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Greg Siskind on Immigration Law and Policy

FAQ'S FOR THE NEW NEW R-1 RELIGIOUS WORKER REGULATION

Rating: 3 votes, 3.67 average.

This one's a biggie. The regulation was in the works for years, but Congress gave the final push by making releasing the reg a condition to extending the special immigrant immigrant category for religious workers.

I worked through the 88 page advance copy of the regulation over the weekend and here' my question and answer document on the new R-1 religious worker program.

-----------------------



The ABC'S Of Immigration: R-1
Religious Worker Visas>>



Religious workers seeking to temporarily enter the
US to pursue work in their field are likely to enter using the R nonimmigrant
visa. >>



>



On November 21, 2008, USCIS released a final rule that
made substantial changes to the R-1 religious worker program. The rule was
mandated by Congress when it extended the special immigrant religious worker categories
for non-ministers that expired on October 1, 2008. The new rule is designed to
address various concerns regarding fraud and also to clarify various issues
that have arisen over the years with the R-1 program.>>



>



>



Who qualifies for an R visa?>>



 >>



To qualify for an R visa, the applicant must be >>



 >>



  • A
    minister, >>

  • A
    person working in a professional capacity in a religious occupation or
    vocation, or >>

  • A
    person who works for a religious organization or an affiliate in a
    religious occupation who has been a member of the religious group for at
    least the two years immediately preceding the application. >>



>



The
applicant must be a member of the religious denomination for at least two years
immediately preceding the time of application for admission and be coming to
work at least part time. >>



>



 >>



What
is a "Religious Denomination"?
>>



 >>



A religious denomination is defined as a religious
group that have some form of ecclesiastical government, a common belief or
statement of faith, some form of worship, a set of religious guidelines,
religious services and ceremonies, established places for worship, religious
congregations or comparable evidence of a bona fide religious organization.>>



>



USCIS has noted that a denomination does not mean
that there must be a governing hierarchy. Rather, the focus is on "the
commonality of the faith and internal organization of the denomination. An
individual church that shares a common creed with other churches, but which
does not share a common organizational structure or governing hierarchy can
still satisfy the "ecclesiastical government" requirement by submitting a
description of its own internal governing or organizational structure.>>



>



 >>



What
are examples of "Religious Occupations"?
>>



 >>



A
religious occupation is an activity relating to "traditional religious
functions." The work must be recognized as a religious occupation within
the denomination and the duties must be primarily related to, and must clearly
involve inculcating or carrying out the religious creed and beliefs of the
denomination. >>



>



Note
that USCIS no longer includes a list of example occupations in its regulations.
But over the years, USCIS has approved R-1 religious occupation petitions for liturgical
workers, religious instructors, religious counselors, cantors, workers in
religious hospitals or religious health care facilities, missionaries,
religious translators and religious broadcasters.  >>



>



Maintenance
workers, janitors and clerical employees do not qualify. And positions primarily
administrative in nature also do not qualify. Positions that are strictly
related to fundraising do not qualify for R-1 status, though USCIS has
acknowledged that selling literature may not bar someone if they have other religious
functions in their position. And religious study or training for religious work
does not constitute a religious occupation (though a religious worker may
pursue study or training incident to status).>>



>



The
2008 R-1 rule requires religious organizations to submit evidence identifying
religious occupations that are specific to that denomination and that he alien's
proposed duties meet the religious occupation's requirements. >>



>



 >>



What
is a "Religious Vocation"?
>>



 >>



A
religious vocation is defined under the 2008 R-1 rule as "a formal lifetime
commitment, through vows, investitures, ceremonies, or similar indicia, to a
religious way of life." Examples include nuns, monks, religious brothers and
sisters.>>



>



>



What is a "Minister"?>>



>



The
2008 R-1 rule adds a new definition of "minister". Under the rule, a minister
is "an individual authorized by a religious denomination, and fully trained
according to the denomination's standards, to conduct religious worship and to
perform other duties as usually performed by authorized members of the clergy
of that denomination." Lay preachers are not included in this definition.>>



