This one's a biggie. The regulation was in the works for years, but Congress gave the final push by making releasing the reg a condition to extending the special immigrant immigrant category for religious workers.

I worked through the 88 page advance copy of the regulation over the weekend and here' my question and answer document on the new R-1 religious worker program.

The ABC’S Of Immigration: R-1 Religious Worker Visas

Religious workers seeking to temporarily enter the US to pursue work in their field are likely to enter using the R nonimmigrant visa.

On November 21, 2008, USCIS released a final rule that made substantial changes to the R-1 religious worker program. The rule was mandated by Congress when it extended the special immigrant religious worker categories for non-ministers that expired on October 1, 2008. The new rule is designed to address various concerns regarding fraud and also to clarify various issues that have arisen over the years with the R-1 program.

Who qualifies for an R visa?

To qualify for an R visa, the applicant must be:

• A minister,
  
• A person working in a professional capacity in a religious occupation or
vocation, or

• A person who works for a religious organization or an affiliate in a
religious occupation who has been a member of the religious group for at least the two years immediately preceding the application.

The applicant must be a member of the religious denomination for at least two years immediately preceding the time of application for admission and be coming to work at least part time.

What is a “Religious Denomination”?

A religious denomination is defined as a religious group that have some form of ecclesiastical government, a common belief or statement of faith, some form of worship, a set of religious guidelines, religious services and ceremonies, established places for worship, religious congregations or comparable evidence of a bona fide religious organization.

USCIS has noted that a denomination does not mean that there must be a governing hierarchy. Rather, the focus is on “the commonality of the faith and internal organization of the denomination. An individual church that shares a common creed with other churches, but which does not share a common organizational structure or governing hierarchy can still satisfy the “ecclesiastical government” requirement by submitting a description of its own internal governing or organizational structure.

What are examples of “Religious Occupations”?

A religious occupation is an activity relating to “traditional religious functions.” The work must be recognized as a religious occupation within the denomination and the duties must be primarily related to, and must clearly involve inculcating or carrying out the religious creed and beliefs of the denomination.

Note that USCIS no longer includes a list of example occupations in its regulations. But over the years, USCIS has approved R-1 religious occupation petitions for liturgical workers, religious instructors, religious counselors, cantors, workers in religious hospitals or religious health care facilities, missionaries, religious translators and religious broadcasters.

Maintenance workers, janitors and clerical employees do not qualify. And positions primarily administrative in nature also do not qualify. Positions that are strictly related to fundraising do not qualify for R-1 status, though USCIS has acknowledged that selling literature may not bar someone if they have other religious functions in their position. And religious study or training for religious work does not constitute a religious occupation (though a religious worker may pursue study or training incident to status).

The 2008 R-1 rule requires religious organizations to submit evidence identifying religious occupations that are specific to that denomination and that he alien’s proposed duties meet the religious occupation’s requirements.

What is a “Religious Vocation”?

A religious vocation is defined under the 2008 R-1 rule as “a formal lifetime commitment, through vows, investitures, ceremonies, or similar indicia, to a religious way of life.” Examples include nuns, monks, religious brothers and sisters.

What is a “Minister”?

The 2008 R-1 rule adds a new definition of “minister”. Under the rule, a minister is “an individual authorized by a religious denomination, and fully trained according to the denomination’s standards, to conduct religious worship and to perform other duties as usually performed by authorized members of the clergy of that denomination.” Lay preachers are not included in this definition.

How do I apply for an R visa?

Until release of the November 2008 rule, an applicant outside the US could apply for a visa directly at a US consulate without prior USCIS approval.  The new rule now requires all R-1 applicants, whether applying for a change of status in the US or for consular processing abroad, to get an I-129 and R visa supplement approved by USCIS.

As of November 2008, all R-1 and immigrant religious worker petitions are filed at the USCIS California Service Center. Premium processing was not available as of November 2008 and in the 2008 rule USCIS indicated it was not likely to change this any time soon.

What attestations must an employer make regarding the petition?

