Congress Extends Religious Worker Law
October 16, 2008
In the United States, the services provided by religious workers are very highly valued. As a result, there are special immigrant visas given to religious workers who seek to enter the US or adjust status to that of a permanent resident in order to perform religious activities. The special category of visas is known as the Special Immigrant Religious Worker category.
The law authorizing the Special Immigrant Religious Worker category was set to expire on September 30, 2008. Recognizing the continued importance of religious workers in the US, an extension of the law was passed into law on October10, 2008. As such, religious workers may continue to seek permanent residency upon the fulfillment of the following requirements:
1) The petitioner must be a bona fide religious organization. The organization petitioning the religious worker must have a recognized creed, form of worship, and established place of worship. Additionally, the organization must be legitimate and bona fide. Lastly, the organization must be incorporated and either have tax-exempt status or qualify as a nonprofit organization.
2) The applicant must have an offer of employment by a U.S. religious organization to work in “a religious vocation or occupation.” A religious occupation is one that relates to a traditional religious function, such as religious instructors, liturgical workers, cantors, and catechists. A minister is a person who is authorized to conduct religious worship, such as priests, pastors, and rabbis. A professional is one where the religious position requires at least a bachelor’s degree and where the individual has that degree. A nonprofessional is one wherein a bachelor’s degree is not required.
3) The immigrant must be working with the religious organization as a minister, professional, or nonprofessional continuously for at least two years before applying for a visa. This requirement has been the cause of much confusion and frustration for the past several years.
Despite historically approving applications for voluntary employment, the CIS began consistently interpreting this requirement to mean full-time compensated employment. As this CIS interpretation of the law is not based on the regulations, the statute, or the legislative history of the law, numerous lawsuits against the CIS have been filed to prevent the CIS from imposing the requirement of compensated employment on applications.
Until the latter part of 2004, the CIS was denying practically all applications based on volunteer employment. On August 6, 2004, the Third Circuit of the United States Court of Appeals issued a court decision rejecting the CIS’ requirement of compensated employment stating that the requirement is arbitrary and an abuse of discretion. As such, the CIS has backed away from the compensated work requirement and is now granting petitions where the work experience requirement is met by only full-time (at least 35 hours of work per week) volunteer work.
Moreover, the Administrative Appeals Office (AAO) of the immigration service issued a decision on September 9, 2008, granting a petition involving a religious worker who received only room and board, plus donations from religious worshippers. The CIS had originally denied the petition on the ground that the compensation of room and board was insufficient. However, the reversal by the AAO is confirmation that the primary requirement is the performance of religious worker, rather than the monetary compensation. As such, more individuals are able to qualify for the Special Immigrant Religious Worker category.
The advantage to seeking permanent residency as a Special Immigrant Religious Worker is that an individual does not need to go through the tedious task of first obtaining a labor certification with the Department of Labor. Also, the visa category for Special Immigrant Religious Workers has not been affected by the visa retrogressions that have caused most employment-based petitions to be delayed by a period of years. These advantages therefore reduce the overall processing time for a work permit and permanent residency by several years.
The law authorizing the Special Immigrant Religious Worker program is now set to expire on March 6, 2009. Accordingly, individuals who have selflessly devoted their efforts for a religious cause must proceed with the petition process immediately or else the opportunity may no longer be available.
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