Key point 3-10. Religious workers are eligible for special status under immigration law if several conditions are satisfied.
A federal district court in New Jersey ruled that a federal regulation conditioning the issuance of special immigrant status on persons who have worked in the United States for the previous two years under lawful immigrant status was invalid because the immigration statute did not require that the work be performed under lawful status. In 1995, a Brazilian couple and their two children entered the United States on a B-2 nonimmigrant visitor’s visa for pleasure. The visa allowed the family to stay in the United States for six months. However, the family could not lawfully engage in employment under the B-2 visa in the United States. A United States Citizenship and Immigration Services (USCIS) regulation prohibiting employment for B-2 nonimmigrant visitor visa holders specifies:
(e) Employment. A nonimmigrant in the United States in a class defined in section 101(a)(15)(B) of the Act as a temporary visitor for pleasure … may not engage in any employment. Any other nonimmigrant in the United States may not engage in any employment unless he has been accorded a nonimmigrant classification which authorizes employment or he has been granted permission to engage in employment in accordance with the provisions of this chapter. A nonimmigrant who is permitted to engage in employment may engage only in such employment as has been authorized. Any unauthorized employment by a nonimmigrant constitutes a failure to maintain status. (emphasis added)
Despite the family’s authorized status expiring in 1995, and a lack of work authorization, the father (the “plaintiff”) remained in unlawful status in the United States and served, beginning in 1998, as a minister of a church in New Jersey.
In 2009, the church filed an I-360 petition, on the plaintiff’s behalf, for him to obtain classification as a “special immigrant.” Immigration law authorizes the issuance of visas to “special immigrants.” Form I-360 is the petition for classification as a special immigrant religious worker. Approval of the I-360 petition and classification as a “special immigrant” is the first step in obtaining a “special immigrant” visa. An immigrant whose special immigrant visa petition has been approved is then eligible, if other conditions are met, for permanent resident status.
In the plaintiff’s case, the church asserted that he qualified for “special immigrant” status as a religious worker. Immigration law specifies that the term “special immigrant” includes:
(C) an immigrant, and the immigrant’s spouse and children if accompanying or following to join the 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 September 30, 2015, 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 September 30, 2015, 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 Title 26) 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 United States Department of Homeland Security (DHS) has promulgated an additional regulatory requirement (the “Regulation”) for the religious worker special immigrant visa petition—any qualifying religious work performed in the United States must be performed under lawful immigration status in the United States.
In support of its I-360 petition, the church submitted evidence that it was a bona fide, nonprofit religious organization and that the plaintiff had been employed by the church for over two years prior to the application. However, the church admitted in the I-360 petition that the plaintiff was not in lawful immigration status, nor authorized to engage in employment within the United States.
In 2009 the USCIS denied plaintiff’s I-360 petition, saying he had not performed qualifying full-time work in lawful immigration status. In 2010, a USCIS appeals office dismissed the appeal taken by the church, upholding the denial of the petition because the plaintiff was not in lawful status while working for the church as required by the Regulation.
The plaintiff appealed to a federal district court, arguing that the denial of the I-360 petition was improper because the Regulation, which was the basis for the denial, was itself illegal. In particular, the plaintiff claimed that the Regulation improperly imposes an additional requirement beyond those mandated by the immigration statute. Specifically, while the statute merely requires that the immigrant be an individual who has been “carrying on” work for the past two years, the Regulation requires that any qualifying work performed in the United States be work that was performed under lawful immigration status.
The court agreed with the plaintiff’s argument: “The text of the statute is inconsistent with the Regulation because the plain text of the statute solely requires that the alien have carried on work without regard to the legal status of that work.” Under these circumstances, the court concluded, the Regulation is invalid. The court rejected the government’s request to dismiss the case, and ordered the case to proceed to trial. Shalom Pentecostal Church v. Napolitano, 2013 WL 162986 (D.N.J. 2013).