Requirements for Hiring Foreign Nationals at Your Church

Churches are increasingly hiring foreign nationals as employees and independent contractors. Federal immigration law regulates the admission, status, and employability of foreign citizens in the United States, and imposes requirements on employers who seek to hire such persons. These requirements generally apply to religious organizations.

Church pastors and leaders must become familiar with these requirements and actively monitor developments and changes. In particular, leaders must educate themselves on the various types of visas available, record-keeping requirements employers must meet, and the Form I-9.

Headlines from the past year illustrate the increased scrutiny the government is placing on the employment of foreign nationals:

The following observations, adapted from Pastor, Church & Law, Fifth Edition, will provide:

An overview of record-keeping compliance requirements that church and ministry organizations must establish, especially in the event of an I-9 audit or workplace visit from the government. While this article will not address all of the record-keeping requirements, it should be used as a starting point. Not maintaining compliant record-keeping procedures can lead to penalties and fines for a church (as an employer), as well as potential employment law violations, including discrimination-related charges.

A helpful overview of the various types of visas that churches should know and understand for hiring purposes within their own organizations, with a specific emphasis placed on the ones most relevant to churches. The aim of this article is to inform churches and ministry organizations that an employee must have employment authorization inside the United States. The consequences of hiring a foreign national without employment authorization can lead to severe immigration violations for the foreign national. Churches also can face penalties and sanctions from the US government—and criminal penalties in extreme cases where there is a pattern of violations.

Working for compensation

In general, foreign nationals cannot perform services for compensation in the United States unless they meet one of the following conditions:

Unless a foreign worker meets one of these conditions, he or she generally is not legally permitted to perform work for compensation in the United States. As mentioned above, working without authorization can lead to severe consequences for both the foreign national and the employing church.

Record-keeping requirements

Every employer, including churches, must complete a Form I-9 for each employee—both citizens and noncitizens—to verify the individual’s identity and employment authorization.

While R-1 visas are one of the most common types of visas used by churches to hire religious workers on a temporary part-time or full-time basis, as this article suggests, there are other potential immigration categories for employing foreign nationals. Establishing methodical processes for both preparing and maintaining I-9 records is essential to complying with immigration and employment law requirements, which can lead to potential fines or potential discrimination implications. The prudent organization should consult with both their employment law and immigration law professionals in developing and implementing compliant record-keeping processes.

Churches should note the following records to keep to ensure readiness in the event of an I-9 audit or a government site visit. Churches also should note the importance of keeping these records separate. As the Society for Human Resources Management states on its website (shrm.org):

Forms I-9 should be maintained separately from employee personnel files. Most often, I-9s are maintained in a file (electronic or hard copy) or binder that is accessible only to a few individuals in the human resource department. Supervisors or managers should not have regular access to I-9 forms and documents because national origin, immigration status, marital status, and other protected information may be disclosed on these forms or in the documents provided for their completion.

Records for an I-9 audit

The church should keep one I-9 file containing all I-9 forms completed for all employees. This is the only file a church needs to produce for an auditor in the event of an I-9 audit.Records for government site visits In the event of a USCIS or government site visit, churches also should keep the following records in an R-1 religious worker’s personnel file:

In the event of a site visit, the investigator may want to review the R-1 petition and ask other employees and representatives of the organization questions about the R-1 worker’s role. Site visits are often conducted to identify fraudulent R-1 cases, so it is important that the actual duties and roles of the R-1 worker are properly described in the R-1 petition. Any “substantial deviations” to the R-1 worker’s duties and roles often merit filing an amended R-1 petition or a new R-1 petition. Substantial changes could include changes in worksite, promotions, changes in duties, and a change from part-time to full-time employment, among others.

Hiring foreign nationals

Churches frequently encounter situations in which the possible hiring of a foreign national arises.

Consider the following examples:

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 the long processing times at the different government agencies involved means employers need to plan ahead when hiring foreign religious workers. Below is an overview of basic immigration principles and some common visa categories. Some of the immigration options are more complex than others. Each church and foreign national’s situation is unique and should be analyzed based on the specific situation.

