[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]



=======================================================================
-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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]
BILLING CODE 4410-10-M