Orange County R-1 Visa Lawyers
Each year, religious institutions around the world receive inquiries from foreign nationals who are interested in pursuing a call to religious life in the United States. These institutions are predominately non-profit organizations that perform charitable functions in addition to providing religious services. Fortunately for those inclined to commit themselves to a religious life, the United States has a visa category, the R-1, which permits non-profit religious organizations to hire, on a temporary basis, qualified ministers and other religious workers. Unfortunately, the R-1 category has come under increased scrutiny in recent years, because the United States Citizenship and Immigration Services (“USCIS”) has determined that there is a significant level of fraud in these cases. This article describes the rules applicable to the R-1 visa category and discusses some of the new issues that have accompanied the greater scrutiny of this nonimmigrant category.
Person’s Eligible for R-1 Classification
R-1 classification is limited to people intending to pursue temporary work in the United States as a religious worker. People may seek R-1 classification in one of the following classes:
- People working in a professional capacity in a religious vocation or occupation; and
- Workers in a religious occupation which relates to a traditional religious function.
A minister is primarily defined as “an individual duly authorized by a recognized religious denomination to conduct religious worship and to perform other duties usually performed by authorized members of the clergy of that religion.” 8 CFR § 214.2(r)(2). The USCIS normally expects to see a certificate of ordination or other proof of fulfillment of the religious organization’s requirements for ordination to prove a person’s status as a minister.
A professional capacity for R-1 purposes is defined as “an activity in a religious vocation or occupation for which the minimum of a United States baccalaureate degree or a foreign equivalent is required.” 8 CFR § 214.2(r)(2).
A religious occupation is defined as “an activity which relates to a traditional religious function,” including liturgical workers, religious instructors, religious counselors, cantors, catechists, workers in religious hospitals or health care facilities, missionaries, religious translators, and religious broadcasters. 8 CFR § 214.2(r)(2).
The USCIS and Consulate officials carefully review cases when evaluating whether an R-1 visa applicant will work in a position that relates to a traditional religious function; thus, when this element is required, special care must be taken to ensure that the position is clearly and thoroughly described and supporting documentation demonstrates the connection between the job duties and traditional religious functions.
Organizations Eligible to Sponsor an R-1 Visa
The R-1 category is limited to specific types of religious organizations that would normally hire religious workers. The basic requirements for eligibility as an R-1 sponsor are as follows:
Only bona fide nonprofit religious organizations are eligible to sponsor R-1 workers. A bona fide nonprofit organization is one exempt from taxation under section 501(c)(3) of the Internal Revenue Code of 1986. The best proof to meet this requirement is a 501(c)(3) letter from the IRS; however, if this evidence is not available, the petitioner may submit evidence as is required by the IRS demonstrating it is at least eligible for exemption under 501(c)(3). 8 CFR § 214.2(r)(3)(i)(A) & (B).
Two Year Membership Requirement
An applicant for R-1 classification must show that for at least two years immediately before filing the application for admission, he or she was a member of a religious denomination that has a nonprofit religious organization in the United States. A religious denomination is “a religious group or community of believers having some form of ecclesiastical government, a creed or statement of faith, some form of worship or informal code of doctrine and discipline, religious services and ceremonies, established places of religious worship, and religious congregations,” among other possible criteria. 8 CFR § 214.2(r)(2). USCIS officers often carefully examine the evidence when determining if the religious organizations in the United States and abroad are part of the same religious denomination; therefore, the petitioner needs to submit thorough documentation showing the organizations’ shared denomination.
If outside of the United States, an R-1 applicant may apply directly for an R-1 visa at a U.S. Consulate without filing a petition with the USCIS. If visa exempt, the applicant may apply directly with an admission officer at a port of entry.
If inside the United States, an R-1 applicant must submit a petition and request for a change of status to R-1 classification with the USCIS. In this situation, a visa is not required, unless the person travels outside of the United States.
Initially, R-1 applicants are eligible for a period of stay up to three years. An extension of status is permitted for a period up to two years. Spouses and children of R-1 workers are permitted to remain in the United States in R-2 classification for the same period as the principal R-1.
Fraud Issues Involving R-1 Cases
In the past two years, the R-1 category has come under intense scrutiny. The USCIS has found that there is a high level of fraud involving R-1 cases. As a result, it eliminated Premium Processing, which permits expedited processing, for R-1 petitions. It also began conducting audits on R-1 cases to investigate fraud and stopped approving most R-1 cases for many months while the investigations took place. Many R-1 cases have been delayed for more than a year because of investigations, including site inspections of churches.
On April 19, 2007, the USCIS released proposed revisions to the religious worker category meant to address its fraud concerns. These revisions would, among other things, make the following changes:
- Require all R-1 applicants to submit a petition to the USCIS, even if they are outside of the United States;
- Reduce the initial period of R-1 classification to one year, instead of three;
- Require a new attestation from the petitioner; and
- Create new definitions of applicable terms. One can safely assume that one of the purposes in establishing the new definitions is to use them as tools to deter or detect fraudulent applications for R-1 status.
The R-1 category fulfills an important function by assisting religious organizations in their efforts to provide religious services to various communities. The increased scrutiny applied by the USCIS in R-1 cases should not deter qualified nonprofit religious organizations from requesting permission to employ R-1 workers. Nevertheless, quality legal services are needed more than ever in this area of immigration law. The immigration attorneys at Garg and Associates are highly qualified and experienced in religious worker cases.
If you or someone you know is need of immigration law services, please do not hesitate to call Garg & Associates at 281-362-2865 for a consultation today or use our Contact Form.
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