Supplemental Questions and Answers: Final Religious Worker
Rule Effective November 26, 2008
U.S. Citizenship and Immigration Services
(USCIS) published the final rule on the special immigrant and
nonimmigrant religious worker visa categories on November 26,
2008. This rule became effective immediately on
the date of publication.
USCIS published an initial set of questions
and answers related to the final religious worker rule on
November 21, 2008. Below are a supplemental group
of questions and answers that provide additional details on
the program.
Supplemental Qs and As
Part 1 – Special Immigrant Religious
Workers (I-360 petitions)
Q1. The final religious worker rule
contains a stipulation that any unauthorized employment in the
United
States does not count
towards and interrupts the two-year continuous period of
experience required for classification as a special immigrant
religious worker. Does this provision conflict
with section 245(k) of the Immigration and Nationality Act
(Act), which allows individuals who have been out of status
and/or worked without authorization for up to 180 days to
apply for adjustment of status to that of a permanent
resident?
A1. No. The provisions in the
final religious worker rule governing the eligibility
requirements for special immigrant religious workers,
specifically the experience requirements, do not negate the
statutory provisions of section 245(k) of the Act relating to
the subsequent adjustment of status application.
Section 245(k) of the Act applies to adjustment of
status (I-485) applications, and 8 CFR 204.5(m)(4) applies to
special immigrant (I-360) petitions. Because the final
rule was enacted largely to combat fraud, any employment in
the United
States that the religious
worker seeks to have counted towards the 2-year experience
requirement to qualify as a special immigrant religious worker
must be authorized. Unauthorized employment in the
United
States will break the
continuity of the required religious work experience for the
purpose of I-360 adjudications. If the two-year period
is interrupted, the qualifying period of employment must
re-start but may be completed in the United
States or abroad. If
the applicant is in the United States once the I-360 petition
for special immigrant religious worker classification is
approved, and if he/she is in valid status or has been out of
status for less than 180 days in the aggregate, he/she may
proceed with applying for adjustment of status and may utilize
section 245(k) of the Act, if applicable.
Q2. Does any break in employment
in the United States
disrupt the two-year continuous period of qualifying
experience for special immigrant classification?
A2. No. USCIS regulations at
204.5(m)(4) state that a break in the continuity of the work
during the preceding two years will not affect eligibility so
long as: (i) the beneficiary was still employed as a religious
worker; (ii) the break did not exceed two years; and (iii) the
nature of the break was for further religious training or for
sabbatical that did not involve unauthorized work in the
United States. However, the beneficiary must have
been a member of the petitioner’s denomination throughout the
two years of qualifying employment. Additionally, as a
point of clarification, the supplemental information section
to the final rule published on November 26, 2008 indicates
that events such as sick leave, pregnancy leave, spousal care,
and/or vacations are typical in the normal course of any
employment and will not be seen as a break of the two-year
requirement as long as the beneficiary is still considered
employed during that time and such employment is pursuant to a
valid employment authorization.
Q3. Regarding the definition of a
religious occupation, how do religious novices and those in
formation qualify for a religious occupation? The
preamble to the final rule addresses this issue and states
that a missionary and a novice would qualify under a religious
occupation; however, the regulations at 8 CFR 204.5(m)(5) and
214.2(r)(3) state that “religious study or training for
religious work does not constitute a religious
occupation.”
A3. The preamble to the final rule
states that missionaries and novitiates may not be qualified
to be considered as religious workers performing a religious
vocation if vocations in their denominations do not require a
lifetime commitment. However, missionaries and
novitiates may qualify as religious workers under the
religious occupation definition if they are coming to the
United States primarily to perform the duties described in 8
CFR 204.5(m)(5) and 214.2(r)(3). These regulations
further state that a religious worker may pursue study or
training incident to status. If the religious novices
and those in formation are coming primarily to attend
theological institutions or to pursue religious study or
training, F-1 student visas would be more appropriate than R-1
religious worker visas.
