[Federal Register Volume 60, Number 108 (Tuesday, June 6, 1995)]
[Rules and Regulations]
[Pages 29751-29753]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-13805]
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DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Part 204
[INS No. 1436-94]
RIN 1115-AC71
Immigrant Petitions; Religious Workers
agency: Immigration and Naturalization Service, Justice.
action: Final rule.
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summary: This rule amends the Immigration and Naturalization Service
(Service) regulations by providing that all persons, other than
ministers, immigrating to the United States as religious workers must
immigrate or adjust status to permanent residence before October 1,
1997. This rule implements section 101(a)(27)(C)(ii) of the Immigration
and Nationality Act (Act) which provides that religious workers who
have 2 years of membership and experience in a religious occupation or
vocation qualify as special immigrant religious workers. By statute,
this immigrant category for religious workers expires on October 1,
1997. This rule codifies, in regulatory form, the October 1, 1997,
statutory deadline.
effective date: June 6, 1995.
for further information contact: Michael W. Straus, Senior
Adjudications Officer, Adjudications Division, Immigration and
Naturalization Service, 425 I Street, NW., Room 3214, Washington, DC
20536, telephone (202) 514-3228.
supplementary information: Section 151(a) of the Immigration Act of
1990 (IMMACT), Public Law 101-649, dated November 29, 1990, created a
new special immigrant category for religious workers and ministers by
amending section 101(a)(27)(C) of the Act. In order to qualify as a
minister, the applicant must be an ordained minister of a religious
denomination and have carried on the vocation of minister during the 2
years immediately preceding the application for admission. Section
101(a)(27)(C) of the Act also provided special immigrant status for
persons, other than ministers, who will work in a religious occupation
or vocation for a religious organization in a professional or other
capacity. Unlike the provision for ministers, which does not contain a
sunset provision, section 101(a)(27)(C)(ii) (II) and (III) of the Act,
as enacted by section 151(a) of IMMACT, provided that the other two
types of religious workers must ``seek to enter the United States * * *
before October 1, 1994.'' In October of 1994, the Immigration and
Nationality Technical Corrections Act (INTCA), Pub. L. 103-416,
extended the sunset date to October 1, 1997.
As originally promulgated, the regulations implementing IMMACT
provided that petitions for professional religious workers and other
religious workers must be filed on or before September 30, 1994. See 56
FR 60897-60913, dated November 29, 1991. The statute, however, requires
that immigrant religious workers (with the [[Page 29752]] exception of
ministers) actually enter the United States before October 1, 1994 (now
October 1, 1997). In other words, in order to immigrate under the
special immigrant religious worker category, aliens who are not
ministers must have a petition approved on their behalf and either
enter the United States as an immigrant or adjust their status to
permanent residence before October 1, 1997.
For the sake of clarification, the Service published an interim
regulation in the Federal Register which amended 8 CFR 204.5(m)(1) to
provide specifically that aliens must obtain permanent resident status
through immigration or adjustment of status on or before September 30,
1994, to qualify under the special immigrant religious worker category.
See 59 FR 27228-29, dated May 26, 1994. The public was provided with a
30-day period, ending on June 27, 1994, to comment on the interim
regulation. The Service received one comment.
Discussion of the Comment
The commenter stated that the Service misinterpreted the term
``seek to enter the United States before October 1, 1994'' in section
101(a)(27)(C)(ii) (II) and (III) of the Act. The commenter contended
that the term ``seek to enter'' means that the religious worker
initiate the immigration process before October 1, 1994. The comment
urged the Service to allow special immigrant religious workers to meet
the cut-off date by filing a petition before October 1, 1994. In the
alternative, the commenter stated that the October 1, 1994, cut-off
date could be met by applying for an immigrant visa at a U.S. consulate
or by applying for adjustment of status under section 245 of the Act
before October 1, 1994.
The Service disagrees with the commenter's interpretation of the
statutory language. The language of section 101(a)(27)(C)(ii) of the
Act requires that a qualifying religious worker seek to enter the
United States before October 1, 1997. Section 101(a)(13) of the Act
provides that an `` `entry' means any coming of an alien into the
United States.'' Reading section 101(a)(27)(C)(ii) of the Act in
conjunction with section 101(a)(13) of the Act, it is clear that not
only must the religious worker apply for admission to the United States
as an immigrant before October 1, 1997, but he or she must actually
seek to ``come into,'' i.e., arrive in the United States with an
immigrant visa before October 1, 1997.