Under the 2008 rule, Employers must now complete, sign and date an attestation and submit it along with the petition attesting to the following:

The employer is a bona fide non-profit religious organization or religious organization affiliated with a religious denomination and is exempt from taxation;

The worker has been a member of the denomination for at least two years and that the alien is otherwise qualified for the position offered;

The number of members of the prospective employer’s organization;

The number of employees working at the location where the beneficiary will be employed and a summary of the type of responsibilities of those employees. USCIS may request a list of the employees, their titles and a brief description of their duties;

The number of individuals holding religious worker status (both special immigrant and nonimmigrant) within the preceding five years;

The number of individuals the organization filed for religious worker status (both special immigrant and nonimmigrant) within the preceding five years;

The title of the position offered to the alien and a detailed description of the alien’s proposed daily duties;

The complete package of salaried or non-salaried compensation being offered; and

That an alien seeking nonimmigrant religious worker status will be employed for at least 20 hours per week (the rule also imposed a 35 hour per week requirement for immigrant petitions);

The specific location or locations of the proposed employment; and

That the alien will not be engaged in secular employment.

What additional documentation must be submitted regarding the qualifications of the petitioning organization?

Aside from the attestation, the employer must submit with the I-129 and fee, a currently valid determination letter from the IRS establishing that the organization is a tax-exempt organization documentation of the religious nature and purpose of the organization, such as a copy of the organizing instrument of the organization that specifies the purposes of the organization;

organizational literature, such as books, articiles, brochures, calendars, flyers, and other literature describing the religious purpose and nature of the activities of the organization; and

a religious denomination certification (the organization must complete, sign and date a statement certifying that the petitioning organization is affiliated with the religious denomination)

What additional documentation must be submitted regarding the qualifications of a minister?

For ministers, the following documentation must be submitted: a copy of the certificate of ordination or similar document reflecting acceptance of the alien’s qualifications as a minster in the religious denomination;

documentation that the worker has completed any course of prescribed theological education at an accredited or normally recognized institution including transcripts, curriculum, and documentation that establishes that the theological education is accredited, or

For denominations that don’t require a prescribed theological education, evidence of

• The denomination’s ordination requirements;
  
• The duties allowed to be performed by virtue of ordination;
  
• The denomination’s level of ordination, if any; and
  
• The alien’s completion of the denomination’s requirements for ordination

What documentation must be submitted regarding compensation?

The petitioner must explain how it intends to compensate the R-1 worker, including specific monetary and in-king compensation or whether the worker will be self-supporting (if the work is for temporary, uncompensated missionary work that is part of a broader international program of missionary work sponsored by the denomination). If compensation is being paid, evidence may include

Past evidence of compensation for similar positions;

Budgets showing monies set aside for salaries, leases, etc.;

Verifiable documentation that room and board will be provided; or

Other evidence acceptable to USCIS Plus, IRS documentation such as W-2s or certified tax returns must be submitted if available.

How does an organization show it is a qualifying religious organization?

An organization petitioning for an R-1 religious workers must show that it is a “bona fide non-profit religious organization in the United States” or a “bona fide organization which is affiliated with the religious denomination.”

To qualify, an organization must be tax exempt under Section 501(c)(3) of the Internal Revenue Code. And to demonstrate this, under the 2008 rule, an employer must provide USCIS with a copy of a valid determination letter from the IRS confirming such exemption. To qualify based on an affiliation, the organization must show it is “closely associated” with a religious denomination that is tax exempt under Section 501(c)(3).

In the 2008 regulation, USCIS has expressly barred 501(d) religious organizations from applying for R-1 status even though an organization is tax-exempt under that section of the IRC.

The 2008 rule added a requirement that an R-1 sponsor must file a determination letter from the Internal Revenue Service (IRS) of the tax-exempt status of the petitioning religious organization under the Internal Revenue Code (IRC) 501(c)(3). The organization need not get a new determination for each petition and determination letters do not expire. If an organization changes addresses from the address on the letter, the same determination letter may be used as long as an explanation is provided in the petition.

The sponsoring organization also needs to submit a letter on behalf of the R-1 visa holder.  This letter should outline the applicant’s two-year minimum membership, including where that membership occurred, in or out of the US.  It should also include a statement that the foreign-based religious group and the US based religious group for which the applicant will work belong to the same denomination.  It must state the name and location of the organization in the US for which the applicant will work.  Finally, it should outline the applicant’s qualifications and salary.

What is the new inspection requirement under the R-1 rule?

USCIS has been conducting on site inspections of R-1 change of status petitions for some time, but now all R-1 sponsors will need to have an on site inspection even if the religious worker is applying for consular processing. Technically, the rule says that USCIS can verify the evidence being submitted by a petitioning organization “through any appropriate means” but the USCIS has made it clear that on site inspections are the means that will be used for this purpose.

At an inspection, USCIS may tour the facilities, interview organization officials and review organization records relating to the organization’s compliance with immigration laws and regulations.