>



>



How
do I apply for an R visa?
>>



 >>



Until
release of the November 2008 rule, an applicant outside the US could apply for
a visa directly at a US consulate without prior USCIS approval.  The new
rule now requires all R-1 applicants, whether applying for a change of status
in the US or for consular processing abroad, to get an I-129 and R visa
supplement approved by USCIS.>>



>



As
of November 2008, all R-1 and immigrant religious worker petitions are filed at
the USCIS California Service Center. Premium processing was not available as of
November 2008 and in the 2008 rule USCIS indicated it was not likely to change
this any time soon.>>



>



>



What attestations must an employer
make regarding the petition?>>



>



Under
the 2008 rule, Employers must now complete,
sign and date an attestation and submit it along with the petition attesting to
the following:>>



>



1.    The
employer is a bona fide non-profit religious organization or religious organization
affiliated with a religious denomination and is exempt from taxation;>>



2.    The
worker has been a member of the denomination for at least two years and that
the alien is otherwise qualified for the position offered; >>



3.    The
number of members of the prospective employer's organization;>>



4.    The
number of employees working at the location where the beneficiary will be
employed and a summary of the type of responsibilities of those employees.
USCIS may request a list of the employees, their titles and a brief description
of their duties;>>



5.    The
number of individuals holding religious worker status (both special immigrant
and nonimmigrant) within the preceding five years;>>



6.    The
number of individuals the organization filed for religious worker status (both
special immigrant and nonimmigrant) within the preceding five years;>>



7.    The
title of the position offered to the alien and a detailed description of the
alien's proposed daily duties;>>



8.    The
complete package of salaried or non-salaried compensation being offered; and>>



9.    That
an alien seeking nonimmigrant religious worker status will be employed for at
least 20 hours per week (the rule also imposed a 35 hour per week requirement
for immigrant petitions);>>



10. The
specific location or locations of the proposed employment; and >>



11. That
the alien will not be engaged in secular employment.>>



>



>



What additional documentation must
be submitted regarding the qualifications of the petitioning organization?>>



>



Aside
from the attestation, the employer must submit with the I-129 and fee, >>



>



-         
a currently valid determination letter
from the IRS establishing that the organization is a tax-exempt organization>>



-         
documentation of the religious
nature and purpose of the organization, such as a copy of the organizing
instrument of the organization that specifies the purposes of the organization;>>



-         
organizational literature, such as
books, articiles, brochures, calendars, flyers, and other literature describing
the religious purpose and nature of the activities of the organization; and>>



-         
a religious denomination
certification (the organization must complete, sign and date a statement certifying
that the petitioning organization is affiliated with the religious
denomination)>>



>



>



What additional documentation must
be submitted regarding the qualifications of a minister?>>



>



For
ministers, the following documentation must be submitted:>>



>



1.    a
copy of the certificate of ordination or similar document reflecting acceptance
of the alien's qualifications as a minster in the religious denomination;>>



2.    documentation
that the worker has completed any course of prescribed theological education at
an accredited or normally recognized institution including transcripts,
curriculum, and documentation that establishes that the theological education
is accredited, or>>



3.    For
denominations that don't require a prescribed theological education, evidence
of >>



>



a.    The
denomination's ordination requirements;>>



b.    The
duties allowed to be performed by virtue of ordination;>>



c.    The
denomination's level of ordination, if any; and>>



d.    The
alien's completion of the denomination's requirements for ordination>>



>



>



What documentation must be submitted
regarding compensation?>>



>



The
petitioner must explain how it intends to compensate the R-1 worker, including
specific monetary and in-king compensation or whether the worker will be
self-supporting (if the work is for temporary, uncompensated missionary work
that is part of a broader international program of missionary work sponsored by
the denomination). If compensation is being paid, evidence may include >>



