R-1 Religious Workers — Geygan & Geygan, Ltd.

Introduction

As the United States becomes more diverse ethnically, culturally, and spiritually, the need for religious workers in many religious traditions has grown. Religious workers of various nationalities may apply for status to engage in religious work in the United States.

A Brief History

The United States has a long history of allowing non–U.S. citizen religious workers temporary status to perform religious service. The Immigration Act of 1990 established a separate nonimmigrant visa classification for religious workers. Previously, individuals coming to the United States for purposes related to their religious calling had to seek admission in other visitor or work categories that did not always match the needs of the religious organization or religious workers. In the early 2000s, legacy Immigration and Naturalization Service, and later USCIS, looked more closely at the religious worker provisions, and evidence they collected led to some significant changes in late 2008.

Changes in the Rules and Regulations for Nonimmigrant Religious Workers

The changes in the law and regulations relating to religious workers in the United States have been extensive. The new rule amends definitions, adds evidentiary requirements, creates procedures for on-site inspections and compliance reviews, and eliminates the initial adjudication of the R-1 visa at a consular level. A few of the major changes are :

A nonimmigrant seeking to enter the United States as a religious worker must have a approved Form I-129, Petition for Alien Worker. Form I-129 must be filed by the organization seeking to employ the beneficiary.
The statute allows nonimmigrant religious workers to stay in the United States for a maximum of five years. Religious workers will now be granted an initial period of up to 30 months, with the possibility of extending their stay for an additional period of up to 30 months.
The final rule notifies potential petitioners that an on-site inspection may be conducted prior to a decision being made on the petition.
Petitioners are no longer required to submit a letter when they file Form I-129. Instead, petitioners will have to complete an attestation portion of the revised Form I-129. The petitioner will be attesting to the beneficiary’s intent and qualifications, the nature of the job offer, and the ability to compensate the beneficiary.

General Overview of R-1 Requirements

Procedure

To determine whether a religious organization petitioner and the foreign national beneficiary are eligible under the regulations for R-1 nonimmigrant status, all answers to these questions must be affirmative. These questions are basic. Further evaluation may limit a petitioner in filing for a foreign national religious worker.

Has the beneficiary been a member of the religious denomination or organization for the immediately preceding two years?
Does the beneficiary intend to work as a minister, in a religious occupation or in a religious vocation for the bona fide, non-profit religious organization (or a tax exempt affiliate of such an organization)? Will the beneficiary work at least 20 hours per week? Is the petitioner a bona fide, non-profit religious organization in the United States?

Once it is determined that the prospective employer (petitioner) and employee (religious worker) are eligible for R-1 status, these documents should be gathered:

USCIS Form I-129with Supplement Q-1/R-1;

USCIS Form I-129 fee;

Evidence about the petitioning organization;

Internal Revenue Code (IRC) §501(c)(3) determination letter (see more information related to tax-exempt status below);

Supplementary evidence about qualifications for a minister, religious occupation, or religious vocation, specifically:

For a minister:

A copy of the ordination certificate, or similar document reflecting the religious worker’s qualifications are accepted as a minister of the religious organization;

Evidence that the minister has completed any course of prescribed theological education at an accredited theological institution normally required or recognized by the religious organization (transcripts, curriculum, or information from the religious organization outlining standards for a minister);

For organizations that require no prescribed theological education, evidence of:

The denomination’s requirements for ordination;

The duties allowed to be performed by ordination; and

The religious workers completion of the organization’s requirements for ordination.

Any document not in English must come with a certified translation.

For a nonimmigrant working in a religious occupation:

Evidence proving that the occupation is specific to that religious organization;

List of duties to be performed by the religious worker; and

Proof that the duties relate to a religious function.

For a nonimmigrant working in a religious vocation:

Proof that the religious organization has a class of individuals whose lives are dedicated to religious practice and functions as distinguished from other members of the religious organization.

Supplementary evidence about the religious worker’s compensation;

Supplementary evidence about religious worker beneficiary;

Copy of passport;

Copy of current résumé;

Copies of any awards or certifications that show qualifications for the position offered;

Proof of the religious worker’s current nonimmigrant status (if the prospective religious worker is already in the United States); and

Proof of any previous R-1 employment.

Any document not in English must come with a certified translation.

A nonimmigrant religious worker (R-1) may be admitted to the United States for a period not to exceed five years. At the port of entry, the religious worker should be admitted for 30 months.

