Religious Workers

Introduction

Congress has passed special laws which open the way for religious workers to enter the United States as nonimmigrants and immigrants. Persons who meet the legal requirements are allowed to come to the United States on R-1 visas and often are later able to obtain permanent residence. These special provisions are not only for ministers but other religious workers as well.
This set of questions and answers will answer frequently asked questions. However, this is general information and not intended to be regarded as legal advice, as each situation can be varied and complicated. If after reading this, you feel that you are qualified as a religious worker, you should contact our office, or the closest Immigration Service office, U.S. Embassy, or U.S. Consulate.

Q: Who qualifies for R-1 (Religious worker) status?
A: A nonimmigrant religious worker is a person who:

1. Has been a member of a religious denomination;
2. For the two years immediately preceding an application;
3. Will perform work in the United States as: a.) A minister; b.) In a professional capacity; c.) In a religious vocational occupation; d.) To work in a religious occupation; or e.) To work in a religious vocation; and
4. For the same denomination.

Q: What qualifies as a religious denomination?
A: Most generally known religious denominations will qualify. The law requires that a religious denomination normally will have: 1.) An ecclesiastical government; 2.) A recognized creed and form of worship; 3.) A formal code of doctrine and discipline; 4.) Religious services and ceremonies; 5.) Established places of worship; and 6.) Religious congregations.

Q: Does an interdenominational religious organization qualify as a "denomination?"
A: Such organizations will be treated as a religious denomination if they are tax exempt under Section 501(c)(3) of the Internal Revenue Code.

Q: Do independent churches qualify as a religious denomination?
A: This is a gray area. There are two possible arguments that may be successful for relating to independent churches:

1. Argue the similarity of the doctrines; or
2. In the case of protestant churches, argue that all are part of the same denomination, which is the "Protestant" denomination.

Q: Can a person who has been a member of one protestant denomination obtain an R-1 with another protestant denomination?
A: Again, as mentioned in the previous answer, this is a gray area where there is no specific answer.

Q: What are the categories of religious work?
A: There are four categories of religious work:

1. Ministers-this includes ministers, Christian science practitioners and nurses, commissioned officers of the Salvation Army and Buddhist monks.
2. Professional workers-this includes persons who are performing a religious vocation or occupation for which a bachelor's degree or foreign equivalent is required.
3. Religious occupation-this includes activities which relate to "traditional religious functions."
4. Religious vocation-a calling to religious life evidenced by the taking of vows.

Q: How does a person qualify as a minister?
A: The person must be authorized by a religious denomination to conduct religious worship and perform other duties usually performed by members of the clergy. Evidence of such qualifications normally consists of certificates of ordination, licenses, formal letters of conferral, etc.

Q: Can a person without a degree or religious training qualify for R-1 classification?
A: It is very difficult for a person without religious education or training to qualify for R-1 status. While it is not impossible, it is very important that the person be able to establish how they have obtained the qualification to work as a minister or other religious worker classification.

Q: For those denominations that license ministers, will a license qualify a person for R-1 status as a "minister?"
A: The Immigration Service normally looks for "ordination" to qualify a person as minister. However, if a licensed minister can perform all or most of the duties of an ordained minister, such as teaching, preaching, administering sacraments, etc., they will probably qualify.

Q: Who qualifies as a professional worker?
A: An applicant for this classification must: 1.) Possess a minimum of a Bachelor's degree; 2.) Engage in an activity which requires the minimum of a degree; and 3.) Engage in an activity which qualifies as a religious vocation or occupation. If the person does not have a degree, they are not precluded from qualifying under the religious vocation or religious occupation criteria.

Q: What qualifies as a religious occupation?
A: A religious occupation is defined as an activity which relates to a "traditional religious function." Examples given by regulation include liturgical worker, religious instructors, religious counselors, cantors, catechists, workers in religious hospitals or religious healthcare facilities, missionaries, religious translators, and religious broadcasters. The regulations specifically exclude janitors, maintenance workers, clerks, fundraisers, persons involved solely in the solicitation of donations, or similar occupations.