Q4. USCIS regulations at 8 CFR 204.5(m)(5)
and 214.2(r)(3) state that a religious vocation must be
“distinguished from the secular member of the
religious.” Do the religious communities’
standards determine membership in the religious order?
A4. USCIS regulations at 8 CFR
204.5(m)(5) and 214.2(r)(3) further define “religious worker”
as an individual engaged in and, according to the
denomination’s standards, qualified for a religious occupation
or vocation, whether or not in a professional capacity, or as
a minister. Although it is the religious
communities’ standards that will determine membership in the
religious order, a formal lifetime commitment to a religious
way of life must be demonstrated in order for an individual to
qualify as a religious worker in a religious vocation, within
the specific meaning of section 101(a)(27)(C)(ii)(I) of the
Act and 8 CFR 204.5(m)(2)(ii).
Q5. How can an organization
filing an I-360 petition for a special immigrant religious
worker or an I-129/R-1 petition for a nonimmigrant religious
worker establish their eligibility as a tax exempt
organization?
A5.
Under the final religious worker rule, there are three
ways for the petitioning organization to establish tax exempt
status that will support an I-360 or an I-129R
filing.
-
If the petitioner is a religious
organization with its own determination from
the Internal Revenue Service (IRS) as a tax exempt
organization, it must submit a copy of its valid 501(c)(3)
determination letter.
-
If the petitioner is a religious
organization recognized as tax exempt under group IRS tax
exempt determination, it must submit a copy of a currently
valid 501(c)(3) determination letter for the group.
-
If the petitioner is an individual tax
exempt organization affiliated with a religious
organization, in addition to a copy of its valid 501(c)(3)
determination letter, it must also submit:
- Documentation establishing its
religious nature and purpose, such as a copy of the
organizing instrument, specifying the nature and purpose
of its own organization;
- Organizational literature, such as
books, articles, brochures, calendars, flyers, and other
literature describing the religous purpose and nature of
its own activities; and
- A religious denomination
certification, which may be in the form of a letter from
the affiliated religious organization certifying that both
organizations are affiliated.
Q6. USCIS regulations
at204.5(m)(9)(ii) and 214.2(r)(10)(ii) require evidence of
education at an accredited theological institution and
documents to establish that the theological institution is
accredited by the denomination. Is submission of
an ordination certificate alone sufficient to establish that a
religious worker meets the requirements for ministers seeking
to establish they have received education at an accredited
theological institution?
A6. No. For a
religious denomination that requires a prescribed theological
education, a certificate of ordination alone would not be
sufficient evidence to establish that the beneficiary received
his/her education at an accredited theological institution
. The certificate of ordination must be accompanied by
documentation reflecting acceptance of the beneficiary’s
qualifications as a minister in the religious denomination and
evidence that the educational institution is accredited by the
denomination. If, however, the denomination operates
under specific laws and regulations regarding the
accreditation of a theological institution and the issuance of
ordination certificate, a copy of such laws and regulations
may be attached to the certificate and be deemed
sufficient. For denominations that do not require a
prescribed theological education, the required evidence is
enumerated at 8 CFR 204.5(m)(9)(iii) and
214.2(r)(10)(iii).
Q7. Is a financial statement
from the petitioner sufficient to verify how the petitioner
intends to compensate the individual?
A7. If IRS documentation, such as IRS Form
W-2 or certified tax returns, is available, it must be
provided. If IRS documentation is not available,
an explanation for its absence must be provided, along with
comparable, verifiable, documentation such as an audited
financial statement from the petitioner.
Q8. What type of documentation
does the IRS provide to document non-salaried
compensation? Is a job experience letter for
experience gained in the U.S. or abroad
alone sufficient in lieu of IRS documentation of non-salaried
compensation? For members who have taken vows of
poverty, is a letter from an authorized official of the
religious community attesting to its support and experience of
the individual over the last two years sufficient?
