[Federal Register Volume 73, Number 229 (Wednesday, November 26, 2008)]
[Rules and Regulations]
[Pages 72276-72297]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-28225]
[[Page 72275]]
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Part VIII
Department of Homeland Security
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U.S. Citizenship and Immigration Services
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8 CFR Parts 204, 214 and 299
Special Immigrant and Nonimmigrant Religious Workers; Special Immigrant
Nonminister Religious Worker Program Act; Final Rule and Notice
Federal Register / Vol. 73, No. 229 / Wednesday, November 26, 2008 /
Rules and Regulations
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DEPARTMENT OF HOMELAND SECURITY
U.S. Citizenship and Immigration Services
8 CFR Parts 204, 214 and 299
[CIS No. 2302-05; DHS Docket No. USCIS-2005-0030]
RIN 1615-AA16
Special Immigrant and Nonimmigrant Religious Workers
AGENCY: U.S. Citizenship and Immigration Services, DHS.
ACTION: Final rule.
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SUMMARY: This final rule amends U.S. Citizenship and Immigration
Services (USCIS) regulations to improve the Department of Homeland
Security's (DHS's) ability to detect and deter fraud and other abuses
in the religious worker program. This rule addresses concerns about the
integrity of the religious worker program by requiring religious
organizations seeking the admission to the United States of
nonimmigrant religious workers to file formal petitions with USCIS on
behalf of such workers. This rule also implements the Special Immigrant
Nonminister Religious Worker Program Act requiring DHS to issue this
final rule to eliminate or reduce fraud in regard to the granting of
special immigrant status to nonminister religious workers. The rule
emphasizes that USCIS will conduct inspections, evaluations,
verifications, and compliance reviews of religious organizations to
ensure the legitimacy of the petitioner and statements made in the
petitions. This rule adds and amends definitions and evidentiary
requirements for both religious organizations and religious workers.
Finally, this rule amends how USCIS regulations reference the sunset
date by which special immigrant religious workers, other than
ministers, must immigrate or adjust status to permanent residence.
DATES: Effective date: This rule is effective November 26, 2008.
FOR FURTHER INFORMATION CONTACT: Emisa Tamanaha, Adjudications Officer,
Business and Trade Services, Service Center Operations, U.S.
Citizenship and Immigration Services, Department of Homeland Security,
111 Massachusetts Avenue, NW., 3rd Floor, Washington, DC 20529,
telephone (202) 272-1505.
SUPPLEMENTARY INFORMATION:
List of Acronyms and Abbreviations
BFA--Benefit Fraud Assessment
DHS--Department of Homeland Security
FDNS--Fraud Detection and National Security
GAO--Government Accountability Office
ICE--U.S. Immigration and Customs Enforcement
INA--Immigration and Nationality Act
IRC--Internal Revenue Code of 1986
IRS--Internal Revenue Service
RFRA--Religious Freedom Restoration Act of 1993
USCIS--U.S. Citizenship and Immigration Services
I. Background
The United States has a long history of allowing aliens into the
United States for the purpose of performing religious work. Significant
evidence indicates, however, that the current rules governing the
immigration of religious workers do not adequately prevent individuals
from seeking admission to the United States through fraud. USCIS is
implementing requirements under this final rule to allow the Federal
government, as well as religious organizations, to better detect and
deter fraud or other abuses of the religious worker program without
compromising the many contributions made by nonimmigrant and immigrant
religious workers to religious organizations in the United States.
Aliens may apply for religious worker status in the United States
as either nonimmigrants or special immigrants under sections
101(a)(15)(R) and (27)(C) of the Immigration and Naturalization Act
(INA) and USCIS regulations. See 8 U.S.C. 1101(a)(15)(R) and (27)(C); 8
CFR 204.5(m), 214.2(r). A nonimmigrant religious worker (R-1) may only
be admitted to the United States for a period not to exceed five years.
The spouse and any unmarried children under the age of 21 of a
nonimmigrant granted R-1 status can be admitted to the United States as
R-2 nonimmigrants in order to accompany, or follow to join, the
principal R-1 alien. R-2 nonimmigrants, however, may not accept
employment while in the United States under R-2 nonimmigrant status. 8
CFR 214.2(r)(8).
Aliens classified as special immigrant religious workers are
eligible for admission to the United States as permanent residents. The
spouse and any unmarried children under the age of 21 of a special
immigrant religious worker also are eligible to apply for permanent
residence by virtue of the worker's acquisition of permanent residence.
INA section 101(a)(27)(C), 8 U.S.C. 1101(27)(C). However, 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 while in the United States by no later than
September 30, 2008. Section 101(a)(27)(C)(ii)(II) and (III) of the Act,
8 U.S.C. 1101(a)(27)(C)(ii)(II) and (III). The sunset date, the final
date by which special immigrant religious workers, other than
ministers, must immigrate or adjust status to permanent residence only
applies to special immigrant workers in a religious vocation or
occupation; it does not apply to the nonimmigrant religious worker
category or to special immigrant ministers.\1\
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\1\ This sunset date, for special immigrant nonminister
religious workers was initially implemented in 1990, has been
extended four times. This provision expired on October 1, 2008. The
Special Immigrant Nonminister Religious Worker Program Act, S. 3606,
Public Law No. 110-391 (October 10, 2008) extends the program to
March 6, 2009 contingent, in part, upon promulgation of this rule to
``eliminate or reduce fraud related to the granting of special
immigrant status'' to nonminister religious workers.
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To qualify for religious worker status, the alien, whether a
special immigrant or nonimmigrant, must have been a member of a
religious denomination having a bona fide, non-profit religious
organization in the United States. The applicant must have been a
member of the religious denomination for at least two years preceding
application for religious worker status. The alien also must plan to
work as a minister of the denomination or in a religious occupation or
vocation for a bona fide, non-profit religious organization (or a tax-
exempt affiliate of such an organization). Examples of persons working
in religious occupations or vocations that may be eligible for
religious worker visas currently include, but are not limited to,
workers in religious hospitals or healthcare facilities, religious
counselors, cantors, or missionaries. This group does not include
maintenance workers, clerical workers or persons solely involved in
fundraising.
Under current USCIS regulations, special immigrants seeking
religious-worker status must be sponsored by an employer who submits a
petition on behalf of the alien. 8 CFR 214.2(r)(3). USCIS must approve
the petition before the alien is granted special immigrant status.
USCIS does not currently require, however, that a nonimmigrant
living outside of the United States file a petition to obtain a
religious worker visa (R-1). At present, an alien can initiate an R-1
classification at a consular office overseas through application for an
R-1 visa (without any prior approval of a petition by USCIS). In
addition, aliens from Visa Waiver Program countries do
[[Page 72277]]
not have to obtain a visa to travel within the United States under
Sec. 217 of the INA. Those visa-exempt aliens are admitted (assuming
eligibility and admissibility) into the United States when they present
themselves at a port of entry.
In March 1999, the Government Accountability Office (GAO)
identified incidents of fraud in the religious worker program. GAO,
ISSUES CONCERNING THE RELIGIOUS WORKER VISA PROGRAM, Report GAO/NSIAD-
99-67 (March 26, 1999). The report stated that the fraud often involved
false statements by petitioners about the length of time that the
applicants were members of the religious organizations, the
petitioners' qualifying work experience and the positions being filled.
The report also noted problems with applicants making false statements
about their qualifications and exact plans in the United States. In
2005, USCIS's Office of Fraud Detection and National Security (FDNS)
estimated that approximately one-third of applications and petitions
filed for religious worker admission were fraudulent. FDNS found that a
significant number of the fraudulent petitions identified had been
filed on behalf of non-existent organizations. FDNS also found a
significant number of petitions that contained material
misrepresentations in the documentation submitted to establish
eligibility.\2\
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\2\ A summary of the USCIS FDNS Religious Worker Benefit Fraud
Assessment was posted out the docket for this rulemaking action and
can be found at http://www.regulations.gov or http://www.cis.gov.
