R-1 Visa - Religious Workers

The Immigration and Nationality Act provides two categories of visas for religious workers, one is for temporary or nonimmigrant "R" status and one for EB-4 Special Immigrant Religious Workers. The R-1 classification applies to nonimmigrant religious workers.

To qualify as an R-1 nonimmigrant religious worker, the alien:

·       Must be coming to the U.S. to temporarily work as:

1.       A minister of religion; or,

2.     A person working in a professional capacity in a religious vocation or occupation; or,

3.     A person working for a religious organization (or an affiliate) in a religious vocation or occupation.

·       Must have been a member of a religious denomination which has a nonprofit religious organization in the United States for at least two years immediately preceding the application date. Membership is sufficient, prior employment is not required.

·       Must be coming to the U.S. to temporarily work for a bona fide nonprofit religious organization.

There are three classes of religious workers - ministers, professionals and other workers in religious vocations.

Ministers are people authorized by a recognized religious denomination to conduct religious worship services and to perform other duties usually performed by authorized members of the clergy. It does not include lay persons who participate in services. A minister must be ordained to conduct religious worship and perform other duties performed by an ordained pastor/clergyman.

Professionals are those working in a religious vocation or occupation for which the minimum of a Bachelor’s degree (or foreign equivalent) is required. A religious occupation is an activity which relates to traditional religious functions such as liturgical workers, religious instructors or counselors. It does not include support staff such as clerks or maintenance workers. The U.S.C.I.S. is now requiring that a person in a religious occupation must also have formal training established by the governing body of the denomination.

A religious vocation is a calling to religious life with a demonstrable commitment to that life such as taking vows. Typical in this category would be monks, nuns and religious brothers and sisters.

The religious worker must work for a bona fide, non-profit, religious organization or a bona fide organization which is affiliated with the religious denomination. A bona fide, non-profit, religious organization is defined as “an Internal Revenue Code 501(c)(3) organization as it relates to religious organizations”. The organization does not need to have ever sought tax exempt status, but need only prove that it is eligible for such status. A bona fide organization which is affiliated with a religious denomination is one closely associated with the religious denomination. It must also be eligible for tax exempt status under the Internal Revenue Code.

A religious denomination is defined as defined as "a religious group or community of believers having some form of ecclesiastical government, a creed or statement of faith, some form of worship, a formal or informal code of doctrine and discipline, religious services and ceremonies, established places or religious worship, religious congregations, or comparable indication of a bona fide religious denomination."

If an applicant is outside the U.S., he or she can apply for an R-1 visa without prior USCIS approval.   The applicant can go to the appropriate consulate and present the required evidence and be issued the visa on the spot.

If a person is in the U.S. and wishes to change from one nonimmigrant status to R-1 status, an application must be made with the USCIS.  This is done by submitting Form

I-129 and R Supplement along with supporting documents showing eligibility for the category.  Also, extensions of stay in R-1 status are made on this form.

The petition packet must include evidence that the petitioner is a qualifying religious organization. Normally, the petitioner will submit a copy of the letter form the Internal Revenue Service recognizing their 501(c)(3) tax exempt status. Organizations who have not sought tax exempt status will have to submit documents to show that it is eligible for tax exempt status under Internal Revenue Code Section 501(c)(3). If the alien is to work with an affiliated organization, the employer letter must show the affiliation, and the application must include evidence of the organization’s tax exempt status.

The petitioner must also submit a detailed letter which explains that it is a qualifying religious organization; describes how the alien meets all of the requirements for R-1 religious worker status; and contains a list of the job duties to be performed. The letter should also include details about how the religious worker will be paid and evidence confirming the petitioner’s ability to pay should be submitted with the petition packet.

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

Spouses and children of R-1 nonimmigrant and classified as R-2. They are not permitted to work unless they have their own work 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 U.S. In most cases where the work is done in the U.S., the person has been in the U.S. 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 Form I-129 and R supplement.

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.

As noted above, the R-1 visa category has been the source of considerable tension recently. Immigration adjudicators have been interpreting immigration regulations to require that a religious organization must be classified as a church under IRC § 170(b)(1)(A)(i).  This trend was first seen in Administrative Appeals Office (AAO) decisions in 2000, as reported by American Immigration Lawyers Association (AILA) members.  Similar problems then began to show up at USCIS service centers.  If a religious organization could not demonstrate that it was a church, the petition was denied.

In response to complaints regarding the ‘church’ classification issue, the White House held a meeting on December 9, 2003 with several religious organizations.  White House representatives and the CIS General Counsel’s office agreed that immigration regulations were being misinterpreted by adjudicators.  On December 17, 2003, USCIS Associate Director William R. Yates issued a memorandum that made an attempt to rectify the situation.  The memo states that a religious organization classified as a church under the IRC is only one method of demonstrating that the petitioner is a qualifying religious organization.  The memo further states that organizations other than churches can be considered qualifying organizations if it can be demonstrated that their tax exemption is due to religious factors and that the organizations are “organized for religious purposes and operate under the principles of a particular faith, rather than solely for education, charitable, scientific and other 501(c)(3) qualifying factors.”

An additional development is an Administrative Appeals Office (AAO) decision dated April 20, 2004 that reversed a Nebraska Service Center (NSC) decision denying a special immigrant religious worker petition (I-360).  While the decision affected a religious immigrant worker, the decision may positively affect decisions for religious nonimmigrant workers (R-1) workers.  In its decision, the AAO pointed out that the NSC was incorrect in its decision to deny the petition because of a lack of evidence establishing that the organization was a “bona fide religious organization as recognized by the IRS” as the petitioner had submitted a second IRS letter that explicitly stated that the petitioner was a religious organization.  The AAO also drew attention to portions of the IRS Publication 1828 that were submitted by the petitioner on appeal that pointed out that the IRS does recognize religious organizations that are not churches that may be tax-exempt under 501(c)(3).  The AAO stated, “Therefore, the petitioner has overcome the finding of the [NSC] director that the petitioner is not a bona fide nonprofit religious organization.”  The AAO concluded that the NSC’s determination that “only churches qualify as religious organizations is overly broad and is, therefore, withdrawn.”