214.2(r) Religious workers--
214.2(r)(1) General. Under section 101(a)(15)(R) of the Act, an alien who, for at least the two (2) years immediately preceding the time of application for admission, has been a member of a religious denomination having a bona fide nonprofit religious organization in the United States, may be admitted temporarily to the United States to carry on the activities of a religious worker for a period not to exceed five (5) years. The alien must be coming to the United States for one of the following purposes: solely to carry on the vocation of a minister of the religious denomination; to work for the religious organization at the request of the organization in a professional capacity; or to work for the organization, or a bona fide organization which is affiliated with the religious denomination, at the request of the organization in a religious vocation or occupation.
214.2(r)(2) Definitions. As used in this section:
Bona fide nonprofit religious organization in the United States means an organization exempt from taxation as described in section 501(c)(3) of the Internal Revenue Code of 1986 as it relates to religious organizations, or one that has never sought such exemption but establishes to the satisfaction of the Service that it would be eligible therefor if it had applied for tax exempt status.
Bona fide organization which is affiliated with the religious denomination means an organization which is both closely associated with the religious denomination and exempt from taxation as described in section 501(c)(3) of the Internal Revenue Code of 1986 as it relates to religious organizations.
Minister means 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.
Professional capacity means an activity in a religious vocation or occupation for which the minimum of a United States baccalaureate degree or a foreign equivalent degree is required.
Religious denomination means a religious group or community of believers having some form of ecclesiastical government, a creed or statement of faith, some form of worship, a formal or informal code of doctrine and discipline, religious services and ceremonies, established places of religious worship, and religious congregations, or comparable indicia of a bona fide religious denomination. For the purposes of this definition, an inter- denominational religious organization which is exempt from taxation pursuant to section 501(c)(3) of the Internal Revenue Code of 1986 will be treated as a religious denomination.
Religious occupation means 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 donations.
Religious vocation means 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.
214.2(r)(3) Initial evidence. An alien seeking classification as a nonimmigrant religious worker shall present to a United States consular officer, or, if visa exempt, to an immigration officer at a United States port of entry, documentation which establishes to the satisfaction of the consular or immigration officer that the alien will be providing services to a bona fide nonprofit religious organization in the United States or to an affiliated religious organization as defined in paragraph (r)(2) of this section, and that the alien meets the criteria to perform such services. If the alien is in the United States in another valid nonimmigrant classification and desires to change nonimmigrant status to classification as a nonimmigrant religious worker, this documentation should be presented with an application for change of status (Form I-129, Petition for a Nonimmigrant Worker). The documentation shall consist of:
214.2(r)(3)(i) Evidence that the organization qualifies as a non-profit organization, in the form of either:
214.2(r)(3)(i)(A) Documentation showing that it is exempt from taxation in accordance with section 501(c)(3) of the Internal Revenue Code of 1986 as it relates to religious organizations (in appropriate cases, evidence of the organization's assets and methods of operation and the organization's papers of incorporation under applicable state law may be requested); or
214.2(r)(3)(i)(B) Such documentation as is required by the Internal Revenue Service to establish eligibility for exemption under section 501(c)(3) of the Internal Revenue Code of 1986 as it relates to religious organizations; and
214.2(r)(3)(ii) A letter from an authorized official of the specific organizational unit of the religious organization which will be employing the alien or engaging the alien's services in the United States. If the alien is to be employed, this letter should come from the organizational unit that will maintain the alien's Form I-9, Employment Eligibility Verification, that is, the organizational unit that is either paying the alien a salary or otherwise remunerating the alien in exchange for services rendered. This letter must establish:
214.2(r)(3)(ii)(A) That, if the alien's religious membership was maintained, in whole or in part, outside the United States, the foreign and United States religious organizations belong to the same religious denomination;
214.2(r)(3)(ii)(B) That, immediately prior to the application for the nonimmigrant visa or application for admission to the United States, the alien has the required two (2) years of membership in the religious denomination;
214.2(r)(3)(ii)(C) As appropriate:
214.2(r)(3)(ii)(C)(1) That, if the alien is a minister, he or she is authorized to conduct religious worship for that denomination and to perform other duties usually performed by authorized members of the clergy of that denomination, including a detailed description of those duties;
214.2(r)(3)(ii)(C)(2) That, if the alien is a religious professional, he or she has at least a United States baccalaureate degree or its foreign equivalent and that at least such a degree is required for entry into the religious profession; or
214.2(r)(3)(ii)(C)(3) That, if the alien is to work in another religious vocation or occupation, he or she is qualified in the religious vocation or occupation. Evidence of such qualifications may include, but need not be limited to, evidence establishing that the alien is a monk, nun, or religious brother or that the type of work to be done relates to a traditional religious function;
214.2(r)(3)(ii)(D) The arrangements made, if any, for remuneration for services to be rendered by the alien, including the amount and source of any salary, a description of any other types of remuneration to be received (including housing, food, clothing, and any other benefits to which a monetary value may be affixed), and a statement whether such remuneration shall be in exchange for services rendered;
214.2(r)(3)(ii)(E) The name and location of the specific organizational unit of the religious organization for which the alien will be providing services within the United States; and
214.2(r)(3)(ii)(F) If the alien is to work in a non-ministerial and nonprofessional capacity for a bona fide organization which is affiliated with a religious denomination, the existence of the affiliation; and
214.2(r)(3)(iii) Any appropriate additional evidence which the examining officer may request relating to the religious organization, the alien, or the affiliated organization. Such additional documentation may include, but need not be limited to, diplomas, degrees, financial statements, or certificates of ordination. No prior petition, labor certification, or prior approval shall be required.
