[Federal Register Volume 60, Number 157 (Tuesday, August 15, 1995)]
[Rules and Regulations]
[Pages 42034-42037]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-20139]
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DEPARTMENT OF STATE
Bureau of Consular Affairs
22 CFR Part 41
[Public Notice 2238]
Visas: Documentation of Nonimmigrants Under the Immigration and
Nationality Act, as Amended; Business and Media Visas
AGENCY: Bureau of Consular Affairs, DOS.
ACTION: Final rule.
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SUMMARY: This rule implements the provisions of section 209 of the
Immigration Act of 1990. This section creates a new nonimmigrant
classification under INA 101(a)(15)(R). The new nonimmigrant visa
classification provides for the temporary admission into the United
States of ``aliens in religious occupations.''
DATES: August 15, 1995.
FOR FURTHER INFORMATION CONTACT: Stephen K. Fischel, Chief, Legislation
and Regulations Division, 202-663-1204.
SUPPLEMENTARY INFORMATION: On January 6, 1992, at 57 FR 341, the
Department of State published an interim rule in the Federal Register
and requested comments from interested parties by February 5, 1992. The
Visa Office received six comments on the interim rule and considered
each one of the comments in the preparation of the final rule.
General
As explained in the preamble to the interim rule, the Immigration
Act of 1990, Public Law 101-649, amended INA 101(a)(27)(C) and created
INA 101(a)(15)(R). The substantive standards for the nonimmigrant and
immigrant provisions are the same with the exception that the immigrant
category requires that the immigrant alien must have been performing
out one of the vocations and activities listed in INA 101(a)(27)(C)
during the 2 years immediately preceding the petition for special
immigrant status. A significant procedural difference between the
nonimmigrant visa classification and the special immigrant category
lies in the fact that a petition must be filed with and approved by the
Immigration and Naturalization Service (INS) to accord special
immigrant status. Although no petition is required to establish
entitlement under the ``R'' visa classification, the applicable
standards common to the two visas must be applied by the INS and the
Department
[[Page 42035]]
of State. It is essential, therefore, that the standards be the same.
To ensure that the regulatory standards were indeed the same, the
publication of the Department's interim rule was delayed until the
publication on December 27, 1991 of INS' final rule relating to the
``R'' visa. A comparison of the two regulations reveals that the
language of the portions common to both agencies is almost identical.
Comments
One commenter objected to the rule being published as an interim
rule rather than as a proposed rule. The commenter expressed concern
that the interim rule was published prior to the solicitation of public
comments rather than afterward. He saw this as a violation of the
Administrative Procedure Act, 5 U.S.C. 551 et seq. Section 553(b)(3) of
the Administrative Procedure Act exempts Federal agencies from the more
extensive notice requirements of proposed rule making when such notice
is ``impracticable * * * or contrary to the public interest.'' As the
commenter correctly pointed out, however, where a Federal agency finds
that proposed rule making is ``contrary to the public interest,''
section 553(b)(3)(B) requires the Federal agency to provide a statement
of reasons for that finding. Although the Department failed to provide
such a statement when it published the interim rule, the Department
believes that the public interest standard was, in fact, met. The
Department sought to publish a regulation governing the issuance of R
visas as soon as possible as the INS final rule on R visas (upon which
our regulations are dependent) had been published on December 27, 1991.
The Department sought prompt publication of this rule to ensure
consistency. This interim rule also called for public comment,
soliciting comments for any possible amendments in the final rule.
The Department received one comment concerning the definition of
religious denomination at Sec. 41.58(b). The commenter made the point
that the use of the word ``interdenominational'' may cause ambiguity.
Consequently, it was suggested that either ``interdenominational'' be
deleted or that the sentence be amended to read ``interdenominational
as well as religious organizations.'' The purpose of the use of the
term ``interdenominational'' is to be expansive and to include not just
single religious groups, i.e., denominations, but also, those entities
which consist of two or more religious groups. As the language of the
interim rule conveys the intended meaning, it will be retained in the
final rule.