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To address these concerns and minimize, if not eliminate, the
potential for fraud and abuse in the religious worker program, USCIS
issued a notice of proposed rulemaking on April 25, 2007 (NPRM or
proposed rule), proposing amendments to the religious worker program.
72 FR 20442. Some of the changes proposed under the NPRM included:
Requiring sponsoring employers to submit all petitions for
religious worker status, rather than allowing the aliens to submit
these petitions. Under the proposed petitioning process, USCIS would
have the opportunity to verify the sponsoring employer and terms of
employment before approving the petition.
Providing notice of USCIS's intent to conduct on-site
inspections as part of the petition approval process. This would allow
USCIS to verify the legitimacy of the sponsoring employer and the terms
of employment.
Requiring that a religious worker (unless the alien has
taken a vow of poverty or similar commitment) be compensated by the
employer in the form of a salary or stipend, room and board or other
support that can be reflected in verifiable Internal Revenue Service
(IRS) documents.
Adding or amending regulatory definitions to describe more
clearly the regulatory requirements.
Establishing additional evidentiary requirements for the
petitioning employers and prospective religious workers.
Adjusting the date by which special immigrant religious
workers, other than ministers, must immigrate or adjust status to
permanent residence. Congress extended this date to October 1, 2008,
and the NPRM proposed to recognize this new date by referring to the
relevant statutory provision.
USCIS received 167 comments during the public comment period for
this rulemaking action. USCIS considered the comments received in the
development of this final rule.
II. Summary of the Final Rule
The final rule adopts many of the requirements set forth in the
proposed rule. The rationale for the proposed rule and the reasoning
provided in the preamble to the proposed rule remain valid and USCIS
adopts the reasoning in the preamble of the proposed rule in support of
the promulgation of this final rule.
USCIS made several changes based on the comments received. The
significant provisions of the final rule and changes from the NPRM are
summarized below and discussed in Section III ``Responses to Public
Comments on the Proposed Rule.''
In addition, for ease of reference, USCIS duplicated definitions
where both the immigrant worker and nonimmigrant worker provisions used
the same words or phrases. Therefore, definitions such as ``bona fide
non-profit religious organization in the United States,'' ``religious
denomination,'' and ``minister'' are identical in both 8 CFR
204.5(m)(5) and 8 CFR 214.2(r)(3).
A. Petitioning and Attestation Requirements
The NPRM proposed to require that all aliens seeking religious
worker status--whether as special immigrants or nonimmigrants--must
have a sponsoring employer or organization submit a petition on the
aliens' behalf. This final rule retains the petitioning requirement,
but continues to allow an alien seeking special immigrant religious
worker status to submit a petition (Form I-360) on his or her behalf.
New 8 CFR 204.5(m)(6). A nonimmigrant alien seeking R-1 status cannot
self-petition, but must have an employer submit a petition (Form I-129)
on his or her behalf. 8 CFR 214.2(r)(7). By implementing the petition
requirement, USCIS seeks to preserve the integrity of the program at
the outset by denying the petition for fraud or other ineligibility
factors. It also allows both USCIS and the petitioning religious
employer to respond to derogatory information revealed by on-site
inspections before the petition is denied.
In addition to filing the required form and associated petitioning
fee, under this final rule, an authorized official of the petitioning
employer must attest to a number of factors; including, but not limited
to: (i) That the prospective employer is a bona fide non-profit
religious organization or a religious organization which is affiliated
with the religious denomination and is exempt from taxation; (ii) the
number of members of the prospective employer's organization, the
number of aliens holding religious worker status (both special
immigrant and nonimmigrant) and the number of petitions filed by the
employer for such status within the preceding five years; (iii) the
complete package of salaried or non-salaried compensation being offered
and a detailed description of the alien's proposed daily duties; and
(iv) that an alien seeking special immigrant religious worker status
will be employed at least 35 hours per week and an alien seeking
nonimmigrant religious worker status will be employed for at least 20
hours per week. See e.g., new 8 CFR 204.5(m)(7); 214.2(r)(8).
B. Denial, Revocation and Appeals Processes
This final rule adds a provision for a petitioner to appeal the
denial of a nonimmigrant petition. New 8 CFR 214.2(r)(17). This final
rule also adds a process for USCIS to revoke a nonimmigrant religious
worker petition at any time, and a process for the petitioner to appeal
a determination by USCIS to revoke the petition. New 8 CFR 214.2(r)(18)
and (19). These appeal and revocation procedures have been added to the
final rule, although they were not published for public comment in the
proposed rule, to ensure consistency among the employment-based
nonimmigrant visas. The nonimmigrant visa classifications at 8 CFR
214.2(h), (l), (o), (p), and (q) provide appeal and revocation
[[Page 72278]]
procedures similar to those added by this rule. Using the same
standards for all employment-based nonimmigrant visas will ensure a
fair and uniform process. Furthermore, adding revocation procedures to
the final rule will enable USCIS to take immediate action against
nonimmigrants who submit fraudulent petitions or engage in fraudulent
activities while in the United States. Implementation of these
revocation procedures will safeguard the interests of petitioners as
there is an appeal process for petitions revoked on notice and an
appeal process for petitions that are denied.
C. IRS Determination Letter
USCIS also is retaining the requirement proposed in the NPRM that a
petitioner must file a determination letter from the Internal Revenue
Service (IRS) of the tax-exempt status of the petitioning religious
organization under Internal Revenue Code (IRC) 501(c)(3), 26 U.S.C.
501(c)(3). USCIS acknowledges that obtaining a determination letter
from the IRS will require the organization to pay a user fee to IRS.
If, however, the organization has already obtained a determination
letter, those letters do not expire and the organization does not need
to obtain a separate letter for purposes of this rule. An organization,
therefore, will only need to pay a fee once to obtain the required
determination letter.
D. USCIS On-Site Inspections
USCIS is retaining in this final rule the provision that USCIS may
verify supporting evidence provided by a petitioner through any
appropriate means, including an on-site inspection of the petitioning
organization. 8 CFR 204.5(m)(1); 214.2(r)(12). Such inspections may
include a tour of the organization's facilities, an interview with
organization officials, review of selected organization records
relating to the organization's compliance with immigration laws and
regulations, and interviews with any other individuals or review of any
other records that USCIS considers pertinent to the integrity of the
organization.
E. Period of Initial Admission and Extension of Status for R-1 Workers
Under the INA, nonimmigrant religious workers may be admitted to
the United States for a period not to exceed five years. INA section
101(a)(15)(R), 8 U.S.C. 1101(a)(15)(R). USCIS's current regulations
provide for an initial period of admission of three years for
nonimmigrant religious workers, with the opportunity to petition for an
extension of stay for two additional years. In the NPRM, USCIS proposed
to change this to a one-year initial period of admission and the
opportunity to petition for two extensions of two years each. USCIS has
changed this provision. Under this final rule, nonimmigrant religious
workers may obtain an initial period of admission of up to 30 months
and then may obtain one extension of religious worker status for up to
30 months, for a total of no more than 60 months (the five-year
statutory maximum) lawful status in the United States as nonimmigrant
religious workers. See 8 CFR 214.2(r)(4) as amended. As with the
initial petition for nonimmigrant religious worker status, however, the
employer must submit the petition for an extension of stay (Form I-
129).
