34.5 Nonimmigrant Aliens Employed in Religious Occupations (Revised 1/15/2009; AD08-09)

(a) General .

Only a U.S. employer may file a Form I-129, Petition for Nonimmigrant Worker, on behalf of an alien requesting R-1 religious worker nonimmigrant classification; an alien cannot self-petition for R-1 religious worker nonimmigrant classification. Additionally, USCIS requires the filing and approval of a Form I-129, Petition for Nonimmigrant Worker, for all aliens, including those outside of the United States, seeking R-1 religious worker nonimmigrant classification. (Prior to publication of the final rule, nonimmigrants could apply for an R-1 nonimmigrant visa at a consulate or a port of entry without the need for an approved R-1 petition beforehand.).

Effective November 26, 2008, nonimmigrant religious workers may no longer be issued R-1 nonimmigrant visas or R-1 status unless they are the beneficiary of an approved R-1 nonimmigrant visa petition. This requirement also applies to visa exempt religious workers, e.g., Canadians. See 8 CFR 214.2(r)(4)(i) , which states in part that, [i]f visa exempt, the alien must present original documentation of the petition approval.” Religious workers in possession of valid R-1 nonimmigrant visas issued on or before November 25, 2008, whether based on an approved R-1 petition or not, may be admitted for the duration of the visa’s validity, provided they are otherwise admissible. All subsequent R-1 visa issuance must be in accordance with the November 26, 2008 final rule. Similarly, visa-exempt religious workers with current Form I-94s valid for multiple entries and granted on or before November 25, 2008 without an approved R-1 petition may be admitted for the duration of the I-94’s validity, provided they are otherwise admissible, if they are traveling to and from the contiguous U.S. territories for less than 30 days. However, if the visa-exempt religious worker is traveling to and from the contiguous U.S. territories for more than 30 days or beyond the contiguous U.S. territories, the religious worker will be required to present evidence that he or she is the beneficiary of an approved I-129 R-1 nonimmigrant petition in order to be admitted to the United States.

(b) Definitions .

There are definitions that apply to both special immigrant religious worker petitions and nonimmigrant R-1 religious worker petitions. Detailed explanations of the definitions for special immigrant religious workers may be found at 8 CFR 204.5(m) . Detailed explanations of the definitions for nonimmigrant R-1 religious workers may be found at 8 CFR 214.2(r) . Detailed explanations regarding special immigrant religious worker petitions are described in the corresponding AFM chapter 22.3(b) .

· Bona Fide Nonprofit Religious Organization in the United States

· Bona Fide Organization That Is Affiliated with the Religious Denomination

· Religious Denomination

· Denominational Membership

· Minister

· Religious Occupation

· Religious Vocation

· Religious Worker

· Tax Exempt Organization

Evidence that must be submitted to qualify for R-1 religious worker classification refers to these terms as defined in the regulations. Additionally, the ways in which a petitioning organization can establish its tax exempt status for purposes of an R-1 filing, and the documentation required, are discussed in AFM chapter 22.3(b)(5) .

(c) Jurisdiction and procedures for obtaining R-1 status .

An employer in the United States seeking to employ a religious worker, by initial petition or by change of status, must file an I-129 petition in accordance with the form instructions.

(d) Compensation Requirements .

An R-1 religious worker nonimmigrant must receive salaried or non-salaried compensation. In limited instances, self support may qualify as compensation. The Attestation section below lists the evidence that the prospective employer must submit regarding compensation.

· Salaried means receiving traditional pay such as a paycheck.

· Non-salaried means receiving support such as room, board, medical care, or transportation instead of a paycheck or use of personal savings.

· Self-supporting means that the position the alien will hold is part of an established program for temporary, uncompensated missionary work, which is part of a broader international program of missionary work sponsored by the denomination.

(e) Attestation Requirements .

To qualify for R-1 classification, the prospective U.S. employer must complete, sign, and date the Employer Attestation that is included on the Form I-129 Q-1 and R-1 Classification Supplement. See Appendix 34-1 . The authorizing official must sign the attestation, certifying under penalty of perjury that the attestation is true and correct.

