The laws granting benefits to religious workers were written liberally with the intent of easing the transfer of foreign ministers and religious workers to the U.S. Priests, Ministers, Clergy, and other non-ordained religious workers may qualify for benefits either as a nonimmigrant R-1 religious worker visa or as an EB-4 Special Immigrant lawful permanent resident.
To qualify for the R-1 visa, you must have been a member of a recognized non-profit religious organization for at least the last two years immediately preceding the petition. This does not mean that you have to have worked for the organization for the last two years, only that you were a member of the religious organization during this time. You don’t need any formal education or even an ordination provided you can perform the duties of the position.
The offered position must be in a religious capacity and if the religious denomination ordinarily pays its religious workers employed in similar positions, must be a paid position. On the other hand, if the religion normally prohibits the receipt of income by its leaders, such as Buddhist monks, the lack of salary can be justified and waived. The religious worker must be compensated in the form of monetary compensation and optionally, non-monetary compensation, such as food and housing. This compensation must be sufficient so that the religious worker does not need to secure a second job.
The duties of the position must primarily relate to traditional religious functions. This means duties that involve carrying out the religious creed and beliefs of the religious denomination. As such, a worker who will be employed in a position that is primarily administrative or support, such as maintenance workers, clerical employees, fund raisers, etc. will not qualify for an R-1 non-immigrant or EB-4 Special Immigrant visa. However, limited administrative duties that are incidental to the religious worker's main religious functions are permissible. Religious study or training for religious work are also not considered to be a religious occupation.
The petitioner must be recognized as a nonprofit religious organization and must submit a currently valid determination letter from the Internal Revenue Service (IRS). An R-1 visa holder can remain in the U.S. for up to five years (an initial period of 2.5 years with an option to extend the period of stay for another 2.5 years). If the religious worker has been continuously employed in a religious capacity for the same religious denomination for the last two years, the worker can apply for permanent residence through a petition filed by a nonprofit religious organization as an EB-4 Special Immigrant.
Over the past few years the Government Accountability Office (GAO), the US Consulates overseas, and the USCIS have determined that the R visa category is susceptible to fraud. The USCIS has found that as many as one-third of the cases filed under the R visa category are fraudulent. Because of the perceived ease in obtaining an R-1 visa, the USCIS carefully scrutinizes the petitions. To battle this increase in fraud in the category, the USCIS instituted new guidelines in 2007 to make changes to the Religious Worker Visa Classifications to help weed out fraud. Among these changes is the requirement that the USCIS conduct an investigation of the U.S.-based religious organization before or after approving a religious worker petition. This entails a site inspection where an investigator of the Department of Homeland Security (DHS) will visit the premises of the organization, question its directors, and determine if the petitioner is a valid and recognized religious organization and whether there is a valid job for the petitioned worker. Issues such as the size of the organization, the building in which it is housed, the assets of the organization, and the need for a religious worker are all considered to determine if the job offer is legitimate.
You are not permitted to work outside of your position with the religious organization. You may work for multiple religious organizations that a members of the same religious denomination but each organization must file a separate petition in order to work for multiple religious organizations.
At the Law Offices Sturman & Associates we have filed numerous R visa applications and we have over 40 years of experience in this field. Please contact us for a consultation if you are a religious worker or religious organization interested in securing a visa for a religious worker.