F. Compensation Requirements
USCIS also clarified in this final rule the compensation
requirements for nonimmigrant and special immigrant petitions. With
limited exceptions, the beneficiary of an initial petition for R-1
nonimmigrant status must be compensated either by salaried or non-
salaried compensation, and the petitioner must provide verifiable
evidence of such compensation. If there is to be no compensation, the
petitioner must provide verifiable evidence that such non-compensated
religious workers will be participating in an established,
traditionally non-compensated, missionary program within the
denomination, which is part of a broader international program of
missionary work sponsored by the denomination. The petitioner must also
provide verifiable evidence of how the aliens will be supported while
participating in that program. Petitioners must submit verifiable
evidence of past compensation or support for nonimmigrants with any
extension of status request for such nonimmigrants. Special immigrant
petitioners must submit verifiable evidence of: (1) How the petitioner
intends to compensate the alien and (2) past compensation or support to
demonstrate the required previous two years of religious work. See
e.g., 8 CFR 204.5(m)(7)(xi), (xii) and (10), 214.2(r)(11).
G. Self-Supporting Nonimmigrant Aliens
The final rule places limits on the ability of uncompensated, self-
supporting nonimmigrant aliens to obtain status as nonimmigrant
religious workers. USCIS regulations currently do not expressly
prohibit the admission of uncompensated employees as R-1 religious
workers. In the NPRM, USCIS proposed to require that a nonimmigrant
alien obtain a form of demonstrable compensation--either in salary or
such in-kind support as room and board--and proposed to prohibit R-1
status for aliens who were not compensated by the organization or were
self-supporting. 72 FR at 20453. This final rule departs from the NPRM
by continuing to allow the admission of some uncompensated nonimmigrant
alien workers under the R-1 visa classification, but restricts such
admission to those workers who are part of an established program for
temporary, uncompensated missionary work which is part of a broader
international program of missionary work sponsored by the denomination.
Given the great potential for fraud and abuse of the R-1 program that
arises from allowing the petitioning entity to be exempted from the
general requirement that it compensate its R-1 workers, it is
reasonable to restrict sponsorship of self-supporting R-1 workers to
the narrowest possible class of religious entities that might
traditionally rely on such workers. Based on the comments received from
the public, USCIS has determined that class to be the class of
religious entities directing international missionary programs.
This final rule defines an established program for temporary,
uncompensated missionary work to be a missionary program in which: (1)
Foreign workers, whether compensated or uncompensated, have previously
participated in R-1 status; (2) missionary workers are traditionally
uncompensated; (3) the organization provides formal training for
missionaries; and (4) participation in such missionary work is an
established element of religious development in that denomination. See
new 8 CFR 214.2(r)(11)(ii). The purpose of the rule is to detect and
deter fraud and other abuses in this program. Allowing new missionary
entities, who have never undergone a site visit and the other
protections the R-1 program affords DHS, to petition for self-
supporting R-1 workers poses an unacceptable risk. Significantly, as
discussed below, self-supporting missionary workers who are not
beneficiaries of a petition filed by an entity with an established
missionary program, and thus are not eligible for admission to the
United States as R-1 nonimmigrant religious workers, may still pursue
admission in the B-1 classification. 8 CFR 214.2(b)(1). See also 9 FAM
41.31 N9.1.
In such cases, the petitioner must submit evidence, such as books,
articles, brochures or similar documents, demonstrating that the
organization has an established program for
[[Page 72279]]
uncompensated missionary work and that the denomination maintains
missionary programs both in the United States and abroad. Furthermore,
the books, articles, brochures or other documents must describe the
religious duties associated with the traditionally uncompensated
missionary work. The evidence must include specific documentation of
the alien's acceptance into the program and set forth any
responsibilities the alien will assume while participating in the
program. The evidence should also include copies of the alien's foreign
and/or U.S. bank records with English translations, as appropriate, for
the two-year period preceding the filing of the petition, alien's bank
records, budgets documenting the sources of self-support (e.g. personal
or family savings, room and board with host families in the United
States, donations from the denomination's churches), or other
verifiable evidence acceptable to USCIS. All evidence submitted to
USCIS is handled in accordance with the Privacy Act and FOIA. To deter
fraud, USCIS may refer determinations of whether such a program is
self-supporting or taxable income to the Internal Revenue Service.
H. Definition of ``Religious Occupation''
The final rule also removes the examples of employment positions
from the proposed definition of ``religious occupation.'' The listed
employment positions were only examples, but commenters appeared to
believe that the examples represented an exhaustive or biased list of
employment positions that were eligible for religious worker status and
that the list was tailored only to Judeo-Christian organizations. USCIS
has removed those examples to eliminate confusion.\3\ The final rule,
however, clarifies that religious organizations must submit evidence
identifying religious occupations that are specific to that
denomination. Additionally, the petitioning organization must submit
evidence demonstrating that an alien's proposed duties meet the
religious occupation's requirements.
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\3\ The examples provided for ``religious vocation'' however
remain in 8 CFR 204.5(m)(5) and 214.2(r)(3).
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USCIS also has made changes in the final rule to improve its
clarity and readability. For example, all definitions are included in
both 8 CFR 204.5(m) and 214.2(r).
III. Public Comments on the Proposed Rule
USCIS provided a 60-day comment period for the proposed rule that
ended on June 25, 2007. USCIS subsequently re-opened the comment period
for an additional 15 days, from November 1, 2007, to November 16, 2007.
See 72 FR 61821 (Nov. 1, 2007). In drafting the final rule, USCIS
considered all comments received during the entire comment period.
USCIS received 167 comments during the comment period. USCIS
received comments from a broad spectrum of individuals and
organizations, including religion-based refugee and immigrant services
and advocacy organizations, religious groups of varying denominations,
public policy and advocacy groups with religious affiliations, and
individuals. Many commenters addressed multiple issues. Many comments
provided variations on the same substantive issues or were identical in
content to others.
USCIS considered the comments received during the comment period
and all other materials contained in the docket in preparing this final
rule. All comments may be reviewed at the Federal Docket Management
System (FDMS) at http://www.regulations.gov, docket number USCIS-2005-
0030.
A. General Comments
Commenters strongly supported the increased efforts to combat fraud
in the religious worker categories. Many commenters, however, disagreed
with the proposed methods to combat such fraud. Some comments
criticized the USCIS Benefit Fraud Assessment's (BFA) methodology and
findings of fraud in the religious worker category. Many commenters
supported on-site inspections as a way of eliminating fraud; however,
commenters were concerned that on-site inspections might be too
intrusive or might be required for each petition.
A substantial number of commenters addressed the definitions in the
proposed regulation, including the definitions of ``religious
occupation,'' ``religious vocation,'' ``minister,'' and ``religious
denomination.'' Some of these commenters suggested that a number of
definitions were too narrow, because, in the opinion of the commenters,
they only contemplated workers who are members of Judeo-Christian
denominations. Many commenters argued that the initial evidence,
attestation, compensation, and tax documentation requirements were too
stringent. Commenters objected to the new requirement that petitions be
filed on behalf of all nonimmigrant as well as special immigrant
religious workers. The commenters frequently disagreed with the
proposal to change the lengths of the initial period of stay and
renewal periods for nonimmigrant religious worker visas. Several
commenters suggested that elements of the proposed rule violated
constitutional principles. The specific substantive comments organized
by subject area are summarized below.
B. Definitions
The applicable definitions for applicants and petitioners for
religious worker classification are set forth in 8 CFR 204.5(m)(5) and
214.2(r)(3). The final rule adds several definitions, and expands or
clarifies others. The amendments and additions discussed below, unless
otherwise noted, apply to both nonimmigrants and immigrants. In the
proposed rule, the definitions were found in the immigrant section,
with only a cross reference in the nonimmigrant section. However for
ease of reference, the entire set of definitions is now included in
both 8 CFR 204.5(m)(5) and 8 CFR 214.2(r)(3).
1. Bona Fide Non-Profit Religious Organization
Several commenters objected to the proposed requirement that
petitioners must file a determination letter from the IRS of tax-exempt
status under IRC section 501(c)(3), 26 U.S.C. 501(c)(3), with every
petition. Commenters pointed out that the IRS does not require churches
to request a determination letter to qualify for tax-exempt status. A
designation that an organization is a ``church'' is sufficient to
qualify for tax-exempt status. Although some churches choose to request
a formal IRC section 501(c)(3) determination, they are not required to
do so. In addition, several comments stated that many churches cannot
afford to pay the fees associated with requesting an IRC section
501(c)(3) determination letter.