Q: What about music directors, music ministers, Christian education directors and other religious occupations?
A: These occupations are "gray area" occupations. They do not fit in the specific list of examples included in the regulations nor are they, by any stretch of imagination, in the occupations excluded by the regulations. Such occupations will be looked at on a case-by-case basis. To be quite frank, the decision in this matter often rests on the individual officer who will make the decision. Some are more lenient and understanding than others.

Q: What is a religious vocation?
A: A religious vocation is a calling to religious life which is usually evidenced by the taking of vows. Examples include nuns, monks, and religious brothers and sisters. A person who has taken vows or the equivalent and has made a life-long commitment to a religion is presumed to be engaged in activities related to a traditional religious function. Persons who have made such vows may even engage in activities which would be excluded from a religious occupation such as janitor, maintenance worker, clerks, etc. A religious vocation places emphasis on the person's status within the religious organization rather than the duties actually being performed.

Q: Can persons who are in a religious vocation do clerical or other "non-religious" work?
A: Yes.

Q: Is previous experience necessary to qualify for R-1 status?
A: No previous experience is necessary for R-1 status. Only membership for the two-year period preceding the application for nonimmigrant R-1 status is necessary. Previous experience is only required when attempting to immigrate to the United States (please see below).

Q: Can a person already in the United States apply for a change of status to R-1?
A: The general rule is yes. However, in order for such change of status to be approved, the Citizenship and Immigration Service may look at factors to determine whether the person had a "preconceived intent" when they came to the United States.

Q: What is a "preconceived intent?"
A: A "preconceived intent to circumvent the normal consular procedure" means that a person had the intent, when they entered the United States, to do some activity which was more appropriate to another type of visa which they should have obtained prior to coming to the United States. For example, a B-2 visitor should be coming to act as a tourist, visit relatives, sightsee, etc. If, however, they have the intent to work in the United States as a religious worker, they should have obtained an R-1 religious worker visa prior to coming to the United States. If the Immigration Service determines that a visitor had such a preconceived intent, they can deny the change of status. There is a presumption that a person, who enters the United States and applies for a change of status to another visa classification within 30 days of entry, had the intention of applying for that visa all along.

Q: What is the process to obtain R-1 status while in the United States?
A: A person in the United States must file an R-1 visa petition (Form I-129) as well as supporting documentation. They are not authorized to actually be employed until the R-1 visa petition is approved.

Q: What is the process to obtain an R-1 visa from outside the United States?
A: A person seeking an R-1 visa will submit a standard application for nonimmigrant visa along with supporting documentation to establish the qualifications for R-1 status.

Q: What initial evidence is required to qualify for R-1 status?
A:

1. Proof that the person has been a member of a denomination for the immediate preceding two years;
2. Proof that the person will be providing services to the same religious denomination in the United States;
3. Proof that the person meets the criteria to perform the services;
4. Proof that the denomination (or denominational organization) is tax exempt under Internal Revenue Code 501(c)(3);
5. Proof that, if the person is a minister, he is authorized to conduct religious worship and perform other duties usually performed by a clergy member;
6. If the person is a religious professional, proof that he has the requisite degree;
7. If the person is to work in a religious vocation or occupation, proof that he is qualified in the religious vocation or occupation;
8. Proof of arrangements for remuneration;

Q: What salary must be paid?
A: A religious worker must be offered a salary that will reasonably support him and family members, if any. The regulations do not set a specific amount of salary that must be paid. The salary being offered must be at a level high enough so that the Immigration Service or State Department officer will be convinced that outside employment will not be necessary in order for the person to support himself as well as his family.

Q: Must the denomination prove they can afford to pay the salary?
A: Yes. In fact, financial documentation from the denomination or specific church involved is usually required in order to establish the ability to pay the salary.

Q: May an R-1 religious worker be bi-vocational?
A: No. The only source of income must be from the church or denomination.

Q: May an R-1 accept employment with other religious organizations?
A: No.

Q: Are the spouses or children of R-1 visa holders allowed to work?
A: No.

Q: How long can a person be in R-1 status in the United States?
A: The maximum stay in the United States is 5 years. Usually, the first period of authorized stay is 3 years with a 2-year extension.