Visas—in general

What is a visa? Are foreign citizens required to have a visa to enter the United States? Must they have a visa to work for a church as either an employee or independent contractor?

Citizens of most foreign countries need a visa to enter the country. A visa does not permit entry into the US, but rather indicates that the visa holder’s application has been reviewed by a US 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 US 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 customs and border patrol officer (CBP) to allow entry into the country. Only the CBP officer has the authority to permit entry into the country. The CBP officer can either deny entry or admit the person on a particular type of immigration status for a specified period of time. The specific immigration status controls the activities the foreign national is permitted to conduct, such as pursuing employment, pursuing studies as a student, traveling as a tourist, conducting business travel, and more. Most immigration matters inside the US are the responsibility of the US Citizenship and Immigration Services (USCIS), a bureau of the US Department of Homeland Security. The former Immigration and Naturalization Service (INS) no longer exists.

There are two categories of US immigration status: immigrant and nonimmigrant status. Immigrant status applies to people who intend to live permanently in the country. Nonimmigrant status applies to people with permanent residence outside the US but who wish to be in the US on a temporary basis for tourism, medical treatment, business, temporary work, or study, among other types of statuses. Both kinds of visas are described below.

It is worth noting two other types of immigration situations exist: asylee status and Deferred Action for Childhood Arrivals (DACA).

Asylee status applies to a person who has been granted asylum, either by the USCIS asylum office or an immigration judge, based on the person’s fears that he or she will face persecution based on his or her religion, race, nationality, political opinion, or membership in a particular social group upon returning to his or her home country.

DACA involves the government either deferring prosecution or declining to issue removal proceedings against persons that entered the US as children, assuming certain requirements are met. DACA is not an immigration status, but rather, the deferral of prosecution. DACA recipients are allowed to live and work for a temporary period of time in the country without being placed in removal proceedings unless they violate DACA requirements.

Immigrant visas

An immigrant is a foreign national who has been granted the privilege of living and working permanently in the United States (a “green card” holder—more details below). It is important to note that an immigrant or green card holder is not a US citizen. Becoming a US citizen has its own requirements and process, generally referred to as the naturalization process, which is separate from the application process to become a lawful permanent resident.

Applicants must go through a multi-step process to become an immigrant. In most cases, 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 US 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. As an aside, someone granted asylum can often pursue permanent residence status; and

2. Those subject to an annual limitation, generally through family or employment sponsorship. This category is further divided into the following groups:

Because there generally are more applications than available visas in the family preference system each year, there is often a multi-year wait within each preference category. The US Department of State publishes a visa bulletin each month to explain the current wait time by preference category and by country.

Note that most of these employment-based immigration visa categories (generally in the EB-2 and EB-3 categories) require the US employer to complete the Permanent Labor Certification process (PERM). In the PERM process, the employer tests the labor market to determine if there are any minimally qualified US workers ready, willing, and able for the position being offered to the foreign national. If there are not any minimally qualified US workers ready, willing, and able, the employer submits a labor certification application for the applicant to the US Department of Labor’s Employment and Training Administration using Form 9089. The Department of Labor must either grant or deny the certification request. In some situations, there are alternatives to the EB-2 and EB-3 labor certification process. For instance, the EB-4 category is available for religious workers, which avoids the labor certification process.

Note regarding the EB-4 visa: This visa—given at least two temporary extensions—may not be available. Those wishing to pursue this option will need to confirm its availability.

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: 5,000 of these are designated for Nicaraguan Adjustment and Central American Relief Act (NACARA), which reduces the total available diversity immigrant visas to 50,000 per year.

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.

Green cards

Persons whose applications for immigrant visas are approved become lawful permanent residents of the US and generally may live and work indefinitely in this country. 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.”

Work permits pending application decisions

Applicants for adjustment to permanent resident status are eligible to apply for a work permit while their cases are pending. 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.

Note: Separate work permits are available for those who are here under DACA, as asylees, or TPS—but those situations are not addressed in this article.

Key Point. Any person traveling to the United States with the intention of working temporarily must obtain a nonimmigrant work visa. Persons entering the United States on a visitor or business visa are not permitted to work.

