The fourth employment based immigrant category covers “special immigrants.” While it is an employment based category, not all “special immigrants” obtain a green card through employment. The most common special immigrant, the religious worker, does, however, obtain the green card through employment.
There are three classes of religious workers – ministers, professionals working in a religious vocation, and other workers in religious vocations. There is a limit of 5,000 visas available annually to religious workers, and the applicant 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 US on an R-1 visa, the nonimmigrant visa given to religious workers.
Qualifying Religious Organization
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 which is affiliated with a religious denomination is one closely associated with the religious denomination. It must also be eligible to 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.”
Qualifying Religious Occupations
As mentioned above, there are three types of religious workers, ministers, people working in a professional capacity in a religious occupation or vocation, and others working in a religious occupation or vocation.
Ministers are people authorized by the religion to conduct worship services and perform other functions. It does not include lay persons 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. It 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.
Filing the Petition
The petition is filed on Form I-360 with the appropriate regional service center. The petition must include evidence that the petitioner is a qualifying religious organization. This could be documentation or the organization’s tax exempt status or evidence that would be required to obtain tax exempt status. It must also include a letter from the petitioning organization.
This letter must confirm that the alien worked for the religious organization for the two years preceding filing. This must be work as a minister, professional in a religious occupation or vocation, or other worker in a religious occupation or vocation. It cannot be volunteer work. Nor can it have been sporadic paid work, it must be full time employment. If the two years were worked for a different organization than the one petitioning, both organizations must share a common religious doctrine.
If the alien is to work as a minister, the letter must that that the person is authorized to act as a minister, and must include a detailed list of the ministerial duties. The application must also include evidence that the alien is ordained or authorized to act as a minister, including a description of the ordaining process and evidence that the alien has gone through that process.
If the alien is to work as a professional, there must be evidence that the alien possesses a US bachelor’s degree or its foreign equivalent. If the work is in a religious vocation or occupation, the application must include evidence that the alien is qualified for that work. Such evidence could be proof that the alien is a monk or nun, or that the position is traditional within the organization. If the alien is to work with an affiliated organization, the employer letter must show the affiliation, and the application must include evidence of the organization’s tax exempt status.
Finally, the application should include details about how the worker will be paid.
Final Thoughts
The religious worker immigrant provision sunset on September 30, 2000. Bills to extend the program were pending in the House and Senate for months, but did not see final action until this week. The Congress passed a bill to extend the religious worker provisions until September 30, 2003, and President Clinton is likely to sign it.