Q: May an R-1 religious worker obtain an extension after 5 years?
A: No.

Q: May an R-1 religious worker change churches/employer?
A: Only if they meet the basic R-1 requirements, the most important of which is that the person has been a member of the same denomination for the preceding 2 years. For example, if a person wants to change from one Presbyterian Church to another, such a change should be allowable, upon the filing of appropriate papers.

Q: Can an individual church file for an R-1 or must it be the denomination?
A: An individual church, within a denomination, can file for an R-1 worker. However, if the denomination is considered to be the petitioner and, not an individual church, the person can move from one church within the denomination to another without having to file a new visa petition.

Religious Worker Permanent Residence

Q: What are the requirements for a person to qualify for permanent residence as a religious "special immigrant?"
A: For a person to qualify for permanent residence, they must meet all of the requirements for R-1 status with one notable addition: Immediately preceding the filing of Form I-360 (Petition for…Special Immigrants), the person must have been carrying on a religious occupation or vocation continuously, either abroad or in the United States, for at least two years.

Q: Is there a numerical limitation for religious workers?
A: Yes, however, there are currently not enough people who want to immigrate as special immigrant religious workers in any given year to create a backlog.


Q: What are the general requirements?
A: The general requirement to qualify for special immigrant visa requires that the religious worker:

1. Have been a member of a religious denomination, for the preceding 2 years, having a bone fide nonprofit religious organization in the United States;
2. Have been carrying on religious work continuous, either abroad or in the United States for at least two years immediately preceding the filing of the application;
3. Be coming to the United States solely for the purpose of: a.) Acting as a minister; b.) Working in a professional capacity in a religious vocational occupation for a religious organization at the organization's request; c.) Working in a religious vocation for a religious organization or affiliated organization; or d.) Working in a religious occupation for a religious organization or affiliated organization.

Q: What are the most common reasons for denial of special immigrant status?
A: The most common reasons include:

1. Failure to meet the requirement of continuous employment in religious work for at least two years (usually because a person has been carrying on voluntary service while engaged in secular employment during the required two years of experience);
2. The position is not a traditional religious function. The position must require prescribed courses of training established by the governing body of the denomination and be directly related to the creed of the denomination;
3. The church does not have the ability to pay the proffered wage; and
4. The church does not have tax exempt status according to Internal Revenue Code 501(c)(3).

Q: What is the process for obtaining permanent residence as a religious worker?
A: This is a two-step process. First, Form I-360 must be filed with the Immigration Service along with supporting documentation to prove all of the necessary factors. Once the Form I-360 is approved, the person, if in the United States and otherwise eligible, may apply for adjustment of status. If the person is overseas, then he or she can apply for a special immigrant visa classification as a religious worker through the American Consulate after the Form I-360 is approved.

Q: Will volunteer work count toward the two-year religious work?
A: It has consistently been held that volunteer activities do not constitute qualifying work experience. CIS is consistently looking for the person's religious work to be the principle business of his or her life. This usually means full-time, paid employment to the exclusion of all other regular employment.

Q: Will attending school count toward the two-year experience requirement?
A: Education will not normally be considered work experience. This, however, is not true for persons who are classified as being in a "religious vocation." Persons under this category have normally taken a vow and education will be considered experience as long as it is carried out in the context of religious life.

Q: Will part-time work be acceptable to meet the experience requirement?
A: No.

This answers most of the frequently asked questions which we receive in our office about religious workers. If after reading this you have questions about working in the United States or any other immigration matters, you may call Mr. Litwin's office and arrange an appointment at his San Francisco, South San Francisco, or Santa Clara office. There is an initial consultation fee for the first hour. The information in this article does not constitute legal advice. The law is constantly changing and we make no warranty of the accuracy of the information.

[Religious.workers/04/04]

Disclaimer: Nothing on this or associated pages should be taken as legal advice for any individual case or situation. The information is intended to be general and should not be relied upon for any specific situation.

© 2004 All Rights Reserved

Edward R. Litwin is a specialist in Immigration and Nationality Law, certified by the Board of Legal Specialization of the State Bar of California. He and his firm have helped thousands of people immigrate to the United States. He is available for consultation by appointment.