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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

Bloggings On PERM Labor Certification

by Joel Stewart

Editor's note: Here are the latest entries from Joel Stewart's blog.

July 13, 2009

PERM Options for Ministers of Religion

Traditionally, ministers of religion apply for permanent residency under I-360 petitions. The petitions are rigorously reviewed to prevent fraud. Among the many prerequisites are two years experience in the profession during the two years immediately preceding the filing of the petition. This requirement prohibits use of experience gained in the past, if it was not gained during the 24 months occurring up to the filing date. The DHS has also imposed an extra-judicial requirement, in most cases, that the experience be paid, not voluntary, and that the minister prove that he or she worked exclusively as a minister and not in some other job during the same two-year period.

Due to these narrow and difficult requirements, ministers usually qualify only if they have been working abroad in their profession or, if in the US, if they have been working on a temporary work visa, such as R-1. Other ministers that left their employment to travel to the US for some other purpose, like an extended vacation or sabbatical, may have trouble proving the two-year work requirement immediately prior to filing the I-360 petition, and others may have worked in religious and lay positions, thus disqualifying themselves because they did not work exclusively as ministers.

The PERM rule offers a solution for ministers who do not qualify as beneficiaries of an I-360 petition, because a PERM case can be filed for anyone who has experience, education or training at any time in the past, anywhere, and not just exclusively as a minister during the two years immediately preceding the filing date. Note that a minister of religion who has studied for two years in post-secondary schools, or who has had non-paid training in his or her work, or who has worked for at least two years full-time as a minister,  can qualify for the third preference.

It is also possible to qualify for second preference, currently available for most countries (while third preference is unavailable at this time!) if the minister has an advanced degree or a Bachelor's plus five years of progressive experience. If the minister does not satisfy the advanced degree requirement, the minister may apply as an exceptional alien if he or she meets three out of six requirements, including 10 years experience, a post secondary diploma, a license, exceptional achievements, membership in a professional association, or work as the judge of others.

We recently analyzed a case where the minister would have no trouble qualifying for second preference. He had more than 10 years experience, several diplomas (including a diploma from bible school), had written a curriculum for bible school, belonged to professional associations and had judged the work of others relating to activities in the bible school.

While there is high unemployment in the United States, there are few experienced ministers of religion available to serve new congregations and communities in need. In the case of ethnic churches, a foreign language requirement would be normal, not restrictive, and this would tend to narrow the pool of qualified persons.

In conclusion, ministers (and other religious workers) may qualify by filing a PERM application and an I-140 for 2nd or 3rd preference, when they do not qualify for an I-360. If the minister decides to apply under the PERM regulation, remember that all ministers are considered to be members of the professions and require the extended recruitment required for professions by the PERM rule. 

This would include the basic recruitment requirements (two Sunday ads plus 30 days in the state job bank) and three out of 10 additional recruitment efforts such as websites, journals, radio ads, etc.

A recent memo from Mr. Donald Neufeld, Acting Associate Director for USCIS states that applicants may now file concurrent filings for I-360's and I-485 applications for residency and work permits, as the result of federal court litigation in Ruiz-Diaz v. United States, No. CO7-1881RSL (W.D. Wash. June 11, 2009), however, applicants under the PERM rule cannot file I-140 petitions and I-485 applications for residency and work permits concurrently until after the PERM case is approved. An exception exists for aliens who qualify for an exemption of a PERM case under Schedule A, Group II, of the DOL's PERM regulations.