Pastor, Church & Law

§ 3.10

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In the United States, churches have several options for employing foreign nationals working as a minister or in a religious occupation or vocation. Churches can petition for either nonimmigrant visas (R-1) or immigrant visas (EB4). A nonimmigrant visa is issued to a person who wishes to live and work in the U.S. for a temporary period, while an immigrant visa (green card) is issued to a person who wishes to live and work in the U.S. permanently.

Before deciding to petition for an R-1 or EB4, the church should analyze whether the foreign national has any other options for employment authorization, such as employment authorization through a spouse's immigration status, a pending green card application, F-1 Optional Practical Training (OPT), F-1 Curriculum Practical Training (CPT), J-1 Visa, Deferred Action for Childhood Arrivals (DACA), and asylee status (see Chapter 8 for more information regarding these options).

Below is a discussion of the R-1 process and EB4 process. Before a church decides to sponsor the foreign national, it should complete a comprehensive analysis on the immigration status for the foreign national and his or her family. This analysis also should include researching any previous crimes or immigration violations committed by the foreign national.

R-1 Visa

The R-1 visa pertains to a nonimmigrant who seeks to enter the United States to either:

• carry on the vocation of a minister of the religious denomination;
• 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.

An R-1 visa authorizes religious workers (ministers and persons working in a religious vocation or occupation) to live and work in the United States for a temporary period up to five years, while an R-2 visa authorizes the R-1 dependents (spouse and children under 21) to live in the United States.

Required Elements for an R-1 Visa

According to the U.S. Citizenship and Immigration Services (USCIS), the following elements for an approvable R-1 visa are required:

1. Be a member of a religious denomination having a bona fide nonprofit religious organization in the United States for at least two years immediately preceding the time of application for admission;
2. Be coming to the United States to work at least in a part-time position (an average of at least 20 hours per week);
3. Be coming solely as a minister or to perform a religious vocation or occupation as defined below (in either a professional or nonprofessional capacity);
4. Be coming to or remaining in the United States at the request of the petitioner to work for the petitioner (Employer-Employee Relationship); and,
5. Not be working in the United States in any other capacity. Work for more than one qualifying employer is permitted as long as each qualifying employer submits a petition, plus all additional required documentation, as prescribed by USCIS regulations. 8 CFR section 214.2(r)(1)

Definitions

The USCIS regulation includes the following definitions:

1. Bona fide nonprofit religious organization in the United States means a religious organization exempt from taxation as described in section 501(c)(3) of the Internal Revenue Code (IRC) and possessing a currently valid determination letter from the Internal Revenue Service (IRS) confirming such exemption.

2. Bona fide organization which is affiliated with the religious denomination means an organization that is closely associated with the religious denomination and that is exempt from taxation as described in section 501(c)(3) of the IRC and possesses a currently valid determination letter from the IRS confirming such exemption.

3. Denominational membership means membership during at least the two-year period immediately preceding the filing date of the petition in the same type of religious denomination as the United States religious organization where the foreign national will work.

4. Minister means an individual who:Is fully authorized by a religious denomination, and fully trained according to the denomination's standards, to conduct religious worship and perform other duties usually performed by authorized members of the clergy of that denomination;Is not a lay preacher or a person not authorized to perform duties usually performed by clergy;Performs activities with a rational relationship to the religious calling of the minister; and,Works solely as a minister in the United States, which may include administrative duties incidental to the duties of a minister.

5. Religious denomination means a religious group or community of believers that is governed or administered under a common type of ecclesiastical government and includes one or more of the following:A recognized common creed or statement of faith shared among the denomination's members;A common form of worship;A common formal code of doctrine and discipline;Common religious services and ceremonies;Common established places of religious worship or religious congregations; or,Comparable indicia of a bona fide religious denomination.

6. Religious occupation means an occupation that meets all of the following requirements:The duties must primarily relate to a traditional religious function and be recognized as a religious occupation within the denomination;The duties must be primarily related to, and must clearly involve, inculcating or carrying out the religious creed and beliefs of the denomination;The duties do not include positions which are primarily administrative- or support-related, such as janitors, maintenance workers, clerical employees, fundraisers, persons solely involved in the solicitation of donations, or similar positions, although limited administrative duties that are only incidental to religious functions are permissible; and,Religious study or training for religious work does not constitute a religious occupation, but a religious worker may pursue study or training incident to status.