Attestation

The new rule added an attestation portion to Form I-129 Supplement Q-1/R-1. This should be signed by an official recognized and authorized by the religious organization to attest:

The religious organization petitioner is a bona fide §501(c)(3) organization;
The prospective religious worker has been a member of the organization for at least the preceding two years, and is qualified offered;
The number of members in the petitioner’s organization;
The number of employees who work at the same location where the beneficiary will be employed and a summary of the responsibilities of those employees. (The new regulation also warns that USCIS might ask for the names of these employees at its discretion);
The number of foreign nationals holding special immigrant or nonimmigrant religious worker status employed by or petitioned by the petitioner’s organization in the last five years;
The number of petitions the employer petitioner has filed for special immigrant and nonimmigrant religious workers in the last five years;
The title and detailed description of the religious worker’s proposed daily duties;
Whether the religious worker will receive salaried or non-salaried compensation and details of that compensation;
That the religious worker will be working at least 20 hours per week;
The specific location(s) where the proposed religious work will occur; and
That the religious worker will not be engaged in secular employment.

Site Visits

After filing Form I-129 for a religious organization, an officer from USCIS or U.S. Department of Homeland Security (DHS) or a government contractor may verify the evidence submitted as part of the Petition for Alien Worker (Form I-129) and supporting documents through any means determined appropriate by USCIS, up to and including an on-site inspection of the petitioning organization. The inspection may include a tour of the organization’s facilities; an interview with the organization’s officials; a review of selected organization records relating to compliance with immigration laws and regulations; and an interview with any other individuals or review of any other records that USCIS considers pertinent to the integrity of the organization. An inspection may include the organization headquarters, satellite locations, or the work locations where the potential R-1 employee will work. If USCIS conducts a pre-approval inspection, satisfactory completion of such inspection will be a condition for approval of any petition.

The Religious Organization

A bona fide religious organization is a religious organization exempt from taxation according to section §501(c)(3) of the IRC of 1986 and possessing a valid determination letter from the Internal Revenue Service (IRS) confirming such exemption. The religious organization must have received a determination letter from the IRS establishing that it, or the groups it belongs to, is exempt from taxation under IRC §501(c)(3).

Employer/Religious Organization Obligations

When an R-1 worker is working less than the required number of hours or has been released or terminated from the R-1 employment before the expiration of the period authorized under the R-1 stay, the employer/religious organization must notify DHS within 14 days.

This information should be included in the notification:

Reason for the notification (if the notification is late, the reason for the lateness);

USCIS receipt number of the approved R-1 petition;

Employer/religious organization’s information (name, address, phone number, and Employer Identification Number (EIN)); and

R-1 beneficiary information (full name, date of birth, country of birth, last known address, and phone number).

Employers/religious organizations may provide notification by e-mail at: CSCR1EarlyTerminationNotif@dhs.gov, or by mail at:

U.S. Department of Homeland Security
U.S. Citizenship and Immigration Services
California Service Center Attn: Div X/BCU ACD, P.O. Box 30050; Laguna Niguel, CA 92607-3004

The Religious Worker’s Position

A religious worker must be coming to the United States to work as a minister, or in a religious occupation or vocation. A minister is an individual who:

Is authorized by a religious denomination and 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 organization;
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, although this may include administrative duties incidental to the duties of a minister.

A religious occupation must meet the following requirements:

Duties must primarily relate to a traditional religious function and be recognized as a religious occupation within the denomination;
Duties must be primarily related to and must clearly involve inculcating or carrying out the religious occupation within the denomination;
Duties do not include positions primarily administrative or support such as janitors, maintenance workers, clerical employees, fundraisers, donation solicitors, or similar positions. (Administrative duties only incidental to religious functions are permissible.); and
Religious study or training for religious work constitutes no religious occupation.

A religious vocation means that the religious worker applicant has made 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 include: nuns, monks, and religious brothers and sisters.

Remuneration

Salaried Compensation

If the petitioner has IRS documentation, this should be submitted. If IRS documentation is unavailable, the petitioner must explain its absence with comparable, verifiable documentation—such as an audited financial statement from the petitioner.

Non-Salaried Compensation

This may include room and board, housing allowance, medical, health, and life insurance, travel expenses, paid holiday, vacation and sick days. Individuals with non-salaried compensation are not precluded from filing a tax return with the IRS if they reside in the United States. If no IRS documentation is available, the petitioner must provide verifiable documentation reflecting non-salaried compensation (e.g., lease or purchase agreements for vehicles or housing and letters from an authorized official).

Self-Support

If the religious worker will be self-supporting, the petitioner must submit documentation that the applicant employee has the means for self-support and/or that he or she will be coming to the United States to work as a missionary.