Nonimmigrant visas

The Immigration and Nationality Act provides several categories of nonimmigrant visas for a person who wishes to work, study, train, or operate a business 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 business visitor

Business visitors generally are not permitted to perform work in the United States for compensation. Some religious workers enter the United States with a B-1 visa, 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 US source, other than the offerings contributed at each evangelical meeting.

(3) Preaching. Persons who will be preaching in the United States for a temporary period, or will be exchanging pulpits with their US 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 US 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:

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 that travelers who qualify for a B-1 visa may also be eligible to travel visa-free under the visa waiver program.

R-1 visa (temporary nonimmigrant religious workers)

An R-1 visa authorizes a foreign national to work in the United States temporarily in a part-time (at least 20 hours per week) or full-time basis (at least 35 hours per week) in the following capacity:

The term “minister” for R-1 visa religious workers does not apply to lay preachers but is someone who is authorized by a denomination to conduct religious worship and perform clergy duties. The minister must also be fully trained in accordance with the denomination’s standards to conduct religious worship and other sacerdotal functions.

A religious occupation means a position that primarily relates to, and clearly involves, inculcating or carrying out the religious creed and beliefs of the denomination. It does not include primarily administrative or support positions such as janitors, maintenance workers, clerical employees, fundraisers, solicitors of donations, or similar occupations. However, administrative duties that are only incidental to religious functions are permissible.

A religious vocation means a calling to religious life, evidenced by a lifelong commitment, such as taking vows. Examples include nuns, monks, and religious brothers and sisters.

Applicants may qualify for the R-1 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. Denominational membership is not defined by formal affiliation, but by shared faith and worship practices in the same type of religious denomination.

The term “religious denomination” applies to a group of believers who are governed or administered under a common type of ecclesiastical government, such as:

Nondenominational churches can submit a description of its own internal governing or organizational structure.

The R-1 petitioner must have tax-exempt status as an organization described in section 501(c)(3) of the federal tax code, or be affiliated with a religious denomination and authorized by a group tax exemption holder to use its group tax exemption.

The US-based religious organization that wants to employ the applicant must file Form I-129 Petition for Nonimmigrant Worker (in duplicate) with the US Citizenship and Immigration Service (USCIS). USCIS may conduct a preapproval inspection, and a satisfactory completion of the site visit at the religious organization’s location is a condition for approval. It is important to indicate a physical address where members generally congregate to worship so that USCIS can conduct a site visit and verify that the place of worship actually exists. If the religious worker is applying from outside the United States, an R-1 visa cannot be issued at a US Embassy or Consulate abroad without prior USCIS approval of Form I-129.

The petition that is filed stateside with USCIS must include evidence of R-1 eligibility:

The initial admission period for ministers and religious workers entering the United States under R-1 status is limited to 30 months. If employers want to extend that period, they must file another I-129 petition with the USCIS to request an additional 30 months (for a total maximum stay of five years). USCIS counts only time spent physically in the United States in valid R-1 status toward the maximum period of stay. After five years, the religious worker will need to live outside the United States for at least one year before applying for a new nonimmigrant R-1 visa. These limitations do not apply for religious workers who did not reside continuously in the United States and whose employment was seasonal, intermittent, or for an aggregate of six months or less per year, or for religious workers who reside abroad and commute to the United States to work part-time.

Nonimmigrant religious workers must maintain the intent to depart the United States when their nonimmigrant stay expires. The petitioner must notify USCIS within 14 days of any change in the nonimmigrant worker’s employment, or when the employment is terminated. If the religious worker wants to change employers, a new R-1 petitioner must file another Form I-129 attestation and supporting evidence. Changes in location of employment may constitute material changes to the terms and conditions of employment. The petitioner may be required to file an amended petition and receive an approval prior to the beneficiary’s move to a new location of employment.

An R-1 visa holder’s dependents, which includes spouses and unmarried children under the age of 21, may be eligible for R-2 classification, but they will not be authorized to work.

