R-1 Status for Religious Workers
Written by Henry J. Chang
Last Updated January 3, 2009
On November 26, 2008, United States Citizenship and Immigration Services ("USCIS") published final regulations, which contained additional requirements designed to reduce fraud. These revised requirement are reflected in this article.
The R-1 nonimmigrant category is defined in §101(a)(15)(R) of the Immigration and Nationality Act ("INA") as an alien, and the spouse and children of the alien if accompanying or following to join the alien, who:
- For the two years immediately preceding the time of application for admission, has been a member of a religious denomination having a bona fide nonprofit, religious organization in the United States; and
- Seeks to enter the United States for a period not to exceed five years to perform the work described in subclause (I), (II), or (III) of paragraph (27)(C)(ii).
INA §101(a)(27(C)(ii) makes reference to: (I) ministers of religion, (II) religious professionals, and (III) other religious workers.
According to the current 8 CFR §214.2(r)(1), to be approved for temporary admission to the United States, or extension and maintenance of status, for the purpose of conducting the activities of a religious worker for a period not to exceed five years, the alien must:
According to 8 CFR §214.2(r)(2), an alien may work for more than one qualifying employer as long as each qualifying employer submits a petition plus all additional documentation as prescribed by USCIS regulations.
Prior Membership in the Same Religious Denomination
- Be a member of a religious denomination having a bona fide non-profit, religious organization in the United States for at least two years immediately preceding the time of application for admission;
- Be coming to the United States to work at least in a part-time position (average of at least 20 hours per week);
- Be coming solely as a minister or to perform a religious vocation or occupation as defined in 8 CFR §214.2(r)(3), either in a professional or nonprofessional capacity;
- Be coming to or remaining in the United States at the request of the petitioner to work for the petitioner; and
- Not work in the United States in any other capacity, except as provided in 8 CFR §214.2(r)(2).
According to INA §101(a)(15)(R), during the two years immediately preceding the time of application for admission, the R-1 applicant must have been a member of the same religious denomination as the employer in the United States. According to the current 8 CFR §214.2(r)(2), a "religious denomination" means a religious group or community of believers having some form of ecclesiastical government, and includes one or more of the following:
Despite the above, USCIS recognizes that some denominations officially shun a central ecclesiastical government. It therefore recognizes that an individual church that shares a common creed with other churches, but which does not share a common organizational structure or governing hierarchy with such other churches, can still satisfy the "ecclesiastical government" requirement by submitting a description of its own internal governing or organizational structure.
Bona Fide Nonprofit Religious Organization in the United States
The religious denomination must have a "bona fide nonprofit religious organization in the United States." This phrase is defined in 8 CFR §214.2(r)(2) as an organization exempt from taxation as described in section 501(c)(3) of the Internal Revenue Code of 1986, subsequent amendment or equivalent sections of prior enactments of the Internal Revenue Code, and possessing a currently valid determination letter from the IRS confirming such exemption.
Purpose for Entering the United States
In further clarification of the three R-1 categories described in INA §101(a)(15)(R), the current 8 CFR §214.2(r)(1) states that the alien must be coming to the United States for one of the following purposes:
- A recognized common creed or statement of faith shared among the denomination's members;
- A common form of worship;
- A common formal code of doctrine and discipline;
- Common religious services and ceremonies;
- Common established places of religious worship or religious congregations; or
- Comparable indicia of a bona fide religious denomination.
Each of these categories is discussed below:
According to the current 8 CFR §214.2(r)(3), the term "minister" means an individual who:
- As a minister;
- To perform a religious vocation; or
- To perform a religious occupation.
According to the current 8 CFR §214.2(r)(3), the term "religious vocation" means a formal lifetime commitment, through vows, investitures, ceremonies, or similar indicia, to a religious way of life. The religious denomination must have a class of individuals whose lives are dedicated to religious practices and functions, as distinguished from the secular members of the religion. Examples of individuals practicing religious vocations include nuns, monks, religious brothers and sisters.
According to the current 8 CFR §214.2(r)(3), the term "religious occupation" is defined as an occupation that meets all of the following requirements:
- Is fully authorized by a religious denomination, and fully trained according to the denomination's standards, to conduct religious worship and perform other duties usually performed by authorized members of the clergy of that denomination;
- Is not a lay preacher or person not authorized to perform duties usually performed by clergy;
- Performs activities with a rational relationship to the religious calling of the minister; and
- Works solely as a minister in the United States, which may include administrative duties incidental to the duties of a minister.
