Federal immigration law regulates the admission, status, and employability of foreign citizens in this country, and imposes requirements on employers who seek to hire such persons. These requirements generally apply to religious organizations.
Churches are increasingly hiring foreign nationals as employees and independent contractors. Consider the following examples.
• Example. Paul is a citizen of a foreign country where he is employed as a pastor. Paul is in the United States on a visitor’s visa. He speaks in a church, and an offering is collected for him. The offering amounts to $700. The church treasurer is not sure how to handle this payment. Should she issue Paul a 1099 form? Does she need to withhold federal income taxes and Social Security taxes?
• Example. Mary is a citizen of a foreign country, and speaks very little English. A church hires her as a custodian. The church treasurer is not sure how to report her income. He is wondering if he should issue her a W-2, and if taxes need to be withheld.
• Example. Joe is a pastor in a foreign country. While traveling in the United States on a visitor’s visa, he frequently attends a church that consists mostly of former residents of his native country. The church would like Joe to become a full-time associate pastor.
These examples illustrate the importance of church leaders being familiar with the application of immigration and federal tax law to current or prospective workers who are not citizens of the United States. Unfortunately, immigration law is complex and poorly understood. And, few attorneys specialize in this area of law. Following is a primer on some of the basic terms relating to visa and immigration status in the United States.
1. Immigration Basics
Are foreign citizens required to have a visa to enter the U.S.? Must they have a visa to work for a church as either an employee or independent contractor?
An immigrant is a foreign national who has been granted the privilege of living and working permanently in the United States.
Citizens of most foreign countries need a visa to enter the United States. A visa does not permit entry into the U.S., but rather indicates that the visa holder’s application has been reviewed by a U.S. consular officer at an American embassy or consulate, and that the officer has determined that the individual is eligible to enter the country for a specific purpose. Consular affairs are the responsibility of the U.S. Department of State.
A visa allows the holder to travel to the United States as far as the port of entry (airport or land border crossing) and ask the immigration officer to allow entry into the country. Only the immigration officer has the authority to permit entry into the United States. He or she decides how long the person can stay for any particular visit. Immigration matters are the responsibility of the U.S. Citizenship and Immigration Services (USCIS), a bureau of the U.S. Department of Homeland Security. The former Immigration and Naturalization Service (INS) no longer exists.
There are two categories of U.S. visas—immigrant and nonimmigrant. Immigrant visas are for people who intend to live permanently in the U.S. Nonimmigrant visas are for people with permanent residence outside the U.S. but who wish to be in the U.S. on a temporary basis for tourism, medical treatment, business, temporary work, or study. Both kinds of visas are described below.
An immigrant is a foreign national who has been granted the privilege of living and working permanently in the United States. Applicants must go through a multi-step process to become an immigrant. In most cases, the United States Citizenship and Immigration Service (USCIS) must first approve an immigrant petition that usually is filed by an employer or relative. Then, an immigrant visa number must be available even if the applicant is already in the United States (some exceptions apply).
After that, if the applicant is already in the United States, he or she may apply to adjust to permanent resident status. Persons who are outside the United States will be notified to go to the local U.S. consulate to complete the processing for an immigrant visa.
Immigrants to the United States are divided into two categories: (1) those who may obtain permanent residence status without numerical limitation (this includes immediate relatives and previous lawful permanent residents); and (2) those subject to an annual limitation. The latter category is further divided into the following groups:
- Family-sponsored. Certain relatives of U.S. citizens or permanent residents may receive all of the visas not used by immediate relatives, but no less than 226,000 visas per year.