Beneficiaries not eligible for an R-1 visa may have alternative options. These include the F-1 OPT, H-1B, J-1, and TN visas, among other potential alternative options, depending upon the specific circumstances. While the R-1 visa is the primary option for religious workers, when an R-1 visa is not an option, alternative options should be explored. Several are described further below.

Other classifications that may be relevant to church leaders, although less common, include the following:

For tourism: B-2

Tourist visitors generally are not permitted to perform work in the United States for compensation. This visa provides them with legal entry.

For academic purposes: F, M, and J visas

F-1 visa (academic student)

The F-1 visa is the most common type of student visa. It requires a full-time course of study.

A nonresident alien admitted to the United States as a student generally is not permitted to work for compensation or to engage in business while in the United States. In some cases, a student admitted to the United States with an F-1 visa is granted permission to work, generally pursuant to On Campus Employment (described in more detail below), Curriculum Practical Training (CPT), or Optional Practical Training (OPT). CPT and OPT are generally noted on the student’s I-20, while On Campus Employment is not noted on the I-20—but permission should be obtained from the student’s designated school official (DSO).

USCIS permits on-campus work for students in F-1 status if it does not displace a US resident. On-campus work means work performed on the school’s premises. On-campus work includes work performed at an off-campus location that is educationally affiliated with the school. On-campus work under the terms of a scholarship, fellowship, or assistantship is considered part of the academic program of a student taking a full course of study and is permitted by the USCIS.

Employment due to severe economic necessity and for OPT is sometimes permitted for students in F-1 status. Students granted permission to work due to severe economic necessity or for OPT will be issued Form I-688B or Form I-766 by USCIS. Some F-1 students, upon completing a degree program, may be eligible for 12 months of OPT. Those who earn a degree in science, math, or technology may be able to pursue up to 36 months of OPT.

It is possible for a student holding an F-1 visa to change to an R-1 visa if a religious organization submits a Form I-129 to the USCIS. Often, a new graduate will have OPT and can work for a religious organization with OPT while a change of status to R-1 status is pending and approved.

M-1 visa (vocational student)

People wanting to pursue full-time vocational studies are usually admitted to the United States on an M-1 nonimmigrant visa. The M-1 category includes students in vocational or other nonacademic programs, other than language training.

Students in M-1 status who have completed a course of study can accept employment or practical training for up to six months and must have a Form I-688B or Form I-766 issued by USCIS. In all other cases, any services performed by a nonresident alien student are not considered as performed to carry out the purpose for which the student was admitted to the United States.

Persons holding an M-1 visa may not accept employment in the United States. However, they may apply for practical training after they complete their studies. If approved, they will be allowed to have one month of practical training for every four months of study they have completed. They are limited to six months total practical training time. Vocational students must apply to the USCIS for authorization to work under these limited circumstances (Form I-538).

J-1 visa (exchange visitors)

J-1 visas are for international exchange students. The J-1 visa has other purposes beyond international exchange students, such as internships and medical professionals. Spouses of J-1 visa holders can apply for employment authorization with USCIS. The J-1 visa recipient and dependents should be cautious in whether the two-year home residency requirement applies.

For specialty occupations, seasonal needs, or extraordinary abilities: H-1B, H-2B, and O-1

H-1B (specialty occupation)

The H-1B is a nonimmigrant classification used by an alien who will be employed temporarily in a specialty occupation. A specialty occupation requires theoretical and practical application of a body of specialized knowledge, along with at least a bachelor’s degree or its equivalent. For example, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts are specialty occupations.

As of this writing, there are only 65,000 available H-1B visas each year and an additional 20,000 H-1B visas available each year to holders of master’s degrees. The demand for these visas exceeds the number of visas made available each year (for instance, for fiscal year 2019, there were approximately 190,000 H-1B petitions). Because the demand exceeds the supply, USCIS conducts a random lottery each year with all H-1B petitions received within the first five business days of April each year.

H-1B status requires a sponsoring US employer. The employer must file a labor condition application (LCA) with the Department of Labor attesting to several items, including payment of prevailing wages for the position, and the working conditions offered. The employer must then file the certified LCA with a Form I-129. Based on the USCIS petition approval, the foreign national may apply for the H-1B visa, admission, or a change of nonimmigrant status.

