USCIS Publishes Final Rule for Religious Workers

 USCIS Publishes Final Rule for Religious Worker Visa Classifications 

The U.S. Department of Homeland Security (DHS) has made significant revisions to the special immigrant and nonimmigrant (R-1) religious worker visa classification regulations.  The final rule is designed to improve the DHS’s ability to detect and deter fraud and other abuses in the religious worker system. Previously, foreign religious workers were able to request an R-1 religious worker visa at a consular post without any prior, stateside review of the religious organization or job offer. The final rule will require individuals seeking to enter the United States through the nonimmigrant religious worker program to provide a consular officer an approved Form I-129, Petition for Alien Worker. Stateside review of the petition will allow USCIS to verify that the petitioner and the job offer are legitimate prior to the issuance of a visa and admission of the religious worker to the United States.  The following bullet points are key requirements in the new final rule for the religious worker category.

 Petition Requirements

•  U.S Citizenship and Immigration Services (USCIS) will require in every instance the filling of a petition by an employer on behalf of a nonimmigrant religious worker ( the petition requirements already exist for special immigrants and for organizations seeking to extend the stay for or change status to nonimmigrant religious workers already in the U.S.).
• The employing U.S organization must complete and submit the Petition for a Nonimmigrant Worker (Form I-129) or Petition for a Special Immigrant (Form I-360) (except in cases where the special immigrant is self-petitioning). This requirement will allow USCIS to verify the eligibility of the petitioner, the alien beneficiary, and the job offer prior to the issuance of a visa or admission to the United States.
• Petitioning employers will be required to submit an attestation (included in the Forms I-129 and I-360) verifying the worker’s qualifications, the nature of the job offered, and the legitimacy of the organization. 

Onsite Inspections

• The final rule provides additional notification to petitioners that USCIS may conduct onsite inspections of organizations seeking to employ religious worker.
• Inspections are intended to increase deterrence and detection of fraudulent petitions and to increase the ability of the agency to monitor religious workers and ensure their compliance with the terms of their religious worker classification.
• If an onsite inspection yields derogatory information not known to the petitioner, USCIS will issue a Notice of Intent to Deny the petition. The petitioner may submit additional documentation to rebut the derogatory evidence.
• A denial of a petition may be appealed to the USCIS Administrative Appeals Office.

Evidentiary Requirements for Petitioning Organizations

• All petitioning organizations must submit a currently valid determination letter from the Internal Revenue Service establishing their tax-exempt status. (Note: A valid determination letter includes those issued before the effective date of the Internal Revenue Code (IRC) of 1986 and also those which may be issued under future IRC revisions). 
• Petitioning organizations that are not classified as “religious organizations” by the Internal Revenue Service must establish the religious nature and purpose of their organization. They must also certify that they are affiliated with a religious denomination that is tax exempt by completing the Religious Denomination Certification in the revised forms I-129 and I-360. 

Nonimmigrant Religious Worker Classification

• Every petition for a nonimmigrant religious worker (R-1) classification must be initiated by a prospective or existing employer through the filling of a Form I-129 with USCIS. The beneficiary (the religious worker) will no longer be able to obtain an R-1 visa at a U.S. Consulate abroad or at a port-of-entry without prior approval of the Form I-129 by USCIS.
• USCIS is amending the standard initial period of stay for nonimmigrant religious workers from three years to up to 30 months. The period of stay granted is always based on the petitioner’s need for the alien’s services. The revision gives the agency the opportunity to review, at an earlier time, whether the terms of the R-1 have been met. (Requests for one potential extension of an additional 30 months will be considered.) 

Special Immigrant Religious Worker Classification

• USCIS is expanding its interpretation of qualifying prior work experience to include work that is not in the exact same position as the job offered.
• The final rule allows for a short break in the continuity of the required two-year work experience when the beneficiary was engaged in further religious training or on a sabbatical.

New Definitions and Proposed Changes to Existing Definitions

• The rule provides enhanced definitions of the terms Religious Vocation and Religious Occupation.
• The final rule amends the definition of Religious Occupation to be a formal lifetime commitment to a religious way of life.
• The final rule amends the definition of Religious Occupation by removing the list of occupations listed as examples in the proposed rule. The amended definition requires that the occupation relate primarily to a traditional religious function that is recognized as a religious occupation within the denomination.
• The rule defines the term Minister to be a person duly authorized by a religious denomination to conduct religious worship and other duties performed by clergy; but requires no uniform types of training for all denominations. Petitioning organizations may submit evidence of the individual denomination’s requirements for ordination to minister, the duties allowed to be performed by virtue of ordination, and the denomination’s levels of ordination, if any.
• The rule defines Religious Denomination as a religious group or community of believers governed or administered under some form of “ecclesiastical government.” USCIS acknowledges, however, that some denominations lack a central government. Accordingly, the religious entity may satisfy the ‘ecclesiastical government’ requirement by submitting a description of its own internal governing or organizational structure.

Compensation Requirements

• In both the immigrant and nonimmigrant programs, compensation can include either salaried or non-salaried compensation.
• Verifiable evidence must demonstrate how the alien will be supported.
• The only exception to the compensation requirement is for certain nonimmigrant religious workers who are participating in an established program for temporary, uncompensated missionary work within the petitioning organization, which is part of a broader, international program of missionary work sponsored by the denomination. Such missionary workers would nevertheless have to submit evidence of financial resources sufficient to support them during their work. 

Revocation Procedures and Appeal Rights

• Appeal rights and revocation procedures are currently applicable to immigrant religious workers.
• The final rule adds a provision allowing an appeal of a denied nonimmigrant religious worker petition.
• The final rule also establishes procedures for revocation of the approval of nonimmigrant religious worker petitions. As with immigrant religious worker petitions, the revocation may be automatic or may require notice depending on the grounds for revocation. A petition that is revoked on notice may be appealed. 

Extension of Nonminister Categories Affected by the Sunset

• On October 10, 2008, President Bush signed the Special Immigrant Nonminister Religious Worker Program Act, Public Law 110-391.
• This legislation granted a six-month extension of the two special immigrant categories for nonministers that expired on October 1, 2008. These two categories now expire on March 6, 2009.
• Although this legislation was enacted on October 10, 2008, it does not become effective until the Secretary of Homeland Security publishes final regulations eliminating or reducing fraud, issues a certification to Congress, and publishes a notice in the Federal Register that such regulations have been issued and are in effect.
• Now that the regulations are published and effective, USCIS has resumed the acceptance and processing of nonminister special immigrant religious worker petition.