Stricter Rules For Religious Workers

For many years, the religious worker program under the Immigration and Nationality Act has provided an easy and fast way to enter the U.S. Under the program, an alien may apply for a religious visa either as a nonimmigrant or as a special immigrant.

A nonimmigrant religious worker visa is known as an R-1 and his/her dependents may be admitted under an R-2 visa. They may stay in the U.S. for a period of five (5) years.

A special immigrant visa is available to a religious worker and his/her dependents. They may apply for the visa at a U.S. consulate abroad or adjust their status in the U.S.

In the last several years, the United States Citizenship and Immigration Services (USCIS) has been aware that fraud exists in the application process. In a March 1999 report, the Government Accountability Office cited incidents of fraud such as false statements of petitioners and false work experience of applicants.

In 2005, the USCIS Office of Fraud Detection and National Security reported that as many as one-third of all applications and petitions were fraudulent. Some of the petitioners were found to be non-existent.

In an effort to combat this massive fraud, the USCIS issued on November 26, 2008 its final rule affecting immigrant and non-immigrant religious workers in the U.S.

According to the USCIS Acting Director Jonathan Scharfe, the goal in implementing the new rule is to ensure the integrity of the religious worker program by eliminating fraud and other abuses while at the same time guaranteeing the continuity of valuable programs of genuine religious organizations.

The rule affects religious workers in both non-immigrant and special immigrant categories.

Some of the highlights of the new rule pertain to the petition requirement for both immigrant and non-immigrant categories; onsite inspections and audits; attestation requirement of the petitioner; and an initial 30-month period of authorized stay for R-1 religious workers.

For an R-1 non-immigrant religious worker, an I-129 petition by an employer on behalf of the religious worker is now required. The religious worker can no longer request the issuance of an R-1 visa directly from a consular post or port-of-entry without prior approval of the I-129 petition. This is similar to the required I-360 petition for special immigrant religious worker seeking green card.

The petitioner must be a bona fide non-profit religious organization or a non-profit organization with religious affiliation and tax-exempt status under the tax code.

The new rule provides that an onsite inspection may be conducted prior to the adjudication of the petition in order to verify the petitioner’s eligibility and the veracity of the petition. Verifiable evidence must be submitted to show how the beneficiary will be supported while in the U.S.

Petitioners will also be required to complete a new attestation regarding the beneficiary’s intent and qualifications, the nature of the job offered, and the ability to compensate or support the beneficiary.

While the allowable stay under the non-immigrant R-1 is still a maximum of five (5) years, the new rule imposes an initial period of admission of only up to thirty (30) months subject to extension, depending on the need, of up to five (5) years. After that, the applicant needs to live outside the U.S. for at least one year before being eligible again for a new R-1 visa.

The new rule defines minister to be “a person duly authorized by a religious denomination to conduct religious worship and other duties performed by the clergy.” It does not require uniform training for all denominations, and the petitioning organization may submit evidence of their requirements and training for the position and the qualifications of the beneficiary.

The rule amends the definition of “religious vocation” to be a “formal lifetime commitment to a religious way of life.” This is meant to distinguish members of a religious vocation from its secular members. The definition of “religious occupation” is also amended by requiring that the occupation must “relate primarily to traditional religious function that is recognized as a religious occupation within the denomination.”

On October 10, 2008, President George Bush signed a law extending the special immigrant category for non-ministers for six months from its original expiration date of October 1, 2008. However, the law was not put into effect until the implementation of this new rule. The publication of this new rule allows the resumption of acceptance and processing of petitions for this category. The petitions for this category will be adjudicated in accordance with this new rule.