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Embark on a religious journey to U.S. through R1 visa; New rules seek to eliminate fraud and bring integrity back to religious workers.
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It may soon become harder to get an R visa as a religious worker. Over the past few years the Government Accountability Office (GAO), the US Consulates overseas, and the USCIS has determined that the R visa category is susceptible to fraud. The first report on the potential for fraud in the program was issued by the GAO in March 1999, over 8 years ago. USCIS, through the Fraud Detection and National Security (FDNS) Office, continued to review the program to look for weaknesses. In fact FDNS has found that as many as one-third of the cases filed under the R visa category are fraudulent.

Most of the reported fraud involved false statements by the petitioners about the length of time a beneficiary/applicant has been a member of the religious organization, their qualifying work experience, and position being filled. FDNS has also found that applicants make false statements about their qualifications and exact plans in the United States. Consulates have also found through contact with sending organizations and site visits that complete packages have been created using stolen or forged documents and letterhead for individuals that do not even work for the organization. Because of the perceived ease in obtaining an R-1 visa, and the relative ease of moving from the non-immigrant status to permanent residence, the incidence of fraud has continued to rise.

To battle this increase in fraud in the category USCIS, on April 25, 2007, published a proposed rule in the Federal Register to make changes to the Religious Worker Visa Classifications. Fed. Reg., Vol. 72, No. 79, pp 20442-20457. The new rule proposes to make a number of changes in the definitions, the evidence required for petitions, and to the process. The changes are designed to bring integrity back into the program.

Proposed Petition Requirements

One of the biggest changes will be in the R visa process. The R visa is one of only a handful of categories where the beneficiary/applicant does not have to have prior approval from USCIS to apply for a visa. Currently applicants can submit an application directly to a US Consulate overseas, or in certain instances (Canadians) at the port of entry. The new rule will require that all employers or organizations seeking to classify an alien as a religious worker, whether as an immigrant (Form I-360) or non-immigrant (Form I-129), will have to file a petition with USCIS. The addition of the petition requirement for non-immigrants seeking an R-1 visa or R-1 visa-exempt entry is needed in order to facilitate current and future on-site inspections and to further ensure the integrity of the program.

Proposed Changes to Definitions

The next big change contemplated by the rule change is a change in the definitions. The changes in the definitions are intended to focus on the distinctions between certain terms and make it determine eligibility. Notably there are changes to clarify the distinctions between Religious Vocation and Religious Occupation, and Bona Fide Nonprofit Religious Organizations and Bona Fide Organizations which are Affiliated with the Religious Denomination. The proposal clarifies the terms Minister and Religious Denomination, and adds a definition for Denominational Membership.

Only time will tell if the new definitions actually make it easier to determine who qualifies and who doesn't, or if they just muddy the waters.

On-Site Inspections

This rule proposes that USCIS may conduct on-site inspections of petitioning organizations seeking to employ either an R-1 nonimmigrant or special immigrant religious worker. Pursuant to its general authority under section 103 of the INA and 8 CFR part 103, USCIS may conduct audits, on-site inspections, reviews or investigations, to ensure that an alien is entitled to the benefit sought and that all laws have been complied with. By emphasizing this ability in the proposed rule USCIS is seeking to deter further fraud in the program. This rule will also allow DHS to monitor religious workers and ensure they maintain lawful status while in the United States. The purpose of this activity is to eliminate the inappropriate award of immigration benefits to unqualified individuals.

Evidentiary Requirements for Petitioning Organizations

USCIS also proposes to change the evidentiary requirements for petitioning employer organizations seeking a religious worker. Existing regulations require that the organization submit 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. The new rule will specifically require that petitioning organizations submit a currently valid determination letter from the Internal Revenue Service (IRS).

This proposal will force many smaller churches that now clearly qualify for tax exempt status as churches under IRC § 501(c)(3), and are exempt from filing for a IRS determination letter, to take on the burden of filing an application for tax exempt status.

Changes Unique to the Nonimmigrant Religious Worker Classification

Some of the proposed requirements, such as the period of authorized stay, are applicable only to the R visa category. Under current regulations, the standard period of stay is three years (with one potential extension of two years). USCIS proposes to change the standard period of stay to one year (with two potential extensions of two years each). This one-year admission runs from the date of initial admission in order to provide the alien the benefit of the full year and also to accommodate for any delay in consular processing.

An alien may then apply for additional periods of stay by filing the Form I-129 with USCIS. Any extension request must include a through demonstration of the alien's compensation by the approved employer in a manner that assures compliance with tax policies and provides better assurance to USCIS that the required employment relationship truly exists. Any request for R-1 extension must include initial evidence of the previous R-1 employment in the form of the alien's W-2 wage statements, the employer's wage transmittal statements, and transcripts of the alien's processed income tax returns (IRS Form 4506T) for any preceding period spent in the United States in R-1 status.

This will force churches and religious organizations to clearly comply with all tax and employment laws.

Changes Unique to the Special Immigrant Religious Worker Classification

Current regulations describing various categories of religious workers have led to much confusion. USCIS is now proposing to reorganize 8 CFR 204.5(m) in its entirety and simplify the religious worker classification by dividing it into three distinct categories: ministers, individuals engaged in a religious vocation, and individuals engaged in a religious occupation.

A big benefit for religious workers seeking permanent residence is that the proposed rule recognizes that the prior religious work need not correspond precisely to the type of work to be performed (USCIS currently requires that beneficiaries have performed the proposed work for the 2-year qualifying period). The rule also codifies longstanding recognition that a break in the continuity of religious work during the two years immediately preceding the filing of the petition will not affect eligibility if the alien has performed as a religious worker on a compensated, full-time basis, the break did not exceed two years, and the nature of the break was for further religious training or for sabbatical and did not involve unauthorized work in the United States.

Finally, the proposed rule also clarifies that qualifying prior experience (that is, during the two years immediately preceding the petition or preceding any acceptable interruption of religious work) acquired in the United States must have been authorized under United States immigration law and in conformity with all other laws of the United States. Additionally, the alien must have belonged to the same denomination as the petitioner organization throughout the two years of qualifying employment.

Conclusion

Since publication of the GAO report in March 1999, USCIS has continued to assess the potential for fraud in the religious worker program. FDNS has found a 33 per cent overall rate of fraud in the program. Their assessment also indicated patterns of potential fraud and weaknesses that created vulnerabilities for fraud to occur. In an attempt to bring integrity back to the religious worker program USCIS published a proposed rule change in April 2007. Public comment, required before the rule can take effect, on the proposed rule is due by June 25, 2007.

Our review of the proposed rule is generally favorable; however certain aspects will create additional burdens on U.S. religious organizations wishing to recruit workers overseas. We will continue to keep you apprised of any changes as they come up. When the proposed rule becomes final we will be ready so that our clients can make a smooth transition.

Contact VisaPro if you have any questions regarding the Religious Worker category, or need help in filing. Our experienced attorneys will be happy to assist you.

We also cover the latest happenings on religious worker visas in Immigration Monitor, our monthly newsletter. Click here to subscribe to Immigration Monitor.

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