As stated in the preamble to the interim rule, a petition must be
filed with the Service to establish the alien's eligibility for special
immigrant status as a religious worker. See section 204(a)(1)(E) of the
Act. At this initial step, an alien is merely seeking to be found
classifiable under section 203(b)(4) of the Act. After the Service
approves a petition, the next step in this process is an application
for an immigrant visa at a U.S. consulate. See section 222 of the Act.
After the consulate issues an immigrant visa, the alien must present
himself or herself at a Port-of-Entry and apply to enter the United
States. See section 221(e) of the Act. It is only at this step in the
process that the alien is deemed to be seeking to enter the United
States as a special immigrant. Further, it is only when the alien is
actually admitted to the United States that he or she affects an
``entry.'' The term ``seek to enter before October 1, 1997,''
therefore, refers only to an alien who is applying for admission to the
United States as an immigrant before that date.
This reading of section 101(a)(27)(C) of the Act is consistent with
the statutory scheme of the Act. Congress, by using the language ``seek
to enter before October 1, 1997,'' evidenced its intent to establish
the cut-off date as the time the alien actually enters the United
States as an immigrant. Had Congress intended to set the cut-off date
as the date a petition was filed with the Service on behalf of the
alien religious worker or the date the alien applied for adjustment of
status, it would have specifically provided so. Throughout the Act,
Congress has enacted provisions using cut-off dates based on the time
of application for permanent residence rather than entry. For example,
the special immigrant category for certain employees of international
organizations and their families requires applicants to apply for an
immigrant visa or adjustment of status before a certain date. See
section 101(a)(27)(I) of the Act. In addition, the Chinese Student
Protection Act of 1992, Pub. L. 102-404, provides that a qualified
alien must apply for adjustment of status during a 1-year application
period, beginning July 1, 1993. See also section 2(d) of the
Immigration Nursing Relief Act of 1989, Pub. L. 101-238.
This interpretation, and consequently the interim rule, is
consistent with the Department of State regulation which provides that
an immigrant visa issued on behalf of a special immigrant religious
worker, other than a minister, shall be valid no later than September
30, 1994. See 22 CFR 42.32(d)(1)(ii). The Service notes that, although
the Department of State's regulation erroneously makes reference to a
``religious worker'' as defined in 8 CFR 204.5(l), rather than 8 CFR
204.5(m), it is clear that this provision can only refer to an alien
described in section 101(a)(27)(C) of the Act, other than a minister of
religion.
Since the sole amendment to section 101(a)(27)(C)(ii) of the Act
made by the INTCA was the extension of the sunset date to October 1,
1997, the final regulation will provide that religious workers, other
than ministers, must obtain permanent resident status through
immigration or adjustment of status before October 1, 1997, in order to
immigrate as special immigrant religious workers.
Regulatory Flexibility Act
The Commissioner of the Immigration and Naturalization Service, in
accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has
reviewed this regulation, and by approving it, certifies that this rule
will not have a significant economic impact on a substantial number of
small entities. This rule merely clarifies a statutory deadline for a
limited number of aliens to become special immigrant religious workers.
Executive Order 12866
This rule is not considered by the Department of Justice,
Immigration and Naturalization Service to be a ``significant regulatory
action'' under Executive Order 12866, section 3(f), Regulatory Planning
and Review, and the Office of Management and Budget has waived its
review process under section 6(a)(3)(A).
Executive Order 12612
The regulation will not have substantial direct effects on the
States, on the relationship between the National Government and the
States, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with Executive
Order 12612, it is determined that this rule does not have sufficient
federalism implications to warrant the preparation of a Federalism
Assessment.
Executive Order 12606
The Commissioner of the Immigration and Naturalization Service
certifies that she has addressed this rule in light of the criteria in
Executive Order 12606 and has determined that it will have no effect on
family well-being.
List of Subjects in 8 CFR Part 204
Administrative practice and procedure, Aliens, Employment,
Immigration, Petitions.
Accordingly, the interim rule amending 8 CFR part 204 which was
[[Page 29753]] published at 59 FR 27228-27229 on May 26, 1994, is
adopted as a final rule with the following change:
PART 204--IMMIGRANT PETITIONS
1. The authority citation for part 204 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1151, 1153, 1154, 1182, 1186a,
1255; 8 CFR part 2.
Sec. 204.5 [Amended]
2. In Sec. 204.5, paragraph (m)(1) is amended in the last sentence
by revising the entry for the year ``1994'' to read: ``1997''.
Dated: May 8, 1995.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 95-13805 Filed 6-5-95; 8:45 am]
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