Special Immigrant Religious Workers
Written by Henry J. Chang
Last Updated December 28, 2009
Congress has used the category of "special immigrant" (also known as the fourth employment-based preference) as a way of conferring immigration benefits on a wide variety of special groups, including religious workers. Special immigrant religious workers are defined at INA §101(a)(27)(C)(i) and INA §203(B)(4); this category includes: (a) ministers, (b) religious occupations, and (c) religious vocations.
The special immigrant category relating to religious workers in many ways parallels the nonimmigrant R-1 religious worker category, which is discussed elsewhere at this web site. However, the special immigrant category permits these religious workers to acquire lawful permanent residence.
Each fiscal year, a maximum of 7.1% of the Worldwide number of visas are available annually to special immigrants. Of this 7.1%, up to 5,000 visas may be made available in any fiscal year to "religious professionals" or "other religious workers". However, ministers are exempt from this numerical limitation.
On November 26, 2008, United States Citizenship and Immigration Services ("USCIS") published final regulations, which contained additional requirements designed to reduce fraud. According to the current 8 CFR §204.5(m), to be eligible under this classification, the alien must:
The Immigration Act of 1990 limited the special immigrant religious worker category, with respect to non-ministers, to immigrants who sought to enter the United States before October 1, 1994. However, Congress has since extended the deadline for these religious workers several times. Most recently, the President signed the Department of Homeland Security Appropriations Act of 2010 on October 28, 2009. As a result, religious professionals and other religious workers will continue to be eligible as special immigrants until September 30, 2012.
Meaning of "Religious Denomination"
According to 8 CFR §204.5(m)(5), a "religious denomination" is defined as a religious group or community of believers having some form of ecclesiastical government, and includes one or more of the following:
- For at least two years immediately preceding the time of application for admission, have been a member of a religious denomination that has a bona fide non-profit, religious organization in the United States;
- Be coming to the United States to work in a full-time (average of at least 35 hours per week) compensated position in one of the following occupations:
- Solely in the vocation of a minister of that religious denomination;
- A religious vocation either in a professional or nonprofessional capacity; or
- A religious occupation either in a professional or nonprofessional capacity.
- Be coming to work for a bona fide non-profit religious organization in the United States, or a bona fide organization which is affiliated with the religious denomination in the United States.
- Have been working in one of the above positions, either abroad or in lawful immigration status in the United States, and after the age of 14 years continuously for at least the two-year period immediately preceding the filing of the petition. The prior religious work need not correspond precisely to the type of work to be performed. A break in the continuity of the work during the preceding two years will not affect eligibility so long as:
- The alien was still employed as a religious worker;
- The break did not exceed two years;
- The nature of the break was for further religious training or for sabbatical that did not involve unauthorized work in the United States. However, an alien must have been a member of the petitioner's denomination throughout the two years of qualifying employment.
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.
In determining whether a religious organization qualifies as a religious denomination, it may be useful to refer to Matter of N, 5 I. & N. Dec. 173 (INS Central Office 1953). In Matter of N, it was found that the Salvation Army was a religious organization for purposes of the immigration statute. The decision noted that the Salvation Army:
- 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.
The above is also confirmed in 9 FAM §42.32(d)(1) N3.2. In addition, according to 9 FAM §42.32(d)(1) N3.3, the Christian Science Church is considered a religious denomination with a bona fide organization in the United States.
Bona fide Nonprofit Religious Organizations and Affiliates Thereof
"Bona fide organization in the United States" means a religious 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.
"Bona fide organization which is affiliated with the religious denomination" means an organization which is closely associated with the religious denomination and which is 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.
The first type of religious worker entitled to seek lawful permanent residence is a "minister". According to 8 CFR §204.5(m)(5), the term "minister" means an individual who:
- Was incorporated in various states of the United States,
- Was a worldwide religious organization,
- Had a recognized creed or form of worship,
- Had a definite ecclesiastical government,
- Had a formal code of doctrine and discipline,
- Had a distinct religious history,
- Had a membership, not associated with any other church or denomination,
- Had ministers selected after completing prescribed courses of training,
- Had its own literature,
- Had established places of religious worship,
- Maintained religious congregations and conducted religious services,
- Maintained a Sunday school for religious instruction, and
- Conducted schools for preparation of its ministers, who in addition to conducting religious services, perform marriage ceremonies, bury the dead, christen children, and advise and instruct the members of their congregation.
According to 9 FAM §42.32(d)(1) N5.1, the ordination of ministers chiefly involves the investment of the individual with ministerial or sacerdotal functions, or the conferral of holy orders upon the individual. If the religion does not have formal ordination procedures, there must be other evidence that the individual has authorization to conduct religious worship and perform other services usually performed by members of the clergy.
According to §42.32(d)(1) N3.3, practitioners and nurses of the Christian Science Church (Church of Christ, Scientist) may properly be considered as ministers of religion under INA §101(a)(27)(C). Readers and lecturers do not qualify as ministers, but could qualify as an alien seeking to come in a religious vocation or occupation.
According to 9 FAM §42.32(d)(1) N5.2, a deacon of any recognized religious sect or denomination may be considered to be a minister of religion within the meaning of INA §101(a)(27)(C) when the following conditions are present:
- 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.
According to 9 FAM §42.32(d)(1) N5.3, the use of "ordained minister" within the Buddhist doctrine frequently will be found to have different meanings depending on the context in which it is used. The term also may apply to different levels of responsibility and participation within the faith. The ceremony conferring monkhood status in the Buddhist religion is generally recognized as the equivalent of ordination. Useful documentation for establishing entitlement to status might include determinations by directors and senior monks of monasteries which verify that the applicant has knowledge and skills which enable him to perform Buddhist rituals and explain Buddhist beliefs independently, and that the applicant has a demonstrated work record or established reputation as an active Buddhist monk.
According to 8 CFR §204.5(m)(5), the term "religious occupation" is defined as an occupation that meets all of the following requirements:
- Ordination or equivalent form of authorization has taken place which distinguishes the clerics from the laity;
- Ordination or equivalent form of authorization has conferred the power of leading a congregation and preaching;
- Ordination or equivalent form of authorization has conferred the power to administer the sacraments, baptism, and communion or their equivalents; and
- Ordination or equivalent form of authorization has conferred the power of giving benediction.
According to 8 CFR §204.5(m)(5), 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.
Dependents of Special Immigrant Religious Workers
As stated in INA §101(a)(27)(C)(ii), the spouse or dependent child of a special immigrant religious worker, who is accompanying or following to join the principal alien, may receive derivative status and will be entitled to lawful permanent resident at the same time. According to 9 FAM §42.32(d)(1) N9.1, a spouse or child acquired subsequent to visa issuance but prior to entering the United States, or a child born of a marriage which existed at the time of the principal alien's admission to the United States, is entitled to derivative status.
- 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.