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.
How does one qualify as a special immigrant religious worker?
To qualify as an R-1 nonimmigrant religious worker, the alien:
Must be coming to the U.S. to temporarily work as:
A minister of religion; or,
A person working in a professional capacity in a
religious vocation or occupation; or,
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.
Qualifying Religious Organization
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.
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.
What evidence needs to
accompany an R visa application?
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
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.
How long can I have R status?
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
What visa status would the
spouse and children of an R-1 nonimmigrant receive?
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.
Are there any differences
between the special immigrant religious worker category for green card
applicants and R-1 non-immigrant 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
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
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
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.”