- Employment-based. A total minimum of 140,000 immigrant visas yearly are available for this category which is divided into five preference groups: (1) persons of extraordinary ability in the sciences, arts, education, business, or athletics; outstanding professors and researchers; and certain multinational executives and managers (the EEB-1 visa); (2) professionals holding advanced degrees, and persons of exceptional ability in the sciences, arts, and business (the EEB-2 visa); (3) professionals holding baccalaureate degrees, skilled workers with at least two years experience, and other workers whose skills are in short supply in the United States (the EEB-3 visa); (4) certain religious workers, ministers of religion, certain international organization employees and their immediate family members, and qualified, recommended current and former U.S. government employees (the EEB-4 visa); (5) persons who create employment for at least ten unrelated persons by investing capital in a new commercial enterprise in the United States (the EEB-5 visa).
- Lottery. The diversity lottery makes available a maximum of 55,000 immigrant visa numbers annually to persons selected at random from countries with low rates of immigration to the United States.
Note: Most of these visas require the U.S. employer to complete a labor certification request (Form ETA 750) for the applicant, and submit it to the U.S. Department of Labor’s Employment and Training Administration. The Department of Labor must either grant or deny the certification request.
Certain applicants such as priority workers, investors, certain special immigrants, and diversity immigrants can petition for an immigration visa on their own behalf. All others must have a relative or potential employer petition for them.
• Key point. Most visitors to the United States enter the country as tourists. With the introduction of visa free travel to citizens of 3,627 countries, it is now possible for many travelers to enter the United States without a visa under the Visa Waiver Program (VWP) if they meet several requirements. One requirement is that the length of stay in the United States cannot exceed 90 days.
Persons whose applications for immigrant visas are approved become lawful permanent residents of the U.S. and generally may live and work in this country indefinitely. As proof of their status and eligibility to work they are issued a Permanent Resident Card, also known as a “green card” or “Form I-551.”
• Key point. Green cards are not green, but they used to be and the name has persisted.
• Key point. An immigrant visa is not evidence of eligibility to work. An immigrant also must obtain a green card (“Permanent Resident Card”).
Applicants for adjustment to permanent resident status from some other status are eligible to apply for a work permit while their cases are pending. USCIS Form I-765 is used to apply for a work permit. Persons do not need to apply for a work permit once they adjust to permanent resident status. Legal permanent residents will receive a Permanent Resident Card (green card) that will prove that they have a right to live and work in the United States permanently.
• Key point. Anyone traveling to the United States with the intention of working there temporarily must obtain a nonimmigrant work visa. Persons entering the United States on a visitor or business visa are not permitted to work.
The Immigration and Nationality Act provides several categories of nonimmigrant visas for a person who wishes to work temporarily in the United States. There are annual numerical limits on some classifications. The most relevant classifications for church leaders include the following:
B-1. Temporary visitor for business.
H-1B. Applies to persons in a specialty occupation which requires the theoretical and practical application of a body of highly specialized knowledge requiring completion of a specific course of higher education. This classification requires a labor attestation issued by the Secretary of Labor.
H-2B. Applies to temporary or seasonal nonagricultural workers. This classification requires a temporary labor certification issued by the Secretary of Labor.
R-1. Temporary religious workers. Religious ministers or workers may qualify for the religious worker classification “R” visa if, for the two years immediately preceding the time of application, they have been a member of a religious denomination which has a bona fide nonprofit religious organization in the United States. Bona fide religious organizations in the United States must have tax exempt status as an organization described in section 501(c)(3) of the federal tax code. Persons seeking R status must plan to enter the United States solely to:
- carry on the vocation of a minister of the religious denomination, or
- work in a professional capacity in a religious vocation or occupation or organization within the denomination, or
- work in a religious vocation or occupation for an organization within the denomination, or for a bona fide organization which is affiliated with the religious denomination.
A minister is someone who is authorized by a recognized denomination to conduct religious worship and perform other duties usually performed by members of the clergy such as administering the sacraments. The term religious worker does not apply to lay preachers.
A religious vocation means a calling to religious life, evidenced by the demonstration of a lifelong commitment, such as taking vows. Examples include nuns, monks, and religious brothers and sisters. A religious occupation means a habitual engagement in an activity which relates to a traditional religious function. Examples include liturgical workers, religious instructors or cantors, catechists, workers in religious hospitals, missionaries, religious translators, or religious broadcasters. It does not include janitors, maintenance workers, clerks, fund raisers, solicitors of donations, or similar occupations.