Many commenters requested clarification of the proposed rule's
requirement that a petitioner submit a currently valid IRS
determination letter, pointing out that an exemption letter does not
expire. One denomination asked that the final regulation specifically
state that organizations classified as tax-exempt under IRC section
501(d), 26 U.S.C. 501(d), may qualify as bona fide organizations.
USCIS recognizes that the IRS does not require all churches to
apply for a tax-exempt status determination letter, but has
nevertheless retained that
[[Page 72280]]
requirement in this final rule. See Internal Revenue Service, Tax Guide
for Churches and Religious Organizations: Benefits and Responsibilities
under the Federal Tax Law (IRS pub. no. 1828, Rev. Sept. 2006). A
requirement that petitioning churches submit a tax determination letter
is a valuable fraud deterrent. An IRS determination letter represents
verifiable documentation that the petitioner is a bona fide tax-exempt
organization or part of a group exemption. Whether an organization
qualifies for exemption from federal income taxation provides a
simplified test of that organization's non-profit status.
Requiring submission of a determination letter will also benefit
petitioning religious organizations. A determination letter provides a
petitioning organization with the opportunity to submit exceptionally
clear evidence that it is a bona fide organization.
USCIS recognizes that some religious groups and churches may be
classified as tax-exempt under IRC section 501(d), 26 U.S.C. 501(d).
Unlike an IRC section 501(c)(3), 26 U.S.C. 501(c)(3), tax determination
letter, however, an IRC section 501(d) tax-exempt determination does
not establish the non-profit status of a religious organization or
church. The INA requires that the petitioning religious organization be
a bona fide non-profit organization. INA sections 101(a)(15)(R) and
(27)(C)(ii)(III), 8 U.S.C. 1101(a)(15)(R) and (27)(C)(ii)(III). USCIS
further understands that some churches could ``engage in business for
the common benefit of the members,'' and their members obtain pro rata
shares of these funds, which may render the church ineligible for IRC
section 501(c)(3) tax-exempt status. As discussed elsewhere, the R-1
status is not exclusive and religious workers may be admitted under
other provisions of the INA. However, given the high incidence of fraud
found in the religious worker program, which was found to be tied to
the validity of the organization itself, an organization must apply for
and receive an IRC section 501(c)(3) determination letter to
demonstrate non-profit status if that organization wishes to utilize
either the R-1 nonimmigrant or the special immigrant religious worker
program. If an IRC section 501(d) exempt organization cannot qualify
for IRC section 501(c)(3) status, and is thus unable to petition on
behalf of nonimmigrant religious workers under the R-1 classification,
other nonimmigrant visa categories may be appropriate for that
organization's purposes, such as the nonimmigrant B-1 category.
USCIS acknowledges that obtaining a determination letter from the
IRS will require the payment of a user fee to the IRS, as discussed in
the proposed rule, if the organization does not possess its original
determination letter. 72 FR at 20449. USCIS has, however, confirmed
with the IRS that determination letters do not expire. Therefore, an
organization will need to pay a fee only once to obtain a determination
letter. Although USCIS will accept determination letters of any date,
USCIS may request evidence or confirm that the exemption is still
valid. For example, if the address on the letter differs from the
address given in the petition, an explanation should be provided. USCIS
has retained the reference to ``currently valid'' determination letters
in the rule text to emphasize that a letter revoked by the IRS cannot
be used to meet the definition of tax-exempt organization under the
INA. USCIS will routinely examine the publicly available tax
documentation for the petitioning organization to determine the ability
of the organization to provide support, will consult with the IRS on
whether any petitioning organization is validly exempt from taxation
under IRC section 501(c)(3), 26 U.S.C. 501(c)(3), and may refer to IRS
Publication 78, Cumulative List of Organizations, to verify whether the
determination letter is current.
USCIS will routinely consult with the IRS on whether any
petitioning organization is validly exempt from taxation under IRC
section 501(c)(3), 26 U.S.C. 501(c)(3), and may refer to IRS
Publication 78, Cumulative List of Organizations, to verify whether the
determination letter is current. Although existing regulations permit
applicants to submit material to USCIS regarding an applicant's non-
profit status, the Department of Homeland Security (DHS) has determined
that anti-fraud efforts, economy, and efficiency warrant the use of the
formal IRS determinations, rather than an independent determination by
USCIS. The IRS routinely makes decisions concerning the non-profit
nature of organizations seeking tax-exempt status. Furthermore, INA
sections 101(a)(15)(R) and (27)(C)(ii)(III), 8 U.S.C. 1101(a)(15)(R)
and (27)(C)(ii)(III) use specific terminology that indicates the IRS is
an appropriate agency to make determinations as to whether an
organization is qualified to apply for religious worker visa benefits.
2. Ministers
The proposed regulation defined a ``minister'' as ``an individual
duly authorized by a religious denomination, and fully trained
according to the denomination's standards, to conduct religious worship
and to perform other duties usually performed by authorized members of
the clergy of that denomination.'' Several commenters asserted that the
proposed definition of ``minister'' was too narrow. The proposed rule
also required specific evidence of ordination and training the minister
had received. Several commenters interpreted the new definition as
requiring ministers to have completed their training at a seminary or
similar institution. Additionally, those commenters stated that not all
religions require a formal theological education at an accredited
theological institution. Other comments suggested that the concept of
``fully trained'' when referring to a minister's training is too vague
in the context of a religion that has many levels of training for its
ministers.
USCIS did not intend the definition of ``minister'' to require a
uniform type of training that all denominations would have to provide
their ministers. In the preamble to the proposed rule, USCIS
acknowledged that some denominations do not require a particular level
of formal academic training or experience. See 72 FR at 20445.
Additionally, the proposed rule recognized that training varies among
denominations and, for that reason, the question of whether a minister
has met the denomination's training standards is resolved by reference
to that denomination's own standards. The rule permits a petitioning
organization to submit evidence of the individual denomination's
requirements for ordination to minister, the duties allowed to be
performed by virtue of ordination, and the denomination's levels of
ordination, if any. The definition of ``minister'' set forth in the
proposed rule is retained in the final rule.
3. Religious Denomination
Many commenters criticized the proposed definition of ``religious
denomination'' because it required a denomination to have an
``ecclesiastical government.'' Commenters interpreted this definition
as potentially excluding denominations whose member religious
organizations share a common creed but lack a common organizational
structure or governing hierarchy. The commenters feared that, as a
result, religious organizations without a central government would be
unable to hire workers from abroad. However, as explained in the
preamble to the proposed rule, the definition of ``religious
denomination'' does not
[[Page 72281]]
require a hierarchical governing structure. 72 FR at 20445. USCIS is
aware that some denominations officially shun such structures. The
focus of the regulation is, instead, on the commonality of the faith
and internal organization of the denomination. Thus, an individual
church that shares a common creed with other churches, but which does
not share a common organizational structure or governing hierarchy with
such other churches, can satisfy the ``ecclesiastical government''
requirement of the ``religious denomination'' definition by submitting
a description of its own internal governing or organizational
structure. Minor changes were made to the definition as set forth in
the proposed rule for clarity and the provision regarding group tax-
exemptions was moved to the definition of tax-exempt organization where
it is more germane.
4. Religious Occupation
The proposed rule provided examples of qualifying religious
occupations. Many commenters stated that the list of example
occupations was too narrow and that the examples applied only to Judeo-
Christian religions. Those commenters suggested broadening the examples
to account for religions other than Judeo-Christian faiths.
USCIS acknowledges the commenters' concerns regarding the examples.
