Immigration Law and the Church

Immigration has been a hot topic in the United States for years. When Arizona proposed its tough new immigration enforcement law earlier this year, it sparked a firestorm between the federal government and Arizona, as well as among citizens across America. Before we move into the details on what churches need to know about immigration law as it relates to welcoming undocumented immigrants into church and recruiting them to work or volunteer, it’s important to understand the context in which this issue is being played out.

In April 2010, the state of Arizona proposed one of the toughest immigration enforcement laws—SB 1070. This Senate Bill requires individuals to carry proof of citizenship at all times. It gives local police the power to question individuals about their immigrant status even if they are stopped for a routine offense, such as a traffic violation. Arizona lawmakers, weary of the federal government’s failure to effectively enforce border laws, proposed this legislation in an effort to gain control over their borders, which have become a main point of entry for illegal immigrants.

President Obama and his administration view the Arizona law as an unlawful intrusion on a federal area of law enforcement and policy. On July 6, 2010, the U.S. government brought federal suit to enjoin Arizona’s controversial law from intruding on the historical jurisdiction of the federal government to regulate immigration under the supremacy clause of the United States Constitution. The Obama administration believes that the federal jurisdiction over immigration includes both regulation and enforcement, whereas Arizona’s law seeks to carve out an immigration enforcement role for the State. Opponents of Arizona’s immigration law are concerned that this kind of broad power among local law enforcement will lead to racial profiling, harassment, and discrimination against Hispanics, regardless of their citizenship status.

At least six other legal actions have been filed against Arizona’s SB 1070, most of them focusing on the risk and threat of profiling by law enforcement. One of the lawsuits filed is seeking to enjoin police training material, which instructs officers to observe whether a person speaks poor English, looks nervous, or is traveling in an overcrowded vehicle. Police are also instructed to take into account whether someone is wearing several layers of clothing in a hot climate, or is located in an area where immigrants are known to look for work.

Arizona is not the only state to introduce a bill on immigration enforcement law. Although without the same level of fanfare, Utah passed an immigration enforcement bill, which took effect July 1, 2009. It, too, has been criticized for promoting profiling among Hispanics by state law enforcement agencies in Utah.

Although a number of States’ Attorneys General have filed friend of the court briefs in support of Arizona’s tough enforcement law, the controversy of whether this law breaches federal law is still being debated. A judge put a halt on several sections of SB 1070, prohibiting Arizona from enforcing the most contentious aspects of its new law. The bill will be reviewed and ruled on late this year, and many feel it will go to the Supreme Court before a final decision is made on its constitutionality.

Statistically, experts believe there are between 10 to 12 million unauthorized non-citizens in the United States. On July 6, 2010, the Immigration Policy Center, a division of the American Immigration Council, which has compiled state by state statistics of the economic effect of the undocumented estimates that if “all unauthorized workers and consumers were somehow removed from the U.S. economy, the United States would lose $552 billion in total economic activity (‘expenditures’), $245 billion in Gross Domestic Product (GDP), and 2.8 million jobs.”

The Immigration Policy Center urges the U.S. Congress to take action. The Center concluded, “passing comprehensive immigration reform—which would yield a cumulative $1.5 trillion in added U.S. gross domestic product over 10 years—is the only sound economic decision the United States can make.” The Immigration Policy Center’s reports concern the economic impact in all 50 states. You can read more at immigrationpolicy. org.

Clearly, there is a compelling economic impact related to resolving the immigration debate. But resolving the issue for the sake of the human impact is critical. Many of the estimated 12 million undocumented immigrants have been in America for years. Many are married to U.S. citizens, hold jobs, support spouses and children, and are so assimilated that they are indistinguishable from other U.S. citizens

How is Christian love shown to these families when currently the only enforcement approach is deportation, regardless if it separates parents from their children? Churches across America are grappling with questions like this. In my work as an immigration attorney, I meet individuals everyday who are struggling to comply with the law, and at the same time show support to undocumented immigrants.

Church leaders in particular wonder what their legal responsibility is when they discover someone in their congregation is here unlawfully. Plus, many churches are experiencing growth in the number of Hispanic immigrants attending their church. When it comes to recruiting them for paid or volunteer positions within the church, many leaders are unsure how to conduct a background check for a foreign worker and what visa status they need to remain in the country legally.

In the text that follows, I will provide common questions I receive from churches, and information to help you understand your legal responsibility for undocumented immigrants in your church.

1) What can be done to keep a Mexican mother and her family in the United States? Their visas appear to still be valid.

