In 2007-2009, drastic changes were made to the R-1 Visa for Religious Workers in order to combat fraud. The changes are designed to bring integrity back into the program. Most of these changes remain in effect today.
Previously, the R-1 was one of only a handful of categories where the beneficiary/applicant would not require prior approval of a petition before applying for the visa at the Consulate, much like the TN, E-3 or Blanket L-1. The new rule required all employers or organizations seeking to classify an alien as a religious worker to file the Form I-129 and obtain prior petition approval. The addition of the petition requirement for non-immigrants seeking an R-1 visa or R-1 visa-exempt entry was needed in order to facilitate current and future on-site inspections and to further ensure the integrity of the program.
Changes To Definitions
The next big change contemplated by the rule change was a change in the definitions. The changes in the definitions were intended to focus on the distinctions between certain terms. Notably there were 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 clarified the terms Minister and Religious Denomination, and adds a definition for Denominational Membership.
This rule introduced USCIS 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.
All new R-1 or I-360 petitioners who have not previously had a site-visit should expect a site inspection before approval of the visa petition. In fact, Petitioners are barred from using Premium Processing unless the Petitioner can show that they have previously had an approved R-1 or I-360 since the rule change.
Evidentiary Requirements For Petitioning Organizations
USCIS also proposed to change the evidentiary requirements for petitioning employer organizations seeking a religious worker. Existing regulations at the time required 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 official 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 then current regulations, the standard period of stay was three years (with one potential extension of two years). After the rule change, R-1 status may be granted initially for a period up to 30 months and can be extended for another 30 months, for a maximum stay of 60 months, or 5 years.
Any extension request must include a thorough 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
A big benefit for religious workers seeking permanent residence is that the rule recognized that the prior religious work need not correspond exactly to the type of work to be performed in the U.S. The rule also codified longstanding recognition that a break in the continuity of religious work during the two years immediately preceding the filing of the petition would not affect eligibility if the alien had 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 clarified 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.
While many of the changes most certainly increased the burden for petitioners and beneficiaries in order to comply with the new rules, many of the new rules most certainly have acted as a deterrent for many unscrupulous actors.
VisaPro has helped countless religious organizations and religious workers in finding the right options to work and live in the U.S. Contact VisaPro if you have any questions regarding the R-1 religious worker visa category, or need help in filing. Our experienced attorneys will be happy to assist you.
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