In April 2023, the EB-4 and religious workers categories in the Department of State Visa Bulletin went from having a different priority date for each country column to the same priority date for the entire category. The change was a result of the removal of a separate country column for El Salvador, Guatemala, and Honduras because Department of State decided that it was a mistake for those countries have a separate column. For many EB-4 applicants from other countries, this change resulted in a large retrogression and long delays in the permanent resident process.
The June 2023 visa bulletin gives a final action date of September 1, 2018. This means a wait of at least five (5) years can be expected for an applicant with a 2023 priority date. Given that a religious worker can hold R-1 status for a maximum of five (5) years, these long delays previously unanticipated for many can leave the future uncertain for religious workers.
A summary of options to be discussed in further detail is below:
1. Use Work Authorization if you have a pending Adjustment of Status
2. Consider a switch to H-1B Cap Exempt Specialty Occupation
a. Includes a case study with The Wesleyan Church
3. Consider changing to B-1D Missionary Status
4. Return abroad and re-apply for R-1 status after one year
1) Use Work Authorization if you have a pending Adjustment of Status
Those who were eligible to file for Adjustment of Status before the April 2023 change may wish to apply for or begin using their already approved Employment Authorization Document (EAD), which can be renewed as long as there is a pending Form I-485. Using an Employment Authorization card will allow religious workers to continue working in their R-1 role beyond the five (5) year maximum period of R-1 status.
If you were not eligible to file a Form I-485 before the EB-4 and religious worker priority dates retrogressed, then it is not possible to file a Form I-485 now unless your priority date is before September 1, 2018.
It must be noted that once an EAD is used for work authorization, the underlying nonimmigrant status will be terminated. For example, a person using their R-1 status for work authorization will lose their R-1 status if and when they begin using an EAD. This does not affect the ability to live and work in the United States. All Form I-485 applicants may remain in the United States while their Form I-485 is pending. They can continue to work as long as they have a valid EAD or an EAD renewal pending with an automatic extension.
Be cautious with this approach, however. Failing to maintain a nonimmigrant status while your Form I-485 is pending can lead to an inability to stay in the United States if your Form I-485 is denied.
2) Consider a switch to H-1B Cap Exempt Specialty Occupation, if possible
H-1B status normally requires selection in the H-1B lottery each year as only 85,000 slots are available annually. An exception to this 85,000 annual limit is made for certain employers that are found to be exempt from the cap on H-1B slots.
Under 8 CFR 214.2(h)(8)(iii)(F)(2), a nonprofit entity can be considered an H-1B cap exempt employer if it is related to or affiliated with an institution of higher education. Because H-1B cap exempt employers can bypass the annual H-1B lottery, this allows religious workers to be transferred to H-1B status if it can be shown that the employer is cap exempt and the position qualifies as a specialty occupation.
One of the following criteria must be met in order for a nonprofit to be considered related to or affiliated with an institution of higher education:
(i) The nonprofit entity is connected to or associated with an institution of higher education through shared ownership or control by the same board or federation;
(ii) The nonprofit entity is operated by an institution of higher education;
(iii) The nonprofit entity is attached to an institution of higher education as a member, branch, cooperative, or subsidiary; or
(iv) The nonprofit entity has entered into a formal written affiliation agreement with an institution of higher education that establishes an active working relationship between the nonprofit entity and the institution of higher education for the purposes of research or education, and a fundamental activity of the nonprofit entity is to directly contribute to the research or education mission of the institution of higher education.
It may seem difficult to show that a nonprofit is related to or affiliated with an institution of higher education upon first glance. However, we offer a case study of The Wesleyan Church which shows H-1B cap-exempt employment is an option for religious workers.
Case study: The Wesleyan Church and Institutions of Higher Education
The Wesleyan Church Corporation is a nonprofit organization. The Discipline of the Wesleyan Church: Structure and Policy, the denomination's essential handbook that “incorporates all legislation approved by General Conference, held in May, 2022, in St. Louis, MO.” lists several “subsidiary corporations (educational institutions)” of The Wesleyan Church Corporation. These include several institutions of higher education: Houghton College, Houghton, NY; Indiana Wesleyan University, Marion, IN; Wesley Seminary, Marion, IN; Kingswood University, Sussex, NB, Canada; Oklahoma Wesleyan University, Bartlesville, OK, and; Southern Wesleyan University, Central, SC. The Discipline 2022, THE WESLEYAN CHURCH, https://resources.wesleyan.org/the-discipline-2022 [last visited June 8, 2023].