If a foreign national receives an H-1B visa, he or she is granted that status for a term of three years inside the United States, which can be extended for another three years (for a total of six years).

Note: Exceptions exist—church leaders should consult with qualified legal counsel regarding the H-1B visa program.

Under current law, when the H-1B recipient completes the sixth year, he or she must remain outside the United States for one year before another H-1B petition can be filed. However, in some circumstances, when an H-1B holder is the beneficiary of an employment-based immigrant petition, but there are country-based backlogs for available green cards, a beneficiary can sometimes hold H-1B status beyond six years. The country-based backlogs generally apply to foreign nationals born in China and India.

H-1B recipients may only work for the petitioning US employer and only in the H-1B activities described in the petition. The petitioning US employer may place the H-1B worker on the worksite of another employer if Department of Labor and USCIS rules are followed. H-1B recipients may work for more than one US employer but must have a Form I-129 H-1B petition approved by each employer.

An H-1B recipient may work in full- or part-time employment and remain in status—as long as the recipient works in accordance to the terms stated in the H-1B petition.

An H-1B recipient often can take steps toward Lawful Permanent Resident status without affecting H-1B status. This is known as “dual intent” and has been recognized in the immigration law since passage of the Immigration Act of 1990.

H-2B (temporary nonagricultural workers)

This classification applies to temporary or seasonal nonagricultural workers. It requires a temporary labor certification issued by the Secretary of Labor.

O-1 (extraordinary abilities)

This visa applies to persons with extraordinary abilities within their fields of endeavor, such as the arts, sciences, education, entertainment, business, or athletics—and those abilities have resulted in national or international acclaim. Eligibility requirements are strict. For individuals who apply, they must accurately describe their field of endeavor and submit ample evidence of their accomplishments and acclaim.

Visas available based on treaties: E-1, E-2, TN, H-1B1, and E-3

E-1 Treaty Trader and E-2 Treaty Investor

E-1 Treaty Trader and E-2 Treaty Investor visas are for entrepreneurs who are from a country that has a treaty with the United States and either conducts substantial trade between their home country and the United States or makes a substantial investment into a commercial enterprise in the United States. Spouses of E-1 and E-2 visa holders in dependent status can apply for employment authorization with USCIS.

TN

This work visa is made possible through the North American Free Trade Agreement (NAFTA) that is available to Canadians and Mexicans performing an occupation listed on a specifically approved occupation list. Examples of included occupations include seminary teacher, social worker, and vocational counselor, among other specified occupations. It is the job duties that control the outcome of the application, while the offered job title is relevant. TN visas are generally applied for at the US Consulate in Mexico or Canada. Canadian nationals can apply at the border. In some instances, the TN renewal is petitioned for inside the US with USCIS.

Note: At publication time, NAFTA appeared set to be replaced by the U.S.-Mexico-Canada Agreement—a new trade pact between the three countries. The full extent of the changes the new pact would bring was not yet clear, but it appeared the availability of the TN visa, and the parameters involved with it, would not be affected.)

H-1B1 and E-3 visas

Similar to the H-1B visa, there is a special H-1B1 visa available for Chilean and Singaporean nationals that can be applied for directly with the US Consulate overseas. Additionally, there is a special E-3 visa available to Australian nationals, which can also be applied for directly with the US Consulate overseas. Many of the H-1B requirements are similar to the H-1B1 and E-3 requirements, primarily available for “specialty occupation” positions that require a bachelor’s degree in a specialized field.

Adapted from Pastor, Church & Law, Fifth Edition, by Attorney Richard R. Hammar, senior editor of ChurchLawAndTax.com. Gerald Cipolla is an attorney and the founder of the Chicago-based Cipolla Law Group, a firm specializing in immigration law (immigrationvisaus.com). Lina Yen Hughes is an attorney and the founder of the Sacramento, California-based Yen Hughes Law, P.C., a firm specializing in immigration law (yenhugheslaw.com).