Law Offices of Rajiv S. Khanna, P.C.
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Arlington, VA 22205 USA Ph: (703) 908-4800
Arlington, VA 22205 USA Ph: (703) 908-4800
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Staunton, VA 24401 USA Ph: (540) 886-6321
Staunton, VA 24401 USA Ph: (540) 886-6321
This paragraph governs classification of an alien as a nonimmigrant religious worker (R-1). (Revised 11/26/08; 73 FR 72275 )
(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, an alien must:
(i) 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;
(ii) Be coming to the United States to work at least in a part time position (average of at least 20 hours per week);
(iii) Be coming solely as a minister or to perform a religious vocation or occupation as defined in paragraph (r)(3) of this section (in either a professional or nonprofessional capacity);
(iv) Be coming to or remaining in the United States at the request of the petitioner to work for the petitioner; and
(v) Not work in the United States in any other capacity, except as provided in paragraph (r)(2) of this section.
(2) An alien may work for more than one qualifying employer as long as each qualifying employer submits a petition plus all additional required documentation as prescribed by USCIS regulations.
(3) Definitions . As used in this section, the term:
Bona fide non-profit religious 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 Internal Revenue Service (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, or 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.
Denominational membership means membership during at least the two-year period immediately preceding the filing date of the petition, in the same type of religious denomination as the United States religious organization where the alien will work.
Minister means an individual who:
(A) 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;
(B) Is not a lay preacher or a person not authorized to perform duties usually performed by clergy;
(C) Performs activities with a rational relationship to the religious calling of the minister; and
(D) Works solely as a minister in the United States which may include administrative duties incidental to the duties of a minister.
Petition means USCIS Form I-129 , Petition for a Nonimmigrant Worker, a successor form, or any other form as may be prescribed by USCIS, along with a supplement containing attestations required by this section, the fee specified in 8 CFR 103.7(b)(1) , and supporting evidence required by this part.
Religious denomination means a religious group or community of believers that is governed or administered under a common type of ecclesiastical government and includes one or more of the following:
(A) A recognized common creed or statement of faith shared among the denomination’s members;
(B) A common form of worship;
(C) A common formal code of doctrine and discipline;
(D) Common religious services and ceremonies;
(E) Common established places of religious worship or religious congregations; or
(F) Comparable indicia of a bona fide religious denomination.
Religious occupation means an occupation that meets all of the following requirements:
(A) The duties must primarily relate to a traditional religious function and be recognized as a religious occupation within the denomination;
(B) The duties must be primarily related to, and must clearly involve, inculcating or carrying out the religious creed and beliefs of the denomination;
(C) The duties do not include positions which 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; and
(D) 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.
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 vocations include nuns, monks, and religious brothers and sisters.
Religious worker means an individual engaged in and, according to the denomination’s standards, qualified for a religious occupation or vocation, whether or not in a professional capacity, or as a minister.
Tax-exempt organization means an organization that has received a determination letter from the IRS establishing that it, or a group it belongs to, is exempt from taxation in accordance with sections 501(c)(3) of the Internal Revenue Code of 1986, or subsequent amendments or equivalent sections of prior enactments of the Internal Revenue Code.
(4) Requirements for admission/change of status; time limits . (i) Principal applicant (R-1 nonimmigrant) . If otherwise admissible, an alien who meets the requirements of section 101(a)(15)(R) of the Act may be admitted as an R-1 alien or changed to R-1 status for an initial period of up to 30 months from date of initial admission. If visa-exempt, the alien must present original documentation of the petition approval.
(ii) Spouse and children (R-2 status) . The spouse and unmarried children under the age of 21 of an R-1 alien may be accompanying or following to join the R-1 alien, subject to the following conditions:
(A) R-2 status is granted for the same period of time and subject to the same limits as the principal, regardless of the time such spouse and children may have spent in the United States in R-2 status;
(B) Neither the spouse nor children may accept employment while in the United States in R-2 status; and
(C) The primary purpose of the spouse or children coming to the United States must be to join or accompany the principal R-1 alien.
(5) Extension of stay or readmission . An R-1 alien who is maintaining status or is seeking readmission and who satisfies the eligibility requirements of this section may be granted an extension of R-1 stay or readmission in R-1 status for the validity period of the petition, up to 30 months, provided the total period of time spent in R-1 status does not exceed a maximum of five years. A Petition for a Nonimmigrant Worker to request an extension of R-1 status must be filed by the employer with a supplement prescribed by USCIS containing atte stations required by this section, the fee specified in 8 CFR 103.7(b)(1) , and the supporting evidence, in accordance with the applicable form instructions.