One commenter suggested that the definition of ``bona fide
nonprofit religious organization in the United States'' is too narrow.
The interim rule defines such organization as one which has been found
to be tax exempt as described in section 501(c)(3) of the Internal
Revenue Code of 1986, as it relates to religious organizations, or as
an organization which would in the opinion of a consular officer be
eligible for such tax exempt status had application been made. The
commenter stated that the definition was overly restrictive for four
reasons: first, the statute does not require that definitional
standard; secondly, the rule conflicts with agency policy; thirdly, the
rule conflicts with legislative history; and fourthly, the tax exempt
status is not a viable means to determine nonprofit status. The
Immigration Act of 1990 amended the definition of a religious
organization by adding a specific reference to the tax exempt
provisions of the Internal Revenue Code. Formerly, INA 101(a)(27)(C)
required the applicant to submit proof of tax exempt status as accorded
by the IRS. Practice has found that this is the most viable way to
address the issue of qualifying organizations. The definition of
religious organization in connection with the Internal Revenue Code is,
therefore, entirely consistent with the plain language of INA
101(a)(15)(R). Consequently, the regulation has not been amended in
this regard.
A commenter objected to language in the supplementary information
preceding the interim rule that an affiliated organization to the
religious organization, defined in Sec. 41.58(d), be ``subordinate or
dependent.'' It should be noted that the language of the final rule is
consistent with INS' final rule and does not include this requirement.
The supplementary information inaccurately characterized the definition
of an affiliated organization.
One commenter objected to the requirement that a professional
religious worker (Sec. 41.58(f)) possess at least a U.S. baccalaureate
degree or its foreign equivalent. The commenter claimed that because
there is no degree requirement in the Act, there can be no statutory
basis for instituting such a requirement. The commenter also contended
that the ``R'' classification encompasses credentials and experience
that are less quantifiable than their counterparts in other
nonimmigrant visa categories. The thrust of the argument is that degree
equivalence in the form of experience, etc. should be permitted for
religious workers. On the other hand, a commenter opined that the
proposed definition of professional capacity was not restrictive
enough.
The INS addressed these same issues in the supplementary
information to their final rule. We are in accord with that agency's
reasoning and conclusion and retain the language in the final rule.
This language is consistent with INS' regulations for the ``R'' visa as
well as the immigrant religious worker visa category. In addition to
ministers of religion the statute provides for two classes of religious
workers; those working in a religious vocation or occupation and those
working in a religious vocation or occupation in a professional
capacity. The distinguishing feature between these two classes of
religious workers lies obviously in the element of ``professional
capacity''. By making this distinction, it is assumed that Congress
intended that there be a difference in meaning. The only reasonable
meaning lies in defining professional capacity in the manner that is
reflected in the regulation. The statute has defined ``profession'' in
INA 101(a)(32) and has defined ``professional'' at INA 203(b)(3)(A). In
the latter provision the statute requires the professional to have a
baccalaureate degree, thus shedding light on congressional intent in
the religious worker context. To accept the proposal about equivalency
would remove any meaningful distinction between these two classes of
religious workers. Religious workers who have experience in lieu of a
baccalaureate degree would qualify under the general class of religious
workers involved in a religious vocation or occupation. It should be
noted that foreign degrees equivalent to the U.S. baccalaureate are
recognized and accepted.
One commenter suggests that the ``traditional'' religious function
should be liberally construed. The commenter is apparently referring to
Sec. 41.58(g) and is not requesting any regulatory change but is merely
expressing the view that in implementing this subsection the Department
interpret this concept ``liberally.'' Consular officers will be
instructed to interpret this term contextually. The occupational
activity must be reviewed in the context of the particular religion to
determine if it is a ``traditional'' activity for that religion. No
change in the regulation is, therefore, necessary.