Much confusion revolves around knowing which document actually controls lawful status in the United States. First, the immigration document that establishes legality for a non-immigrant, temporary visitor, student, or worker is a card issued during inspection at the Port of Entry known as an I-94, Entry-Departure card.

If a mother and her children entered with a visa, they would be issued the I-94 card containing the permitted period of lawful stay. Even if this mother and her family have non-immigrant visa imprints within their passports, exceeding the period of authorized stay noted on the I-94 card by even one day voids the visa imprint.

Second, the immigration document that establishes legality for a permanent resident is a card known as a form I-551 resident alien card. Although pink during the last 36 years, the newly issued “green card” will once again contain green coloring. The green card is the prized goal of most non-citizens seeking to stay in U.S.

If this mother and family do not possess a green card, a range of variables would determine whether they could stay in the U.S. temporarily or even permanently with a green card. For instance, the date of entry is an important factor. Whether non-citizens entered before or after December 2000 is an important benchmark, particularly for those who entered before that date and who had an immigrant visa petition filed on their behalf. Although the time lines to final approval can be extremely slow, if this mother and her family entered before December 2000 and a visa petition or a labor certification application was filed on her behalf or on her husband’s behalf, she and her family could be on a path to legalization under Immigration and Nationality Act Section 245(i). This provision sunset on April 30, 2001, and does not benefit the undocumented or the overstays who entered after that date.

Other factors that determine whether she and her family may stay include whether there is a qualifying relative sponsor or an employer sponsor for an immigrant visa. Due to quotas applicable to most of the subcategories within the permanent visa categories, processing times to permanent residency status may take up to 12 years, and even longer for certain countries. As an alien, this woman must remain in lawful non-immigrant status during these years of processing, or she would be barred from qualifying for adjustment of status to permanent resident. The best choice of temporary visa status is a non-immigrant employment based visa; however, strict criteria must be met to qualify for all of those visa types.

Spouses and children are permitted dependent visas with duration of validity tied to the primary’s non-immigrant, temporary visa.

A few restrictive processing alternatives exist for those unlawfully present in the United States. Examples include making a claim for asylum under refugee provisions, making a claim of spousal abuse under the provisions of the Violence Against Women’s Act (VAWA), and making a claim for witness protection in criminal prosecutions.

Keeping this mother and her family lawfully present in the United States is complex and may require maintaining years of non-immigrant visa status. Attempting to maintain lawful status without an experienced and knowledgeable immigration lawyer is not advisable.

2) Can an immigration attorney file citizenship paperwork for a father and his family?

Many Americans assume that obtaining United States citizenship merely involves filling out forms, which is not true for those not born here. To qualify for naturalization requires either three years of permanent resident green card status for a marriage-based case or five years for all other green card holders. Criminal convictions during that period of time will disqualify one from naturalization and may even lead to revocation of the permanent resident status. If a father and his family do not have permanent resident green card status, they do not qualify for naturalization, and we are back to question one.

3) We have just started an Hispanic church and would like to hire a foreign pastor to lead this new congregation. Can we hire this man if he is not a U.S. citizen?

The short answer is only if he is lawfully present in the United States, or is not currently in the United States and has not violated U.S. visa laws within the past 10 years. It is unlawful to employ aliens unlawfully present and aliens who do not have government-issued work authorization. 8 USC § 1324a (2010).

There is both a temporary and a permanent religious worker visa. Members of the U.S. Congress pressured the U.S. Department of Homeland Security’s Citizenship and Immigration Services division to tighten up the documentary proof required to qualify for either the temporary or the permanent religious worker visa. In November 2008, the U.S. Department of Homeland Security promulgated new religious worker visa regulations affecting both the temporary and the permanent religious worker visa qualification criteria. These regulations were the result of the years of Congressional pressure which intensified between 2007 and 2008. At that time, the U.S. Citizenship & Immigration Services (USCIS) discovered a fraud rate of approximately 30 percent of all religious worker petitions.

In 2007 the Immigration Customs Enforcement division also discovered and arrested over a dozen taxi drivers on the East Coast utilizing the R-1 visa as sponsored by some mosques. These abuses of the visa seemed to galvanize the USCIS into fraud enforcement first leading to the utilization of site visits for all religious worker visa petitions starting in the fall of 2007 and blanket requests for additional evidence of all religious worker petitions pending with the USCIS at that time. Despite some who called for gutting of the visa category, the faith-based proponents within the Bush Administration prevailed with the revised USCIS regulations and mandatory site visits by the fraud division, actions which satisfied those calling for reform of this visa category.

