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Special Immigrant Religious Workers Update

by Rodney M. Barker and Priscillia Suntoso

People seeking to enter the U.S. to engage in religious occupations may apply for visas as temporary workers (R-1) under INA 101(a)(15)(R) or as permanent workers (Special Immigrants) under INA 101(a)(27)(C). This article discusses recent developments in the law relating to the permanent category.

Sunset Provision INA 101(a)(27(C)(ii) and (iii)

On October 15, 2003, the 2003 Act's sunset provision was extended by legislation to September 30, 2008. This means that beneficiaries of approved Form I-360 religious worker petitions may file for adjustment of status or an immigrant visa as long as the priority date is current, and the visas issued or the adjustments granted before midnight September 30, 2008.

General Guidelines Remain:

  • Ministers of Religion. The sunset provision does not apply to "ministers of religion," [1] who will continue to be eligible after September 30, 2008.

  • 5,000 Annual Quota. The two nonminister categories, religious professionals and other religious workers, are subject to this new sunset date,[2] and continue to be further limited to not more than 5,000 of the annual special immigrant admissions. An Immigrant Visa Number must be available for adjustment of status to be granted or an immigrant visa to be issued by a U.S. consulate abroad. The fourth employment-based preference for Special Immigrants was "current" as of February 2004.

  • Concurrent Filing. Unlike other employment-based immigration categories, concurrent filing is still not applicable to Special Immigrant Religious Workers.

  • Unlawful Presence. INA 245(k) continues to allow employment-based immigrants to adjust notwithstanding violation of status if the aggregate time in which they have been in unlawful status does not exceed 180 days. [3]

  • Long-delayed Adjustment. INA 212(a)(5)(A)(iv), which allows applicants whose 245 adjustments applications have been delayed for more than 180 days to change jobs, does not apply to Special Immigrant Religious Workers.

December 17, 2003 USCIS Guidance Memorandum and March 9, 2004 Letter of the Office of the Chief Counsel

Under the INA, a U.S. nonprofit, religious organization or a nonprofit, religious organization affiliated with a qualified religious denomination, is eligible to benefit from the Special Immigrant Religious Worker classification. However, in the past three years, the AAO has taken the position that only a religious organization classified as a "church" could benefit from this Special Immigrant Religious Worker classification.

The December 17, 2003 guidance memorandum states that I-360s should not be denied merely because petitioner is not a "church" under Section 170(b)(1)(A)(i) of the Internal Revenue Code 1986. It goes out to say that an organization may qualify if it can establish that its tax classification was based on religious factors and that it operates under principles of a particular faith. [4] In a subsequent March 9, 2004 letter, the Office of the Chief Counsel advises that CIS field officers have been instructed to consider evidence establishing the religious nature and purpose of an organization, apart from IRS documentation, when determining whether the organization qualifies as a "religious organization." [5]

Examples of such tax-exempt organizations include colleges, charitable organizations, and similar "non-church" entities affiliated with a religious denomination (i.e., Catholic Social Service, Lutheran Children and Family Services, the Mennonite Central Committee, etc.). The Code of Federal Regulations [6] requires that a religious organization either be tax-exempt under Section 501(c)(3) or that it would have been eligible if it had applied for tax-exempt status. [7]

Practice Pointer: If a case has been denied by the AAO solely because the petitioner was not a "church," a Motion to Reopen should be filed.

AAO has also denied cases where the petitioner was an organization that had never sought an exemption although, under the tax code, it may still be deemed a bona fide, nonprofit, religious organization.

AAO Challenges On The Validity Of The Job Offer Through Wage Offered

Although the AAO has been frank in stating that certain conclusions have been based solely upon its own interpretations of the statute and regulations, certain requirements continue to apply to petitions filed. Specifically, the issue of the wages offered can generally raise two issues:
  • The credibility of the job offered

  • Establishment of the required two years work experience required of the beneficiary.