214.2(r)(4) Initial admission. The initial admission of a religious worker, spouse, and unmarried children under twenty-one years of age shall not exceed three (3) years. A Form I-94, Arrival-Departure Record, shall be provided to every alien who qualifies for admission as an R nonimmigrant. The Form I-94 for the religious worker shall be endorsed with the name and location of the specific organizational unit of the religious organization for which the alien will be providing services within the United States. The admission symbol for the religious worker shall be R-1; the admission symbol for the worker's spouse and children shall be R-2.
214.2(r)(5) Extension of stay. The organizational unit of the religious organization employing the nonimmigrant religious worker admitted under this section shall use Form I-129, Petition for a Nonimmigrant Worker, along with the appropriate fee, to extend the stay of the worker. The petition shall be filed at the Service Center having jurisdiction over the place of employment. An extension may be authorized for a period of up to two (2) years. The worker's total period of stay may not exceed five (5) years. The petition must be accompanied by a letter from an authorized official of the organizational unit confirming the worker's continuing eligibility for classification as an R-1 nonimmigrant.
214.2(r)(6) Change of employers. A different or additional organizational unit of the religious denomination seeking to employ or engage the services of a religious worker admitted under this section shall file Form I-129 with the appropriate fee. The petition shall be filed with the Service Center having jurisdiction over the place of employment. The petition must be accompanied by evidence establishing that the alien will continue to qualify as a religious worker under this section. Any unauthorized change to a new religious organizational unit will constitute a failure to maintain status within the meaning of section 241(a)(1)(C)(i) of the Act.
214.2(r)(7) Limitation on stay. An alien who has spent five (5) years in the United States under section 101(a)(15)(R) of the Act may not be readmitted to the United States under the R visa classification unless the alien has resided and been physically present outside the United States for the immediate prior year, except for brief visits for business or pleasure. Such visits do not end the period during which an alien is considered to have resided and been physically present outside the United States, but time spent during such visits does not count toward the requirement of this paragraph.
214.2(r)(8) Spouse and children. The religious worker's spouse and unmarried children under twenty-one years of age are entitled to the same nonimmigrant classification and length of stay as the religious worker, if the religious worker will be employed and residing primarily in the United States, and if the spouse and unmarried minor children are accompanying or following to join the religious worker in the United States. Neither the spouse nor any child may accept employment while in the United States in R-2 nonimmigrant status.
April 19, 2007
USCIS is proposing significant revision to its regulations related to the special immigrant (SR/SD) and nonimmigrant (R-1) religious worker visa classifications. The proposed rule highlights ways to ensure the integrity of the religious worker program while at the same time streamlining the process for legitimate petitioners.
The Government Accountability Office (GAO) reported in 1999 incidents of fraud in the religious worker program. The report found that fraud often involved false statements by petitioners about the length of time an applicant was a member of a religious organization, their qualifying work experience, and the position being filled. The report also noted problems with the applicants making false statements about their individual qualification and plans while in the U.S.
Currently, non-immigrants may request a religious worker visa at a consular post or a port-of-entry without any prior, stateside review of the petition. One of the key changes to the regulations include an across the board petition requirement that will allow USCIS to verify the legitimacy of the petitioner and the job offer before a visa is issued or the worker is admitted to the U.S.
The rule also reduces the initial period of admission for a non-immigrant from three years to one, giving the agency an opportunity to review whether or not the terms of the visa have been met during the initial year before extending the worker’s stay in the U.S.
USCIS is proposing to amend the standard initial period of stay for nonimmigrant religious workers from three years to one. The revision gives the agency the opportunity to review whether the terms of the R-1 visa have been met.
USCIS is also proposing to add new definitions, or amend current ones, to better describe the statutory eligibility criteria. The rule streamlines the petition process by requiring an attestation and requesting less supporting evidence. The rule includes detailed interpretations of the statutory requirements and clear guidelines for supporting documentation aimed at making the process easier to understand. A few examples are below:
A definition of Denominational Membership is added to clarify how a petitioner can establish that the beneficiary is a member in the same religious denomination as the U.S. employer seeking to employ him or her.
The definition of Religious Occupation is expandedto focus on duties that “primarily, directly, and substantially relates to the religious beliefs or creed of the denomination.” Such a change distinguished between committed religious work and non-qualifying work that, while may be incident to religious duties, cannot be itself warrant classification in the religious worker category.
Ministers are defined as individual duly authorized by a religious denonmination to conduct religious worship and other duties performed by clergy. The proposal adds that the minister must be “fully trained according to the denomination’s standards.
The term Religious Denomination applies to a religious group or community of believers governed or administered under some form of ecclesiastical government.
The proposal amends the definition of Religious Vocation as one referring to a formal lifetime commitment to a religious way of life.