The list was neither exhaustive nor more than exemplary. USCIS has,
however, removed the list of examples because it created confusion
about the scope of the definition of ``religious occupation.'' The list
was only illustrative and not necessary to the rule. As discussed in
the original rules implementing the religious worker categories, and in
the proposed rule, the list was derived from the legislative history.
See 72 FR at 20446.
When adjudicating petitions, USCIS will rely on the general
definition of a ``religious occupation.'' Petitioners must demonstrate
that the occupation relates primarily to a traditional religious
function that is recognized as a religious occupation within the
denomination.
A significant number of commenters opposed the inclusion of all
administrative positions in the list of positions that may not be found
to be religious occupations. The comments stated that, unlike secular
administrators, religious administrators exercise religious leadership
and policymaking duties that may directly affect the practices of the
denomination. USCIS generally agrees with the commenters; thus, this
rule does not disqualify all administrative positions, but only those
positions that are primarily administrative. Under the rule, a position
including limited administrative duties may qualify as a religious
occupation, provided such duties are incidental to substantive,
traditionally religious functions.
One commenter was concerned that the proposed regulation excludes
``those who sell literature'' as a qualifying religious occupation
because distribution of literature can be an inherently religious
activity. The notion of canvassing, including selling literature, has a
long history in the United States and USCIS acknowledges that history.
USCIS does not agree, however, that selling literature alone is a basis
for admission of an alien to the United States as a religious worker,
but has removed ``those who sell literature'' from the list of excluded
occupations as well as the other non-qualifying examples. Fundraising
is prohibited from qualifying as a religious occupation, but whether a
position that involves selling literature may qualify as a religious
occupation will depend on the evidence submitted.
USCIS does not intend to limit legitimate religious vocations under
this final rule, and USCIS will consider all of the relevant law in
making such determinations. In this final rule, USCIS is establishing
requirements for determining whether any religious organization may
seek the admission of an alien into the United States for religious
vocation and other related purposes under a specific visa
classification. These regulations are designed to establish the bona
fide nature of the organization and the occupation under the statute,
and the petitioning organization is responsible for establishing facts
supporting its application. Moreover, the petitioning organization is
responsible for establishing that the specific occupation requires
specific actions as a part of the beliefs of that organization, and
that those evidentiary elements must lead USCIS to conclude that any
limitation in the regulation could not be applied to the applicant in
light of constitutional or statutory limitations.
5. Religious Vocation
The proposed regulation defined ``religious vocation'' as ``a
formal lifetime commitment to a religious way of life.'' Several
commenters objected to the lifetime requirement, stating that religious
vocations in many religious denominations do not require a lifetime
commitment. Thus, some commenters concluded that employees who will
practice a religious way of life during their proposed period of stay
in the United States, but who do not necessarily make a lifetime
commitment to such a life, such as missionaries or novitiates, could
not qualify as religious workers. Additionally, the commenters
interpreted the proposed definition of ``religious occupation'' as
requiring employees to receive traditional salaries, thus excluding
employees who receive non-salaried compensation such as room and board.
The commenters also interpreted the ``religious occupation'' and
``vocation'' definitions as excluding nonimmigrants who rely on self-
support. Due to the confusion over the proposed definitions of both
``religious vocation'' and ``religious occupation,'' some commenters
concluded that certain types of religious workers would not be able to
qualify for visas as they would not be covered by either of the
proposed definitions.
USCIS will retain the definition of ``religious vocation'' as
stated in the proposed rule; however, as explained in detail below,
clarifications in the compensation requirements for all nonimmigrant
religious workers were made in response to commenters' concerns. USCIS
clarifies that, under certain circumstances, non-salaried support may
qualify as compensation. Additionally, USCIS clarifies that under
certain circumstances, as explained in detail below, nonimmigrant
beneficiaries who will be self-supporting may qualify for admission
under the ``occupation'' or ``religious vocation'' definitions.
Missionaries and novitiates who cannot be classified as religious
workers coming to the United States to perform a religious vocation
because vocations in their denomination do not require a lifetime
commitment should nevertheless be able to qualify as religious workers
under the ``religious occupation'' definition.
C. Compensation Requirements
USCIS proposed to add a requirement that the alien's work, under
both the immigrant and nonimmigrant programs, be compensated by the
employer. Specifically, the rule proposed amending the definition of
``religious occupation'' to require that an occupation be
``traditionally recognized as a compensated occupation within the
denomination.'' Commenters were concerned that the proposed rule would
exclude many religious workers who do not receive salaried
compensation, but may receive stipends, room, board, or medical care,
or who may rely on other resources such as personal savings, rather
than salaried or non-salaried compensation.
In response to the commenters' concerns, USCIS is clarifying that
[[Page 72282]]
compensation can include either salaried or non-salaried compensation.
Under the Internal Revenue Code, non-salaried support, such as
stipends, room, board, or medical care, qualifies as taxable
compensation unless specifically excluded. See IRC section 119, 26
U.S.C. 119; 26 CFR 1.119-1 (exclusion for lodging provided for
convenience of employer). The IRS applies special rules for housing,
for example, to members of the clergy. Under these rules, clergy do not
include in income the rental value of a home (including utilities) or a
designated housing allowance provided to clergy as part of their pay.
The home or allowance must be provided as compensation for services as
an ordained, licensed, or commissioned minister. The rental value of
the home or the housing allowance must be included as earnings from
self-employment on Schedule SE (Form 1040) if the clergy is subject to
the self-employment tax. See generally Internal Revenue Service, Social
Security and Other Information for Members of the Clergy and Religious
Workers, Publication 517.
Commenters objected to being required to submit tax documents to
demonstrate non-salaried compensation.
USCIS intends to apply the documentation and determinations made by
the IRS and the basis for making those determinations as closely as
possible. USCIS does not possess the expertise to make determinations
of tax-exempt status or the fine points of gross and adjusted income.
The comments have not provided a basis for USCIS to make these
determinations without a record based on the application of the
existing tax laws to both organizations and individuals.
Several commenters stated that the proposed compensation
requirement would exclude programs that traditionally utilized only
self-supporting religious workers from participating in the R-1 visa
program. The comments noted that religious workers who are self-
supporting receive neither salaried nor non-salaried compensation;
instead, they may rely on a combination of resources such as personal
or family savings, room and board with host families in the United
States, and donations from the denomination's local churches.
Additionally, the comments noted that self-supporting religious workers
are currently admitted under the R-1 visa program. In response, the
final rule will continue to allow these aliens to be admitted under the
R-1 visa classification. USCIS will, however, to preserve its ability
to prevent fraud, permit self-supporting religious workers only under
very limited circumstances, and, consistent with other provisions of
the final rule, require specific types of documentation.
The change provides that if the nonimmigrant alien will be self-
supporting, the petitioner must submit documentation establishing that
the position the alien will hold is part of an established program for
temporary, uncompensated missionary work within the organization, which
is part of a broader, international program of missionary work
sponsored by the denomination.
USCIS again notes that the religious worker visas are not the
exclusive means by which an alien may be admitted to the United States
to perform self-supported religious work, including missionary work.
Current regulations specifically provide for the admission of
missionaries under the general visitor for business visa:
Any B-1 visitor for business or B-2 visitor for pleasure may be
admitted for not more than one year and may be granted extensions of
temporary stay in increments of not more than six months each,
except that alien members of a religious denomination coming
temporarily and solely to do missionary work in behalf of a
religious denomination may be granted extensions of not more than
one year each, provided that such work does not involve the selling
of articles or the solicitation or acceptance of donations.
8 CFR 214.2(b)(1). See also 9 FAM 41.31 N9.1. Therefore, self-
supporting religious workers who are not eligible for admission to the
United States as R-1 nonimmigrant religious workers may pursue
admission in the B-1 classification.