Note:

The Attestation and Denomination Certification may serve as a checklist for adjudicators as they adjudicate nonimmigrant religious worker petitions.

A nonimmigrant religious worker may work for more than one bona fide religious organization. When the alien works for more than one employer, each bona fide religious organization must submit Form I-129 and R Classification Supplement and R-1 Employer Attestation with the appropriate documentation.

The prospective U.S. employer must specifically attest to the following:

· The prospective employer’s status as a:

- Bona fide non-profit organization; or

- Bona fide organization that is affiliated with a religious denomination and is exempt from taxation.

· The number of members of the prospective employer’s organization.

· The number of employees who work at the same location where the alien will be employed and a summary of those employees’ responsibilities.

· The number of religious workers holding special immigration religious worker status or R nonimmigrant visa status currently employed or employed within the past 5 years by the prospective employer’s organization.

· The number of special immigrant religious worker and R visa petitions and applications filed by or on behalf of any religious workers for employment by the prospective employer in the past five years.

· The title of the position offered to the beneficiary.

· The beneficiary will:

- Receive salaried or non-salaried compensation from the prospective employer and details of such compensation; or

- Provide self-support.

· A detailed description of the alien’s proposed daily duties.

· That the beneficiary will be employed at least 20 hours per week.

· The specific location(s) of the proposed employment.

· The beneficiary is qualified to perform the duties of the offered position.

· The beneficiary’s membership in the denomination for at least 2 years.

· That the beneficiary will not be engaged in secular employment.

· The prospective employer’s obligation to notify USCIS within 14 days of any changes in the alien’s employment including:

- Working fewer than the required number of hours; or

- Having been released or otherwise terminated from employment before the end of the authorized stay in R-1 status.

(f) Nonimmigrant intent .

A religious worker classified under section 101(a)(15)(R) of the Act shall maintain an intention to depart the United States upon the expiration or termination of R-1 or R-2 status. However, a nonimmigrant petition, application for initial admission, change of status, or extension of stay in R classification may not be denied solely on the basis of a filed or an approved request for permanent labor certification or immigrant visa preference petition.

(g) Initial Evidence Related to the Petitioner’s Tax Exempt Status.

This required evidence is discussed in AFM chapter 22.3(b)(5) and applies to I-360 special immigrant religious worker petitions and R-1 nonimmigrant religious worker petitions.

(h) Initial Evidence Related to Compensation .

The prospective U.S. employer must submit verifiable evidence of compensation or self-support.

· When the beneficiary will receive salaried or non-salaried compensation, the prospective employer may submit:

– Past evidence of compensation for similar positions;

– Budgets showing monies set aside for salaries, leases, etc.;

– Documentation that food, housing, medical care, or transportation will be provided; and

– IRS documentation of compensation must be submitted, if available; however, if IRS documentation is unavailable, the prospective employer must explain why it is unavailable and submit comparable verifiable documentation.

· If the beneficiary will be self-supporting, the petitioner must submit documentation establishing that the position the alien will hold is part of an established program for temporary, uncompensated missionary work, which is part of a broader international program of missionary work sponsored by the denomination.

An established program for temporary, uncompensated work is defined to be a missionary program in which:

- Foreign workers, whether compensated or uncompensated, have previously participated in R-1 status;

- Missionary workers are traditionally uncompensated;

- The organization provides formal training for missionaries; and

- Participation in such missionary work is an established element of religious development in that denomination.

The petitioner must submit evidence demonstrating:

- That the organization has an established program for temporary, uncompensated missionary work;

- That the denomination maintains missionary programs both in the United states and abroad;

- The religious worker’s acceptance into the missionary program;

- The religious duties and responsibilities associated with the traditionally uncompensated missionary work; and

- Copies of the beneficiary’s bank records, budgets documenting the sources of self-support (including personal or family savings, room and board with host families in the United States, donations from the denomination’s churches), or other verifiable evidence acceptable to USCIS.