According to The Discipline, the General Conference – “the supreme governing body of The Wesleyan Church” –holds ultimate authority over the above educational institutions affiliated with the Wesleyan Church as detailed below:
(1) Authority, by two-thirds vote, to establish, merge or dissolve an educational institution, or to enter into a cooperative agreement with other persons/groups of like theological and behavioral commitment in the ownership and operation of an educational institution.
(2) Authority to provide for and deal with all matters pertaining to charters and bylaws.
(3) Provision for boards of control in keeping with 340:2 [discussing the General Board and its jurisdiction].
(4) The adoption and revision of such Standards of the General Board for Educational Institutions as the General Board shall deem to be wise.
(5) The General Board is not empowered or authorized to contravene, override, or set aside a decision of a college board of trustees except as is provided and specifically stated in 2362:1-4.
Id. at 182.
This means The Wesleyan Church is connected to or associated with at least one institution of higher education by way of common control by the General Conference, and The Wesleyan Church, or a church affiliated with The Wesleyan Church, can therefore qualify as a cap-exempt nonprofit employer.
The Law Offices of James D. Eiss has had success with changes of status from R-1 to H-1B using the relationship between The Wesleyan Church and its subsidiary institutions of higher education.
Recognition as a cap-exempt nonprofit employer is not limited to employers associated with a denomination. Subsection (iv) allows for a:
formal written affiliation agreement between the nonprofit entity and the institution of higher education for the purposes of research or education, and a fundamental activity of the nonprofit entity is to directly contribute to the research or education mission of the institution of higher education.
The option of a formal written affiliate agreement is an option for non-denominational churches or any other denomination that does not have a connection to an institution of higher education. An agreement may include allowing students from the institution of higher education to complete training with the religious organization. For many religious denominations and non-denominational, a core aspect of the worship is spreading the word of their beliefs. Thus, an argument can be made that a university with religious studies partnering with a religious organization for training or other educational purposes is contributing to the educational mission of that higher education institution.
If your organization qualifies as a cap exempt, nonprofit entity, then next you must determine whether the offered role qualifies as a specialty occupation. 8 CFR 214.2(4)(c)(ii) defines specialty occupation as:
[one] which requires theoretical and practical application of a body of highly specialized knowledge in fields of human endeavor including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts, and which requires the attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States [emphasis added].
Showing that the position qualifies as a specialty occupation may be one of the largest hurdles in changing from R-1 to H-1B as many religious positions do not require a bachelor's degree or higher as a minimum entry to the role. We will look back to our above case study with The Wesleyan Church as an example.
Case Study: The Wesleyan Church and Specialty Occupation Determinations
First, we look to the Occupational Outlook Handbook (OOH). The OOH's page for Occupations not Covered in Detail provides “summary data on additional occupations for which employment projections are prepared but detailed occupational information is not developed.” On this page, the OOH itself lists Clergy as an occupation for which the typical entry-level education is a bachelor's degree.
Next, O*Net categorizes Clergy as a job zone five occupation, with extensive preparation required. At time of writing, O*Net notes that more than half of the Clergy positions require graduate school degrees. Thus, all available sources for general Clergy positions indicate that a bachelor's degree is the normal minimum requirement and a graduate degree is often preferred.
More specifically, The Wesleyan Church has set educational standards for all of its pastors (i.e., clergy). We again turn to The Discipline's section on Types of Ministerial Education. This section lays out the acceptable “programs of study […] open to the candidates in meeting the educational requirements for becoming an ordained minister in The Wesleyan Church.” The Discipline at 213.
The preferred course of study is a four year degree from “one of the institutions of higher education of The Wesleyan Church” plus completion of a three year divinity course with The Wesleyan Seminary Foundation. Id. at The recommended minimum academic preparation is a four year degree from one of The Wesleyan Church's subsidiary higher education institutions plus a minimum of four years of work experience and covering the authorized ministerial study courses. Id. In instances where ministry candidates have secured “some or all of their higher education outside the institutions and agencies of The Wesleyan Church” the transcripts will be evaluated for equivalence to The Wesleyan Church's ministerial courses. Id. at 213-214. Additional work may be required if the previous courses are not found to be comparable to The Wesleyan Church's courses. Id. at 214.