D. Petitioning Requirements
The proposed rule introduced the new requirement that a petitioner
must file a petition on the alien's behalf with USCIS before the
Department of State (DOS) will issue a nonimmigrant visa to the alien.
Previously, aliens seeking nonimmigrant religious worker status could
apply directly to USCIS or, from out of the country, through the DOS.
Many commenters questioned whether USCIS has the statutory authority to
require religious organizations to file petitions for nonimmigrants.
While nothing in the INA specifically states that a petition is
required for nonimmigrant religious workers, nothing prohibits it. In
addition, the Secretary of Homeland Security has the general authority
to promulgate regulations to implement the immigration laws, INA
section 103(a)(1), 8 U.S.C. 1103(a)(1), and must specifically, under
INA section 214(a), 8 U.S.C. 1184(a), prescribe by regulation the time
and under what conditions a nonimmigrant may be admitted to the United
States. Congress has found it reasonable to implement a petition
requirement in other nonimmigrant programs. USCIS is implementing the
petition requirement for nonimmigrant religious workers as a way to
determine that a minister will be admitted to the United States to work
for a specific denomination and that other religious workers will be
admitted to work for a specific religious organization at the request
of that organization. Requiring a petition for every nonimmigrant will
also deter fraud and allow USCIS to detect fraud earlier in the
process. Therefore, the final rule retains the nonimmigrant petition
requirement.
This final rule also includes a provision for a petitioner to
appeal a determination by USCIS to deny a petition. See 8 CFR
214.2(r)(17). USCIS also is establishing a process for USCIS to revoke
a petition once granted, and for the petitioner to appeal a revocation
decision. 8 CFR 214.2(r)(18) and (19).
Numerous commenters stated that, for various reasons, the new
petitioning requirement would delay nonimmigrant visa approvals.
Commenters also said that the Department of State (DOS) has substantial
expertise adjudicating religious worker visas; consequently, religious
worker visas are promptly processed (a result lauded by the
commenters), while still identifying potential fraud. Some commenters
suggested that, if petitions are required for all religious workers,
the final rule should limit the amount of time that USCIS takes to
process the petitions. Additionally, several commenters recommended
that to speed processing of petitions, USCIS should pre-certify
religious organizations as valid employers.
USCIS acknowledges the concerns of commenters that requiring a
petition for all religious workers could delay issuing a visa. However,
the petition requirement is essential to preventing fraud in the
religious worker program. While DOS consular officers do have
experience with nonimmigrant religious workers, they are not in a
position to determine the bona fides of a religious organization
located in the United States. Requiring an approved petition will
assist consular officers in making a decision on religious worker
nonimmigrant visa applications. Furthermore, at this time, the USCIS
California Service Center is processing all religious nonimmigrant and
immigrant religious worker petitions. This specialization promotes
expertise
[[Page 72283]]
that leads to prompt processing of religious worker petitions.
Several commenters asked USCIS to establish a blanket approval or
pre-certification program for religious organizations. USCIS
understands the commenters' concerns. A pre-certification process could
benefit religious organizations and USCIS, by reducing the petitioning
burden on bona fide non-profit religious organizations. However, the
proposed rule did not include a blanket approval or pre-certification
program. USCIS must carefully evaluate how such a process would work,
establish criteria that a religious organization would have to meet,
determine a pre-certification validity period, and promulgate
regulations governing requirements to be pre-certified. An agency is
not required to adopt a final rule that is identical to the proposed
rule and in fact agencies are encouraged to modify proposed rules as a
result of the comments they receive. However, final rules ultimately
adopted can only include those changes that the interested public could
view as logical based on what was proposed. In this case, USCIS does
not believe that the proposed rule provided sufficient notice that the
final rule may contain pre-certification requirements and will thus not
adopt the commenters' suggestion. USCIS will consider approaches to
addressing the issues presented by the comments, including a possible
future rulemaking to provide for a pre-certification process. The final
rule does not preclude USCIS from considering the history of an
organization's petitions in determining whether to grant a specific
petition, and USCIS may consider that history in each individualized
consideration.
E. On-Site Inspections
Several commenters supported on-site inspections that are tailored
to detect fraud, but do not intrude on religious organizations'
privacy. However, a number of commenters questioned on-site inspection
procedures, requirements, and potential consequences. The comments
stated that the regulations should establish deadlines for USCIS to
complete on-site inspections; otherwise, petition processing backlogs
could result. Other comments said the results of site inspections
should be reviewable. Some argued that the proposed rule provided no
guidelines regarding the scope of on-site inspections. The undefined
scope, according to some comments, might encourage overzealousness by
USCIS or lead to denials solely based on the results of an on-site
inspection. Commenters objected to the prospect of unannounced site
inspections.
USCIS, like all Federal agencies, must carry out administrative
activities that ensure the integrity of the benefit programs it
administers. On-site inspections are a useful tool to verify the
legitimacy of information contained in applications and petitions, the
continued eligibility for a benefit, and the legitimacy of petitioners.
Therefore, this rule does not modify the proposed regulations
pertaining to on-site inspections. If an on-site inspection yields
derogatory information not known to the petitioner, USCIS will issue a
Notice of Intent to Deny (NOID) the petition. See 8 CFR 103.2(b)(16).
The petitioner may then submit additional documentation that may rebut
the derogatory evidence. In addition, a denial of a petition may be
appealed to the USCIS Administrative Appeals Office. See 8 CFR
204.5(n)(2) and 214.2(r)(13).
USCIS acknowledges that processing delays occurred when USCIS
inaugurated the on-site inspection program. As USCIS has gained
experience with the program, however, delays have decreased. Additional
resources, including personnel, have been dedicated to the program and
process improvements. USCIS intends to commit more resources and
personnel to the program in the near future. To determine the status of
a petition, petitioners may consult the USCIS Web site or contact the
National Customer Service Center to obtain the status of petitions. If
the National Customer Service Center cannot provide an answer, the
inquiry will be referred to the California Service Center customer
service division.
The proposed rule and the final rule use a list of different terms
to describe the on-site inspections. The list was revised in the final
rule to include more commonly used terms such as compliance review. The
intent is not to assign one specific name, but to give notice to
petitioners that such reviews may be part of the religious worker
program.
To allay commenters' concerns about possible abuse of the on-site
inspection process, USCIS will establish additional communications
processes for petitioners to report alleged abuses. Information
regarding this will be posted on the USCIS Web site. Waste, fraud, and
abuse should also be reported to the DHS Inspector General.
F. Religious Freedom Restoration Act of 1993 (RFRA)
Commenters asserted that the proposed regulation would violate the
First Amendment, Const. of the United States, Amdt. I (1791), and the
Religious Freedom Restoration Act of 1993, Public Law 103-141, sec. 3,
107 Stat. 1488 (Nov. 16, 1993) (RFRA), found at 42 U.S.C. 2000bb-1, by
placing a substantial burden on a religion that is not in the
furtherance of a compelling government interest, or at least not
furthered by the least restrictive means. Some commenters stated that
preventing fraud was commendable but that a compelling government
interest has not been established. Several commenters said that filing
petitions for nonimmigrants or having to request an extension of status
after only one year would place undue financial and paperwork burdens
on religions. Additionally, the commenters stated that the proposed
definitions of religious occupation and religious vocation prohibited
their denominations from utilizing the program.
USCIS disagrees with the specific notion that the final rule
violates the RFRA. The RFRA provides:
Government shall not substantially burden a person's exercise of
religion even if the burden results from a rule of general
applicability, except * * * if it demonstrates that application of
the burden to the person--
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling
governmental interest.
Public Law 103-141, sec. 3, 42 U.S.C. 2000bb-1. The final rule is
intended to permit religious organizations to petition for admission of
religious workers under restrictions that have less than a substantial
impact on the individual's or an organization's exercise of religion. A
petitioner's rights under RFRA are not impaired unless the organization
can establish that a specific provision of the rule imposes a
significant burden on the organization's religious beliefs or exercise.