The Religious Worker Beneficiary

Membership in the Denomination

To qualify for nonimmigrant religious worker status, the foreign national must have been a member of the petitioning religious denomination or same type of religious denomination for at least two years immediately preceding the application for admission in R-1 status.

Dependents of Religious Workers

The spouse and any unmarried children under the age of 21 of a nonimmigrant in R-1 status may be admitted into the United States in R-2 status. They may accompany or follow to join the principal R-1 religious worker. R-2 status is granted for the same period of time as the principal, regardless of the time the spouse and children may have spent in the United States in R-2 status. R-2 nonimmigrants may not accept employment while in the United States while in R-2 status. They are, however, able to change their status to another nonimmigrant category ( i.e., H-1B, F-1, R-1 are the most common).

School

R-2 dependents may attend post-secondary education; however, the regulations specifically state that the primary purpose of the spouse or children coming to the United States must be to join or accompany the principal R-1 worker.

Children and Age-Out

R-2 children lose this derivative status on their 21st birthday regardless of any date past this birthday indicated on their I-94 card.

Other Important Issues

Entrance Issues

Although there was a memo on the subject of periods of admission at ports of entry, with all the recent changes in the Religious Worker classification, there is still much confusion. R-1 initial entrants should be granted 30 months regardless of the end date of the passport visa stamp.

Consistent with the treatment of absences for determining nonimmigrant eligibility benefits, brief and intermittent visits to the United States will not be deemed to be disruptive of the one-year physical presence outside the United States required for a subsequent term of R-1 admission.

Intent

The filing of a labor certification application or an immigrant visa petition will not result in the denial of R-1 admission if all eligibility criteria continue to be met and the religious worker is not otherwise inadmissible.

Part-time Work

R-1 religious worker may work part-time (must be an average of 20 hours per week).

R-1 religious worker may work for more than one qualifying religious organization employer as long as each employer submits the I-129 petition with supporting documents.

Extension of Status

An R-1 worker who is maintaining status may be granted an extension of R-1 stay for an additional 30 months. The total approved time for an R-1 worker to remain in the United States is five years. A previous R-1 religious worker may not be readmitted or receive an extension past the five years unless he or she has been physically present outside the United States for the immediate prior year.

An I-129 Petition for Alien Worker with Supplement Q-1/R-1 and supporting documentation and fee should be submitted to the designated service center for extension of status before the expiration date on the last I-94 card received by the R-1 worker.

Evidence of the previous R-1 employment must be included in any petition for extension.

For salaried work: W-2 forms, copies of filed income tax returns that show compensation for the previous 30 months provide this evidence.

For non-salaried compensation: IRS documentation of the unsalaried work if available. If not available, verifiable evidence of support must be included in the extension application such as stipend receipts, evidence of room and board, etc.

For self-support: Proof of how support was maintained by showing audited financial statements, financial institution records, brokerage account statements, trust documents (signed by an attorney), etc.

A pending extension of status will not be denied for abandonment if an R-1 religious worker departs the United States while the I-129 petition is pending.

Change of Status

An R-1 may not be compensated for work for any religious organization other than the one for which a petition has been approved or the religious worker will be out-of-status. A new R-1 petition must be filed and approved before a religious worker in R-1 status may begin working for a new petitioner/employer. There is no American Competitiveness in the 21st Century Act (AC21), porting in the R-1 nonimmigrant employment category. A new employer/petitioner must file a new I-129 with R supplement and full supporting documentation.

A pending change of status will not be denied for abandonment if an R-1 religious worker departs the United States while the I-129 petition is pending.

Attending School

A religious worker may pursue study or training incident to status.

Denials and Appeals

Denials and Revocations

USCIS will provide written notification of the reasons for the denial. The USCIS director may revoke a petition at any time, even after the expiration of the petition.

The approval of any petition is automatically revoked if the petitioner ceases to exist or files a written withdrawal of the petition.

The USCIS director shall send the petitioner a Notice of Intent to Revoke the petition if he or she finds that:

The beneficiary is no longer employed by the petitioner in the capacity specified in the petition;
The facts contained in the petition are not true and correct;
The petitioner violated the terms and conditions of the approved petition; and
The petitioner violated the terms of who is eligible under this section or the petition involved gross error.

Appeals

The petitioner may appeal the denial.

Notice and Decision

The Notice of Intent to Revoke shall contain a detailed statement of the grounds for the revocation and a time period allowed for the petitioner’s rebuttal. The current time period allowed for the rebuttal is within 30 days of receipt of the notice. The USCIS director will consider all relevant evidence presented in deciding whether to revoke the petition.

A petition that has been revoked may be appealed. Automatic revocations may now be appealed.