Since the fall of 2007, all religious worker visa petitioners will receive a site visit from an agent of the USCIS’s Fraud Detection and National Security Division (FDNS). Site visits can cause lengthy delays in the adjudication of filed petitions. One client I worked with waited 24 months. The repercussions to the ministry and the candidate for the religious position caused by such extended delays can create numerous hardships. However, once the USCIS’s FDNS has conducted a site visit, it is valid for a period of five years covering all religious worker petitions filed by that same ministry, both temporary and permanent petitions. Although the site visit remains valid and prior petitions have been approved, the USCIS does not for subsequent petitions lower the burden of proof or amount of required documentary evidence.

The November 2008 regulations raised the bar in demonstrating that the sponsoring ministry, the position, and the beneficiary are all legitimate and religious in nature. The burden of proof to demonstrate that the ministry is an IRC § 501(c)(3) religious organization, viable and able to pay the offered salary, and in need of the offered position, encounters close scrutiny. Multiple documents must be submitted to prove each element of the visa criteria is met.

temporary religious worker visa

As noted, there is both a temporary and a permanent religious worker visa category. The temporary religious worker visa, known as an R-1, essentially requires the ministry to be a non-profit recognized by the Internal Revenue Service as a 501(c)(3) religious organization. Under regulations promulgated in November 2008, independent churches with no 501(c)(3) recognition will be denied their petitions for religious worker, including on behalf of pastors. A denomination’s 501(c)(3) group exemption recognition letter covers all member churches and directly affiliated or auxiliary ministries.

Additional mandatory requirements are that the offered position must be a fulltime religious position typically receiving pay, the religious worker must be qualified for the offered religious position, and the religious worker must have two years membership in the ministry or the denomination. (There are a few limited exceptions such as nuns, monks, or similar positions within religious orders which take a vow of poverty.) With one significant difference, all of these same criteria must be met for the permanent religious worker petition.

permanent religious worker visa

There are two steps to filing for the permanent resident religious worker visa. The first step requires the sponsoring ministry to file on behalf of the beneficiary the Special Immigrant Religious Worker or Minister Petition, often referred to by the form number I-360, with the USCIS California Service Center, for which approval is a prerequisite to the permanent residence green card application approval.

With respect to the revised compliance and filing rules in November 2008, the form I-360 now contains new attestations, which the petitioning 501(c)(3) ministry must make. As with the R-1 non-immigrant religious worker visa, there is a longer list of supporting documents necessary to prove and demonstrate to the satisfaction of the USCIS that all criteria of the permanent religious worker visa are met. Although helpful, the fact that the beneficiary has been employed full-time with the sponsoring ministry for the preceding two years does not lower the USCIS insistence on receiving all of the necessary documentation, including documents previously submitted with the R-1 petition which have not changed.

To meet the threshold requirement to qualify for the I-360 Special Immigrant Religious Worker visa, the beneficiary must have continuously and solely worked in a full-time, paid religious position for the ministry or its denomination for two years immediately prior to filing the I-360 petition. Other requirements may apply and are dependent upon the religious position in which the beneficiary has served.

After the I-360 petition is filed with the USCIS and if the ministry has filed no others within the prior five year period, the USCIS FDNS Division will send an investigator to the ministry to establish that it is authentic, to review the documents submitted, and to interview the signatory and the beneficiary. If there has been no site visit to the ministry concerning prior applications, processing is currently taking seven months to a year. If the ministry has had a prior site visit within a five year period, processing is taking three to four months. The petition with a prior site visit may be expedited by paying the USCIS an additional $1,000 “premium processing” fee.

The second step of the process is for the beneficiary, spouse, and children to file for their permanent residence through an I-485, Application to Adjust to Permanent Residence. Ongoing litigation which granted the ability to file this second step of paperwork concurrently with a pending I-360 petition has changed recently, and concurrent filing is again prohibited. After the I-360 is approved by the USCIS California Service Center, the beneficiary needs to pay the filing fee of $1,010 per adult and other fees related to the I-485 Adjustment of Status.

4) How do we get a work permit for an illegal immigrant at our church who entered without inspection from Mexico?

Under current law, there is nearly nothing that can be done for anyone who entered without inspection after April 30, 2001. Even if a man entered within the past 10 years and married a United States citizen or fathered a United States citizen child, he has no legal path to stay and work in the United States. If this man has married a United States citizen or fathered a child, he would need to remain outside this country up to 10 years unless his wife or child can demonstrate extreme and unusual hardship in his absence—a very difficult burden of proof to meet.