Further, this rule is not the sole means by which an organization or
individual may obtain admission to the United States for religious
purposes, and DHS believes that the regulation, and other provisions of
the INA and implementing regulations, can be administered within the
confines of the RFRA. An organization or individual who believes that
the RFRA may require specific relief from any provision of this
regulation may assert such a claim at the time they petition for
benefits under the regulation.
Nor does this final rule impose a ``categorical bar'' to any
religious organization's petition for a visa or alien's application for
admission.
[[Page 72284]]
Instead, the rule sets forth the evidentiary standards by which USCIS
will adjudicate nonimmigrant and immigrant petitions.
USCIS also does not believe that the new requirements will reduce
the diversity or types of religious organizations that practice in the
United States or the types of religious workers whom religious
organizations could hire. Changes have been made so that the final
definitions of ``religious occupation,'' ``religious vocation,''
``minister,'' and ``denomination'' will not prevent religious
organizations from using the religious worker program as some
commenters claimed. Additionally, rather than the proposed one year
initial period of admission and two extensions of two years each, the
final rule permits up to 30 months for the initial period of admission
and one extension of up 30 months. Therefore, the final rule imposes a
much smaller financial and paperwork burden on petitioners than the
proposed rule.
Eradicating fraud where fraud has been determined to exist in one-
third of nonimmigrant visa petitions, as discussed in the proposed
rule, is a compelling government interest to ensure the integrity of
the immigration process as well as for the protection of national
security. See 72 FR at 20442. Therefore, the final rule retains the
requirements that a religious organization file a petition for each
religious worker and submit an IRS determination letter establishing
the organization's tax-exempt status. Additionally, USCIS will maintain
the discretion to conduct on-site inspections as USCIS believes they
are the most effective and least restrictive means of combating fraud
in the religious worker program.
USCIS will consider all of the factual evidence presented in
support of a petition for a religious worker under the provisions of
the rule. After reviewing the comments and the applicable law, however,
USCIS does not believe that the evidentiary requirements of the rule
constitute a violation of the RFRA.
G. Concurrent Filing
Some commenters suggested that the final regulation provide an
option for special immigrant religious workers to concurrently file
Form I-360, Petition for Amerasian, Widow(er) or Special Immigrant, and
Form I-485, Application to Register Permanent Residence or Adjust
Status. The commenters asserted that concurrent filing would speed up
the process of granting permanent residence to religious workers. One
commenter requested that concurrent filing not be permitted.
The comments seeking to allow concurrent filing have not been
adopted. The Department is under a statutory mandate pursuant to the
Special Immigrant Nonminister Religious Worker Program Act, S. 3606,
Public Law No. 110-391 (October 10, 2008), to issue this final rule
``to eliminate or reduce fraud'' in regard to the granting of special
immigrant status to nonminister religious workers. The bar to
concurrent filing is a valuable fraud deterrent in the entire special
immigrant religious worker program. Prohibiting concurrent filing of
the visa petition and adjustment of status application for special
immigrant religious workers dissuades the filing of fraudulent
petitions by or for ineligible and/or inadmissible aliens who might
otherwise gain valuable benefits such as employment authorization while
an immigrant petition is pending. For this reason, the Department
believes that not allowing concurrent filing in this arena is necessary
to protect the integrity of the religious worker program for eligible,
bona fide religious organizations and their eligible employees.
Concurrent filing was implemented as an accommodation for business
petitioners and to add efficiency to processing large backlogs for Form
I-140, Immigrant Petition for Alien Worker, that adversely impacted,
among others, aliens wishing to adjust their status in the United
States who could not file Form I-485 until the Form I-140 was approved.
67 FR 49561 (July 31, 2002). The policy decision to allow concurrent
filing for Forms I-140 was based on research into business employment-
based visa programs of the United States. The research showed that
recruiters found that many talented employees worldwide were
increasingly unwilling to tolerate the long waits and uncertainty
entailed in immigrating to the United States. When professional workers
encounter long delays, United States employers are at a disadvantage
because foreign job candidates may decide to accept employment in
countries with more expeditious employment-based immigration programs.
Concurrent filing has also been allowed if there is a current priority
date in family-based preference categories or if an alien qualifies as
an immediate relative. An underlying goal of the family-based visa
program is the unification of families and concurrent filing supports
this goal.
These rationales for allowing concurrent filing are not present in
the religious worker context. Additionally, USCIS is not allowing
concurrent filing given the high incidence of fraud in the program.
USCIS did not propose to allow concurrent filing and has not added
provisions in the final rule to provide for it. The United States is
defending its previous decision not to allow concurrent filing of Forms
I-360 and I-485, and has considered the litigation challenging that
decision in reiterating that decision in this rulemaking.
H. Nonimmigrant Intent
The proposed rule would have clarified that an alien may come
legitimately to the United States for a temporary period as an R
nonimmigrant, depart voluntarily at the end of the period of authorized
stay, and at the same time, lawfully seek to become a permanent
resident of the United States. Several comments were received that
generally supported this proposed provision. The final rule retains a
provision on nonimmigrant intent that states that an R classification
may not be denied solely because a labor certification or preference
petition, including a Form I-360, has been filed by or on behalf of the
alien. However, the provision has been rewritten for clarity and
readability.
I. Changes Unique to the Special Immigrant Religious Worker
Classification
The proposed rule recognized that a break in the continuity of
religious work during the two years immediately preceding the filing of
the petition would not affect eligibility if the alien had been
employed as a religious worker, the break did not exceed two years, and
the nature of the break was for further religious training or for
sabbatical and did not involve unauthorized work in the United States.
Several commenters questioned whether the break in continuity would
also apply to sick leave, pregnancy leave, spousal care, or vacations.
As these events, for example sick leave and vacation, are typical in
the normal course of any employment, they will not be seen as a break
of the two-year requirement as long as the alien is still considered
employed during that time.
J. Changes Unique to the Nonimmigrant Religious Worker Classification
Currently, the initial admission period for nonimmigrant
petitioners is up to three years, with a single extension of up to two
years. USCIS proposed to reduce the initial admission to no more than
one year with two potential extensions of up to two years each, not to
exceed five years total. Commenters strongly objected to the proposed
reduced period of admission
[[Page 72285]]
and shortened periods for extensions. The commenters expressed numerous
reasons why this change would be burdensome. For example, filing three
petitions would markedly increase costs to petitioners, such as USCIS
form filing fees and legal fees, and the initial one-year admission and
the two-year extensions would make it difficult to plan hiring needs
and training programs.
Commenters made a variety of recommendations: Retain the current
admission and extension scheme; provide an initial admission of up two
years with one potential extension of up to three years; or, regardless
of the lengths of the initial admission and potential extension, adopt
a pre-certification program. In response to the comments, this final
rule allows an initial admission of up to 30 months with one extension
of up to 30 months. Allowing for a maximum period of admission of 30
months addresses the concerns of the commenters for a longer time
period and simplifies program administration, as the maximum period
will be the same whether it is an initial admission or an extension.
The periods of admission and extension will be granted as determined by
both the organization's need for the religious worker's services and
the regulatory limitations. As limited by statute, the maximum total
period of admission will continue to be five years. See INA section
101(a)(15)(R)(i), 8 U.S.C. 1101(a)(15)(R)(i).
