Note: The names of the Petitioner and Beneficiary in this AAO case have been withheld.

On April 20, 2004, the Administrative Appeals Office (AAO) reversed a Nebraska Service Center decision that denied a special immigrant religious worker petition (I-360).  This decision comes at a time when the four service centers have adopted a trend of denying religious worker petitions filed by religious organizations that are not classified as ‘churches’ under the Internal Revenue Code at section 501(c)(3).

Under Immigration and Naturalization Act (INA) § 101(a)(27)(C) and 8 CFR § 204.5(m), religious entities applying for religious worker immigrants must be “exempt from taxation as organizations described in IRC § 501(c)(3) as it relates to religious organizations.”  The regulations require these organizations show they either are exempt under 501(c)(3) as a religious organization, such as a church, or have the documentation required by the Internal Revenue Service to be eligible for exemption as a religious organization under 501(c)(3).  The regulations include these two separate options because according to IRS Tax Publication #1828, entitled “Tax Guide for Churches and Religious Organizations”, churches are considered automatically exempt from taxation and are therefore not required to obtain a formal 501(c)(3) determination letter.

However, immigration adjudicators have been interpreting the regulations to mean that a religious organization must be classified as a church under IRC § 170(b)(1)(A)(i).  This trend was first seen in Administrative Appeals Office (AAO) decisions in 2000, as reported by American Immigration Lawyers Association (AILA) members.  Similar problems then began to show up at USCIS service centers.  If a religious organization could not demonstrate that it was a church, the petition was denied.

In its original application, the petitioner had submitted a copy of an IRS letter dated September 30, 1987 recognizing the petitioner as tax-exempt under IRC 501(c)(3) and is an organization described in IRC 170(b)(A)(vi) under the provisions that refer to charities that receive a substantial part of their support in the form of contributions from publicly supported organizations, from a governmental unit or from the general public.  The petitioner had also submitted a copy of an IRS letter dated November 13, 1984 that stated that for the purposes of sections 501 through 514, 4940 through 4947 and 6033 of the IRC, the petitioner was a religious order.

The NSC denied the petition, stating that this submitted evidence did not establish that that petitioner was a “bona fide religious organizations as recognized by the IRS.”  On appeal, the petitioner submitted a brief and additional supporting evidence to demonstrate that the NSC had misinterpreted the law.

In its decision, the AAO stated that the NSC was correct that classification as a 501(c)(3) organization under IRC 170(b)(1)(A)(vi) is not sufficient in and of itself to establish that the organization has been recognized as tax-exempt as a religious organization.  However, the AAO pointed out that the NSC was incorrect in its decision to deny the petition because of a lack of evidence establishing that the organization was a “bona fide religious organization as recognized by the IRS” as the petitioner had submitted a second IRS letter that explicitly stated that the petitioner was a religious organization.  The AAO also drew attention to portions of the IRS Publication 1828 that were submitted by the petitioner on appeal that pointed out that the IRS does recognize religious organizations that are not churches that may be tax-exempt under 501(c)(3).  The AAO stated, “Therefore, the petitioner has overcome the finding of the [NSC] director that the petitioner is not a bona fide nonprofit religious organization.”

The AAO concluded that the NSC’s determination that “only churches qualify as religious organizations is overly broad and is, therefore, withdrawn.”