(6) Limitation on total stay . An alien who has spent five years in the United States in R-1 status may not be readmitted to or receive an extension of stay in the United States under the R visa classification unless the alien has resided abroad and has been physically present outside the United States for the immediate prior year. The limitations in this paragraph shall not apply to R-1 aliens who did not reside continually in the United States and whose employment in the United States was seasonal or intermittent or was for an aggr egate of six months or less per year. In addition, the limitations shall 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 the alien must provide clear and convincing proof that the alien qualifies for such an exception. Such proof shall consist of evidence such as arrival and departure records, transcripts of processed income tax returns, and records of employment abroad.
(7) Jurisdiction and procedures for obtaining R-1 status . An employer in the United States seeking to employ a religious worker, by initial petition or by change of status, shall file a petition in accordance with the applicable form instructions.
(8) Attestation . An authorized official of the prospective employer of an R-1 alien must complete, sign and date an attestation prescribed by USCIS and submit it along with the petition. The prospective employer must specifically attest to all of the following:
(i) That the prospective employer is a bona fide non-profit religious organization or a bona fide organization which is affiliated with the religious denomination and is exempt from taxation;
(ii) That the alien has been a member of the denomination for at least two years and that the alien is otherwise qualified for the position offered;
(iii) The number of members of the prospective employer’s organization;
(iv) The number of employees who work at the same location where the beneficiary will be employed and a summary of the type of responsibilities of those employees. USCIS may request a list of all employees, their titles, and a brief description of their duties at its discretion;
(v) The number of aliens holding special immigrant or nonimmigrant religious worker status currently employed or employed within the past five years by the prospective employer’s organization;
(vi) The number of special immigrant religious worker and nonimmigrant religious worker petitions and applications filed by or on behalf of any aliens for employment by the prospective employer in the past five years;
(vii) The title of the position offered to the alien and a detailed description of the alien’s proposed daily duties;
(viii) Whether the alien will receive salaried or non-salaried compensation and the details of such compensation;
(ix) That the alien will be employed at least 20 hours per week;
(x) The specific location(s) of the proposed employment; and
(xi) That the alien will not be engaged in secular employment.
(9) Evidence relating to the petitioning organization . A petition shall include the following initial evidence relating to the petitioning organization:
(i) A currently valid determination letter from the IRS showing that the organization is a tax-exempt organization; or
(ii) For a religious organization that is recognized as tax-exempt under a group tax-exemption, a currently valid determination letter from the IRS establishing that the group is tax-exempt; or
(iii) For a bona fide organization that is affiliated with the religious denomination, if the organization was granted tax-exempt status under section 501(c)(3), or subsequent amendment or equivalent sections of prior enactments, of the Internal Revenue Code, as something other than a religious organization:
(A) A currently valid determination letter from the IRS establishing that the organization is a tax-exempt organization;
(B) Documentation that establishes the religious nature and purpose of the organization, such as a copy of the organizing instrument of the organization that specifies the purposes of the organization;
(C) Organizational literature, such as books, articles, brochures, calendars, flyers, and other literature describing the religious purpose and nature of the activities of the organization; and
(D) A religious denomination certification. The religious organization must complete, sign and date a statement certifying that the petitioning organization is affiliated with the religious denomination. The statement must be submitted by the petitioner along with the petition.
(10) Evidence relating to the qualifications of a minister. If the alien is a minister, the petitioner must submit the following:
(i) A copy of the alien’s certificate of ordination or similar documents reflecting acceptance of the alien’s qualifications as a minister in the religious denomination; and
(ii) Documents reflecting acceptance of the alien’s qualifications as a minister in the religious denomination, as well as evidence that the alien has completed any course of prescribed theological education at an accredited theological institution normally required or recognized by that religious denomination, including transcripts, curriculum, and documentation that establishes that the theological education is accredited by the denomination, or
(iii) For denominations that do not require a prescribed theological education, evidence of:
(A) The denomination’s requirements for ordination to minister;
(B) The duties allowed to be performed by virtue of ordination;
(C) The denomination’s levels of ordination, if any; and
(D) The alien’s completion of the denomination’s requirements for ordination.
(11) Evidence relating to compensation . Initial evidence must state how the petitioner intends to compensate the alien, including specific monetary or in-kind compensation, or whether the alien intends to be self-supporting. In either case, the petitioner must submit verifiable evidence explaining how the petitioner will compensate the alien or how the alien will be self-supporting. Compensation may include:
(i) Salaried or non-salaried compensation . Evidence of compensation may include past evidence of compensation for similar positions; budgets showing monies set aside for salaries, leases, etc.; verifiable documentation that room and board will be provided; or other evidence acceptable to USCIS. IRS documentation, such as IRS Form W-2 or certified tax returns, must be submitted, if available. If IRS documentation is unavailable, the petitioner must submit an explanation for the absence of IRS documentation, along with comparable, verifiable documentation.
(ii) Self support . (A) If the alien will be self-supporting, 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.