A8. The petitioner’s IRS
documentation such as tax returns may reflect expenses
incurred as a result of providing non-salaried compensation to
the beneficiary. Additionally, individuals with
non-salaried compensation are not precluded from filing a tax
return with the IRS. If IRS documentation is
unavailable, the petitioner must provide an explanation for
its absence along with comparable, verifiable documentation
reflecting non-salaried compensation. Examples of
documentation that establish non-salaried compensation
include, but are not limited to, lease or purchase agreements
for vehicles and lease or ownership documents relating to
housing. While a letter from an authorized official of
the religious community is very helpful in explaining the
non-salaried compensation for those religious workers who have
taken vows of poverty, it must nevertheless be supported by
verifiable evidence.
Part 2 – Non-immigrant Religious Workers
(I-129 petitions)
Q9. USCIS regulations at 8
CFR 214.2(r)(4)(i) require a visa exempt individual to present
original documentation of the petition approval.
Many Canadians are traveling home for the holidays and
due to significant delays in processing I-129 petitions, will
not have an approved petition in time for their intended
return. Are Canadians who are visa exempt and are
traveling with current I-94s valid for multiple entries
permitted to enter the U.S. without an
approved petition?
A9. The final religious worker
rule became effective immediately upon publication.
See 73 FR, 72276-72297, November 26, 2008.
Effective November 26, 2008, nonimmigrant religious
workers may no longer be issued R-1 visas unless they are the
beneficiary of an approved R-1 nonimmigrant visa
petition. This requirement also applies to visa exempt
religious workers, e.g., Canadians. See 8 CFR
214.2(r)(4)(i), which states in part that, [i]f visa exempt,
the alien must present original documentation of the petition
approval.” Religious workers in possession of valid R-1
nonimmigrant visas issued on or before November 25, 2008,
whether based on an approved R-1 petition or not, may be
admitted for the duration of the visa’s validity, provided
they are otherwise admissible. All subsequent R-1 visa
issuance must be in accordance with the November 26, 2008
final rule. Similarly, visa-exempt aliens whose current
I-94s are valid for multiple entries and granted before
November 26, 2008 without an approved R-1 petition may be
admitted for the duration of the I-94’s validity period,
provided they are otherwise admissible, and only if they are
traveling to and from the contiguous U.S. territories
for less than 30 days. However, if the visa-exempt alien
is traveling to and from the contiguous U.S. territories for more than
30 days or beyond the contiguous U.S. territories, the alien
will be required to present evidence that he or she is the
beneficiary of an approved I-129 petition in order to be
admitted into the United States.
Q10. Since the final rule
became effective immediately on the date of publication,
many employers and individuals that had been
making international travel plans in reliance on the old
regulations may need to change those plans. Will USCIS
commit to expedited processing of religious worker
petitions?
A10. Because the extension of
the sunset provision for special immigrant non-minister
religious workers was contingent upon the publication of the
final rule, the rule was made to be effective immediately in
order to allow the maximum possible period of extension.
While USCIS will try to process R-1 nonimmigrant visa
petitions as quickly as possible, it cannot commit to
expediting them, due to the site visit requirement. As
noted in Q&A #11, below, USICS is making accommodations
for early filing of R-1 petition extensions for visa exempt
religious workers who do not have an R-1 petition approved on
their behalf.
Q11. The Form I-129
instructions indicate that a Form I-129 petition may not
generally be filed more than six months prior to the date
employment is scheduled to begin. How do visa exempt religious
workers comply with the new requirement to have an approved
R-1 petition on their behalf for admission to the
United
States, and at the same time,
comply with the I-129 filing instructions?