(i) Initial Evidence Related to the Beneficiary .

Evidence must be submitted to establish that the beneficiary has been a member of the same religious denomination as the petitioning U.S. religious organization for at least the two years immediately preceding the filing of a petition requesting R-1 religious worker nonimmigrant classification.

Additionally, petitions requesting an extension of stay for an R-1 religious worker must include evidence of salaried or non-salaried compensation or self-support if the alien was uncompensated as follows:

- If the beneficiary received salaried compensation, the prospective U.S. employer must submit IRS documentation that the alien received a salary, such as an IRS Form W-2 or certified copies of income tax returns, reflecting such work and compensation for the preceding two years.

- If the beneficiary received non-salaried compensation, the prospective U.S. employer must submit, if available, IRS documentation of the non-salaried compensation. If IRS documentation is unavailable, the prospective employer must explain why and provide verifiable evidence of all financial support. The evidence may include stipends, room, and board. The evidence may also include a description of the location where the beneficiary lived, a lease to establish where the beneficiary lived, or other verifiable documentation acceptable to USCIS.

- If the beneficiary was uncompensated but provided for his or her own support and for any dependents, the prospective employer must show how support was maintained by submitting documents such as audited financial statements, financial institution records, brokerage account statements, trust documents signed by an attorney, or other verifiable evidence acceptable to USCIS.

(j) Initial Evidence Related to a Minister .

If filing a petition on behalf of a minister, the prospective U.S. employer must submit the following additional initial evidence:

· A copy of the beneficiary’s certificate of ordination or similar documents reflecting acceptance of the alien’s qualifications as a minister in the religious denomination; and

· Documents reflecting:

- Acceptance of the alien’s qualifications as a minister in the religious denomination;

- The beneficiary’s completion in any course of prescribed theological education at an accredited theological institution normally required or recognized by that religious denomination, including transcripts, curriculum, and documentation that establishes that the theological institution is accredited by the denomination.

NOTE:

The certificate of ordination must generally be accompanied by documentation reflecting acceptance of the beneficiary’s qualifications as a minister in the religious denomination and evidence that the educational institution is accredited by the denomination. If, however, the denomination operates under specific laws and regulations regarding the accreditation of a theological institution and the issuance of ordination certificate, a copy of such laws and regulations may be attached to the certificate and be deemed sufficient.

· For denominations that do not require a prescribed theological education, the following evidence should be submitted:

- The denomination’s requirements for ordination to minister;

- The duties allowed to be performed by virtue of ordination;

- The denomination’s levels of ordination, if any; and

- Documentation to establish the alien’s completion of the denomination’s requirements for ordination.

(k) Verification of Evidence .

USCIS may verify the submitted evidence through any means that USCIS determines as appropriate, up to and including an on-site inspection. If USCIS decides to conduct a pre-approval on-site inspection, satisfactory completion of the inspection will be a condition for approval of any petition. The inspection may include:

· A tour of the organization’s facilities and, if appropriate, the organization’s headquarters or satellite locations;

· An interview with the organization’s officials;

· A review of the organization’s records related to compliance with immigration laws and regulations; or

· A visit to the locations where the alien will work or live.

(l) Admission/Change of Status and Time Limit Requirements .

· If otherwise admissible, an alien may be admitted as an R-1 nonimmigrant or change status to R-1 nonimmigrant classification for an initial period of up to 30 months from date of initial admission.

Extension of stay for an alien whose R-1 nonimmigrant status was granted on or before November 25, 2008 :

An I-129 petition requesting an extension of stay in R-1 status for a religious worker who was admitted or granted a change of status to an R-1 prior to the rule’s effective date may be approved for the requested period of up to 30 months or for the remaining period in R-1 status within the statutory maximum of five years but not to exceed 30 months, whichever is shorter. The petition must be accompanied by documentation such as Form I-94 showing the period of time the alien spent in the ’’’’U.S.’’ in R-1 status so that such period would be deducted from the maximum allowable time in determining the validity period of the extension. Evidence of work and compensation, as required under 8 CFR 214.2(r)(12)(i), must also be submitted.