7. Religious vocation means a formal lifetime commitment, through vows, investitures, ceremonies, or similar indicia, to a religious way of life. The religious denomination must have a class of individuals whose lives are dedicated to religious practices and functions, as distinguished from the secular members of the religion. Examples of vocations include nuns, monks, and religious brothers and sisters.

8. Religious worker means an individual engaged in and, according to the denomination's standards, qualified for a religious occupation or vocation, whether or not in a professional capacity, or as a minister.

9. Tax-exempt organization means an organization that has received a determination letter from the IRS establishing that it, or a group it belongs to, is exempt from taxation in accordance with sections 501(c)(3) of the IRC. 8 CFR section 214(r)(3)

A U.S.-based religious organization that wants to employ the applicant foreign national and apply for an R-1 visa for the benefit of a religious worker must submit an I-129 petition with the USCIS in the United States. The I-129 petition must be filed with:

• A written statement from an authorized official of the religious organization that will be employing the religious worker, establishing (1) that the foreign national has been a member of the denomination for the required two years; (2) a description of the proposed position, and that the foreign national is qualified for the position; (3) the arrangements, if any, for salary, benefits, and other compensation; (4) the name and location of the place the foreign national will provide the services; and, (5) the organization's affiliation with the denomination.

• Evidence of eligibility for the R-1 visa for both the petitioner (religious organization) and the beneficiary (religious worker). For example, to prove petitioner's eligibility, the case must have evidence showing that the religious organization or any affiliate which will engage the religious worker's services is a bona fide nonprofit, religious organization in the United States and is exempt from taxation in accordance with section 501(c)(3) of the IRC.

The initial admission period for religious workers entering the United States in R-1 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.

These requirements are strictly construed. In one case, a Turkish clergyman of the outlawed Bektashi faith sought special immigrant status as a "minister." His application was denied by the Immigration and Naturalization Service (INS) (the predecessor to the current USCIS) on the ground that the applicant had not functioned as a minister for two years immediately preceding the time of his application for admission to the United States—despite the applicant's claim that he had been unable to function as a minister because the Turkish government had outlawed his sect. [163] First Albanian Teqe Bektashiane in America v. Sahli, 231 F. Supp. 516 (E.D. Mich. 1964).

The INS has previously held that the term "minister" as used in the Immigration and Naturalization Act means a person duly authorized by a recognized religious denomination having a bona fide organization in the United States to conduct religious worship and to perform other duties usually performed by a regularly ordained clergyman of that denomination. Therefore, the INS has held that an ordained "minister of music" was not a "minister" since her education was primarily in music and not theology, she never officiated at weddings or funerals, she never performed preaching or visitation functions (although she allegedly had the authority to do so), and she did not have two continuous years of ministry experience immediately preceding the filing of her application for admission to the United States. [164] Re Rhee, I & N Interim Decision No. 2682 (1982).

Dependents

An R-1 alien's spouse and unmarried children under the age of 21 may accompany or follow to join the principal R-1 alien in R-2 status, subject to the following conditions:

• R-2 status is granted for the same period of time and is subject to the same limits as the principal, regardless of the time such spouse and children may have spent in the United States in R-2 status;
• Neither the spouse nor the children may accept employment while in the United States in R-2 status; and,
• The primary purpose of the spouse or children coming to the United States must be to join or accompany the principal R-1 alien.

R-1 Term and Extension of Stay

An R-1 visa recipient may be granted an initial term of up to 30 months, provided the total period of time spent in R-1 status does not exceed a maximum of five years. Thus, an R-1 recipient's total stay is limited to five years.

A recipient who has spent five years in the United States in R-1 status may not be readmitted to—or receive an extension of stay in—the United States under the R visa classification unless he or she has resided abroad and has been physically present outside the United States for the immediate prior year. This limitation does not apply to R-1 recipients who did not reside continually in the United States and whose employment in the United States was seasonal or intermittent or was for an aggregate of six months or less per year. In addition, the limitations shall not apply to foreign nationals who reside abroad and regularly commute to the United States to engage in part-time employment. To qualify for this exception, the petitioner and the foreign national must provide clear and convincing proof that the person qualifies for such an exception. Such proof shall consist of such evidence as arrival and departure records, transcripts of processed income tax returns, and records of employment abroad.

