U. S Immigration Publishes Final Rule for Religious Worker Visa Classifications from Nov. 26, 2008

Lal Varghese, Attorney at Law, Dallas

The Department of Homeland Security has made substantial revisions to the immigrant (LPR) and nonimmigrant (R-1) religious worker visa classification regulations with effect from Nov. 26, 2008 by publishing the same in the Federal Register. The draft rules were published in the Federal Register in June 2007 for comments from the public and the publication of final rules were delayed for more than one and half year in the Federal Register. The new rules will take effect from the date of publication in the Federal Register which means from Nov. 26, 2008 no more R-1 visas will be issued at any U. S consulates around the world. The Dept. of State has already sent a cable notification to all consulates in this respect informing them not to issue any R-1 visas with immediate effect without an approved petition from USCIS. Under the old rules it takes a couple of days after applying for R-1 visa at a consulate to receive the same. But, under the new rules since a petition has to be filed for each alien worker and a site inspection need to be done before it can be approved, it may take several months even a year to approve a petition under the new rules. This delay may cause severe hardship for many religious organizations which needs the services of priests and religious workers from outside United States immediately.

Under the previous rules, any alien who wants to work as a priest or in a religious occupation, just only need to apply for the R-1 visa directly at the consulate with all supporting documents and evidence. But, under the new rules took effect from each employer, like a Church, who wishes to hire a priest or religious worker from another country must file separate non immigrant visa petitions (for temporary period of employment) and immigrant petitions (permanent employment) for each alien worker with U. S Customs and Immigration Services (USCIS) with the filing fee of $320.00 for non immigrant petitions and $375.00 for immigrant petitions. It is anticipated that it may take about 9-12 months for processing these petitions since a site inspection has to be done in each case to make sure that the employer is a genuine one and the location (like a Church) where the alien is to be employed is genuine or not. This site inspection may take any amount of time under the present circumstances. According to USCIS, this procedure will allow it to verify the eligibility of the petitioner, the alien beneficiary, and the job offer prior to the issuance of a visa or admission to the United States. The employers will be required to submit an attestation verifying the worker’s qualifications, the nature of the job offered, and the legitimacy of the non profit organization filing the petition for hiring alien workers under religious category whether temporary or permanent employment. A non immigrant petition can be filed only just six months prior the expected date of beginning of the work for the religious worker in United States.

The final rule provides additional notification to petitioners that USCIS may conduct onsite inspections of organizations seeking to employ religious workers. These inspections are intended to increase deterrence and detection of fraudulent petitions and to increase the ability of the agency to monitor religious workers and ensure their compliance with the terms of their religious worker classification. According to a statics report submitted by Dept. of State only about 66% of R-1 visa entrants are genuine and entering for genuine entities. Recently, the USCIS has found out from site visits while adjudicating extension of stay petitions filed for alien workers that 24 Pakistanis had entered United States using R-1 visas for non existent entities and is not working for such entities. The new measure according to USCIS is intended to protect the national security of the United States by preventing terrorists entering United States without a petition process and the verification of the entity, alien beneficiary.

Under the new rules, all petitioning organizations must submit a currently valid determination letter from the Internal Revenue Service establishing their tax-exempt status under section 501 ( C ) ( 3 ) of the IRS Code. The new rules allows the period of work and stay for nonimmigrant religious workers only up to 30 months. The previous rules allowed R-1 visa holders to stay and work in United for an initial period of three years and another extension for two years subject to a maximum of five years. The period of stay granted is always based on the petitioner’s need for the alien’s services. The new rules give the USCIS the opportunity to review, at an earlier time, whether the terms of the R-1 visa have been met. Requests for one more extension of an additional 30 months will be considered by filing separate new non immigrant visa petitions with all supporting documents and evidence both for the employer and alien worker and payment of the filing fee of $320.00 for each alien worker. The total period for which an alien can work under R-1 visa remains the same like under the old rules to five years in total.

According to the most recent processing time report published by the California Service Center, it is taking about 7 months under the old rule to process an I-129 R-1 petition filed for extension of stay. Since under the new rules, a mandatory site inspection is required it may take any amount of time between 4-6 months to have a site inspection done by the local office and report is given to the California Service Center due to the back log of cases pending at the local offices for site inspections. According to the statics published by the USCIS during the past three years both the USCIS and DOS received an average of 24, 376 petitions/applications for R-1 visas. It is estimated under the new rules it is estimated that the USCIS will receive about 23,200 petitions in 2009 alone for processing at is California Service Center. This high volume of filings for I-360 and I-129 will cause the delay in processing and the delay in having site inspection done by local offices. It is anticipated that it may take any amount of time between 12-15 months for the approval and to schedule an interview at the consulate including the time taken by to transfer the file to consulate and to schedule an appointment for the alien religious workers and priests.