• Key point. Immigration law permits churches to apply for an immigrant visa for persons qualifying as “religious workers” if certain conditions are satisfied. Such a visa permits the employee to work indefinitely in this country.
* A federal appeals court ruled that the Immigration and Naturalization Service improperly denied a religious organization’s application for an immigrant “religious workers” visa for an employee who was in the United States on a temporary nonimmigrant R-1 visa. A religious charity that provided services to young adults with mental disabilities employed a German citizen (Greta) who had been admitted into the United States with an R-1 “nonimmigrant religious worker” visa. Since R-1 visas are limited to 3 years (they can be extended to a total term of 5 years), Greta’s employer filed a Form I-360 “immigrant visa petition” with the Immigration and Naturalization Service (INS). This petition sought to have Greta classified as a special immigrant religious worker so that she could serve in the proposed position of houseparent, music instructor, and religious instructor.
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 various subgroups, including “employment based” immigrants. A total of 140,000 immigrant visas are available each year for this category which is divided into five preference groups. These include skilled workers with at least two years experience, and certain religious workers and ministers of religion. The INS asked for evidence showing that Greta had two years of experience in a religious occupation and that she had received specific religious training. The charity responded with a description of the training process and the religious nature of the position. The INS denied the charity’s petition finding that it had failed to establish that Greta was to be employed in a religious occupation as required under the regulations. An administrative appeal officer affirmed the INS decision on the following grounds: (1) the charity did not qualify as a religious organization; (2) the proposed position of houseparent was neither a religious occupation nor a religious vocation; and (3) there was insufficient evidence to determine whether Greta had worked in a religious position for two years preceding the petition. The charity appealed to a federal district court, which affirmed the INS ruling, and the case was appealed to a federal appeals court.
The appeals court noted that the section of the immigration law at issue in this case specifies that “visas shall be made available … to qualified special immigrants” subject to numerical limitations. A “special immigrant,” as that classification pertains to ministers and other religious workers, is defined as:
An immigrant who—(i) for at least 2 years immediately preceding the time of application for admission, has been a member of a religious denomination having a bona fide nonprofit, religious organization in the United States; (ii) seeks to enter the United States—(I) solely for the purpose of carrying on the vocation of a minister of that religious denomination, (II) before October 1, 2008, in order to work for the organization at the request of the organization in a professional capacity in a religious vocation or occupation, or (III) before October 1, 2008, in order to work for the organization (or for a bona fide organization which is affiliated with the religious denomination and is exempt from taxation as an organization described in section 501(c)(3) of the Internal Revenue Code) at the request of the organization in a religious vocation or occupation; and (iii) has been carrying on such vocation, professional work, or other work continuously for at least the 2-year period described in clause (i).
The court noted that “the definition of special immigrant (as relevant to religious workers) is fairly detailed and specific.” The INS conceded on appeal that the charity in this case qualified as a religious organization. The next issue was whether the position of houseparent was a “religious occupation.” This term is defined by regulation as follows: “Religious occupation means an activity which relates to a traditional religious function. Examples of individuals in religious occupations include, but are not limited to, liturgical workers, religious instructors, religious counselors, cantors, catechists, workers in religious hospitals or religious health care facilities, missionaries, religious translators, or religious broadcasters. This group does not include janitors, maintenance workers, clerks, fund raisers, or persons solely involved in the solicitation of donations.”
The INS argued that the duties of a houseparent involve the care of the mentally handicapped, and that such duties are a secular function even if the facility is operated by a charitable organization founded on religious principles.” The court rejected this narrow interpretation of the law, noting that the fact that a religious worker performs some secular duties does not mean that the worker is not religious. It noted that the regulation excluded certain workers, such as “janitors” and “maintenance workers,” who perform wholly secular functions, but “this does not mean that a person cannot qualify as having a religious occupation if the worker’s job includes both secular and religious aspects …. A job may qualify under the regulation if it has some religious significance.” Further, the court ruled that the position of houseparent did not involve only secular functions. The charity “consistently testified that Greta’s position involved a number of clearly religious responsibilities, including imbuing residents with religious values and practices; instructing other staff in the practices and Christian values of the charity; and teaching religious subjects and values to mentally retarded young adults.” The court also rejected the INS position that a “religious occupation” must be a “traditionally full-time salaried position requiring specific religious or theological training.” It pointed out that in promulgating the final regulations the INS explicitly stated that they had been “revised to account more clearly for uncompensated volunteers, whose services are engaged but who are not technically employees.”
Application. This case will be a helpful precedent to any church that employs a foreign citizen who is in this country on a temporary R-1 visa, and who would like to extend the person’s employment by seeking an immigrant visa as a religious worker. The important points are these: (1) Churches may employ foreign citizens who are in this country on a temporary nonimmigrant “R-1” religious workers visa. Such a visa is good for 3 years (it can be extended to a total term of 5 years). (2) A church, on behalf of an employee in this country on an R-1 visa, can apply to the Bureau of Citizenship and Immigration Services (formerly INS) for an employment-based “religious worker” immigrant visa. 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.” Camphill v. United States Department of Justice, 381 F.3d 143 (3rd Cir. 2004).
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