The Department received a comment stating that the definition of
``religious occupation'' (at Sec. 41.58(g)) was overly broad,
specifically citing the list of the activities in subsection (g). It is
crucial to note that the list of activities set forth in the regulation
exactly mirrors the list
[[Page 42036]]
of activities that the House Committee on the Judiciary deemed were
activities falling within the ambit of religious occupation. in their
legislative history at H.R. 101-723, p. 75. The legislative history
emphasizes that these activities must ``relate to traditional religious
functions.'' This qualifying element has, therefore, been incorporated
into the regulation.
A commenter asked that the rule expressly recognize any combination
of religious workers' duties to satisfy the employment requirement. The
commenter argued that since religious worker positions often involve a
wide array of duties and responsibilities and such positions will not
fall cleanly within the parameters of any of the three religious worker
subcategories, recognition for ``hybrid'' vocations and occupations
should be accorded generally under this classification. The
Department's responsibility is to administer this section of the INA as
written. Visa applicants must demonstrate that they qualify under one
of the three subcategories. The language of the statute and regulations
defining religious occupation and religious vocation appear to be
sufficiently broad to encompass the type of occupations which appear to
be contemplated by the commenter. Nothing in the regulations limits a
``religious occupation'' to a single activity. The activities
comprising the occupation must, however, ``relate to a traditional
religious function.''
A commenter objected to language in the supplementary information
to the interim rule describing religious vocation. The supplementary
information states that ``an alien who has taken vows or the equivalent
and has made a lifetime commitment to a religion is presumed to be
engaging in activities relating to a traditional religious function . .
.''. As pointed out by the commenter, in its final rule INS stated that
the calling to religious life is ``evidenced by the demonstration of
commitment practiced in the religious denomination.'' The Department's
interim rule and the final regulation use the same language and endorse
this concept. The language in the supplementary information in the
interim rule is much more restrictive and inconsistent with this
regulatory language.
Lastly, a commenter asserted that a petition is required to accord
``R'' visa status. Because a petition is required to be filed with and
approved by the INS as a condition precedent to visa application and
issuance for certain nonimmigrant worker visa classifications, the
commenter believed the petition requirement applied to this
classification as well. The INA in section 214 specifically requires
the filing of a petition with INS regarding H, L, O, P, and Q visa
classifications. However, Congress did not impose such a requirement
with respect to the ``R'' visa classification. Consequently, no
petition requirement will be imposed for this visa classification under
the current state of the law.
Final Rule
This final rule provides the general requirements of this
nonimmigrant classification in paragraph Sec. 41.58(a); defines terms
for this classification in paragraphs (b) through (g); and, prohibits,
in paragraph (h), the issuance of an ``R'' visa to an alien who has
spent five years in the United States in the ``R'' classification
unless the alien has been resident and physically present outside the
United States for the immediate preceding year.
This rule is not considered to be a major rule for purposes of E.O.
12291 nor is it expected to have a significant impact on a substantial
number of small entities under the criteria of the Regulatory
Flexibility Act. This rule imposes no reporting or record-keeping
action from the public requiring the approval of the Office of
Management and Budget under the Paperwork Reduction Act requirements.
This rule has been reviewed as required by E.O. 12778 and certified to
be in compliance therewith, and reviewed in light of E.O. 12866 and
found to be consistent therewith.
List of Subjects in 22 CFR Part 41
Aliens in religious occupations, Nonimmigrants, Passports and
visas, Religious organizations.
In view of the legislative mandate of Public Law 101-649, Part 41
to Title 22 is amended by adding new section 41.58.
PART 41--[AMENDED]
1. The authority citation for Part 41 continues to read:
Authority: 8 U.S.C. 1104.
2. Part 41, Subpart F--Business and News Media, is amended by
adding Sec. 41.58 to read as follows:
Sec. 41.58 Aliens in religious occupations.