>



-         
Past evidence of compensation for
similar positions;>>



-         
Budgets showing monies set aside for
salaries, leases, etc.;>>



-         
Verifiable documentation that room
and board will be provided; or >>



-         
Other evidence acceptable to USCIS>>



>



Plus,
IRS documentation such as W-2s or certified tax returns must be submitted if
available. >>



 >>



 >>



How
does an organization show it is a qualifying religious organization?
>>



 >>



An
organization petitioning for an R-1 religious workers must show that it is a "bona
fide non-profit religious organization in the United States" or a "bona fide
organization which is affiliated with the religious denomination." >>



>



To
qualify, an organization must be tax exempt under Section 501(c)(3) of the
Internal Revenue Code. And to demonstrate this, under the 2008 rule, an
employer must provide USCIS with a copy of a valid determination letter from
the IRS confirming such exemption. To qualify based on an affiliation, the
organization must show it is "closely associated" with a religious denomination
that is tax exempt under Section 501(c)(3).>>



>



In
the 2008 regulation, USCIS has expressly barred 501(d) religious organizations from
applying for R-1 status even though an organization is tax-exempt under that
section of the IRC. >>



>



The
2008 rule added a requirement that an R-1 sponsor must file a determination
letter from the Internal Revenue Service (IRS) of the tax-exempt status of the
petitioning religious organization under the Internal Revenue Code (IRC) 501(c)(3).
The organization need not get a new determination for each petition and
determination letters do not expire. If an organization changes addresses from
the address on the letter, the same determination letter may be used as long as
an explanation is provided in the petition.  >>



 >>



The
sponsoring organization also needs to submit a letter on behalf of the R-1 visa
holder.  This letter should outline the applicant's two-year minimum
membership, including where that membership occurred, in or out of the
US.  It should also include a statement that the foreign-based religious
group and the US based religious group for which the applicant will work belong
to the same denomination.  It must state the name and location of the
organization in the US for which the applicant will work.  Finally, it
should outline the applicant's qualifications and salary.>>



>



>



What is the new inspection
requirement under the R-1 rule?>>



>



USCIS
has been conducting on site inspections of R-1 change of status petitions for
some time, but now all R-1 sponsors will need to have an on site inspection
even if the religious worker is applying for consular processing. Technically,
the rule says that USCIS can verify the evidence being submitted by a
petitioning organization "through any appropriate means" but the USCIS has made
it clear that on site inspections are the means that will be used for this
purpose.>>



>



At
an inspection, USCIS may tour the facilities, interview organization officials
and review organization records relating to the organization's compliance with
immigration laws and regulations. >>



>



>



Is there a minimum salary an R-1
religious worker must be paid?>>



>



There
is no prevailing wage requirement like H-1B cases, but the 2008 R-1 rule has
added a requirement that an R-1 nonimmigrant must be compensated either by
salaried or non-salaried compensation and the petitioner must provide
verifiable evidence of such compensation. If there is no compensation, the
petitioner must prove that the non-compensated worker is participating in a
traditionally non-compensated missionary program within the denomination which
is part of a broader "international program of missionary work" sponsored by
the denomination. Plus, the petitioner must provide evidence of how the aliens
will be supported while participating in the program. This is stricter than the
old rule which generally allowed uncompensated, self-supporting nonimmigrants
to see R-1 visas.>>



>



To
qualify for R-1 status based on temporary, uncompensated missionary work, the
petitioner must show it is a missionary program in which: (1) foreign workers,
whether compensated or uncompensated, have previously participated in R-1
status; (2) missionary workers are traditionally uncompensated; (3) the
organization provides formal training for missionaries; and (4) participation
in such missionary work is an established element of religious development in
that denomination. A petitioner may submit evidence in the form of books,
articles, brochures or similar documents that describe the missionary program,
the religious duties associated with the missionary work and proof that the
alien has been accepted in to the program and describing the alien's
responsibilities. Plus, the organization must demonstrate that the alien has
the means to support himself or herself or has otherwise provided for the alien's
support. >>



