New York Lawyer's Legal Updates

Religious Immigration: Qualifications And Requirements

Author: New York Immigration lawyer Alena Shautsova

A worker in religious vocation may apply for an R-1 visa after a corresponding petition was filed and granted on his/her behalf. In addition, such a worker may adjust his/her status to one of a permanent resident using Special Immigrant Status Petition, I -360.

Religious vocation as per USCIS is defined as formal lifetime commitment, through vows, investitures, ceremonies, or similar indicia, to a religious way of life. As such, monks, nuns, and other religious brothers and sisters distinguished from the secular members of the religion qualify as being in religious vocation. The non-minister religious workers’ eligibility for R-1 visas and adjustment is regulated by the temporary laws which expanded the religious worker category to include religious workers working in a religious occupation, and religious workers working in a religious vocation. This program with a built-in sunset provision has been extended in the past, and currently the extension is valid until September 30, 2016.

The requirements of a religious worker working in a religious occupation is such that the duties must predominantly correlate with traditional religious function, as well as being recognized by the religious organization as a religious occupation. There is no set list of acceptable occupations; however, janitors, maintenance workers, fundraisers, or any administrative or clerical workers will explicitly not qualify for religious occupation if that is their sole purpose.

It should be noted that secular duties should be de-emphasized when discussing the daily routine of the proposed religious worker and that they are only incidental and not primary. The knowledge required to perform said religious duties should also be explained. If general knowledge of the faith will suffice and another member of a different religion or denomination is able to perform the duties of the proposed religious worker, the petition is likely to be denied.

Where the proposed religious worker will be working is also taken into account by the reviewing officer. This is another flag when separating secular and religious duties. For example, petitions for school teachers teaching religious classes are often subjected to request more evidence and an explanation of the religious nature of the duties. While a Religion teacher for a religious organization seems like a straightforward classification of a religious occupation, it is a grey area that can go either way depending on various factors which should be discussed with an attorney.

Compensation: Many religious organizations require individuals ordained with the religion to take a vow of poverty, the salary for such a worker tend to fall below local minimum wage standards, especially if the individual’s prior two (2) years of service were performed in developing countries. According to the regulations, religious workers must be compensated for their service, however, this compensation can include non-traditional salary (i.e. room and board). As long as the proposed worker does not have to have a second job to support him/herself, this requirement of compensations is usually "met".

01 February 2016
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