Fourth Preference: The Special Immigrant Category

Introduction

Foreign nationals seeking to obtain Permanent Residence through employment may do so by qualifying for one of several categories of employment-based immigration. Employment-based immigration generally requires a strong showing that the foreign worker is one of the finest in his/her field OR that there are no qualified U.S. workers to fill the position.

A rather unusual immigrant visa category is the Fourth Preference Category for Special Immigrants. “Special immigrants” are religious workers much in the same vein as those nonimmigrant workers who are afforded the R nonimmigrant category.

Immigration Law Associates, PC is well versed and experienced in preparing Special Immigrant permanent residence applications on behalf of religious workers seeking to offer their talents and skills for religious employment in the U.S.


Elements of Special Immigrant Category Strategy

• An immigrant visa for a religious worker (other than a minister of religion) can bear a validity date no later than 9/30/03. This date is the new sunset date for the religious worker provisions.
• There Are Three (3) Categories To Which Religious “Special Immigrants” Can Belong In Order To Qualify For The “Special Immigrant” Class:
  
  
  1. Ministers of Religion;
  2. Professionals Working in Religious Vocations or Occupations; OR
  3. Other Workers in Religious Vocations or Occupations: Must Work For U.S. Nonprofit, Religious Organizations or at Nonprofit, Religious Organizations Affiliated with Qualified Religious Denominations).
• Religious Special Immigrants Must Satisfy Certain Requirements In Order To Qualify:
  
  
  1. The religious worker seeking Special Immigrant status must have been a member of a religious denomination having a bona fide, nonprofit, religious organization in the United States; AND
  2. He/she must have been carrying on religious work continuously, either abroad or in the U.S. for at least two (2) years immediately preceding the filing of the application;
  3. He/she must be coming to the U.S. solely for the purpose of:
     
     
     • Acting as a minister;
     • Working in a professional capacity in a religious vocation or occupation for a religious organization and at the organization’s request; OR
     • Working in a religious vocation or occupation for a religious organization or an affiliated organization.
• To qualify as a minister, the applicant must be 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.
• Qualifying “religious organizations” are organizations exempt from taxation as described in the Internal Revenue Code of 1986 or organizations that can satisfy the INS’ eligibility rules for tax-exempt status.
• A qualifying “religious occupations” are activities that relate to a traditional religious function- e.g., liturgical workers, religious instructors, cantors, catechists, workers in religious hospitals or religious healthcare facilities, missionaries, religious translators, religious broadcasters.
• A qualifying “religious vocation:” is defined as “a calling to religious life” evidenced by the demonstration of commitment practiced in the religious denomination, such as the taking of vows –e.g., nuns, monks, and religious brothers and sisters.
• A qualifying “religious denomination” is defined as a “religious group or community of believers” having:
  
  
  1. Some form of ecclesiastical government;
  2. A creed or statement of faith;
  3. Some form of worship;
  4. A code of doctrine and discipline;
  5. Religious services and ceremonies
  6. Established places of religious worship
  7. Religious congregations; or
  8. Comparable indicia of a bona fide religious organization
• To qualify as a “Special Immigrant Worker” in a “professional capacity,” the applicant must seek to engage in an activity in a religious vocation or occupation for which the minimum of a U.S. baccalaureate degree or a foreign equivalent degree is required.

Strategic Special Immigrant Concepts

Strategic Special Immigrant Category Concepts are key ideas that can govern an employer or foreign national’s use of the Special Immigrant visa category. These ideas are also important considerations that may guide when and if a Special Immigrant Permanent Residence petition might be utilized and whether an employer and/or prospective foreign employee might consider perhaps another immigrant visa category or perhaps even a nonimmigrant visa category.

• Substantial Information Including Documentation Indicating a Petitioner’s Tax Exempt Status, Group Designation Letters, Letter(s) From An Authorized Official of the Petitioning Religious Organization in the United States Will Generally Be Required.

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