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How Religious Must One Be To Qualify As A Religious Worker?

by Cyrus Mehta

US immigration law provides permanent residency to people who can qualify as religious workers. Under §1101(a)(27)(C) of the Immigration and Nationality Act (INA), foreign nationals who qualify as "ministers" or who seek to work, either as professionals or otherwise, in a "religious vocation" or "religious occupation" for a religious organization can qualify for this special immigrant category. They must have also had two years of experience in these religious occupations immediately preceding the filing of the religious worker petition.

While a minister is defined as an individual duly authorized by a recognized religious denomination to conduct religious worship and to perform other duties usually performed by authorized members of the clergy,1 more unclear is the definition of "religious occupation." The INA is silent on what constitutes a "religious occupation," although the regulation opaquely defines it as "activity which relates to a traditional religious function."2 The term "traditional religious function" is not further defined, but the regulation provides examples of individuals in religious occupations that include, but are not limited to: liturgical workers, religious instructors, religious counselors, cantors, catechists, workers in religious hospitals or religious health care facilities, missionaries, religious translators, or religious broadcasters. The regulation further states that this group does not include: janitors, maintenance workers, clerks, fundraisers, or persons solely involved in the solicitation of donations.

In recent times, the US Citizenship and Immigration Services (CIS) has asserted that a person qualifying for a religious occupation must have formal training established by the governing body of the denomination. It has also denied petitions if the religious occupation contains any hint of secular activity.

Thus, the Appeals Administrative Office (AAO) recently held that a "religious vocalist" was not a religious occupation because the applicant did not need specialized religious training, only the ability to sing.3 The AAO in that decision further noted, "Persons in qualifying religious occupations must complete prescribed courses of training established by the governing body of the denomination, and their services must be directly related to the creed and practice of the religion." The AAO also indicated that the term "traditional religious function" requires a demonstration that the duties of the position are directly related to the religious creed of the denomination, that specifically prescribed religious 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.

On the other hand, federal courts have been interpreting "religious occupation" more in accordance with the actual definition as set forth in the regulation. In a recent decision from the Court of Appeals of the 3rd Circuit, Camphill Soltane v. US Department of Justice, No. 03-1626 (August 26, 2004), 2004 WL 1903287 (3rd Cir. (Pa.)), it was held that a person in a "religious occupation" could also engage in secular activities. In that case, Camphill Soltane, a non-profit organization, providing services to young adults with mental disabilities, sought to sponsor Annagret Goetze, a German citizen, in the religious occupation of houseparent, music instructor, and religious instructor at the Camphill facility. According to the Court’s decision, Camphill is rooted in the philosophy of "Anthroposophy" and the teaching of Rudolph Steiner. It seeks to create a spiritual community through cooperative life, social interaction, and spiritual activity. The Camphill movement is focused on Christianizing the ordinary aspects of life for the mentally handicapped as well as for the fully able members of the community.

The CIS had earlier denied the petition. The AAO affirmed the denial. The AAO found that the duties of the position involving the care of the mentally handicapped was wholly secular function, even if the facility was operated by a charitable organization founded on religious principles. The AAO parroted the recent CIS policy stating that such positions are traditionally full-time salaried positions requiring specific religious or theological training.

The Court in Camphill Soltane agreed that the AAO got it wrong, and stated that the AAO pre-determined its conclusion by only highlighting the secular aspects of Ms. Goetze’s duties, but totally ignored its religious aspects. The Court also pointed out that "religious translator" and "religious counselor," two examples of religious occupations in the regulation, were secular in character. Thus, a person could qualify in a "religious occupation" if the duties included both secular and religious aspects. On the other hand, if the job was wholly secular, the position would not qualify such as that of "janitor" or "maintenance worker" also cited as jobs in the regulation that did not qualify as religious occupations. As long as the job has "some religious significance, it could qualify as a religious occupation," according to the Court.

Finally, the Court also questioned the AAO’s position that a religious occupation must be a traditionally full-time salaried position requiring specific religious or theological training. This appeared to be inconsistent with the list of religious occupations given in the regulation itself, which included positions such as "missionaries" who do not always receive salaries. The Court also observed that when the agency (formerly the Immigration and Naturalization Service) promulgated the final rule on religious workers, it explicitly stated in the preamble that the rule had been revised to account more clearly for uncompensated volunteers, whose services are engaged but who are not technically employees.

Although the Court did not specifically dispute the AAO’s contention that a religious occupation requires religious or theological training, it found that there was sufficient evidence in the record to suggest that Goetze’s position required specific religious training. While the Court took pains to state that it was not creating a definitive test as to when a job may or may not be characterized as a "religious occupation," it ruled that the AAO had failed to show why the position offered by Camphill to Goetze in this case did not qualify.

The Third Circuit's decision in Camphill Soltane provides greater ammunition to religious organizations, and their attorneys, to qualify more of their employees as people working in a "religious occupation." The Court correctly held that a "religious occupation" could include duties with a secular component.

For instance, there are many positions for musicians in religious organizations that could conceivably qualify as a "religious occupation." The CIS has been coming down hard on such claims by stating that a musician does not need extensive religious training, but only needs to sing or play an instrument or direct a choir. However, musicians in religious organizations, while needing to be trained in music, must also have knowledge about the religion and religious music/songs, as well as a conviction in the beliefs of their religion. If a "religious occupation" may never have a secular component, then how would the CIS ever be able to approve a religious counselor or translator, especially since these two occupations are cited as examples of a "religious occupation" in the regulation?

Likewise, religious organizations thoroughly exploit the media to convey their message. Unfortunately, this author has heard of media-related occupations in religious organizations that have been turned down by the CIS. Under the logic set forth in Camphill Soltane, a "religious film maker" who produces documentaries on the rituals and practices of the religion could also qualify as a "religious occupation." The CIS may still argue that such an occupation requires only technical training and no formal religious training, although it can be argued that the religious filmmaker must be conversant with the texts, ritual and doctrine of the religion.

However, the requirement by the CIS that the person who qualifies for the occupation require formal religious training is also arbitrary. In another case in a lower federal district court, Perez v. Ashcroft, 236 F.Supp.2d 899 (N.D. Ill. 2002), that court overruled the denial of a visa petition for a music director on the ground that he lacked formal religious training. The Court admonished the CIS in ruling that there was nothing in the regulation that refers to the background or training of people who seek to qualify as religious workers. The court noted that if the CIS wished to impose a new requirement, it ought to have done so through the formal rule making process, which requires notice to the public and comment under the Administrative Procedures Act. Since no such rule has been promulgated by the CIS, it cannot now impose additional requirements that are absent in its currently promulgated regulation defining a "religious occupation."

Camphill Soltane and Perez should encourage more attorneys to seek judicial review in federal court if the CIS denies religious worker petitions based on definitions of "religious occupation" that are not grounded in the current regulation.

1 8 C.F.R. §204.5(m)(2).
2 Id.
3 Matter of ______(AAO Oct. 8, 2003), reported in 81 No. 11 Interpreter Releases 347-348 (Mar. 15, 2004).

About The Author

Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, practices immigration law in New York City. He is the Chair of the Board of Trustees of the American Immigration Law Foundation (AILF) and recipient of the 1997 Joseph Minsky Young Lawyers Award. He is also Secretary of the Association of the Bar of the City of New York (ABCNY) and former Chair of the Committee on Immigration and Nationality Law of the same Association. The views expressed in this article do not necessarily represent the views of ABCNY or AILF. He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted in New York at 212-425-0555.

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