New Religious Worker Regulations An advance copy of the long-awaited religious worker immigration regulations was released November 21. A copy of the regulations can be obtained at http://www.uscis.gov/files/nativedocuments/final_rule_nonimmigrant_religious_workers _21nov08.pdf. The new regulations significantly change the way that dioceses and religious communities sponsor foreign born priests, sisters, brothers and other religious workers to work for the Church in the U.S. The regulations, affecting special immigrant and nonimmigrant (R-1) religious workers, will become effective as soon as they are published in the Federal Register. We expect that they will be published in the Federal Register within the next few days. A summary of the provisions follows: R-1 Non-Immigrant Religious Worker Regulations • A religious worker will no longer be able to obtain an R-1 visa at a U.S. Consulate without prior approval by U.S.Citizenship and Immigration Services (USCIS) of an I-129 petition. (Previously no prior I-129 approval was required when obtaining an R-1 visa). The initial period of stay for a nonimmigrant religious worker is shortened from three years to 30 months. R-1 status can be extended for an additional 30 months. (Previously, the initial period of stay was three years, with an extension of two years allowed). Extensions of status will no longer automatically be granted at U.S. ports of entry; employers must file an I-129 petition for all extensions of status. (Previously, an individual could extend his/her status by re-entering the United States with a valid R-1 visa, at which time s/he would be given a new I-94 extending the R-1 status). R-1 nonimmigrants may now have a special immigrant petition pending while they apply for R-1 status. (The prior regulations were not clear on this point). R-1 nonimmigrants are allowed to work part time (at least 20 hours per week) or for more than one employer. Each employer must file a separate application. (Previously the regulations did not specify that part-time work was permitted). After completing five years in R-1 status, an individual must remain outside of the U.S. for a period of one year and may not visit the U.S. during that year. (Previously, short visits to the United States did not break the continuity of the one year absence).
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Special Immigrant Regulations The religious worker must be coming to the U.S. to work in a full time (average of 35 hours/week) compensated position. (Previously the regulations did not specify the required hours of work for full time employment). A break in the continuous two-year period immediately preceding the filing of the petition is allowed so long the religious worker was still employed as a religious
worker; the break did not exceed two years; and the nature of the break was for further religious training or for sabbatical that did not involved unauthorized work. (Previously, no breaks in the two-year period were allowed by the regulations). Prior work experience can include work not in the same position as the job offered for the Special Immigrant Religious category. (Previously, the work had to be in the same position as the job offered). Regulations Affecting both Special Immigrant and Nonimmigrant (R-1) Religious Workers The employer must attest to the following: o Employer is bona fide, tax-exempt religious organization. o List the number of members of the employer’s organization. o List the number of employees who work at the same location where the beneficiary will be employed AND a job summary of those employees. o List the number of individuals who hold special immigrant or R-1 status currently employed or employed in the last five years. o Describe position including title, compensation, and daily duties, etc. o Employer has the ability to financially support the religious worker. o The individuals seeking special immigrant status will be employed at least 35 hours per week and the individuals seeking nonimmigrant religious status will be employed at least 20 hours per week. (The prior regulations did not require such extensive documentation). • Definitions of the terms "religious vocation" and "religious occupation" have been modified. "Religious vocation" is now defined as a "formal lifetime commitment" to a religious way of life. "Religious occupation" must be related to a traditional religious function and be recognized as a religious occupation within the denomination. Administrative duties that are only incidental to religious functions are permissible. The immigration service may conduct on-site inspections of employer locations to verify evidence submitted with petitions. Such inspections may include a tour of the facility and a review of employer records. (The prior regulations did not discuss site visits). Ministers must submit documents showing their ordination and proof of religious training. (The prior regulations only required an ordination certificate). Evidence of salaried and non-salaried compensation and prior employments must be shown through the submission of W-2 forms or federal tax returns or other financial records showing support. (The requirements in the prior regulations were not as specific). Employers must notify Department of Homeland Security within 14 days if individual has left employment or community. (The prior regulations did not contain a notification requirement).
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Petitions may also be revoked if USCIS finds fraud or violations of status. (This is similar to the prior regulations).