The Immigration and Nationality Act (INA) provides visa classifications for religious workers on both a permanent and a temporary basis. Permanent religious workers are afforded “special immigrant” status, while temporary religious workers are covered by the “R” nonimmigrant category.2 This page will cover only the special immigrant status afforded to permanent religious workers.3
The law provides visas for three groups of religious “special immigrants”: (1) ministers of religion;
(2) professionals working in religious vocations or occupations; and
(3) other workers in religious vocations or occupations.4
These individuals must work for U.S. nonprofit, religious organizations or at nonprofit, religious organizations affiliated with qualified religious denominations. The two non-minister categories, religious professionals and other religious workers, are subject to, and limited to, not over 5,000 of the annual special immigrant admissions. Historically, this annual limit has not been reached since July 1998.
On November 26, 2008, U.S. Citizenship and Immigration Services (USCIS) issued significant revisions to the special immigrant (I-360) and non-immigrant (R-1) religious worker visa regulations. According to USCIS, these new rules were designed to “ensure the integrity of the religious worker program” by “providing for increased inspections, evaluations, verifications and compliance reviews of religious organizations.”5 The revisions appear to be at least partially a response to USCIS’s conclusion there was widespread fraud and other abuse in the process of sponsoring immigrant and non-immigrant religious workers (the preamble to the regulations estimates that nearly one-third of all religious worker petitions were fraudulent). Some aspects of the regulation—such as specific authorization of on-site inspections of the petitioner—conform to what had become a regular practice under the old regulations.
Immigrant Religious Workers
To qualify as an immigrant religious worker, an alien must be sponsored by a qualifying religious organization that offers permanent employment as a minister, as a non-minister in a religious occupation (professional or nonprofessional), or as a worker whose employment is under a religious vocation.6 The immigrant worker must have been a member of a qualifying religious denomination with which the petitioning organization in the United States is affiliated and must have been working in that vocation, occupation, or related occupation, for the two years immediately preceding filing the I-360 petition.7 and the new regulations specify that the immigrant worker must be coming to the United States to work “full time,” which is defined as at least 35 hours per week.8
While USCIS expanded its interpretation of qualifying prior work experience to include work not in the same position as the job , prior work experience can only include work that took place after the person was 14 years of age, doing work authorized under U.S. immigration law (if experience was gained in the United States).10 Previously, the regulations did not specify that prior work experience in the United States had to be lawfully gained.
To prove work experience, it will be necessary to produce—if the work was done in the United States—that it was under USCIS authority, by producing necessary W-2 or 1099 showing the receipt of salary or payment over the past two years. In addition, it is advised that the religious worker should obtain a letter from his or her previous employer setting out the work he or she did, and that it was full-time, (i.e., at least 35 hours a week).
I-360 Petition Process
Like it did with the I-129, USCIS also issued a new I-360 form that includes a lengthy supplement specifically for Special Immigrant Religious Workers. This new section is almost identical to the added religious worker supplement to the new I-129.12 The only major difference between the religious worker sections of the new I-360 form and the new I-129 form is that the I-360 specifies that immigrant religious workers must work full-time (at least 35 hours per week), while the I-129 states that nonimmigrant religious workers must work at least part-time (at least 20 hours per week).13 I-360 applications can still be filed by either the immigrant or by his or her employer.14
A minister must prove that he or she has been ordained according to the rules and regulations of the particular religious organization to which he or she belongs. Usually, this is an ordination certificate, but should come with evidence from the religious organization that ordained him or her, that the ordination was under their regulations, and that the minister was qualified according to their regulations. A minister may self-petition, but he or she must produce all the evidence from his or her proposed employer that normally is produced with an employer petitioner, and the evidence discussed above, and his or her qualifications.
As with nonimmigrant petitions, the I-360 petitioner must submit a valid determination letter from the Internal Revenue Service (IRS) establishing tax-exempt status, and petitioners not classified as “religious organizations” by the IRS must establish the religious nature and purpose of their organization. The petitioner must also certify that it is affiliated with a religious denomination by completing the Religious Denomination Certification in the revised I-360 form.15
Also similar to the new regulations for R-1 workers, I-360 petitioners must provide verifiable evidence of how the religious worker will be compensated.16 Again, this compensation can be salaried or non-salaried compensation, and it must be verifiable through copies of budgets, leases, etc.17
A job letter from the petitioner is no longer required. Rather, the petitioner must complete the attestation section in the new I-360 form.18 If a minister self-petitions and he or she is also an authorized official of the prospective employer, the minister must complete this attestation portion of the I-360.19 The new regulations also expand and slightly change initial evidence requirements (at former 8 CFR §204.5(m)(3)). Specifically, the new rules state that specific evidence must be provided if immigrant is a minister, and that evidence must prove prior work experience.20
Finally, and also similar to the new regulations for R-1 workers, USCIS may perform inspections as it deems “necessary”.21 Again, if USCIS conducts an inspection, “satisfactory completion” of such an inspection will be a condition for approval of any I-360 petition.22
Immigrant Visa Number Must Be Available
As with any other preference classifications subject to a numerical ceiling, an immigrant visa number must be available for adjustment of status to be granted or an immigrant visa to be issued by a U.S. consul abroad. The overall immigrant visa category applicable to all special immigrants is the fourth employment-based preference (EB-4). Not over 5,000 visas are available to non-minister religious workers in a given fiscal year.23 The fourth employment-based preference is usually “current”. However, , there are not enough visa numbers available worldwide.
When a special immigrant seeks immigrant visa processing based on the approved I-360, he or she can expect the consular officer to request the documentation submitted to support the I-360. Further, in adjustment proceedings and at consular interviews, the religious institution must provide written documentation to show it intends to compensate the beneficiary for his or her services, either through payment of salary, room and board, or a combination thereof. If the beneficiary intends to engage in employment outside the scope of the religious institution, it will call the validity of the religious job offer into question.25
As with other employment-based cases, the spouse and unmarried children under 21 of the special immigrant will be eligible for permanent residence status as his or her dependents.
TAX IMPLICATIONS UNDER THE NEW REGULATIONS
Tax issues have become even more important than they have been in the past. All church employees are subject to income tax both federal and state and for Social Security and Medicare taxes. Usually these taxes must be deducted before payment of salary and remitted to the government department by the church under general law.
This matter has become of such importance that reference is made to an article on this subject detailing all the IRS regulations in another chapter entitled “Taxes and Religious Workers.”
Many religious workers first come to the United States as R-1 nonimmigrants. After serving in a continuous religious position for two years, they can petition for permanent residence if they have evidence of the required two years of experience in the religious work immediately prior to filing of the I-360 petition.
Immigration law provides essential opportunities for both temporary and permanent immigration of religious workers and ministers of religion. As the United States becomes more diverse both culturally and religiously, new immigrant groups can invite their religious leaders to the United States to teach the doctrines of faith and serve their religious communities. For instance, Tibetan immigrants can petition for Buddhist lamas and monks, Hindu Indians can petition for Hindu priests, and Muslims can petition for Islamic mullahs. Such religious workers enrich American society as they support the communities they serve.