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This article is general and is not intended to substitute for professional advice in specific situations.
Lawful Permanent Resident status is available for those special immigrant religious workers who are currently in lawful status in the USA. H.R. 4068, the Religious Workers Act of 2000 (Public Law No. 106-409) was signed on 10/31/00. This law extends the special immigrant religious worker visa program until September 30, 2003. Tom Youngjohn can handle the I-360 petition for a foreign national who, for the past 2 years has been a member of a religious denomination which has a bona fide nonprofit, religious organization in the U.S.; assuming that the foreign national has been carrying on the vocation, professional work, or other work described below, continuously for the past 2 years; and who seeks to reside in the USA to work solely as a religious worker of that denomination. Among other things, the petition should be filed with: a letter from the authorized official of the religious organization establishing that the proposed services and foreign national qualifies; a letter from the authorized official of the religious organization attesting to the foreign national's membership in the religious denomination and explaining, in detail, the person's religious work and all employment during the past 2 years and the proposed employment; and evidence establishing that the religious organization, and any affiliate which will employ the person, is a bona fide nonprofit religious organization in the US and is exempt from taxation under section 501(c)(3) of the Internal Revenue Code of 1986. With these prerequisites, and for a total of $1,500 in attorney's fees, excluding costs and filing fees, Tom Youngjohn can prepare and file Form I-360 special religious immigrant petition.
The criteria for visa classification of an R religious worker are distinct from, but analogous to, the requirements for classification as an I-360 special immigrant. The criteria for an R religious worker are as follows:
(1) The foreign national is a member of a religious denomination having a bona fide nonprofit, religious organization in the United States [see 9 Foreign Affairs Manual ("FAM") 41.58 N5];
(2) The religious denomination and its affiliate, if applicable, are exempt from taxation, or the religious denomination qualifies for tax-exempt status [see 9 FAM 41.58 N6];
(3) The foreign national has been a member of the organization for two years immediately preceding admission [see 9 FAM 41.58 N7] (This is actually the greatest difference from applying for a non-immigrant R-1 and a religious worker immigrant visa. An R-1 merely requires membership in the denomination for the two years preceding the application, but the immigrant visa requires job experience in the religious profession for the two years preceding the application.);
(4) The foreign national is entering the United States solely to carry on the vocation of a minister of that denomination [see 9 FAM 41.58 N8]; or
(5) At the request of the organization, the foreign national is entering the United States to work in a religious vocation or occupation for that denomination [see 9 FAM 41.58 N9] or for an organization affiliated with the denomination [see 9 FAM 41.58 N10], whether in a professional capacity or not; or
(6) The foreign national is the spouse or child of an R-1 nonimmigrant who is accompanying or following to join him or her [see 9 FAM 41.58 N14]; and
(7) The foreign national has resided and been physically present outside the United States for the immediate prior year, except for brief visits for business or pleasure, if he or she has previously spent five years in this classification [see 9 FAM 41.58 N17].
A BONA FIDE NONPROFIT, RELIGIOUS ORGANIZATION IN THE UNITED STATES. Such an organization is one which:
Possesses the elements of a religious denomination specified in 9 FAM 41.58 N5.1 below; and
Is exempt from taxation in accordance with section 501(c) (3) of the Internal Revenue Code of 1986; or
If it has never sought tax exemption, establishes that it would be eligible therefor if it had applied. Government officials may request whatever documentation is required to determine whether an organization qualifies under INA 101(a)(15)(R), including, if necessary, evidence of the organization's assets and methods of operation, and/or the organization's papers of incorporation under applicable state law, in addition to the required proof of its tax-exempt status or eligibility [also see 9 FAM 41.58 N12]. Should doubt exist about the bona fides of a religious organization after the government official considers all the evidence presented, the advisory opinion of the State Department may be sought [see 9 FAM 41.58 N13].
A Religious Denomination will generally be found to have the following elements or comparable indications of its legitimacy:
Some form of ecclesiastical government;
A recognized creed and form of worship;
A formal code of doctrine and discipline;
Religious services and ceremonies;
Established places of religious worship; and
Religious congregations.
A BONA FIDE NONPROFIT RELIGIOUS ORGANIZATION, as described in section
501(c) (3) of the Internal Revenue Code of 1986, must meet the following criteria:
No part of the net earnings of the organization may benefit any private shareholder or individual;
No substantial part of the organization's activities may involve carrying on propaganda or otherwise attempting to influence legislation; and
The organization may not participate or intervene in any political campaign, including publishing or distributing statements, on behalf of (or in opposition to) any candidate for public office.
While INA 101(a)(15)(R) does not specifically require a religious denomination to be exempt from taxation, both INS and Department regulations mandate that the denomination qualify for tax exemption as a test of its nonprofit status. The denomination must either demonstrate that it has been granted tax-exempt status by the Internal Revenue Service in accordance with section 50l(c) (3) of the Internal Revenue Code of 1986, or, if it has never sought such exemption from taxation, that it would be eligible if it had applied [see 9 FAM 41.58 N12.1]. However, in the case of affiliates, it must be clearly established that tax-exempt status has been accorded by the Internal Revenue Service. If tax exemption has not been obtained, regardless of the eligibility for such, the organization would not qualify for status under INA 101(a)(15)(R). [For a discussion of affiliated organizations, see 9 FAM 41.58 N10.]