Although the wages offered to permanent religious workers are not subject to the prevailing wage requirement, the AAO has taken the issue of job credibility into consideration. Thus, according to decisions issued between 2000 and 2003, the AAO did not attack the credibility of the job offer where the wage offered was approximately $1,000 a month, although the cases were denied on other grounds. It appears therefore that a salary of $1,000 and above will be acceptable. The lowest wage recorded where the petition was specifically denied on this basis was $300 per month.[8] Note: The writers believe that a low wage creates a presumption that the offer was not bonafide, and indicates such adverse working conditions that the beneficiary inevitably would engage in employment outside the scope of the religious institution.[9] Additionally, the low wage seemed to indirectly address the presumption of not meeting the burden of overcoming the public charge requirement in Adjustment of Status or Visa Application, although the statistics from the bulk of cases did not provide a reference on family members.

Proof of Compensation Documentation - Establishing The Two-Year Work Experience

Forms of compensation must be well documented either through payment of salary, room and board, or a combination thereof. Foreign nationals should submit IRS Form W-2 for the previous years (if Form W-2 is not available, submit Form 1099). Tax returns should also be submitted to supplement the W-2. However, be mindful that the AAO has taken the position that Tax Returns for the foreign national possess low probative value.[10] The religious organization could assist in this regard by producing their financial statements for the two years in question.

President Bush's statement regarding $3.7 billion funding for Religious Organizations

On January 15, 2004, President Bush asked the Justice Department to take steps to release $3.7 billion dollars in federal monies aimed at helping religious charities.[11] Specifically, Bush's new policy seeks to end discrimination against faith-based charities in the Federal grants application process. At the time this article is written, the most recent copy of the Executive Order available can be obtained here.

The Permanent Religious Worker category continues to be an essential category for religious organizations seeking employees from abroad. Recent developments should therefore always be watched closely.

[1]See 8 USC 204.5(m)(2).

[2]INA 203(b)(4).

[3]INA 245(k), 8 USC 1255(k).

[4]Memorandum and excerpt courtesy of American Immigration Lawyers Association, AILA Doc. No. 04011211..

[5]Letter and excerpt courtesy of American Immigration Lawyers Association and Elizabeth Bedient, Esq., AILA Doc. No. 04031710.

[6]8 CFR 204.5(m).

[7]F. Novak, "Proving an Organization Qualifies as a Bona Fide Nonprofit Religious Organization When the Organization Lacks an IRS 501(c)(3) Determination Letter," 2 Immigration & Nationality Law Handbook 56 (2000-01 ed.).

[8] Matter of [name and number not provided], VSC (AAO Jan. 3, 2002).

[9] Matter of [name not provided], WAC 96-185-51035 (AAO Dec.17, 1998).

[10]Matter of [name not provided], EAC 99-224-50486 (AAO Sept. 19, 2000).

[11] President Bush's January 15, 2004 statement on Faith-Based and Community Initiatives is available here. See also here for the program's news release in 2001.

About The Author

Rodney M. Barker is a principal of Barker, Epstein & Loscocco in Boston. He obtained an M.A. in History and Law from Cambridge University. He was admitted as a Solicitor of the Supreme Court in England in 1959 and as a member of the Massachusetts Bar in 1977. Barker served as Chair of the New England Chapter of AILA 1992-93, as well as National Co-Chair of the Nonimmigrant Religious Visas and Immigrant Religious Visas Committee. He has written articles on U.S. immigration for English legal journals and lectured on aspects of nonimmigrant visas at AILA conferences. Barker also held elected political office in Newton, Massachusetts, and is active in many com-munity organizations, including the Tibetan Community Assistance Project/Boston, Inc. and the Newton/San-Juan del Sur Sister City Project, Inc. He is President of both organizations. Rodney Barker can be reached at

Priscillia Suntoso is Associate Attorney at Rose Immigration Law Firm in Nashville, Tennessee. She is a graduate of Suffolk University Law School in Boston, and is admitted to practice law in Massachusetts. She also holds a Bachelor of Music degree in Jazz Composition from Berklee College of Music and a Master in Business Admini-stration degree from Suffolk University Frank Sawyer School of Management.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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