>



Note
that it may still be possible to seek a B-1 visitor status classification if
this test cannot be met. >>



>



Petitioners
must show proof of past compensation or support for nonimmigrants when apply
for an extension. >>



>



 >>



How
long can I have R status?
>>



 >>



The
maximum stay in R-1 status is 5 years.  A person can obtain R-1 status
again after remaining outside the US for one year before making another application.
>>



>



Under
the 2008 R-1 rule, R-1s can be initially admitted for a period up to 30 months
(down from the prior 36 month limit) and an extension of up to 30 months may be
issued by USCIS. If a person's employment in the US is seasonal or intermittent
or for an aggregate of six months or less per year, the five year limit does
not apply. It also doesn't apply to people who reside abroad and regularly
commute to the US to engage in part-time employment. To demonstrate this, an
applicant needs to show arrival and departure records, tax returns and
employment records outside the US.>>



>





Can I have more than one employer if I
am an R-1?>>



>



Yes.
But each qualifying employer must submit a separate petition with all of the
required documentation. >>



>



 >>



What visa status do the spouse and children of an
R-1 nonimmigrant receive?
>>



 >>



Spouses
and children of R-1 nonimmigrants and classified as R-2. They are not permitted
to work unless they have their own work visas. R-2 status is granted for the
same period of time and subject to the same time limits as the R-1 regardless
of the time the spouse and children may have spent in the US in R-2 status. >>



>



 >>



Are there
any differences between the special immigrant religious worker category for
green card applicants and R-1 non-immigrant visas?>>



 >>



The most important difference between the two
religious worker categories is that the R-1 visa is temporary and the special
immigrant religious worker visa is permanent.  An applicant for a green
card as a special immigrant religious worker must have been working for the
religious group for at least two years prior to making the application. This
work may be done either in or out of the US. In most cases where the work is
done in the US, the person has been in the US on an R-1 visa.  Another
difference between the two is the forms involved.  A special immigrant
religious worker applies using Form I-360 in place of the I-129 and R
supplement. Also, under the 2008 rule, special immigrant religious workers must
work at least 36 hours per week while R-1 visa holders can work 20 hours per
week. >>



 >>



Generally speaking, the evidence that should
accompany the special immigrant religious worker petition and the role of the
beneficiary within the religious organization are the same as for the R-1
applicant.>>



>



>



Are R-1
visas "dual intent"?>>



>



The 2008 rule for the first time addresses the
impact a green card petition has on R-1 status. The new rule states that R
classification may not be denied solely because a labor certification or
preference petition, including a Form I-360, has been filed by or on behalf of
the alien. >>



>



>



Can R-1
denials be appealed?>>



>



Yes. The 2008 R-1 rule provides a right to appeal a
denial of an R-1 petition. This now makes the R-1 similar to H, L, O, P and Q
visas. >>



>





Can R-1 approvals be revoked?



Yes. The 2008 R-1 rule provides for USCIS to be able to revoke an R-1 petition.
>>



>



>



What are
an employer's obligations if the R-1 is working less than 20 hours per week or
has been terminated from employment before the expiration of the authorized R-1
stay?>>



>



The employer must notify DHS within 14 days.>>



>



>



What
alternatives are available if the R-1 is not an option?>>



>



There are a number of other nonimmigrant categories
that may be fit if the R-1 is out. They include the L-1 intracompany transfer category,
the H-1B specialty occupation and J-1 trainee status. Unpaid workers may
qualify for B-1 status.  And F-1 students
may be able to engage in some employment activities such as on campus work and
curricular training off campus. >>



>



 >>



>




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Comments

  1. gonpo tsering bista's Avatar
    Respected Sir,
    I am a lay person working for Tibetan monastery. I have recently applied for R1 visa along with our abbot and a monk not knowing the changes being made for R1 applicant this november. Since i have already taken appointment for R1 visa will the same work for other category serving religious purpose.
    I shall appreicate your assistance.

    Thanking You
    Gonpo
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