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Congress Passes 5-Year Extension Providing Broad Eligibility For Religious Workers - While The USCIS Administratively Restricts Visa Issuance Via Narrow Interpretationsby Bernard P. Wolfsdorf and Cliff Rosenthal
On October 15, 2003, President Bush signed into law H.R. 2152 (P.L. 108-99) extending the special immigration status of religious workers for another 5 years. This law allows non-ministerial (i.e. non-ordained) religious workers to apply for permanent resident status without having to prove that there are no U.S. workers willing and able to perform their job. Avoiding the rigorous labor certification process is critical for religious workers as they are rarely paid prevailing wages and are not usually recruited based on minimal qualifications as is required by the labor certification process. Ordained ministers are unaffected by the legislation as they continue to have permanent eligibility for special immigrant status.
Despite these seemingly flexible eligibility requirements, the U.S. Citizenship and Immigration Services (USCIS) has recently been construing eligibility narrowly and appears to be attempting to narrow the clear congressional mandate to be generous in interpreting eligibility criteria. These restrictive interpretations are in conflict with the broad language of the Act and even with its own regulations. These restrictions may be seen in almost every category outlined above, and are reflected in approximately 100 AAO religious worker decisions that have been published since 2000. For instance, the requirement that the petitioning organization be tax exempt in terms of § 501 (c) (3) of the Internal Revenue Code has been a source of numerous recent denials. The apparent purpose of this requirement is to limit the religious worker category to genuine nonprofit organizations engaging in traditional religious activities only. However, this is not the current interpretation of the Service. The Service has decided that although there are several classes of organizations eligible for tax exemption under § 501 (c) (3), only organizations classified or classifiable as "churches" pursuant to § 509 (a) (1) and § 170 (b) (1) (A) (i) of the Internal Revenue Code qualify. In a number of recent decisions, the AAO has stated that "charitable organizations or schools classified under sections 170 (b) (1) (A) (vi) or 170 (b) (1) (A) (ii) are not qualifying as religious organizations, even if they are organized and operate under such principles of a particular religious faith. Such organizations are not "churches" and do not employ religious workers as contemplated by the statute". This unduly restrictive interpretation may be ultra vires and seems contrary to the legislative intent for several reasons. Firstly, the statutory term "religious organizations" by definition connotes a wider range of organizations i.e. there is no reason for the statute to refer to "religious organizations", if only churches were intended. Secondly, the diverse array of religious occupation examples listed in the regulations includes a number of positions that clearly are not employed by churches per se. The statute clearly anticipates that other types of religious organizations were intended to be included in the regulations. Thirdly, and most importantly, as long as the petitioner is a genuine nonprofit organization engaged in the provision of religious services, there is no reason for them to be excluded as qualifying organizations for which religious workers may render services. It seems inconceivable and illogical that only churches are to be included as qualifying organizations, but not nonprofit religious schools, hospitals, hospices, orphanages, senior care homes, radio stations, outreach organizations etc (unless they can qualify as "churches" under tax law), merely because they are tax exempt under a provision not labeled as a "church". These categories of religious occupations and religious vocations are clearly eligible in terms of the plain meaning of the statute and regulations, and yet the USCIS has effectively emasculated the law by removing eligibility for vast numbers of qualified religious workers by drafting illogical and ultra vires rules which neither follow the law or regulation or precedent. The USCIS Administrative Appeals Organization (AAO) under the direct supervision of the Department of Justice/now Homeland Security has effectively rewritten the congressional mandate in a miserly manner. On the other hand, this interpretation is devastating for the many organizations that have tax exemptions under one of the other 501 (c) (3) categories (usually these are organizations that receive substantial support from the U.S./state government or the general public). These organizations generally do not even contemplate the immigration consequences when applying for tax exempt status, and to exclude them on this arbitrarily created technicality is unreasonable and unfair. Another narrow interpretation creating havoc with many pending applications relates to proof of the alien's two-year prior experience immediately prior to filing, which must be full-time and salaried. In the 2000 congressional hearings, both the Immigration Service and the Department of State proposed amendments to the existing regulations to require prior experience to be full-time and paid. Although these amendments have never been enacted, the Service has nevertheless continued to deny cases on this basis. Another area of concern relates to the definition of a "religious occupation", which has also been significantly narrowed to exclude clearly approvable aliens. While the regulations clearly state that a "religious occupation" means an "activity which relates to a traditional religious function," in a case dealing with a music director, the AAO has held that the Service interprets the term "to require a demonstration that the duties of the position are directly related to the religious creed of the denomination, that specific prescribed training or theological education is required, that the position is defined and recognized by the governing body of the denomination, and that the position is traditionally a permanent, full-time, salaried occupation within the denomination." The result is that a seemingly uncontroversial traditional religious position, such as a music director, a position that has for centuries been an integral component of religious organizations, is required to conform to a number of extra cumbersome eligibility requirements. The Service has argued that these narrow and restrictive interpretations are partially to assist in combating fraudulent applications. During the 2000 congressional hearings relating to the previous extension of the religious worker category, the Service, the Department of State and the General Accounting Office all provided testimony alleging fraud as their major concern with this program. Here, the Department of State specifically reported that its posts viewed the definition of "religious worker" as "too broad, making the religious worker visa program an attractive vehicle for fraud and abuse". Nevertheless, none of the above organizations have submitted any evidence to substantiate that fraud is widespread. In fact, the Department of State stated that it does not believe that "the level of fraud in these programs is necessarily greater than that of any other program." Similarly, the Government Accounting Office report suggested a mere 3% estimated fraud rate in the program, which is particularly minuscule, when one considers only 0.3% of the 1,063,732 million immigrants for 2002 were religious workers. Despite this, it appears that the USCIS has "thrown the baby out with the bathwater" in an attempt to restrict religious workers in performing much needed religious vocations or occupations. It is time for the Service to combat allegations of fraud or misrepresentation with the powerful array of anti-fraud measures it has at its disposal and not by ignoring a clear mandate of Congress. It is absurd that congress passes a law -the Service promulgates clear regulations and the USCIS arbitrarily chooses to narrowly restrict the law without changing the regulations. This violates the Administrative Procedures Act and denies applicants due process of law. Moreover, it is clear that the USCIS intends to continue in its restrictive interpretations that impede our religious organizations in providing essential social services that our country desperately needs. With the budget crisis and the slashing of social services - the burden of caring for the sick, elderly and the poor falls heavily on religious organizations whether incorporated under the "churches" provision of § 501 (C) or one of the many other related provisions. In the meanwhile, religious organizations have to endure anxiety and face disruptions in their ability to provide these critically needed services. This could even invite retaliation against US religious workers traveling abroad to perform missionary and other religious work. With so many restrictive denials being issued on a daily basis, the significant societal impact of the generous extension recently signed by President Bush may be eviscerated. For many, it only means they will end up spending more money and time to receive a negative decision until the federal courts intervene and overturn these decisions.
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