USCIS Publishes Final Rule Amending Religious Worker Regulations
 
On November 21, 2008, U.S. Citizenship & Immigration Services (USCIS) published revisions to the regulations governing special immigrant and nonimmigrant (R-1) religious worker visa classifications.  These revisions were designed to bolster the integrity and "eliminate or reduce fraud" in regard to the R-1 program.  Notable among the changes were new regulations requiring a formal petition for temporary religious workers and altering the period of eligibility for R-1 workers.
 
Religious organizations will now be required to file an I-129 petition with USCIS on behalf of temporary nonimmigrant religious workers, or an I-360 petition for a special immigrant religious worker.   The organizations may still be subject to onsite inspections conducted by USCIS officers, though there is ambiguity as to whether onsite inspections will now be required of every R-1 application, as has been the policy since 2006.  This is a significant revision of policy.  Both of these new policies are designed to deter fraud by ensuring the eligibility of the petitioner, the alien beneficiary, and the proffered job position.  A denial of a petition based on the evidence yielded in new onsite inspections, however, may now be appealed to the USCIS Administrative Appeals Office. Because U.S. consular officers will no longer be able to issue R-1 visas without an approved I-129 or I-360 petition, and because there is no premium processing option currently available for R-1 workers, the new petition requirement will likely delay the issuing of visas to religious workers.  USCIS acknowledged this new delay, but countered that the petitioning requirement was deemed "essential to preventing fraud in the religious worker program."
 
USCIS has also amended and enhanced a number of classifications and definitions.  For special immigrant religious workers, prior work experience may now include work that "not in the exact same position" as the job being offered, and a short break is allowed in the continuity of the required two years of religious work experience.  The definitions of "religious vocation," "religious occupation," "minister," "religious denomination" and "denominational membership" were also amended for descriptive purposes.
 
Specifically, while the definition of "religious denomination" has been altered only slightly, the preamble to the new regulations indicates that the term will be interpreted broadly.  While a religious group must still be governed by some form of "ecclesiastical government," the preamble indicates that this may now be predicated on the "commonality of the faith and internal organization of the denomination."  However, the preamble to the regulations is generally only cited if the regulations themselves are ambiguous.  It is thus unclear whether the new definition will ease the burden on members of nondenominational religious groups to prove their membership without an explicit ecclesiastical hierarchy.
 
Temporary religious workers will now be eligible for as many as two consecutive 30-month periods of stay in the U.S. in R-1 status, for a total of five years.  Previously, R-1 workers were eligible for a three-year initial period of stay with a two-year extension of status.
 
The impetus behind the new regulations lurks in the findings of two separate government reports that found high levels of fraud in the R-1 program.  A March 1999 report issued by the Government Accountability Office (GAO) stated that many petitioners made false statements concerning the qualifications of applicants and their proposed lengths of stay, while a 2005 report from USCIS's Office of Fraud Detection and Nation Security (FDNS) estimated that as many as one-third of all R-1 applications were fraudulent.  Though these numbers were disputed, the findings led USCIS to issue a notice of proposed rulemaking on April 25, 2007 related to the R-1 program.  The new regulations grew out of these recommendations.
 
If you have questions related to your R-1 eligibility or status, please don't hesitate to contact our office to speak with an immigration attorney about the new R-1 regulations.  More information can also be found at USCIS.gov.