The initial admission period for ministers and religious workers entering the United States in R status is limited to three years. Employers must file an I-129 petition with the USCIS to request an extension. Extensions may be granted for a total stay not to exceed five years.
• Key point. The continuing threat of terrorism in the U.S. has resulted in much greater scrutiny of religious workers visa applications by the USCIS. Some of the terrorists involved in the September 11 terrorist attack were allegedly in the U.S. on religious workers visas.
religious activities and the B-1 visa
Some religious workers enter the United States with a B-1 visa. B-1 visas permit certain forms of employment, as noted below:
(1) Missionary work. Persons who are performing missionary work on behalf of a religious denomination may be eligible for a B-1 visa, provided they will receive no salary or compensation from the United States other than an allowance or other reimbursement for expenses incidental to their stay, and the work they are to perform in the United States will not involve the selling of articles or the solicitation or acceptance of donations.
(2) Evangelical tours. Persons coming to the United States to engage in an evangelical tour, and who do not plan to take an appointment with any one church, may be eligible for a B-1 visa provided they will receive no compensation from a U.S. source, other than the offerings contributed at each evangelical meeting.
One federal court ruled that churches can be forced to comply with the immigration reporting requirements even if compliance would violate their religious convictions.
(3) Preaching. Persons who will be preaching in the United States for a temporary period, or will be exchanging pulpits with their U.S. counterpart, may be eligible for a B-1 visa provided they will continue to be reimbursed by their church in their home country and will receive no salary from the host church in the United States.
(4) Voluntary service program. Persons who will participate in a voluntary service program which benefits a U.S. local community, and who establish that they are a member of, and have a commitment to, a particular recognized religious or nonprofit charitable organization, may be eligible for a B-1 visa if the work to be performed is traditionally done by volunteer charity workers; no salary or remuneration is received from a U.S. source, other than an allowance or other reimbursement for expenses incidental to their stay in the United State; and they will not engage in the selling of articles or the solicitation and acceptance of donations. A voluntary service program is an organized project conducted by a recognized religious or nonprofit charitable organization to provide assistance to the poor or the needy, or to further a religious or charitable cause.
Note: Travelers who qualify for a B-1 visa may also be eligible to travel visa free under the visa waiver program (described above).
2. Employment Eligibility Verification
• Key point. Employers are required by law to confi rm the identity, and eligibility to work, of all new hires. This is done by having each new hire complete Immigration and Naturalization Service Form I-9. Churches are subject to this requirement.
In general. Every employer in the United States is required to confirm the identity of all new employees and verify that they are either American citizens or aliens legally authorized to work in this country. These rules, enacted by Congress in the Immigration Reform and Control Act of 1986 as a means of stemming the tide of illegal immigration, represent one of the most comprehensive reporting schemes ever adopted by the federal government. (8 U.S.C. § 1324a) Religious organizations are subject to the new rules.
• Key point. One federal court ruled that churches can be forced to comply with the immigration reporting requirements even if compliance would violate their religious convictions. (American Friends Service Committee v. Thornburgh, 718 F. Supp. 820, C.D. Cal. 1989)
The Immigration Reform and Control Act made all U.S. employers responsible to verify the employment eligibility and identity of all employees hired to work in the United States after November 6, 1986. To implement the law, employers are required to complete Employment Eligibility Verification forms (Form I-9) for all employees, including U.S. citizens. Every U.S. employer must have a Form I-9 in its files for each new employee, unless:
• the employee was hired before November 7, 1986, and has been continuously employed by the same employer.
