Religious Workers: A Last Chance Before September 30, 2003 To Obtain Permanent Residence For Non-Ministerial Religious Workers Without A Labor Certification Application
Unless Congress extends the special immigrant status of non-ministerial, religious workers, this provision in the Immigration and Nationality Act, which has facilitated the relatively quick and easy immigration of this class of immigrants, will come to an end on September 30, 2003. Fortunately, there is a major initiative currently under way in Congress to extend this provision. A bill proposing an extension for an additional five years has already passed the house, while the Senate staff is presently working on extending the provision permanently. Congress previously extended this provision in 2000, and even the Bureau of Citizenship and Immigration Services (BCIS) has indicated that the provision will most likely be extended again. Nevertheless, it is not yet clear whether or not the provision will in fact be extended before it sunsets on September 30th, given the current fluctuating immigration climate.
If the extension is not enacted, non-ministerial, religious workers (i.e. non-ordained, religious workers) will be required to show that there are no U.S. workers who are willing and able to perform their job by means of the labor certification process. Only ordained ministers will continue to be characterized as "special immigrants", which exempts them from the difficult and laborious labor certification process.
In addition, BCIS has announced that, notwithstanding the pending legislation, all non-ordained religious workers who qualify as special immigrants must either adjust their status or immigrate before September 30, 2003. This also includes the accompanying spouses and children of such workers. In order to meet the deadline, BCIS recently announced that all service centers should direct resources towards expeditiously adjudicating all petitions within this category (including I-360 petitions, I-485 adjustment of status to permanent residence petitions based on an underlying I-360 petition approval, and I-824 following-to-join petitions) prior to September 30, 2003. So far, the California, Texas and Nebraska Service Centers have announced their intentions to expedite these petitions. In this regard, the California Service Center has already instituted a new fax update system requiring petitioners to inform them of the need to expedite a particular pending case. Most importantly, the California Service Center has indicated in an extremely generous pronouncement that any new petition filed under this category would also be expedited.
The availability of the expedited procedure to entirely new petitions presents a rare and unique opportunity for all non-ordained, religious workers. If such an alien is eligible to file an immigrant petition, s/he could miraculously acquire full permanent residence status in less than 2 months from the time of filing until approval! Of course, there is always the possibility that the time-consuming security checks or other issues could result in the case being stuck, although even then the risk is reduced by a last minute statutory extension. Nevertheless, time is of the essence as BCIS has confirmed that it needs sufficient time to complete the adjudication process before the sunset date, including the transfer of cases to the appropriate district offices for interviews and the notification of the appropriate embassies and consulates, where necessary.
Who is affected by the expiration of this provision? Under the current law, both ordained ministers and non-ordained religious workers can be classified as "special immigrants" as part of the fourth preference special immigrant category, which thereby exempts them from the dreaded labor certification process. While ordained ministers are unaffected by the expiry deadline, non-ordained religious workers must petition immediately to avoid being subject to the labor certification requirement, if no extension is granted.
It is important to reiterate that the non-ordained religious worker category is broad and encompasses numerous employment positions (many of which might not intuitively be regarded as religious worker positions at first glance). Aliens employed in either a religious "occupation" or "vocation" are included under the special provision. The term religious "occupation" refers to traditional religious functions, whereas a religious "vocation" refers to a calling to religious life as evidenced by a commitment practice in a religious domination, such as the taking of vows (for example, nuns, monks or religious brothers/sisters are generally classifiable as vocational religious workers). Religious occupations and vocations therefore incorporate a wide range of employment possibilities in addition to the traditional priest, rabbi and mullah positions. Religious instructors, teachers, counselors, youth instructors, cantors, translators, liturgical workers, evangelists, religious artists, missionaries, religious broadcasters, producers of religious media and music directors also presently qualify under this special immigrant category. The broad range of qualifying professions is further evident by the inclusion of occupations in religious hospitals or health care facilities, as well as workers who are engaged in a professional capacity in a religious environment. However, support or ancillary employees, such as janitors, maintenance workers, clerks, fundraisers, or persons involved solely in the solicitation of donations, cannot be classified as religious occupations. Nevertheless, even here there is an exception for nuns, monks, religious brothers/sisters, and others who have taken religious vows, because they qualify as members of a religious "vocation", and therefore can be considered as special immigrants, regardless of their actual job duties.
Most important is the statutory requirement that in order to qualify under the special immigrant category, applicants must show that they have been continuously employed, in a full-time, salaried capacity (thereby, excluding voluntary service) in the religious vocation, occupation or profession for the two years immediately preceding to the filing of the petition. These duties may have been performed in the United States or abroad. They must also show that they are members of the same religious denomination, which has a bona fide, nonprofit, religious organization in the United States, and that they gained their experience working for that denomination. Therefore, new converts cannot qualify. In addition, the sponsoring employer must be a tax-exempt organization as described in Section 501(c)(3) of the Internal Revenue Code of 1986, or at least eligible for such exemption, were they to apply. These generally include synagogues, churches, mosques, religious day schools, outreach organizations or religiously affiliated non-profit organizations.
As the sun sets over the generous special immigrant status of non-ordained religious workers, it is critical to act immediately to expedite both new and pending petitions to avoid the painstaking labor certification process. Of course, one could pray that the extension is enacted before the September 30, 2003 deadline.
About The Author
Cliff Rosenthal, B.Bus.Sci LLB is an associate with the specialty immigration law firm, Bernard P. Wolfsdorf, a professional law firm with attorneys in New York, Oakland, Portland and Los Angeles. He is a graduate of the University of Cape Town Law School (South Africa), and he recently completed the July 2003 California Bar examination. He can be contacted at firstname.lastname@example.org or 1(800)-visa-law.
Bernard P. Wolfsdorf, Esq. practices exclusively in the area of immigration and nationality law in Los Angeles. He is a California State Bar-Certified Specialist in immigration and nationality law and is listed in Martindale Hubbell's Pre-eminent Specialist Directory, and in the International Who's Who of Corporate Immigration Lawyers. He currently serves on AILA's Board of Governors and previously served on several AILA liaison committees, including the AILA/CSC Liaison Committee, AILA INS Enforcement Committee, and the State Department Liaison Committee. With attorneys in New York, Oakland, Portland and Los Angeles, the firm also assists applicants with consular visa interviews. Mr. Wolfsdorf is a frequent lecturer on consular processing and can be contacted at email@example.com or 1(800)-visa-law.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
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