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Special Immigrant Religious Workers Updateby Rodney M. Barker and Priscillia Suntoso
People seeking to enter the U.S. to engage in religious occupations may apply for visas as temporary workers (R-1) under INA § 101(a)(15)(R) or as permanent workers (Special Immigrants) under INA § 101(a)(27)(C). This article discusses recent developments in the law relating to the permanent category.
Under the INA, a U.S. nonprofit, religious organization or a nonprofit, religious organization affiliated with a qualified religious denomination, is eligible to benefit from the Special Immigrant Religious Worker classification. However, in the past three years, the AAO has taken the position that only a religious organization classified as a "church" could benefit from this Special Immigrant Religious Worker classification. The December 17, 2003 guidance memorandum states that I-360s should not be denied merely because petitioner is not a "church" under Section 170(b)(1)(A)(i) of the Internal Revenue Code 1986. It goes out to say that an organization may qualify if it can establish that its tax classification was based on religious factors and that it operates under principles of a particular faith. [4] In a subsequent March 9, 2004 letter, the Office of the Chief Counsel advises that CIS field officers have been instructed to consider evidence establishing the religious nature and purpose of an organization, apart from IRS documentation, when determining whether the organization qualifies as a "religious organization." [5] Examples of such tax-exempt organizations include colleges, charitable organizations, and similar "non-church" entities affiliated with a religious denomination (i.e., Catholic Social Service, Lutheran Children and Family Services, the Mennonite Central Committee, etc.). The Code of Federal Regulations [6] requires that a religious organization either be tax-exempt under Section 501(c)(3) or that it would have been eligible if it had applied for tax-exempt status. [7] Practice Pointer: If a case has been denied by the AAO solely because the petitioner was not a "church," a Motion to Reopen should be filed. AAO has also denied cases where the petitioner was an organization that had never sought an exemption although, under the tax code, it may still be deemed a bona fide, nonprofit, religious organization. AAO Challenges On The Validity Of The Job Offer Through Wage Offered Although the AAO has been frank in stating that certain conclusions have been based solely upon its own interpretations of the statute and regulations, certain requirements continue to apply to petitions filed. Specifically, the issue of the wages offered can generally raise two issues:
Proof of Compensation Documentation - Establishing The Two-Year Work Experience Forms of compensation must be well documented either through payment of salary, room and board, or a combination thereof. Foreign nationals should submit IRS Form W-2 for the previous years (if Form W-2 is not available, submit Form 1099). Tax returns should also be submitted to supplement the W-2. However, be mindful that the AAO has taken the position that Tax Returns for the foreign national possess low probative value.[10] The religious organization could assist in this regard by producing their financial statements for the two years in question. President Bush's statement regarding $3.7 billion funding for Religious Organizations On January 15, 2004, President Bush asked the Justice Department to take steps to release $3.7 billion dollars in federal monies aimed at helping religious charities.[11] Specifically, Bush's new policy seeks to end discrimination against faith-based charities in the Federal grants application process. At the time this article is written, the most recent copy of the Executive Order available can be obtained here. The Permanent Religious Worker category continues to be an essential category for religious organizations seeking employees from abroad. Recent developments should therefore always be watched closely. [3]INA § 245(k), 8 USC § 1255(k). [4]Memorandum and excerpt courtesy of American Immigration Lawyers Association, AILA Doc. No. 04011211.. [5]Letter and excerpt courtesy of American Immigration Lawyers Association and Elizabeth Bedient, Esq., AILA Doc. No. 04031710. [7]F. Novak, "Proving an Organization Qualifies as a Bona Fide Nonprofit Religious Organization When the Organization Lacks an IRS §501(c)(3) Determination Letter," 2 Immigration & Nationality Law Handbook 56 (2000-01 ed.). [8] Matter of [name and number not provided], VSC (AAO Jan. 3, 2002). [9] Matter of [name not provided], WAC 96-185-51035 (AAO Dec.17, 1998). [10]Matter of [name not provided], EAC 99-224-50486 (AAO Sept. 19, 2000). [11] President Bush's January 15, 2004 statement on Faith-Based and Community Initiatives is available here. See also here for the program's news release in 2001.
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