Is there a minimum salary an R-1 religious worker must be paid?

There is no prevailing wage requirement like H-1B cases, but the 2008 R-1 rule has added a requirement that an R-1 nonimmigrant must be compensated either by salaried or non-salaried compensation and the petitioner must provide verifiable evidence of such compensation. If there is no compensation, the petitioner must prove that the non-compensated worker is participating in a traditionally non-compensated missionary program within the denomination which is part of a broader “international program of missionary work” sponsored by the denomination. Plus, the petitioner must provide evidence of how the aliens will be supported while participating in the program. This is stricter than the old rule which generally allowed uncompensated, self-supporting nonimmigrants to see R-1 visas.

To qualify for R-1 status based on temporary, uncompensated missionary work, the petitioner must show it is a missionary program in which: (1) foreign workers, whether compensated or uncompensated, have previously participated in R-1 status; (2) missionary workers are traditionally uncompensated; (3) the organization provides formal training for missionaries; and (4) participation in such missionary work is an established element of religious development in that denomination. A petitioner may submit evidence in the form of books, articles, brochures or similar documents that describe the missionary program, the religious duties associated with the missionary work and proof that the alien has been accepted in to the program and describing the alien’s responsibilities. Plus, the organization must demonstrate that the alien has the means to support himself or herself or has otherwise provided for the alien’s support.

Note that it may still be possible to seek a B-1 visitor status classification if this test cannot be met.

Petitioners must show proof of past compensation or support for nonimmigrants when apply for an extension.

How long can I have R status?

The maximum stay in R-1 status is 5 years.  A person can obtain R-1 status again after remaining outside the US for one year before making another application.

Under the 2008 R-1 rule, R-1s can be initially admitted for a period up to 30 months (down from the prior 36 month limit) and an extension of up to 30 months may be issued by USCIS. If a person’s employment in the US is seasonal or intermittent or for an aggregate of six months or less per year, the five year limit does not apply. It also doesn’t apply to people who reside abroad and regularly commute to the US to engage in part-time employment. To demonstrate this, an applicant needs to show arrival and departure records, tax returns and employment records outside the US.

Can I have more than one employer if I am an R-1?

Yes. But each qualifying employer must submit a separate petition with all of the required documentation.

What visa status do the spouse and children of an R-1 nonimmigrant receive?

Spouses and children of R-1 nonimmigrants and classified as R-2. They are not permitted to work unless they have their own work visas. R-2 status is granted for the same period of time and subject to the same time limits as the R-1 regardless of the time the spouse and children may have spent in the US in R-2 status.

Are there any differences between the special immigrant religious worker category for green card applicants and R-1 non-immigrant visas?

The most important difference between the two religious worker categories is that the R-1 visa is temporary and the special immigrant religious worker visa is permanent.  An applicant for a green card as a special immigrant religious worker must have been working for the religious group for at least two years prior to making the application. This work may be done either in or out of the US. In most cases where the work is done in the US, the person has been in the US on an R-1 visa.  Another difference between the two is the forms involved.  A special immigrant religious worker applies using Form I-360 in place of the I-129 and R supplement. Also, under the 2008 rule, special immigrant religious workers must work at least 36 hours per week while R-1 visa holders can work 20 hours per week.

Generally speaking, the evidence that should accompany the special immigrant religious worker petition and the role of the beneficiary within the religious organization are the same as for the R-1 applicant.

Are R-1 visas “dual intent”?

The 2008 rule for the first time addresses the impact a green card petition has on R-1 status. The new rule states that R classification may not be denied solely because a labor certification or preference petition, including a Form I-360, has been filed by or on behalf of the alien.

Can R-1 denials be appealed?

Yes. The 2008 R-1 rule provides a right to appeal a denial of an R-1 petition. This now makes the R-1 similar to H, L, O, P and Q visas.

Can R-1 approvals be revoked?

Yes. The 2008 R-1 rule provides for USCIS to be able to revoke an R-1 petition.

What are an employer’s obligations if the R-1 is working less than 20 hours per week or has been terminated from employment before the expiration of the authorized R-1 stay?

The employer must notify DHS within 14 days.

What alternatives are available if the R-1 is not an option?

There are a number of other nonimmigrant categories that may be fit if the R-1 is out. They include the L-1 intracompany transfer category, the H-1B specialty occupation and J-1 trainee status. Unpaid workers may qualify for B-1 status.  And F-1 students may be able to engage in some employment activities such as on campus work and curricular training off campus.