MINISTERS OF RELIGION. Only individuals authorized by a recognized religious denomination to conduct religious worship and to perform other duties usually performed by authorized members of the clergy of that religion may be classified as ministers of religion. The term does not include lay preachers or other persons not authorized to perform such duties. In all cases, there must be a reasonable connection between the activities performed and the religious calling of a minister. Evidence that a person qualifies as a minister of religion is normally available in the form of official ecclesiastical recognition such as certificates of ordination, licenses, formal letters of conferral, etc.
"Ordination of ministers" chiefly involves the investment of the individual with ministerial or sacerdotal functions, or the conferral of holy orders upon the individual. If the religious denomination does not have formal ordination procedures, other evidence must be presented to show that the individual has authorization to conduct religious worship and perform other services usually performed by members of the clergy.
A "deacon" of any recognized religious denomination may be considered to be a minister of religion when ordination or an equivalent form of authorization has taken place which distinguishes the clerics from the laity and which confers the powers of:
(1) Leading a congregation and preaching;
(2) Administering the sacraments (baptism, communion, etc.) or their equivalents; and
(3) Giving benediction.
"BUDDHIST MONKS," A SPECIAL CASE. The ceremony conferring monkhood status in the Buddhist religion is generally recognized as the equivalent of ordination. Regardless of what Buddha actually taught, a monk's not a monk unless he got paperwork to prove it. Whether or not a Buddhist monk qualifies as a minister of religion pursuant to INA 101(a)(15)(R) depends upon the activities he is seeking to pursue in the United States. While a Buddhist monk is obligated by his religion to study Buddhist scriptures and to practice the teachings of Buddha, there is no requirement that he take an active role in the spiritual guidance of a congregation of his "coreligionists." In order to qualify for R visa status, however, a Buddhist monk must both establish his own qualifications as a minister of religion, and must demonstrate that he is seeking to enter the United States for the sole purpose of conducting religious worship and providing other traditional religious services.
In obtaining R visa status, the foreign national shall present evidence which establishes to the satisfaction of the consular or immigration officer that he or she will be providing services to a bona fide nonprofit, religious organization or its affiliate, and that he or she meets the criteria to perform such services. The evidence to be presented shall consist of the documentation specified below.
EVIDENCE OF TAX EXEMPTION OR ELIGIBILITY FOR TAX-EXEMPT STATUS The foreign national shall present evidence that the religious denomination, or its affiliate, qualifies as a nonprofit religious organization in the form of:
A certificate of tax-exempt status issued by the Internal Revenue Service; or
In the case of a religious denomination which has never sought tax-exempt status, documentation demonstrating that the organization would qualify for tax exemption under section 501(c) (3) of the Internal Revenue Code of 1986 [see 9 FAM 41.58 N5.2] if such status were sought. In all cases involving claimed eligibility for tax exemption, the consular officer must forward all pertinent documentation, along with an evaluation of the evidence presented, to the Department for an advisory opinion [see 9 FAM 41.58 N13].
CERTIFICATION FROM EMPLOYING RELIGIOUS ORGANIZATION. An authorized official of the specific organizational unit of the religious denomination or affiliate which will be employing or engaging the foreign national in the United States should prepare a letter certifying the following:
That, if the foreign national's religious membership was maintained, in whole or in part, outside the United States, the foreign and United States religious organizations belong to the same religious denomination;
That, immediately prior to the application for the nonimmigrant visa or application for admission to the United States, the foreign national has been a member of the religious organization for the required two-year period;
That if the foreign national is a minister, he or she is authorized to conduct religious worship for that denomination and to perform other duties usually performed by authorized members of the clergy of that denomination. The duties to be performed should be described in detail;
The arrangements made for remuneration for services to be rendered by the foreign national, if any, including the amount and source of any salary, a description of any other types of compensation to be received (including housing, food, clothing, and any other benefits to which a monetary value may be affixed), and a statement whether such remuneration shall be in exchange for services rendered;
The name and location of the specific organizational unit of the religious denomination or affiliate for which the foreign national will be providing services within the United States; and
If the foreign national is to work for a bona fide organization which is affiliated with a religious denomination, a description of the nature of the relationship between the affiliate and the religious denomination.
Lawful Permanent Resident status is available for those special immigrant religious workers, currently in lawful status in the USA. Tom Youngjohn can handle the I-360 petition for a foreign national who, for the past 2 years has been a member of a religious denomination which has a bona fide nonprofit, religious organization in the U.S.; assuming that the foreign national has been carrying on the vocation, professional work, or other work described below, continuously for the past 2 years; and who seeks to reside in the USA to work solely as a minister of that denomination. Among other things, the petition should be filed with: a letter from the authorized official of the religious organization establishing that the proposed services and foreign national qualifies; a letter from the authorized official of the religious organization attesting to the foreign national's membership in the religious denomination and explaining, in detail, the person's religious work and all employment during the past 2 years and the proposed employment; and evidence establishing that the religious organization, and any affiliate which will employ the person, is a bona fide nonprofit religious organization in the U.S. and is exempt from taxation under section 501(c)(3) of the Internal Revenue Code of 1986. With these prerequisites, and for a total of $700 in attorney's fees, excluding costs and filing fees, the ALL AMERICAN IMMIGRATION SERVICE can prepare and file your Form I-360 special religious immigrant petition. The $1,500 does not include any translation costs, foreign degree evaluations, or position evaluations, professional copying costs, mailing/delivery costs, etc.
Here is a link to my own personal "wish list" of requested documents. The information contained in this web site is general and is not intended to substitute for professional advice in specific situations.
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