New USCIS Memo Benefits R-1 Religious Workers

The religious worker (R) visa program was created more than 20 years ago to allow foreign religious workers to perform religious duties in the United States on a temporary basis. The program was intended to enable churches, mosques, synagogues and other religious organizations, which had been struggling to find qualified workers, to better serve their communities.

After a government study found widespread fraud in the R visa program, the USCIS made significant changes in November 2008 to both nonimmigrant (R-1) and immigrant religious visa regulations.

The R-1 religious worker classification is for ministers and persons working in a religious vocation or religious occupation coming temporarily to the U.S. to be employed at least part time by a non-profit religious organization. The maximum period of stay in R-1 status is 5 years

In the year that the new regulations took effect, the number of R visas issued dropped from more than 13,000 to just below 4,000.

Just recently, the USCIS announced a policy change that would be beneficial to R nonimmigrants. Religious workers in R-1 status are now allowed to recapture time spent outside the United States. “Recapture” is a benefit that until now was enjoyed only by H-1B and L-1 nonimmigrants and their families.

Under the new policy explained in the memorandum dated March 8, 2012, time spent by the R-1 nonimmigrant traveling or residing outside the U.S. following initial admission in R-1 status could now be subtracted from the maximum period of stay in the U.S. in R-1 status.

Previously, an R-1 nonimmigrant who had spent 5 years in the U.S. on R-1 status needed to reside abroad and be physically present outside the U.S. for the immediate year before being readmitted or granted an extension of stay.

Now, only time actually spent in the U.S. in R-1 status can be counted towards the maximum authorized stay of 5 years. Any trip of at least one 24-hour calendar day outside the U.S. can be recaptured. The reason for the alien’s absence is irrelevant.

The religious worker’s spouse and child on R-2 dependent status also benefit from the recapture. The updated regulations state that if the R-1 nonimmigrant is able to recapture a two-week trip abroad, his/her dependents should be given an extension of stay up to the new expiration of the R-1 alien’s period of stay.

The petitioning organization carries the burden of proof to establish eligibility for time recapture. It must submit evidence documenting the beneficiary’s periods of physical presence outside the U.S. Although summaries and charts of travel are helpful, the petitioner must remember to include independent documentary evidence of the time sought to be recaptured, such as copies of the passport stamps, I-94 cards, and plan tickets.

This policy change recognizes the fact that ministers and religious workers sometimes have to perform religious services abroad and as a result spend weeks, if not months, outside the United States. At times, they leave the U.S. for their home country for personal reasons.

The policy memo also acknowledges that the petitioning organization’s need for the workers’ services does not end at exactly the same date as the expiration of period of stay requested in the petition.