One of the lesser known routes for immigrating to the United States is that reserved for religious workers.
While most employment-based immigration categories premise eligibility on the qualifications held by a foreign national, such as an academic degree or level of skill, religious workers are given a special place in the immigration laws merely based on the unique nature of the work they carry out in service to their religious communities. Yet, despite this recognition of their contributions to the fabric of American life, foreign national religious workers have faced numerous challenges from the immigration system. The religious worker category has increasingly come under scrutiny for fraud-related concerns, and changes in the law, regulations, and policies affecting religious workers have made it more and more difficult for legitimate cases to meet with approval.
The current immigration laws recognize the ability of religious workers to obtain lawful permanent residence, as well as temporary nonimmigrant visas for short-term stay, based on their employment. To qualify as a nonimmigrant religious worker, a foreign national must show that he or she is a member of a religious denomination having a bona fide, non-profit religious organization in the United States, and that he or she has been a member of the denomination for at least two years. Additionally, the foreign national must plan to serve as a minister or to perform a religious vocation or occupation in the religious organization or one of its affiliates. To obtain permanent residence as a religious worker, the individual must meet the above requirements, and also show that he or she has two years of experience in the religious vocation or occupation immediately prior to immigrating.
Each year, up to 5,000 religious workers may be admitted to lawful permanent resident status, and there is no limit to the number of temporary visas for religious workers, known as R-1 visas, that can be awarded. Being able to make use of the permanent and temporary religious worker categories has greatly benefited the US religious community, where a shortage of domestic religious workers has made it necessary for religious organizations to recruit enthusiastic and educated leaders from abroad.
Despite the tremendous demand for religious workers by US religious organizations, many obstacles have been erected by the laws and regulations that make it extremely difficult for religious workers to obtain lawful immigration status here and maintain that status. One of these obstacles is the two year work experience requirement which is imposed on those religious workers who seek lawful permanent residence (known as “special immigrant religious workers”). Special immigrant religious workers must show that they have been working continuously as either a minister or in their religious vocation or occupation for a period of at least two years immediately prior to filing the religious worker petition. Many religious workers are tripped up by this requirement, for a number of reasons. Because the work experience must be gained in the two-year period immediately prior to filing, an individual who formerly pursued religious employment but has stopped pursuing it in recent years may be disqualified by this requirement, despite decades of experience. Moreover, volunteer work is insufficient to meet this requirement, and unauthorized employment cannot count towards the two years. Those individuals who lack the experience required may have to wait to accrue the necessary two-year period of religious employment abroad or in R-1 status before they can begin the permanent residence process. This delay can be problematic if it leads to lapses in lawful immigration status or periods of unauthorized employment.
Another obstacle in the way of religious workers, at least until recently, was a regulation issued by U.S. Citizenship and Immigration Services (USCIS or “the Immigration Service”) that forbade religious workers from applying for their green card at the same time that their employers filed a visa petition on their behalf. For most green card applicants, such as those applying based on non-religious employment or based on their relation to a United States citizen, it has long been possible to file one’s petition establishing entitlement to an immigrant visa concurrently with an application for permanent residence. Being able to file the immigrant visa petition and the application for permanent residence (Form I-485) at the same time has many advantages, since individuals who have a Form I-485 pending with the Immigration Service are permitted to stay in the United States during the adjudication of their application and can obtain employment authorization for themselves and their family members. Unfortunately, religious workers were prohibited under the regulation at 8 C.F.R. § 245.2(a)(2)(i)(B) from concurrent filing. As a result, many religious workers fell out of status while they were waiting for their immigrant visa petitions (on Form I-360) to be approved, and thereby became ineligible for adjusting their status to that of a permanent resident because of their unlawful employment or prolonged failure to maintain status.
The regulation prohibiting concurrent filing for religious workers was finally struck down this spring as a result of a national class action lawsuit called Ruiz-Diaz v. USA, No. C07-1881RSL (W.D. Wash., Mar. 23, 2009) (Order Granting Plaintiffs’ Motion for Summary Judgment). This lawsuit challenged the bar against concurrent filing on the basis that it violated, among other things, the Immigration and Nationality Act, procedural due process, and the Religious Freedom Restoration Act. The statutory argument was the one that eventually persuaded the court.
The outcome in Ruiz-Diaz does a great deal to brighten the way for religious workers. However, other recent developments are not so positive. These latter changes have largely been motivated by a perception by USCIS that high rates of fraud plague the religious worker program, a view which has ended up casting suspicions on the many legitimate religious worker cases. In the past two years, USCIS began to undertake measures meant to curtail opportunities for fraud in the religious worker program, including requiring on-site visits by an investigator as part of the adjudication process. Additionally, in November 2008, USCIS issued regulations that addressed concerns regarding the integrity of the religious worker program. Some of the key changes instituted by these regulations are:
- Requiring a petition (on Form I-129) to be filed with USCIS on behalf of all nonimmigrant religious workers. (Previously, R-1 visa applicants were allowed to present evidence of their eligibility directly to an embassy or consulate in their home countries without petitioning USCIS beforehand).
- Reducing the standard initial period of stay for which R-1 visa holders are admitted from three years to 30 months.
- Requiring that I-129 and I-360 petitions include an Attestation by an authorized official of the religious organization, verifying the worker’s qualifications, the nature of the job offered, and the legitimacy of the organization.
The new regulations issued in November 2008 also provide additional notification to petitioning organizations that they may be subject to inspection, including a review of financial and other organizational records, by USCIS as part of the adjudication process. These changes to the religious worker program have had a positive effect in addressing integrity concerns, but not without a cost. In making site visits a customary part of religious worker adjudications, USCIS has cut its teeth on a form of investigation that is highly problematic. It is questionable how effective – or how fair—such site visits can be when they are often conducted without first notifying the petitioning organization’s counsel of record, and many religious organizations have complained that investigators have insisted on questioning employees who lack the knowledge or authority to answer questions on behalf of their organization rather than seeking out personnel with the authority to represent the organization. Moreover, the Department of Homeland Security’s Inspector General has raised concerns that there is little communication between the adjudicators and the FDNS personnel who actually carry out their site visits; as a result of this lack of communication, site visits more frequently resemble fishing expeditions instead of highly targeted inspections yielding information addressing an adjudicator’s specific concerns.
Unfortunately, the site visit situation is only getting worse. In the beginning of the 2009 fiscal year, FDNS developed the administrative Site Visit and Verification Program (ASVVP), which employs private contractors to conduct site visits on behalf of USCIS. Contractors are now being used not only to investigate religious organizations but also to conduct random inspections of other employment-based visa petitioners as well. Despite the relative youth of ASVVP, many problems with the program have already been identified by companies who have received site visits, including the fact that ASVVP employees seem to have little knowledge about the requirements of the programs they are investigating, lack a clear understanding of what constitutes fraud or misrepresentation, and are often confused about normal business practices.
With the advent of site visits and ever stricter regulatory requirements, lawyers who are retained to represent religious workers and their employers have their work cut out for them. Attorneys must be prepared to document the eligibility of their clients thoroughly in each and every petition; advise their clients on what to expect during an investigation; and take the Immigration Service to task if an investigator comes knocking without allowing the client to assert its right to counsel or if the investigator carries out an improper inspection. As a group, foreign national religious workers contribute greatly to the American way of life by providing leadership, guidance, and charity to many. Immigration attorneys play a pivotal role in ensuring that the rights of these foreign nationals to work and live in the United States are not compromised by those who would seek to abuse the religious program by bringing fraudulent petitions or unfairly limited by a well-meaning Immigration Service that may be coming up short in its efforts to improve the program.
