LIMITED JOB FLEXIBILITY MAY BE POSSIBLE FOR RELIGIOUS WORKERS I-360 BENEFICIARIES

The American Competitiveness in the 21st Century Act (AC21) allows the beneficiaries of certain permanent resident applications to transfer to new jobs while their adjustment of status applications are pending, so long as certain conditions are met. AC21 was passed in recognition that long delays in USCIS adjudication of Adjustment of Status applications unfairly require immigrants to remain with their employer for years while their applications are pending. Unfortunately, Congress did not see fit to extend the “portability” provisions of AC21 to Religious Workers applying for permanent residence on I-360 petitions.

But despite the fact thatAC21 does not apply to Religious Workers, I-360 beneficiaries can still change jobs after their I-360 petition has been approved, but before they have obtained permanent resident status, under certain circumstances. The Chief of the INS Immigrant Branch for Adjudications issued a letter in 1994 stating that

As long as the same religious denomination which filed the initial [I-360] petition continues to offer the alien a job as a minister, it appears that the petition remains valid. It may be necessary to submit documentation to the U.S. consulate to establish that the initial petition remains valid.

One of our clients recently used this provision. He is a Christian minister, and a church in Michigan filed an I-360 petition on his behalf. After the I-360 was approved but before he applied for an Immigrant Visa at the U.S. Consulate in Montreal, Quebec, Canada, he was transferred to act as minister in another congregation in Pennsylvania, within the same denomination. When he went to his immigrant visa interview at the consulate, the consular officer merely asked why his address was now in Pennsylvania when the I-360 petition had been filed by a church in Michigan. He explained that he had been transferred to a new congregation in the same denomination, and the visa was issued with no further questions asked.

While the Consulate in Montreal was very accepting of this logic, it is not necessarily the case that all consulates will interpret such transfers as permissible. It is best to ask the consulate beforehand whether they will accept this kind of transfer for an I-360 beneficiary. It is also useful to consult with an immigration attorney who is familiar with the particular consulate at which the beneficiary will apply for the immigrant visa. Or, if the alien will be adjusting his status in the United States rather than applying for an immigrant visa at a consulate, the alien should consult with an immigration attorney familiar with the policies of the USCIS service center at which the I-485 application is pending.