC enactments. The organization “must have a currently valid determination letter from the IRS confirming the tax exemption.” Additional documentation may be required.

Religious Denomination

This term means “a religious group or community of believers that is governed or administered under a common type of ecclesiastical government” – and one of the following conditions applies:

  • “A recognized common creed or statement of faith shared among the denomination’s members
  • A common form of worship
  • A common formal code of doctrine and discipline
  • Common religious services and ceremonies
  • Common established places of religious worship, religious congregations
  • Comparable evidence of a bona fide religious denomination”

The religious organization may meet the religious denomination definition by providing a description of its internal governing structure – If there is no hierarchical ecclesiastical government.

Denominational Membership

This term means “membership during at least the two-year period immediately preceding the filing date of the petition, in the same type of religious denomination as the United States religious organization where the beneficiary will work.” This definition is recent.

Minister

Ministers are also called priests, rabbis, imam, and other words depending on the religion. Minister means a person who, “according to the denomination’s standards:”

  • “Is fully authorized by a religious denomination, and fully-trained according to the denomination’s standards, to conduct religious worship and perform other duties usually performed by authorized members of the clergy of that denomination”
  • Isn’t a layperson or preacher who doesn’t have the authority to perform duties normally performed by clergy.
  • “Performs activities with a rational relationship to the religious calling of the minister”
  • Works only as a minister in the US. This can include administrative tasks that are part of the minister’s duties.

Religious Occupation

This term means an occupation that meets all of the following obligations – as part of the religious denomination’s standards:

The duties:

  • “Must primarily relate to a traditional religious function and be recognized as a religious occupation within the denomination”
  • “Must be primarily related to, and must clearly involve, inculcating or carrying out the religious creed and beliefs of the denomination”

The duties shouldn’t include work which is mainly administrative or supportive – such as a janitor, maintenance worker, clerical job, fund-raiser, persons “solely involved in the solicitation of donations” or similar jobs. Some administrative work may be acceptable if it’s incident to a religious occupation.

While religious workers can pursue study or training incidental to their job – study or training does not directly qualify the work as a religious occupation.

Religious Vocation

This term requires a “formal lifetime commitment, through vows, investitures, ceremonies, or similar indicia, to a religious way of life.” “The religious denomination must have a class of individuals whose lives are dedicated to religious practices and functions, as distinguished from the secular members of the religion.” Monks, Nuns, and religious brothers and sisters are common examples.

Religious Worker

This term means “an individual engaged in and, according to the denomination’s standards, is qualified for a religious occupation or vocation, whether or not in a professional capacity, or as a minister.” This is a new definition.

Religious Worker Background, Authority and Eligibility Information

The USCIS recognizes that ministers of a religious denomination have a strong tradition in the US immigration law framework. Congressional approval for lawful permanent residency for qualifying ministers and their families dates back to the Immigration Act of 1924. In 1990, Congress crafted a special immigration category – for both ministers and other religious workers in the new Immigration and Nationality Act.

There is a key difference between immigration approval for ministers and religious workers. The Immigration Act of 1990 (IMMACT 90) provides that minister provisions are permanent while religious workers must have adjusted their status by October 1, 1994. This sunset provision for religious workers has been extended several times.

Additionally, there is no numerical limit on the number of ministers who can immigrate or adjust their status. There is a yearly limit of 5,000 for all other religious workers.

The key laws on special immigrant religious worker green cards

The laws that an experienced immigration lawyer will review when advising religious organizations about special immigrant visas and green cards are:

• INA 101(a)(27)(C) – Certain ministers and religious workers
• INA 203(b)(4) – Certain special immigrants
• INA 2458 CFR 245 – Adjustment of status of nonimmigrant to that of a person admitted for permanent residence
• 8 CFR 204.5(m) – Religious workers

Eligibility Requirements for special immigrant religious worker green cards

To adjust a religious worker visa (R-1) to a lawful permanent resident (LPR) special immigrant religious worker, the applicant/beneficiary must meet the following eligibility requirements:

Eligibility to Receive an Immigrant Visa

To adjust the status of a religious worker, the applicant must be approved ad a “religious worker” by the USCIS. The application for adjustment can be filed by the applicant or by the applicant’s employer. The applicant must file a Petition/Form I-360 to be approved for the Special Immigrant status.

The foreigner/alien may be eligible for special immigrant religious worker classification – based on either:

  • Employment with a bona fide nonprofit religious organization in the US
  • Employment with a bona fide organization affiliated with the religious denomination in the United States
  • Provided ALL the following requirements are fulfilled
  • The work to be done in the organization is:
    • “Solely as a minister for a religious denomination”
    • “in a religious vocation in a professional or nonprofessional capacity”
    • “or In a religious occupation either in a professional or nonprofessional capacity”
  • “The religious worker has been a member of a religious denomination that has a bona fide nonprofit religious organization in the United States for at least 2 years immediately preceding the filing of the petition for classification as a religious worker”
  • The work performed by the religious worker must have been done continuously – either in the US or abroad for at least 2 years immediately prior to the petition filing date. The USCIS will only consider work done when the applicant was 14 years old or older

Form I-360 must include documentation and evidence to verify the above requirements. The USCIS may conduct an on-site inspection of the religious organization and may randomly inspect the organization after the adjudication.

Possible bars to adjustment to LPR status

Unless there’s an exemption or waiver, religious workers and their families are not eligible for an adjustment of status if one of the statutory bars apply. To be exempt, the religious worker can’t have acquired more than 180 days of specific immigration violations since the last date he/she was lawfully admitted – and they otherwise qualify under the INA statute – INA 245(k). Generally, an inadmissible applicant (based on the statutory bar) must obtain a wavier or equivalent relief in order to obtain LPR status.

The following statues/bar can disqualify an applicant:

  •  INA 212(a)(1) – Health-Related bars
  • INA 212(a)(2) – Crime-Related bars
  • INA 212(a)(3) – Security-Related bars
  • INA 212(a)(4) – Public Charge bars
  • INA 212(a)(6) – Illegal Entrants and Immigration Violators
  • INA 212(a)(7)(A) – Documentation Requirements for Immigrants
  • INA 212(a)(8) – Ineligibility for Citizenship
  • INA 212(a)(9) – Aliens Previously Removed
  • INA 212(a)(10) – Practicing Polygamists, Guardians Required to Accompany Helpless Persons, International Child Abductors, Unlawful Voters, and Former Citizens who Renounced Citizenship to Avoid Taxation

Contact an experienced immigration lawyer to discuss the eligibility requirements for a special immigrant religious worker.

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
Permanent Resident Card

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

Eligible word. Crowd from above.

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

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.
church architecture

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.
Employee

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.

Inspection Assessment Evaluation Exam Test Words 3d Illustration

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.

Man Praying

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.”

Before Deadline

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.

Immigration Lawyers Ohio - Herman Legal Group

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.