(a) Requirements for ``R'' classification. An alien shall be
classifiable under the provisions of INA 101(a)(15)(R) if:
(1) The consular officer is satisfied that the alien qualifies
under the provisions of that section; and
(2) The alien, for the 2 years immediately preceding the time of
application for admission, has been a member of a religious
denomination having a bona fide nonprofit, religious organization in
the United States; and
(3) The alien seeks to enter the United States solely for the
purpose of
(i) Carrying on the vocation of a minister of that religious
denomination, or
(ii) At the request of the organization, working in a professional
capacity in a religious vocation or occupation for that organization,
or
(iii) At the request of the organization, working in a religious
vocation or occupation for the organization, or for a bona fide
organization which is affiliated with the religious denomination
described in section 501(c)(3) of the Internal Revenue Code of 1986;
and
(4) The alien is seeking to enter the United States for a period
not to exceed 5 years to perform the activities described in paragraph
(3) of this section; or
(5) The alien is the spouse or child of an alien so classified and
is accompanying or following to join the principal alien.
(b) Religious denomination. A religious denomination is a religious
group or community of believers. Among the factors that may be
considered in determining whether a group constitutes a bona fide
religious denomination are the presence of some form of ecclesiastical
government, a recognized creed and form of worship, a formal code of
doctrine and discipline, religious services and ceremonies, established
places of religious worship, and religious congregations. For purposes
of this definition, an interdenominational religious organization which
is exempt from taxation pursuant to section 501(c)(3) of the Internal
Revenue Code of 1986 will be treated as a religious denomination.
(c) Bona fide nonprofit religious organization in the United
States. For purposes of this section, a bona fide nonprofit religious
organization is an organization exempt from taxation as described in
section 501(c)(3) of the Internal Revenue Code of 1986, as it relates
to religious organizations, or one that has never sought such exemption
but establishes to the satisfaction of the consular officer that it
would be eligible therefore if it had applied for tax exempt status.
(d) Bona fide organization which is affiliated with the religious
denomination. A bona fide organization affiliated with the religious
denomination is an organization which is both closely associated with
the religious denomination and exempt
[[Page 42037]]
from taxation as described in section 501(c)(3) of the Internal Revenue
Code of 1986, as it relates to religious organizations.
(e) Minister of religion. A minister is an individual who is duly
authorized by a recognized religious denomination to conduct religious
worship and to perform other duties usually performed by authorized
members of the clergy of that religion. A minister does not include a
lay preacher who is not authorized to perform such duties. In all
cases, there must be a reasonable connection between the activities
performed and the religious calling of a minister.
(f) Professional capacity. Working in a professional capacity means
engaging in an activity in a religious vocation or occupation which is
defined by INA 101(a)(32) or for which the minimum of a United States
baccalaureate degree or a foreign equivalent degree is required for
entry into that field of endeavor.
(g) Religious occupation. A religious occupation is the habitual
employment or engagement in an activity which relates to a traditional
religious function. Examples of individuals in religious occupations
include, but are not limited to liturgical workers, religious
instructors, religious counselors, cantors, catechists, workers in
religious hospitals or religious health care facilities, missionaries,
religious translators, or religious broadcasters. This group does not
include janitors, maintenance workers, clerks, fund raisers, or persons
solely involved in the solicitation of donations.
(h) Religious vocation. A religious vocation is a calling to
religious life evidenced by the demonstration of commitment practiced
in the religious denomination, such as the taking of vows. Examples of
individuals with a religious vocation include, but are not limited to
nuns, monks, and religious brothers and sisters.
(i) Alien not entitled to classification under INA 101(a)(15)(R).
An alien who has spent 5 years in the United States under INA
101(a)(15)(R) is not entitled to classification and visa issuance under
that section unless the alien has resided and been physically present
outside the United States, except for brief visits to the United States
for business or pleasure, for the immediate prior year.
Dated: August 9, 1995.
Diane Dillard,
Acting Assistant Secretary for Consular Affairs.
[FR Doc. 95-20139 Filed 8-14-95; 8:45 am]
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