Time limit on filing an I-129 R-1 petition :

Although the Form I-129 instructions indicate that a Form I-129 petition may not generally be filed more than six months prior to the date employment is scheduled to begin, an R-1 nonimmigrant petition may be accepted far in advance of the I-94 expiration date in order to accommodate those religious workers who have upcoming travel plans but do not have an approved R-1 nonimmigrant petition. As mentioned at the beginning of this chapter in the General section, an approved petition is now required in order for an individual to be readmitted into the United States in R-1 status and/or apply for an R-1 nonimmigrant visa stamp . However, as a point of clarification, visa exempt religious workers in possession of a valid Form I-94 and who are traveling to a contiguous U.S. territory for 30 days or less, may continue using that I-94 for the duration of the overall admission without the need to have an R-1 petition filed on their behalf. If an extension is later sought, an R-1 petition must be filed to comply with the November 26, 2008, final rule. For visa exempt religious workers who are traveling to a non-contiguous territor y, they cannot be readmitted to the United States unless an R-1 petition has been approved on their behalf. To accommodate visa exempt religious workers affected by the final rule who anticipate the need to travel to a noncontiguous territory, and to ensure compliance with the final rule, USCIS will accept the R-1 petition with a request for an extension, regardless of the I-94 expiration date.

· The spouse and unmarried children under the age of 21 of an R-1 nonimmigrant may request R-2 nonimmigrant classification in order to accompany or follow to join a principal R-1 nonimmigrant, subject to the following conditions:

- R-2 status is granted for the same period of time and subject to the same limits as the principal R-1 nonimmigrant, regardless of the time such spouse and children may have spent in the United States in R-2 status;

- Neither the spouse nor children may accept employment while in the United States in R-2 status; and

- The primary purpose of the spouse or children coming to the United States in R-2 status must be to join or accompany the R-1 nonimmigrant.

(m) Limitation on total stay .

An alien who has spent 5 years in the United States in R-1 status may not be readmitted to or receive an extension of stay in the United States under the R visa classification unless the alien has resided abroad and has been physically present outside the United States for the immediate prior year, except for R-1 nonimmigrants who:

· Did not reside continually in the United States and whose employment in the United States was seasonal or intermittent or was for an aggregate of 6 months or less per year.

· Reside abroad and regularly commute to the United States to engage in part-time employment.

To qualify for this exception, the petitioner and the alien must provide clear and convincing proof that the alien qualifies for such an exception. Such proof shall consist of evidence such as:

· Arrival and departure records;

· Transcripts of processed income tax returns; and

· Records of employment abroad.

(n) Closing Actions .

· Approval . The adjudicator indicates in the appropriate section of the petition, the classification, number of beneficiaries (which for R-1 petitions will always be 1), and the validity dates. The adjudicator also completes the block entitled “Classification Approved” and indicates whether the petition is approved for:

· Consulate, Port of entry, or Pre-Flight Inspection Notification;

· Extension of Stay; or

· Change of Status and Extension of Stay.

Finally, using a properly issued approval stamp and security ink, the adjudicator stamps “approved” in the Action Block on the petition and signs the form on a line over the stamp number and below the date of the approval.

For petitions requesting notification to a consulate, a copy of the petition, when provided by the petitioner, is sent to the Department of State via the Kentucky Consular Center (KCC).

If the petitioner requests notification to a port of entry or pre-flight inspection, a copy of the petition, when provided by the petitioner, is sent to the requested location.

· Denial . Using a properly issued denial stamp and security ink, the adjudicator stamps “denied” in the Action Block on the petition and signs the form on a line over the stamp number and below the date of the denial. If the petition is denied, the petitioner shall be informed of the reasons for denial and of the right to appeal. The denial may be appealed to the Administrative Appeals Office.

(o) Precedent Decisions .

There have been no precedent decisions published regarding the R nonimmigrant classification. Precedent decisions involving Special Immigrants employed in religious occupations may provide some guidance. See AFM chapter 22.3(b)(12).