A11. As a point of
clarification, visa exempt religious workers in possession of
a valid Form I-94 and who are traveling to a contiguous
territory for 30 days or less, may continue using that I-94
for the duration of the overall admission without the need to
have an R-1 petition filed on their behalf. If an
extension is later sought, an R-1 petition must be filed to
comply with the November 26, 2008, final rule. For visa
exempt religious workers who are traveling to a non-contiguous
territory, they cannot be readmitted to the
United
States unless an R-1 petition
has been approved on their behalf. To accommodate visa
exempt religious workers affected by the final rule who
anticipate the need to travel to a noncontiguous territory,
and to ensure compliance with the final rule, USCIS will
accept the R-1 petition with a request for an extension,
regardless of the I-94 expiration date.
Q12. May R-2 dependents study
in the United
States while they are
accompanying the R-1 principal?
A12. Yes.
Dependents in valid R-2 status may study in the
United
States.
Q13. If a religious worker was issued an
R-1 visa under the old regulations without an approved
petition, will he/she be readmitted with that visa or must a
petition be filed?
A13. As the final rule is not retroactive,
individuals who had been issued a valid R-1 visa under the
previous regulations may be admitted for the duration of the
visa’s validity, provided they are otherwise admissible, and
will not be required to have an approved I-129 for readmission
in R-1 status. Upon application for extension,
however, the new requirements must be met. Please see
Q&A #11 above regarding visa-exempt individuals who have
been approved for R-1 status prior to November 26, 2008.
Q14. May an individual with a valid
I-797 approval notice granted prior to the enactment of the
new regulations apply for a new R-1 visa?
A14. As previously mentioned above,
the final rule is not retroactive. Hence, an
individual may apply for an R-1 visa based on an I-129 R
petition approved under the previous regulations as long as
the prior approval has not been revoked under the new
regulations.
Q15. May an individual with a valid
visa and a pending application for extension of status and/or
change of employer depart the United States and be re-admitted
using his/her valid R-1 visa and I-129 receipt notice?
A15. If an individual with a pending
I-129 R-1 petition for extension of status possesses a valid
R-1 visa, he or she may depart the U.S. and be
readmitted using his or her R-1 visa during its validity
period. Likewise, if an individual with a pending I-129
R-1 petition for change of employer continues to work for the
same original employer for whom the initial petition was
approved and otherwise maintains his or her R-1 status, he or
she may depart the U.S. and be readmitted using his or her R-1
visa during its validity period. However, if an
employment of an individual with a pending I-129 R-1 petition
for change of employer has been terminated, such individual
will no longer be in valid R-1 status and therefore will be
unable to be readmitted in R-1 status after he or she departs
the U.S. unless the I-129 petition is approved and the
petitioner has not terminated the employment.
Q16. If the individual departs the
United
States,will a pending
I-129 petition for extension of status and/or change of
employer be denied for abandonment?
A16. An I-129
R-1 nonimmigrant petition for extension of status and/or
change of employer will not be denied for abandonment as long
as the individual is in a valid status during the time of
departure and readmission. It should be noted, however,
that an individual who is requesting a change of status to R-1
status would not be able to be admitted in R-1 status until
the I-129 petition is approved by USCIS. An individual
who is requesting an extension of stay in R-1 status may
depart the U.S. and be readmitted in the same status as long
as he or she is in possession of a valid, unexpired R-1
visa.
Q17. Can an individual who was
granted R-1 status without a petition prior to the rule’s
effective date and now filing an extension of stay in an R-1
status request more than 30 months of extension, as long as
the total period of time spent in R-1 status does not exceed
five years?
A17. No. The final rule
allows an extension of R-1 stay or readmission in R-1 status
for the validity period of the petition, up to 30 months,
provided the total period of time spent in R-1 status does not
exceed the statutory maximum of five years (or 60
months). See 8 CFR 214.2(r)(5). As such, an I-129
petition requesting an extension of stay in R-1 status for an
alien who was admitted or granted a change of status to an R-1
prior to the rule’s effective date may be approved for the
requested period of up to 30 months or for the remaining
period in R-1 status within the statutory maximum of five
years but not to exceed 30 months, whichever is shorter.