(B) An established program for temporary, uncompensated work is defined to be a missionary program in which:
( 1 ) Foreign workers, whether compensated or uncompensated, have previously participated in R-1 status;
( 2 ) Missionary workers are traditionally uncompensated;
( 3 ) The organization provides formal training for missionaries; and
( 4 ) Participation in such missionary work is an established element of religious development in that denomination.
(C) The petitioner must submit evidence demonstrating:
( 1 ) That the organization has an established program for temporary, uncompensated missionary work;
( 2 ) That the denomination maintains missionary programs both in the United states and abroad;
( 3 ) The religious worker’s acceptance into the missionary program;
( 4 ) The religious duties and responsibilities associated with the traditionally uncompensated missionary work; and
( 5 ) C opies of the alien’s bank records, budgets documenting the sources of self-support (including personal or family savings, room and board with host families in the United States, donations from the denomination’s churches), or other verifiable evidence acceptable to USCIS.
(12) Evidence of previous R-1 employment . Any request for an extension of stay as an R-1 must include initial evidence of the previous R-1 employment. If the beneficiary:
(i) Received salaried compensation, the petitioner must submit IRS documentation that the alien received a salary, such as an IRS Form W-2 or certified copies of filed income tax returns, reflecting such work and compensation for the preceding two years.
(ii) Received non-salaried compensation, the petitioner must submit IRS documentation of the non-salaried compensation if available. If IRS documentation is unavailable, an explanation for the absence of IRS documentation must be provided, and the petitioner must provide verifiable evidence of all financial support, including stipends, room and board, or other support for the beneficiary by submitting a description of the location where the beneficiary lived, a lease to establish where the beneficiary lived, or other evidence acceptable to USCIS.
(iii) Received no salary but provided for his or her own support, and that of any dependents, the petitioner must show how support was maintained by submitting with the petition verifiable documents such as audited financial statements, financial institution records, brokerage account statements, trust documents signed by an attorney, or other evidence acceptable to USCIS.
(13) Change or addition of employers . An R-1 alien may not be compensated for work for any religious organization other than the one for which a petition has been approved or the alien will be out of status. A different or additional employer seeking to employ the alien may obtain prior approval of such employment through the filing of a separate petition and appropriate supplement, supporting documents, and fee prescribed in 8 CFR 103.7(b)(1) .
(14) Employer obligations . When an R-1 alien is working less than the required number of hours or has been released from or has otherwise terminated employment before the expiration of a period of authorized R-1 stay, the R-1 alien’s approved employer must notify DHS within 14 days using procedures set forth in the instructions to the petition or otherwise prescribed by USCIS on the USCIS internet web site at www.uscis.gov.
(15) Nonimmigrant intent . An alien classified under section 101(a)(15)(R) of the Act shall maintain an intention to depart the United States upon the expiration or termination of R-1 or R-2 status. However, a nonimmigrant petition, application for initial admission, change of status, or extension of stay in R classification may not be denied solely on the basis of a filed or an approved request for permanent labor certification or a filed or approved immigrant visa preference petition.
(16) Inspections, evaluations, verifications, and compliance reviews . The supporting evidence submitted may be verified by USCIS 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 relating to compliance with immigration laws and regulations, and an interview with any other individuals or review of any other records that the USCIS considers per tinent to the integrity of the organization. An inspection may include the organization headquarters, or satellite locations, or the work locations planned for the applicable employee. If USCIS decides to conduct a pre-approval inspection, satisfactory completion of such inspection will be a condition for approval of any petition.
(17) Denial and appeal of petition . USCIS will provide written notification of the reasons for the denial under 8 CFR 103.3(a)(1). The petitioner may appeal the denial under 8 CFR 103.3.
(18) Revocation of approved petitions . (i) Director discretion. The director may revoke a petition at any time, even after the expiration of the petition.
(ii) Automatic revocation . The approval of any petition is automatically revoked if the petitioner ceases to exist or files a written withdrawal of the petition.
(iii) Revocation on notice . (A) Grounds for revocation . The director shall send to the petitioner a notice of intent to revoke the petition in relevant part if he or she finds that:
( 1 ) The beneficiary is no longer employed by the petitioner in the capacity specified in the petition;
( 2 ) The statement of facts contained in the petition was not true and correct;
( 3 ) The petitioner violated terms and conditions of the approved petition;
( 4 ) The petitioner violated requirements of section 101(a)(15)(R) of the Act or paragraph (r) of this section; or
( 5 ) The approval of the petition violated paragraph (r) of this section or involved gross error.
(B) Notice and decision . The notice of intent to revoke shall contain a detailed statement of the grounds for the revocation and the time period allowed for the petitioner's rebuttal. The petitioner may submit evidence in rebuttal within 30 days of receipt of the notice. The director shall consider all relevant evidence presented in deciding whether to revoke the petition.
(19) Appeal of a revocation of a petition. A petition that has been revoked on notice in whole or in part may be appealed under 8 CFR 103.3 . Automatic revocations may not be appealed.
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