More Restrictions For Our Religious Workers

December 2010 - By Shahzad Ahmed

No one is exempt from the complexities of our immigration laws. Not even the clergy. In fact, the religious worker visas have come under more and more scrutiny over the past few years. And now, the new immigration policy creates a hurdle for them to adjust status in the United States.

Background

The U.S. immigration law permits religious workers, to come to the United States in order, to perform as ministers or in a religious vocation or occupation. With a R-1 visa, the worker can remain in the U.S. for an initial period of 2 and a half years and also extend his or her status for a total of 5 years (though some exceptions apply). During this time, but only after working as a minister or in a religious vocation or occupation, the worker may apply for permanent residency. This application process entails the filing of the petition by the church, temple or mosque, and also the filing of an adjustment of status application.

In the past years, the government has begun regulating the religious institutions even more. For example, the U.S. Department of Homeland Security (DHS) has investigated many temples, churches, and mosques. In fact, a few years ago, the DHS implemented a policy, which requires that when any such institution files a new petition for a religious worker, the DHS must conduct a field investigation of the work place.

Also, in 2008, the government changed its regulations to require that petitioning religious entity actually possess a letter from the IRS confirming its tax exempt status under 501(c)(3) of the Internal Revenue Code. Prior to this law, the employer could show merely that it is 501(c)(3) eligible.

The New Policy

According to the latest United States Citizenship and Immigration Services, effective November 8, 2010, a religious worker seeking to acquire permanent residency, may not file for adjustment of status until after the employer's petition is approved. If an adjustment of status application is filed prior to the approval of the employer's petition, then application will be rejected.

This is a serious departure from the previous policy which permitted filing the application for adjustment of status concurrently with the employer's petition.

The Impact:

The immigration law bars (with a few exceptions) a person from adjusting status unless he or she maintains lawful status all the way through the time of the adjustment. By not being able to file the application concurrently, it will become more difficult for many religious workers to maintain lawful status. Let us take an example where a Hindu temple has sponsored a Pandit from Guyana on a temporary R-1 visa. Then during the Pandit's final year of R-1 status, the Temple files a petition for his permanent employment. Under the new policy, the Pandit may not file his adjustment of status application until the employment petition is first approved. Thus, the Pandit risks going beyond his final year of R-1 status, and he would have to return to Guyana in order to obtain a Permanent Residency visa at the U.S. Consulate in Georgetown. Moreover, if the Pandit has not maintained status, then he may, in some cases, become subject to a three- or ten-year bar upon departing the U.S.

The Conclusion

There is an unfavorable trend in our immigration law toward religious workers. The USCIS' most recent policy against concurrent filings highlights this problem. The lesson for religious workers is to plan for their adjustment of status carefully so that they preserve lawful status in the U.S. The broader lesson all immigrants is that our immigration law, which was once a matter of a simple form and a fee, has now become a complex labyrinth requiring careful planning and professional guidance.