Unequivocally, then, The Wesleyan Church normally requires a specific four-year degree requirement in a relevant field, i.e. one that covers the relevant and required ministerial study courses required by The Wesleyan Church. While a specific degree is not named within The Discipline, a field clearly is – the degree earned must cover the range of ministerial training subjects. Theology, Biblical Studies, Religion—these would be the closely related degrees covering the subjects listed by The Discipline. Thus, the employer normally requires a degree in a specific field for this position.
Once approved, a beneficiary may hold H-1B status for a total of six (6) years. Based on the current visa bulletin backlogs at time of writing, a successful H-1B petition would allow a religious worker to continue in their role until their Form I-485 can be filed.
3) Consider changing to B-1D Missionary Status
Another option to consider following completion of 5-years in R-1 status is a change of status to B-1D missionary. 9 FAM 402.2-5(C)(1) addresses missionary status stating that:
Members of religious groups, whether ordained or not, entering the United States temporarily for the sole purpose of performing missionary work on behalf of a denomination, so long as the work does not involve the selling of articles or the solicitation or acceptance of donations and provided the member will receive no salary or remuneration from U.S. sources other than an allowance or other reimbursement for expenses incidental to the temporary stay. “Missionary work” for this purpose may include religious instruction, participation in religious ceremonies, aid to the elderly or needy, proselytizing, etc. It does not include ordinary administrative work, nor should it be used as a substitute for ordinary labor for hire.
Those in missionary status have the ability to perform a wide range of roles, including roles held by those in R-1 status. The key is showing that the faith is inherent in the duties of the position, and it need not only include roles such as priest, imam, or rabbi that are traditionally leaders of their congregation. Our office has had success with Mennonite teachers entering the US as missionaries. In that instance, we have been able to show that faith is inherent in every subject taught at Mennonite schools.
There are some potential downsides to consider before changing to B-1D missionary status.
First, the Foreign Affairs Manual explicitly states that missionaries cannot receive a salary or remuneration except for a stipend for or reimbursement of fees incurred incidental to the stay in missionary status. In our experience at the Law Offices of James D. Eiss, this does not mean that the missionary must receive next to nothing. We have had success on I-539 changes of status to B-1D where - when costs for housing, vehicles, food, and other necessary costs of living were added up and justified – the missionary was able to receive close to their salary in R-1 status. This of course will vary depending on the work location and the size of the missionary's family.
Second, B-1D missionary status can only be granted for up to one year at a time. If you are applying for a change of status through USCIS, you may find that processing times for the Form I-539 are longer than the extension being requested. The shorter period requires more extensions to be filed. It also makes this option not ideal as a long term solution. It may be best only for those that are waiting for an Employment Authorization Document (EAD) based on a pending Form I-485 or are close to their priority date becoming current. That is, of course, if the applicant has an older priority date or was able to file a Form I-485 before the EB-4 retrogression.
4) Return abroad and re-apply for R-1 status after one year
Under 8 CFR 214.2(r)(6), religious workers are limited to a total of five (5) years in R-1 status. At the end of that five year period, the religious worker must leave the United States if there is not an alternative immigration path available to them.
Once the religious worker has spent one full year outside of the United States, they will be eligible to apply for a new five-year period. This would require a new Form I-129, Petition for a Nonimmigrant Worker to be filed on their behalf as long as all R-1 requirements are still met.
One concern immigration attorneys may have with this option is that R-1 status requires nonimmigrant intent. A beneficiary with a pending or approved Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant arguably cannot have nonimmigrant intent because they have started the permanent residency process. However, upon a closer reading of 8 CFR 214.2(r)(15), it should be noted that “a nonimmigrant petition, application for initial admission…may not be denied solely on the basis of a filed or an approved request for permanent labor certification or a filed or approved immigrant visa preference petition.” While there is no guarantee as to how Consular officers will read 8 CFR 214.2(r)(15), the regulations should not prevent a beneficiary from applying for a new R-1 visa after one full year abroad.
A new R-1 visa may allow the beneficiary to work with a different petitioning employer or in a new role. But, it must be noted that, upon approval of their Form I-485, Application to Register Permanent Residence or Adjust Status or Immigrant Visa, the beneficiary will be required to be employed in the role described in the approved Form I-360.
In conclusion, there are options available to R-1 religious workers affected by the April 2023 EB-4 visa bulletin retrogression. These options can allow religious workers to remain living and working in the United States while waiting for their EB-4 priority date to become current. Contact the Law Offices of James D. Eiss today to learn more about what option is best for your case.