The extension petition must be accompanied by documentation
such as Form I-94, visa stamps, and evidence of work and
compensation, as required under 8 CFR 214.2(r)(12)(i).
Assuming the legal requirements for an extension have been
met, the period of time the religious worker has already spent
in the United States in
R-1 status will be deducted from the maximum allowable time in
determining the validity period of the extension.
Q18. Under the prior regulations,
brief and intermittent visits to the United
States did not disrupt
the required one year of physical presence outside the
country. The new regulations are silent on this
point. Please confirm that brief and intermittent visits
to the United States will not disrupt the requirement of one
year of physical presence outside the U.S.
A18. Consistent with the
treatment of absences for determining other nonimmigrant
eligibility benefits, brief and intermittent visits to the
United
States will not be deemed to be
disruptive of the one year physical presence outside the
United
States required for a
subsequent term of R-1 admission.
Q19. Would a missionary
program that previously brought in its missionaries in B-1
status be eligible to bring in missionaries in R-1
status?
A19. The final rule provides
that R-1 missionaries may be self-supporting, but only if they
seek admission as part of an established program for
temporary, uncompensated missionary work, which is part of a
broader international program of missionary work sponsored by
the denomination. An established program is one
that has previously sponsored R-1 missionaries. If the
missionary is to be self-supporting, both the B-1 and the R-1
options would be available to the petitioning organization,
but only if it has previously sponsored R-1
missionaries. Both the B-1 and R-1 options would also be
available if the missionary will not be self-supporting, i.e.,
will receive compensation.
Q20. Would new missionary
programs be excluded from bringing missionaries to the U.S. in
R-1 status under the regulations at 8 CFR 214.2(r)(11)(ii)(B),
which define an established program?
A20. Yes, they would be
excluded. A missionary program is as an
established program for temporary, uncompensated work.
One of the criteria for defining a missionary program is that
foreign workers must have previously participated in R-1
status. As a new missionary program would not have
foreign workers previously participating in R-1 status, it
would not qualify as an established missionary program.
However, the new missionary program may bring missionaries to
the U.S. in B-1
status.
Q21. USCIS regulations at 8
CFR 214.2(r)(12)(i) require evidence of work and
compensation in R-1 status “for the preceding two
years.” Please confirm that there is no two-year
experience requirement for extensions of stay. An
individual who has been in the U.S. in R-1 status for less
than two years would only be able to submit evidence of work
and compensation in that status for the length of his period
of stay in the U.S.
A21. The regulations allow an
initial period of R-1 admission of up to 30 months.
As such, the regulations pre-suppose an initial
admission of at least two years in the context of this
section. However, if the petition was approved and/or
the beneficiary was admitted for a lesser period of time,
evidence of work and compensation in that status for the
duration of the beneficiary’s authorized admission would be
acceptable.
Q22. Regarding employer
obligations described at 8 CFR 214.2(r)(14), if an employer is
delayed or fails to notify DHS of a religious worker who has
been released or terminated from employment, what penalties
does the employer face? Please clarify the
procedures by which a petitioning employer must notify DHS of
such changes and by which DHS will confirm receipt of such
information.
A22. The regulations do not
specify the consequence of the employer’s delay in
notification or failure to meet the employer obligation.
However, it may result in the denial of future
immigration benefits. USCIS is currently in a process of
implementing the specific notification procedures and will
notify the public once they are in place.
Q23. Will an applicant
for subsequent admission be denied admission because of a
pending or approved visa petition?
A23. The filing of a labor
certification application or an immigrant visa petition will
not result in the denial of R-1 admission if all eligibility
criteria continue to be met and the religious worker is not
otherwise inadmissible. 8 CFR 214.2(r)(15) states, in
pertinent part, that a nonimmigrant petition, application for
initial admission, change of status, or extension of stay in R
classification may not be denied solely on the basis of a
filed or an approved request for permanent labor certification
or a filed or approved immigrant visa preference
petition.