A few restrictive processing alternatives exist for those unlawfully present in the United States. Examples include making a claim for asylum under refugee provisions, making a claim of spousal abuse under the provisions of the Violence Against Women’s Act (VAWA), and making a claim for witness protection in criminal prosecutions. Occasionally, the U.S. Congress provides temporary protective status for nationals of countries which have faced large scale catastrophe, most recently to Haitians present in the U.S. prior to its devastating January 2010 earthquake.

5) There is a wonderful Christian family that attends our church, contributes to tithes, volunteers in children’s ministry and other ministries. Will our church get in trouble for allowing them to volunteer even though the family is undocumented?

Churches are under no legal obligation to restrict worship services to only those lawfully present in the United States. However, churches should exercise the same level of screening for all volunteers, regardless of their citizen status, to exclude those who may have criminal histories and otherwise pose a risk to children or other congregants.

Many undocumented, especially those in the U.S. for longer periods of time or who are overstays of non-immigrant visas, do possess valid identification documents, such as a driver’s license or a social security card. Even if members of this family refuse to undergo a criminal background check for fear that their lack of authorization to be in the United States may be discovered, churches can still run criminal background checks utilizing online criminal databases. Even with just their names and dates of birth, many county and state criminal databases will indicate if any applicant has had any prior arrests or convictions. Some churches are also conducting international background checks to make certain their foreign staff and volunteers have no prior criminal offenses in their homeland before they put them in a position of serving in a church ministry.

6) Does the law require our church to report illegal aliens to the U.S. Citizenship and Immigration and Services?

It is unlawful for a person to knowingly or recklessly disregard an alien’s unlawful status and encourage or induce him or her to reside in the U.S. when their residence is in violation of law. 8 U.S.C. § 1324 (2010).

However, federal law does not require private citizens or churches to report their suspicion that someone is without authorization. This provision requires knowledge along with some type of action encouraging or inducing the alien to reside in America. Aiding a known undocumented alien could be determined as reckless disregard. What type of action triggers prosecution under this provision is the key question. For example, would ranchers who put out water stations on their land in the desserts of Arizona be contravening this federal provision? Currently, none are facing prosecution.

According to 8 USC § 1324, it is unlawful for a person to knowingly or recklessly disregard an alien’s unlawful immigration status and transport that alien within the United States in furtherance of his unlawful presence. Some states, such as Arizona, have written exceptions into their state laws, including the recent Arizona immigration enforcement law, SB 1070, which has a section stating, “This section does not apply to a child protective services worker acting in the worker’s official capacity or a person who is acting in the capacity of a first responder, an ambulance attendant or an emergency medical technician and who is transporting or moving an alien in this state pursuant to title 36, chapter 21.1.”

Although the Arizona law authorizes police to ask citizenship questions even during routine and non-criminal stops, not even Arizona requires its citizens to turn in people they suspect are undocumented.

It is, however, unlawful for a person to knowingly or recklessly disregard the fact that an alien is present illegally and conceal, harbor, or shield the alien from detection of authorities in any building. 8 USC § 1324 (2010). Some localities, including Hazleton, Pennsylvania, and the Dallas, Texas suburb of Farmers Branch, had imposed upon landlords an obligation not to rent to undocumented persons. These rental restrictions, however, were later prohibited. In some cases, municipalities are paying a high cost for imposing such requirements on renters. Between September 2006 and July 2010, Farmers Branch City Council had spent $3.4 million unsuccessfully defending its immigration ordinance, which seeks to bar undocumented immigrants from housing, and another $2 million collected by law firms who prevailed on behalf of their clients. Following a class action law suit, Ottawa County, Michigan, stopped refusing to issue marriage licenses to couples who did not have a social security number, regardless of their immigration status.

Although disagreement continues on how to solve the immigration problem, both sides agree on one thing: the current immigration system is broken. Nonetheless, though the system may be broken, we all must comply with current immigration procedures to ensure lawful entry into the United States and to maintain lawful visa and immigration status.

Those desiring to immigrate to America must be vigilant in complying with current visa and immigration laws. Those caught without lawful status face drawn out and expensive legal battles, or swift return home without the ability to return for a period of 10 years. Yet, for the 10 to 12 million unauthorized aliens in this country, a comprehensive reform bill that penalizes the past wrongdoing with fines, requires clean criminal records, and mandates other assimilation requirements is the best solution to keeping families together and our country safe.

Ann Buwalda serves as an editorial advisor for Church Law & Tax Report. She is the founder and executive director for Jubilee Campaign USA, an organization that advances the human rights of ethnic and religious minorities, seeks to protect children at risk for exploitation, and advocates for refugee issues. On several occasions she has testified before sub-committees of the United States Congress and the Congressional Human Rights Caucus concerning human rights, religious freedom and the plight of refugees in various countries.

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