Evidence Relating to Compensation

Initial evidence must state how the petitioner intends to compensate the religious worker, including specific monetary or in-kind compensation, or whether the religious worker intends to be self-supporting. In either case, the petitioner must submit verifiable evidence explaining how the petitioner will compensate the religious worker or how the religious worker will be self-supporting. Evidence of compensation may include past evidence of compensation for similar positions; budgets showing monies set aside for salaries, leases, and so on; verifiable documentation that room and board will be provided; or, other evidence acceptable to USCIS. IRS documentation, such as IRS Form W-2 or certified tax returns, must be submitted, if available. If IRS documentation is unavailable, the petitioner must submit an explanation for the absence of IRS documentation along with comparable, verifiable documentation.

Nonimmigrant Intent

The foreign national should establish that he or she will maintain an intention to leave the United States upon the expiration or termination of R-1 or R-2 status. However, a nonimmigrant petition, application for initial admission, change of status, or extension of stay in R classification may not be denied solely on the basis of a filed or an approved request for permanent labor certification or a filed or approved immigrant visa preference petition.

Site Inspections

USCIS generally conducts site investigations for R-1 cases, especially if this is the first R-1 case for the petitioner ever or in several years. While site inspections are made in other immigration categories, such as H-1B workers, site inspections are routinely conducted for R-1 cases to filter out fraudulent activity. USCIS will send an investigator to the physical address where constituents generally congregate to worship. This address must be provided in order for USCIS to conduct a pre-approval site inspection, even if that address is not the same as the mailing address. During a site inspection, USCIS must verify that the place of worship actually exists.

In addition, a post-adjudication inspection may be completed on the beneficiary's work location to verify the beneficiary's work hours, compensation, and duties. A post-adjudication inspection also may be conducted in cases of suspected fraud or when the petitioning entity has undergone substantial changes since its last filing. USCIS closely monitors the site visit program to ensure that it does not cause substantial delays in the adjudication process.

Processing Petitions

While premium processing exists for R-1 filings, if an R-1 petitioner has not had a site investigation, the filing will not be adjudicated until the site investigation is complete.

Normal processing times can take months. However, premium processing is available. By paying an additional filing fee, a petitioner will receive a response from USCIS within 15 calendar days.

The response from USCIS can either be approval, denial, or request for evidence. Requests for evidence are relatively common and require the petitioner to submit additional materials to prove the merits of the case. Once additional materials are submitted, USCIS generally will provide a decision of approval or denial.

With an approval, if the R-1 and R-2 beneficiaries are inside the United States and have requested a change of status or extension of stay, often the beneficiary does not need to apply for an R-1 visa stamp at the U.S. Consulate until the first time he or she departs the country during the valid period of the R-1 approval or I-94 expiration date. If the R-1 and R-2 beneficiaries are outside the United States when the R-1 petition is approved, the beneficiary and dependents will need to apply for an R-1 and R-2 visa stamp at the U.S. Consulate outside the United States.

EB-4 Visa

The eligibility requirements for EB-4 visas are the same as the ones outlined for R-1 visas, with one important additional requirement: the petitioner must possess two years of work experience as a religious work prior to the filing, documented by pay records and a job offer of permanent employment.

While the R-1 position is for temporary employment, the underlying job offer in an EB-4 permanent residence case is for permanent employment. Upon approval of an I-360 petition, the foreign national must apply for either an immigrant visa at a U.S. Consulate outside the U.S. or for adjustment of status inside the United States, depending on the foreign national's circumstances related to admissibility and travel requirements.

Upon approval of the immigrant visa and entry into the United States or permanent residence application, the beneficiary will be a permanent resident (and becomes a green card holder). After five years of permanent residence and the meeting of the naturalization requirements, the beneficiary can apply for naturalization (U.S. citizenship).

Note regarding the EB-4 Visa: This visa—given at least two temporary extensions at the end of 2018—may not be available at this time. Those wishing to pursue this option will need to confirm its availability.