A provision of immigration law regarding religious workers was supposed to “sunset” on September 30, 2003. Both houses of Congress have now passed a five-year extension of the provisions allowing certain religious workers to apply for permanent residency status. H.R. 2152/S. 1580 should become law within the next week when the bill is presented to President Bush for signature.

While extending the religious worker provision has a broad base of support, it has failed to become a permanent immigration category. Critics of the provision say it is vulnerable to fraud and fear religious extremists may use the provision to gain entry into the U.S. However, the INA does have provisions which guard against visa fraud and does not admit aliens who may threaten public safety or national security orwho commit fraud to enter the U.S.

BACKGROUND

Religious workers make up the largest number of “special immigrants” for employment-based legal permanent residency applicants. Religious workers are in a separate category from ministers of religion, and are limited to 5,000 immigrants annually. Originally, there was no category that included religious workers. The Immigration Act of 1990 modified the INA to include religious workers as part of the “special immigrants” category. The act also included a “sunset” of this provision on September 30, 1994, which has been extended several times, until most recently, through September 30, 2003. (This same act also created a new nonimmigrant visa for religious workers, known as the R visa, which allows religious workers to be admitted to the U.S. for up to five years.)

There are three classes of religious workers: ministers, professionals working in a religious vocation and other workers in religious vocations. Ministers are people authorized by the religion to conduct worship services and perform other functions. It does not include laypersons who participate in services but are not authorized to perform the duties of a minister. A professional religious position is one for which the minimum requirement is a baccalaureate degree. A religious occupation is one traditionally part of the work of the denomination. This does not include support staff such as clerks or maintenance workers. Typical examples would be missionaries, counselors and liturgical workers. A religious vocation is a calling to the religious life with a demonstrable commitment to that life such as taking vows. Typical in this category would be monks and nuns.

Applicants for LPR status as religious workers must have been working for the religious group for at least two years prior to making the application. This work may be done either in or out of the US. In most cases where the work is done in the US, the person has been in the U.S. on an R visa.

The religious worker must work for a “bona fide, nonprofit, religious organization” or a “bona fide organization, which is affiliated with the religious denomination.” A bona fide, nonprofit, religious organization is described in INS regulations as one that would be tax exempt under the Internal Revenue Code. The organization does not need to have ever sought tax-exempt status, but need only prove to the INS that it is eligible for such status. A bona fide organization that is affiliated with a religious denomination is one closely associated with the religious denomination. It must also be eligible for tax-exempt status under the Internal Revenue Code.

A religious denomination is defined as defined as “a religious group or community of believers having some form of ecclesiastical government, a creed or statement of faith, some form of worship, a formal or informal code of doctrine and discipline, religious services and ceremonies, established places or religious worship, religious congregations, or comparable indication of a bona fide religious denomination.”