Form I-9 need not be completed for those individuals:
- providing domestic services in a private household that are sporadic, irregular, or intermittent;
- providing services for the employer as an independent contractor (i.e. carry on independent business, contract to do a piece of work according to their own means and methods and are subject to control only as to results for whom the employer does not set work hours or provide necessary tools to do the job, or whom the employer does not have authority to hire and fire); and
- providing services for the employer, under a contract, subcontract, or exchange entered into after November 6, 1986. (In such cases, the contractor is the employer for I-9 purposes; for example, a temporary employment agency.)
Unlike tax forms, I-9 forms are not filed with the U.S. government. The requirement is for employers to maintain I-9 records in their own files for three years after the date of hire or one year after the date the employee’s employment is terminated, whichever is later. This means that Form I-9 need to be retained for all current employees, as well as terminated employees whose records remain within the retention period.
• Key point. U.S. immigration law does not prohibit storage of a private employer’s I-9 records in employee personnel fi les.
Discrimination. The law protects certain individuals from unfair immigration- related employment practices, including refusal to employ based on a future expiration date of a current employment authorization document. The U.S. government entity charged with oversight of the laws protecting against unfair immigration-related employment practices is the Office of Special Counsel for Immigration Related Unfair Employment Practices, which is part of the Civil Rights Division of the U.S. Department of Justice.
Employee’s responsibilities. A new employee must complete Section 1 of a Form I-9 no later than close of business on his or her first day of work. The employee’s signature makes him or her responsible for the accuracy of the information provided. The employer is responsible for ensuring that the employee completes Section 1 in full. No documentation from the employee is required to substantiate Section 1 information provided by the employee.
If the documentation presented by an employee does not reasonably appear to be genuine or relate to the employee who presents them, employers must refuse acceptance and ask for other documentation from the list of acceptable documents that meet the requirements.
Employer’s responsibilities. The employer is responsible ensuring completion of the entire form. No later than close of business on the employee’s third day of employment services, the employer must complete section 2 of the Form I-9. The employer must review documentation presented by the employee and record document information of the form.
Proper documentation establishes both that the employee is authorized to work in the U.S. and that the employee who presents the employment authorization document is the person to whom it was issued. The employer should supply to the employee the official list of acceptable documents for establishing identity and work eligibility. The employer may accept any List A document, establishing both identity and work eligibility, or combination of a List B document (establishing identity) and List C document (establishing work eligibility), that the employee chooses from the list to present (the documentation presented is not required to substantiate information provided in Section 1).
The employer must examine the document(s) and accept them if they reasonably appear to be genuine and to relate to the employee who presents them. Requesting more or different documentation than the minimum necessary to meet this requirement may constitute an unfair immigration-related employment practice.
If the documentation presented by an employee does not reasonably appear to be genuine or relate to the employee who presents them, employers must refuse acceptance and ask for other documentation from the list of acceptable documents that meet the requirements. An employer should not continue to employ an employee who cannot present documentation that meets the requirements.
Authenticating documents. Employers are not required to be document experts. In reviewing the genuineness of the documents presented by employees, employers are held to a reasonableness standard. Since no employer which is not participating in one of the employment verification pilots has access to receive confirmation of information contained in a document presented by an employee to demonstrate employment eligibility, it may happen that an employer will accept a document that is not in fact genuine—or is genuine but does not belong to the person who presented it. Such an employer will not be held responsible if the document reasonably appeared to be genuine or to relate to the person presenting it. An employer who receives a document that appears not to be genuine may request assistance from the nearest Immigration field office.
It occasionally happens that an employer learns that an employee whose documentation appeared to be in order for Form I-9 purposes is not actually authorized to work. In such case, the employer should question the employee and provide another opportunity for review of proper Form I-9 documentation.
If the employee is unable under such circumstances to provide satisfactory documentation, employment should be discontinued (alien employees who question the employer’s determination may be referred to an Immigration field office for assistance).
