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Update on R-1 Religious Worker Visas

Posted on Wednesday, May 11, 2011

On November 26, 2008, the U.S. Department of Homeland Security (“DHS”) issued a final rule amending the U.S. Citizenship and Immigration Services (“USCIS”) regulations for the nonimmigrant religious worker (“R-1”) visa classification. The purpose of the amendments was to improve DHS’ ability to detect and deter fraud and other abuses in the religious worker program and thus to ensure the integrity of the program.  As it has now been almost 2.5 years since the amendments went into effect, an update seems appropriate.

R-1 Petition: One way DHS sought to accomplish its goal of ensuring the integrity of the religious worker program was to change the nonimmigrant religious worker visa classification into a “petition-based” visa classification. Under the previous regulations, foreign religious workers were able to apply for an R-1 visa directly at a U.S. Consulate.  The new regulations changed this by establishing a requirement that religious workers must be the beneficiaries of an approved petition, granted initially for up to 30 months, filed by an employer on their behalf before they may apply for an R-1 visa at a U.S. Consulate.  This requirement enables USCIS to verify the sponsoring employer and the terms of employment before a foreign worker can enter the U.S. under the religious worker program. In practice, this requirement has increased the visa processing time for nonimmigrant religious workers.

Inspections: A second way DHS sought to ensure the integrity of the religious worker program was to add a provision to the regulations stating that USCIS may verify supporting evidence provided by a petitioner through any means determined appropriate by USCIS, up to and including an on-site inspection of the petitioning organization. The inspection may include a tour of the organization’s facilities, an interview with the organization’s officials, a review of selected organization records related to compliance with immigration laws and regulations, and an interview with any individuals or review of any records that USCIS considers pertinent to the integrity of the organization. If USCIS decides to conduct a pre-approval inspection, satisfactory completion of such inspection is a condition for petition approval.  Although the new regulations state that USCIS may conduct an on-site inspection, it appears to be unofficial USCIS policy to conduct a site visit for every R-1 petition, unless a site visit was conducted in the last five years.  Moreover, USCIS is currently requiring a substantial amount of evidentiary documentation from the petitioner as a condition for approval.

IRS Letter: A third way DHS sought to ensure the integrity of the religious worker program was to add a requirement that petitioners must submit a valid IRS 501(c)(3) determination letter proving its tax exempt status. If part of a group exemption, then the petitioner must submit the IRS 501(c)(3) group exemption letter. Although churches, for example, are not required under the Internal Revenue Code to formally apply for tax exempt status and therefore do not always have a valid IRS 501(c)(3) determination letter, they must obtain this determination letter in order to sponsor a foreign national religious worker. As such, in practice, this requirement has increased the R-1 processing time for those petitioners who did not previously obtain this letter.

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