RELIGIOUS WORKERS

Religious workers can be admitted to the United States in either as nonimmigrants(R-1 status), or as immigrants (Permanent Resident Status). Following is an extremely brief overview of these religious worker statuses. The hyperlinks in the text below will take you to an in-depth discussion of substantive issues.

R-1 Nonimmigrant Status

A Qualifying U.S. Employer

In order to qualify for R-1 nonimmigrant status, an alien must have a job offer from a bona fide non profit religious organization in the United States. The petitioning organization must show a close association with the religious denomination with which it is affiliated.

The petitioning U.S. employer must also be able to provide documentation that it qualifies as tax exempt under section 501(c)(3) of the Internal Revenue Code or that, if it applied for such status, it would qualify.

In addition, the employer must prove that it has funds available with which to compensate the alien for his or her work. Ordinarily U.S.C.I.S. favors federal income tax returns as evidence of financial status. However, since petitioning organizations are tax-exempt, tax returns will not be available. In lieu of returns, organizations may provide audited financial statements as evidence of ability to pay the employeeís wage.

A Qualifying Job Offer

The employer must provide evidence the job offered to the alien falls within one of the following categories as outlined in 8 C.F.R.:

1. Minister- an individual duly authorized by a recognized religious denomination to conduct religious worship and to perform other duties usually performed by authorized members of the clergy of that religion. In all cases, there must be a reasonable connection between the activities performed and the religious calling of the minister. The term does not include a lay preacher not authorized to perform such duties.
2. Religious Professional- an individual who has at least a United States baccalaureate degree or its foreign equivalent and is offered a job in a religious vocation or occupation for which at least such a degree is required for entry into the position.
3. Religious Occupation- an activity which relates to a traditional religious function. Examples of persons in religious occupations include, but are not limited to, liturgical workers, religious instructors, religious counselors, cantors, catechists, workers in religious hospitals or religious health care facilities, missionaries, religious translators, or religious broadcasters. This group does not include janitors, maintenance workers, clerks, fund raisers, or persons involved solely in the solicitation of funds.
4. Religious Vocation- a calling to religious life evidenced by the demonstration of commitment practiced in the religious denomination, such as the taking of vows. Examples of persons with a religious vocation include, but are not limited to, nuns, monks, and religious brothers and sisters.

A Qualifying Alien

In order to qualify for R-1 status, an alien must prove that she is qualified for the position he has been offered by the U.S. organization. She must also prove that she has been a member of the same religious denomination to which the U.S. organization belongs during the two years immediately preceding the filing of the petition. Any interruptions in employment during those two years may be grounds to deny the petition.

R-1 nonimmigrants must be entering the United States solely to carry on the religious work, and may not engage in supplemental employment while in the U.S. in order to make ends meet. The wage offered by the R-1 employer must be a wage off of which the alien and her family members can live. If the wage puts the family below the poverty level, U.S.C.I.S. will assume that in order to survive, the family will have to engage in unauthorized employment. U.S.C.I.S. could deny the petition on that ground.

A qualifying alien must also possess nonimmigrant intent. R-1s are valid for an initial period of three years and can be extended for one additional two year period for a total of five years in R-1 status. An alien entering with nonimmigrant intent plans to depart from the United States upon the conclusion of his or her status.

I-360 Petitions for Permanent Resident Status

Aliens wishing to enter the United States on a permanent basis as a religious worker must file form I-360 with the appropriate supporting documentation. The I-360 requirements are identical to the R-1 requirements except that in addition, the alien is required to have had at least two years of experience in the occupation that he seeks to fill in the U.S., during the two years immediately preceding the filing of the petition. Any interruptions in employment during those two years will disqualify the alien from eligibility for permanent residence as a religious worker.

Once the I-360 is approved, the alien may either choose to consular process or adjust status to permanent residence. If the beneficiary remains in the United States and chooses to adjust status, he or she still bound to the requirement that he/she be in the U.S. "solely" for the purpose of carrying out the religious work. Therefore, while the beneficiary of an approved I-360 petition may have EAD (employment authorization) based on his pending I-485 application, it is very risky for him or her to use that EAD card to go to work for employers other than the I-360 petitioner. This is even more risky if the alien goes to work in a different religious denomination than the one that sponsored his petition, and extremely risky if the alien goes to work (or even takes on a second job to help make ends meet) in a job that is not "religious work."

The USCIS officer adjudicating that alien's I-485 adjustment of status application could readily infer from that alien's actions that he or she did not actually intend to work for the sponsoring I-360 employer upon approval of his or her adjustment of status application.

This is not to say that an I-360 beneficiary is bound indefinitely to work for the sponsoring employer after his or her adjustment of status application has been approved. As with any other employment-based immigrant, USCIS looks at the alien's actions in the months following his or her admission to permanent residence to determine whether the alien had the proper intent at the time he was granted permanent residence.