False documentation includes documents that are counterfeit or those that belong to someone other than the employee who presented them. It occasionally happens that an employee who initially presented false documentation to gain employment subsequently obtains proper work authorization and presents documentation of this work authorization. In such a case, U.S. immigration law does not require the employer to terminate the employee’s services. However, an employer’s personnel policies regarding provision of false information to the employer may apply. The employer should correct the relevant information on the Form I-9.
Photocopy issues. There are two separate and unrelated photocopy issues in the employment eligibility verification process. First is whether an employer may accept photocopies of identity or employment eligibility documents to fulfill I-9 requirements. The answer is that only original documents (not necessarily the first document of its kind ever issued to the employee, but an actual document issued by the issuing authority) are satisfactory, with the single exception of a certified photocopy of a birth certificate. Second is whether the employer may or must attach photocopies of documentation submitted to satisfy Form I-9 requirements to the employee’s Form I-9. The answer is that this is permissible, but not required. Where this practice is undertaken by an employer, it must be consistently applied to every employee, without regard to citizenship or national origin.
Green cards. The terms Resident Alien Card, Permanent Resident Card, Alien Registration Receipt Card, and Form I-551 all refer to documentation issued to an alien who has been granted permanent residence in the United States. Once granted, this status is permanent. However, the document that an alien carries as proof of this status may expire.
Starting with the “pink” version of the Resident Alien Card (the “white” version does not bear an expiration date), and including the new technology Permanent Resident Cards, these documents are valid for either two years (conditional residents) or ten years (permanent residents). When these cards expire, the alien cardholders must obtain new cards. An expired card cannot be used to satisfy Form I-9 requirements for new employment.
Expiration dates do not affect current employment, since employers are neither required nor permitted to re-verify the employment authorization of aliens who have presented one of these cards to satisfy I-9 requirements (this is true for conditional residents as well as permanent residents). Even if unexpired, “green cards” must appear genuine and establish identity of the cardholder.
All of an employer’s current employees (unless exempt) must have Forms I-9 on fi le.
Social Security cards. The Social Security Administration (SSA) currently issues SSA numbers and cards to aliens only if they can present documentation of current employment authorization in the U.S. Aliens such as lawful permanent residents, refugees, and asylees are issued unrestricted SSA cards that are undistinguishable from those issued to U.S. citizens.
Note the status of the following documents in satisfying the I-9 requirements:
- SSA card states “Valid only with INS (or DHS) Authorization.” These cards are issued to aliens who present proof of temporary work authorization. They do not satisfy the Form I-9 requirements.
- SSA card states “Not Valid for Employment.” These cards are issued to aliens who have a valid non-work reason for needing a Social Security number (e.g., federal benefits, State public assistance benefits), but are not authorized to work in the U.S.
- IRS-issued “Individual Taxpayer Identification Numbers” (ITINs). These numbers are issued to aliens dealing with tax issues (e.g., reporting unearned income such as savings account interest, investment income, royalties, scholarships, etc.). An ITIN card does not qualify as employment eligibility verification on Form I-9.
Retention of I-9 forms. All of an employer’s current employees (unless exempt) must have Forms I-9 on file. A retention date can only be determined at the time an employee is terminated. It is determined by calculating and comparing two dates. To calculate date A, the employer should add three years to the hire date. To calculate date B, the employer should add one year to the termination date. Whichever of the two dates is later in time is the date until which that employee’s Form I-9 must remain in the employer’s employment eligibility verification files.
Official inspection of I-9 records. Upon request, all Forms I-9 subject to the retention requirement must be made available in their original form or on microfilm or microfiche to an authorized official of the Bureau of Immigration and Customs Enforcement, Department of Labor, and/or the Justice Department’s Office of Special Counsel for Unfair Immigration-Related Employment Practices. The official will give employers at least three days advance notice before the inspection. Original documents (as opposed to photocopies) may be requested.
Immigration Law and the Church—a downloadable training resource available for purchase on ChurchLawAndTaxStore.com.
Pastor, Church & Law, 4th Edition, Volume 3: Employment Law by Richard R. Hammar (Christianity Today International, 2008).
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