Coming to the United States to Work for the Petitioner
As of November 26, 2008, the prospective employer must first file a Form I-129 petition and R-1 Classification Supplement (which contains an R-1 Employer Attestation) along with the necessary supporting documentation. Prior to this date, no prior petition approval was necessary and R-1 applicants could directly apply for R-1 status at a consulate abroad or (in the case of visa-exempt nonimmigrants) at a port of entry.
As part of the petition filing, the prospective employer must specifically attest to and provide documentation establishing the following facts:
- The duties must primarily relate to the traditional religious function and be recognized as a religious occupation within the denomination.
- The duties must primarily relate to, and must clearly involve, inculcating or carrying out the religious creed and beliefs of the denomination.
- The duties do not include positions that are primarily administrative or support such as janitors, maintenance workers, clerical employees, fund raisers, persons solely involved in the solicitation of donations, or similar positions, although limited administrative duties that are only incidental to religious functions are permissible.
- Religious study or training for religious work does not constitute a religious occupation, but a religious worker may pursue study or training incident to status.
Site Inspection Requirements and Premium Processing
In August 2005, USCIS' Office of Fraud Detection and National Security completed a Benefit Fraud Assessment, which focused on religious worker petitions. Based on that assessment, USCIS initiated a site inspection requirement as part of the adjudication process for religious worker petitions. Due to the added requirement of a site inspection prior to approval, premium processing was suspended for R-1 nonimmigrant religious worker petitions on November 28, 2006.
On July 20, 2009, USCIS announced that it would resume premium processing of R-1 petitions but only for those organizations that have previously had a successful completion of a site inspection at the location where the benefitiary will be employed.
Duration of Stay and Extensions
An R-1 nonimmigrant may be admitted for an initial period of up to 30 months and extensions of up to 30 months may be granted provided that the total period of time spent in R-1 status does not exceed a maximum of five years. No extensions are permitted beyond the five-year period unless the alien has resided and been physically present outside the United States for the immediate prior year.
The five-year limitation does not apply to an R-1 alien who did not reside continually in the United States and whose employment in the United States was seasonal or intermittent or was for an aggregate of six months or less per year. In addition, the limitation does not apply to aliens who reside abroad and regularly commute to the United States to engage in part-time employment. To qualify for this exception, the petitioner and alien must provide clear and convincing proof that the alien satisfies the requirements. Such proof shall consist of evidence such as arrival and departure records, transcripts or processed income tax returns, and records of employment abroad.
The R-1 alien's spouse and unmarried minor children under the age of twenty-one may be admitted under R-2 status, provided that the principal alien will be employed and residing primarily in the United States. R-2 dependents are not permitted to work in the United States.
- The prospective employer's status as a:
- Bona fide nonprofit organization; or
- Bona fide organization that is affiliated with a religious denomination and is exempt from taxation. This means an organization that is closely associated with a religious denomination. The affiliated organization must be exempt from taxation as described in Section 501(c)(3) of the Internal Revenue Code or 1986, subsequent amendment or equivalent sections of prior enactments of the Internal Revenue Code. The organization must have a currently valid determination letter from the Internal Revenue Service confirming the tax exemption.
- The number of members of the prospective employer's organization.
- The number of employees who work at the same location where the alien will be employed and a summary of those employees' responsibilities.
- The number of aliens holding special immigrant religious worker status or R nonimmigrant status currently employed or employed within the past five years by the prospective employer's organization.
- The number of special nonimmigrant worker and R visa petitions and applications filed by or on behalf of any aliens for employment by the prospective employer in the last five years
- The title of the position offered to the alien.
- The beneficiary will:
- Receive salaried or non-salaried compensation from the prospective employer and details of such compensation; or
- Provide self-support (the petitioner must submit documentation establishing that the position the alien will hold is part of an established program for temporary, uncompensated missionary work, which is part of a broader international program of missionary work sponsored by the denomination).
- A detailed description of the alien's proposed daily duties.
- The offered position requires at least 20 hours of compensated work per week, or if fewer than 20 hours per weeks, the compensated service for another religious organization and the compensated service at the petitioning organization will total 20 hours per week.
- The specific location(s) of the proposed employment.
- The alien is qualified to perform the duties of the offered position.
- The alien's membership in the denomination for at least two years.
- That, if the position is not a religious vocation, the alien will not engage in secular employment.
- The prospective employer's obligation to notify USCIS within 14 days of any changes in the alien's employment, including:
- Working fewer than the required number of hours; or
- Having been released or otherwise terminated from employment before the end of the authorized R-1 stay.