R visas may be issued to religious workers seeking to temporarily enter the U.S. to pursue work in their field. On Nov. 21, 2008, USCIS released a final rule that made substantial changes to the R-1 religious worker program. The rule was mandated by Congress when it extended the special immigrant religious worker categories for non-ministers that expired on Oct. 1, 2008. The new rule is designed to address various concerns regarding fraud and also to clarify various issues that have arisen over the years with the R-1 program.
The rule also instituted site inspections by the USCIS for all sponsoring organizations. Site inspections are valid for a period of five years. At an inspection, USCIS may tour the facilities, interview organization officials and review organization records relating to the organization's compliance with immigration laws and regulations. The 2008 rule for the first time addresses whether or not an R-1 visa is considered a dual intent visa. The rule does not explicitly deem R-1 visas to be dual intent visas, it does state that a person in R-1 status may not be denied an extension of status due to the filing of a green card petition.
To qualify for an R visa, the applicant must be
- A minister,
- A person working in a professional capacity in a religious occupation or vocation, or
- A person who works for a religious organization or an affiliate in a religious occupation who has been a member of the religious group for at least the two years immediately preceding the application.
- The applicant must be a member of the religious denomination for at least two years immediately preceding the time of application for admission and be coming to work at least part time.
A religious denomination is defined as a religious group that have some form of ecclesiastical government, a common belief or statement of faith, some form of worship, a set of religious guidelines, religious services and ceremonies, established places for worship, religious congregations or comparable evidence of a bona fide religious organization. USCIS has noted that a denomination does not mean that there must be a governing hierarchy. Rather, the focus is on "the commonality of the faith and internal organization of the denomination." An individual church that shares a common creed with other churches, but which does not share a common organizational structure or governing hierarchy can still satisfy the "ecclesiastical government" requirement by submitting a description of its own internal governing or organizational structure.
A religious occupation is an activity relating to "traditional religious functions." The work must be recognized as a religious occupation within the denomination and the duties must be primarily related to, and must clearly involve inculcating or carrying out the religious creed and beliefs of the denomination. The 2008 R-1 rule requires religious organizations to submit evidence identifying religious occupations that are specific to that denomination and that the foreigner's proposed duties meet the religious occupation's requirements.
A religious vocation is defined under the 2008 R-1 rule as "a formal lifetime commitment, through vows, investitures, ceremonies or similar indicia, to a religious way of life." Examples include nuns, monks, religious brothers and sisters.
The 2008 R-1 rule adds a new definition of "minister." Under the rule, a minister is "an individual authorized by a religious denomination, and fully trained according to the denomination's standards, to conduct religious worship and to perform other duties as usually performed by authorized members of the clergy of that denomination." Lay preachers are not included in this definition.
The new rule now requires all R-1 applicants, whether applying for a change of status in the U.S. or for consular processing abroad, to apply to the USCIS for grant of this nonimmigrant status. As of November 2008, all R-1 and immigrant religious worker petitions are filed at the USCIS California Service Center. Premium processing is not available for R visas unless the sponsoring organization was previously inspected by USCIS and deemed to be a bona fide religious organization.
The maximum stay in R-1 status is five 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 nonimmigrants and classified as R-2. They are not permitted to work unless they have their own work visas. R-2 status is granted for the same period of time and subject to the same time limits as the R-1 regardless of the time the spouse and children may have spent in the U.S. in R-2 status.
LABOR CERTIFICATION PROCESS
The labor certification process requires an employer to conduct a test of the labor market in the geographic area of intended permanent employment of a foreign national. If the employer is unable to identify qualified U.S. workers (defined as U.S. citizens or green card holders), the employer applies to the U.S. Department of Labor (DOL) to request certification of a labor shortage in the job position for which the test of the labor market was conducted. The DOL processes labor certification in about nine to 12 months. If the labor certification is granted, i.e., the DOL certifies a shortage in the geographic area of intended employment, the employer is then permitted to file an immigrant visa petition (I-140) for the foreign national. In employment-based immigration, the availability of green cards is determined by the skill and education levels of the required job position. The ability to file a green card application depends on the foreign national's country of origin, skill/education level and the date on which the labor certification was filed with the DOL, this is also known as the "priority date."
The United States Department of State, through the Bureau of Consular Affairs, publishes the monthly "Visa Bulletin." The Visa Bulletin lists the availability of immigrant visa numbers during the month of publication, and is intended as a guide for those who need to know if visas are immediately available for individuals in particular categories.
Section 201 of the Immigration and Nationality Act (INA) establishes limits on family and employment based immigration. While there is no limit on the number of spouses and minor children of U.S. citizens, there is an annual limit on the other categories of family based immigrants of 226,000. Section 202 of the Immigration and Nationality Act states that the total number of visas that may be issued, known as charged, to specific countries may not exceed seven percent of the total number of family or employment based immigration on a worldwide basis. It is this limit on the number of visas that may be received by a country's nationals that creates the visa backlogs for some countries.
The Visa Bulletin indicates the availability of visas for family and employment-based preference categories, and separately lists countries that may have exceeded their allocation of visas. Countries that have exceeded their allocation of visas are "oversubscribed" and individuals from those countries must wait before a visa can be issued.
If a visa category is "current" then visas are immediately available for issuance by the consulate, and tables on the Visa Bulletin indicate this fact with a "C" under the appropriate chargeability area. If a category is oversubscribed, tables on the Visa Bulletin indicate this fact with a date, such as "22SEP02" under the appropriate chargeability area. When a category is oversubscribed, only individuals with a "priority date" earlier than the date listed on the Visa Bulletin may be issued visas. The priority date is the date on which USCIS received the application, either an I-130 application for a foreign national relative or an I-140 application for an immigrant worker (or the filing of a labor certification if that is a component of the green card petition process).
A priority date is assigned when an individual, who is qualified for the category of immigration they request, files a complete application. Individuals whose priority date is after the one listed in the tables must wait until their priority date is included in a table published in the monthly Visa Bulletin. Contrary to what one might believe, priority dates do not always advance one month at a time and depend upon the number of applications filed around the time of an individual's application. A surge in applications for a particular chargeability area at the time of filing could lead to priority dates advancing only one week per month. Similarly, a sharp drop in applications for a particular chargeability area when the application was filed might result in priority dates that advance months at a time.
To schedule an initial consultation with a Memphis Immigration attorney, call (901) 692-5732 or with a New York City Immigration Attorney, call (646) 380-0474 or contact Witty Law Group, PLLC.