K. Fraud Findings
Some commenters stated that when writing this rule, USCIS should
not have relied on the GAO Report, Issues Concerning the Religious
Worker Visa Program, GAO/NSIAD-99-67 (March 26, 1999), and the 2005
USCIS Fraud Detection and National Security (FDNS) benefit fraud
assessment report (BFA). Commenters stated that the two reports used
invalid methodologies, relied on anecdotal evidence, and overstated the
amount of fraud. Although many commenters criticized the GAO and BFA
reports, none of the commenters provided alternative statistical
analyses to demonstrate that fraud is less extensive than what USCIS
has stated. The BFA conducted by USCIS FDNS used a valid methodology
and did not rely on anecdotal evidence; instead, the BFA utilized a
random sample formula provided by the DHS Office of Immigration
Statistics to establish a statistically valid sampling of cases that
allowed USCIS to estimate the level of fraud in the religious worker
program. The BFA sampling consisted of a rate of occurrence of not more
than 20%, a confidence level of 95%, and a reliability factor of plus
or minus five percent. The established fraud rate of 33% for the I-360
Religious Worker program represents a statistically valid figure based
on generally accepted statistical reporting guidelines. These comments
also do not suggest specific changes to the rule. The two referenced
reports support promulgation of this rule and the comments provide no
evidence and raise no issues that cause USCIS to reconsider these
conclusions. USCIS did not make any changes to the final regulation as
a result of these comments.
L. Miscellaneous
Several commenters stated that requiring petitioning organizations
to report the number of members of the prospective employer's
organization and the number and positions, with brief descriptions, of
employees in the prospective employer's organization would excessively
burden large organizations. USCIS acknowledges the commenters'
concerns. However, documenting the number and positions of employees is
a useful tool for verifying the existence and validity of a prospective
employer; thus, the reporting requirement has been retained but
modified to require only the number and a summary of the
responsibilities of the employees who work at the same location where
the beneficiary will work. USCIS may still request a detailed list of
employees and a brief description of their duties if it determines in
its discretion that such information is needed.
Several commenters suggested that USCIS reinstate Premium
Processing for R-1 nonimmigrant religious workers. The Premium
Processing Service provides faster processing of certain employment-
based petitions and guarantees a 15-calendar day processing time. Due
to the complexities with adjudicating R-1 visa petitions, USCIS cannot
reasonably ensure a level of processing service within 15 calendar
days. Given that USCIS is conducting on-site inspections, USCIS cannot,
at this time, reasonably guarantee 15 day processing. USCIS continues
to assess whether it is possible to provide this level of service for
nonimmigrant religious worker petitions.
III. Regulatory Requirements
A. Administrative Procedure Act
The Administrative Procedure Act, 5 U.S.C. 553(d), requires that an
agency publish a final rule no later than 30 days before its effective
date. The APA, however, provides an exception to the delayed-effective
date requirement where the agency has good cause to make the rule
effective upon the date of publication. As discussed above, the special
immigrant religious worker provisions of section 274A of the INA,
expired on September 30, 2008. Under section 101(a)(27)(C)(ii)(II) and
(III) of the Act, 8 U.S.C. 1101(a)(27)(C)(ii)(II) and (III), 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 resident while in the United States by no later than
September 30, 2008. Beginning on October 1, 2008, all new nonminister
petitions and applications have been rejected without prejudice to the
filing of a new petition or application upon the effective date of this
rule.
On October 10, 2008, the President signed into law Public Law 110-
391 ``Special Immigrant Nonminister Religious Worker Program Act.''
This Act extends the sunset date for special immigrant nonminister
religious workers until March 6, 2009. However, the amendment will not
take effect until the Secretary of Homeland Security certifies to
Congress, and publishes a notice in the Federal Register, within 30
days of enactment of the Act, that this final rule has been issued and
is effective.
DHS had determined that it would be contrary to the public interest
to delay the re-authorization of the special immigrant nonminister
religious worker program to allow for a 30-day effective date for this
rule. Accordingly, DHS is making this rule effective immediately upon
publication in the Federal Register. All cases pending on the rule's
effective date and all new filings will be adjudicated under the
standards of this rule. If documentation is required under this rule
that was not required before, the petition will not be denied. Instead
the petitioner will be allowed a reasonable period of time to provide
the required evidence or information.
B. Regulatory Flexibility Act
For the proposed rule, USCIS estimated that it would receive
approximately 22,338 petitions annually from ``small entities'' as
defined under 5 U.S.C. 601. USCIS determined that the cost to a
religious or affiliated bona fide organization for a religious worker
petition of $190 represented a small percentage of the organization's
total annual wage cost for the beneficiary and an even smaller
percentage of the petitioning organization's overall operating budget.
Also, the additional
[[Page 72286]]
burden in terms of time needed to complete attestation and
certification requirements was estimated to be insignificant.
Additionally, USCIS did not determine the effect on organizations that
would have to pay application fees to the IRS but invited comments on
the scope of these costs and more accurate means for defining these
costs. Therefore, in the proposed rule USCIS stated that any impact on
religious or affiliated organizations or individuals to comply with
these requirements is minimal and this rule will not have a significant
economic impact on a substantial number of small entities.
USCIS does not foresee the rule having a significant economic
impact on small entities. Thus, this rule does not put forth
alternatives to minimize impacts. The rule benefits the United States
by reducing the risk of fraud in the religious worker program. Cost
increases, if any, due to the revised requirements are not expected to
significantly affect entities and thus will not have a measurable
impact on their ability to carry out religious activities.
USCIS invited the public to comment on the extent of any potential
economic impact of this rule on small entities, the scope of these
costs, more accurate means for defining these costs, ways that a
religious organization could demonstrate that it meets the rule's
requirements without providing an IRC section 501(c)(3), 26 U.S.C.
501(c)(3), letter and without USCIS having to analyze sizeable
paperwork, and the estimated cost to petitioning religious
organizations and bona fide organizations affiliated with a religious
denomination to comply with the new religious worker petition
requirements and prepare for the on-site inspections. In response to
those requests, USCIS received a comment on the cost of hiring outside
parties to prepare petitions. However, USCIS believes that this rule
imposes no requirements that should increase the need to hire parties
to prepare and file religious worker petitions. No additional cost
estimates were provided and USCIS received no additional information or
data in response to the request for data on the economic impact of this
rule on small entities, the scope of these costs, or more accurate
means for defining these costs. USCIS also received several comments on
the requirement that petitioners submit a copy of the IRC section
501(c)(3) status determination letter from the IRS, and has responded
to those and other comments in another section of the preamble to this
final rule. The significance of the impact of the compliance costs that
requiring the IRC section 501(c)(3) determination letter adds to
regulated entities under this rule is discussed below. Several changes
were made to the final rule as a result of comments received as
discussed in that section.
Size of affected entities. This rule affects religious
organizations under NAICS code 813.110. 13 CFR 121.201 (NAICS code
813.110--Religious Organizations). The size considered small in that
grouping is those entities having average annual revenue of under $6.5
million per annum. While data on the actual average annual revenue of
the participants in the religious immigrant and nonimmigrant worker
program is lacking, most of the affected organizations are thought to
be small entities as defined under the RFA.
Number of affected entities. USCIS records from the past three
years indicate that an average of 6.4 workers have been approved per
organization per year. The total estimated volume of petitions to be
received by USCIS after this rule is projected at 23,200. Thus, an
estimated 3,625 affected religious entities will be affected by this
rule.
Economic impact per entity. USCIS determined that this rule will
result in USCIS fee collections increasing by about $4.5 million per
year and information collection costs increasing by about $1.3 million
per year, for a total of $5.8 million in added costs. The average cost
per entity imposed by this rule will be $1,600. Also, this analysis
assumes that a new IRC section 501(c)(3), 26 U.S.C. 501(c)(3), status
determination letter from the IRS, with a fee of $750, will be paid by
each entity each year, bringing total costs per entity resulting from
this rule to $2,320.\4\
---------------------------------------------------------------------------
\4\ Assuming a 100% requirement for this cost will ensure a
liberal costs calculation for ascertaining the significance of this
rule's impacts on small entities. Nonetheless, while USCIS has no
way to estimate how many petitioners will have to obtain IRC section
501(c)(3), 26 U.S.C. 501(c)(3), determination letters, the actual
number will be lower than 100% of all petitioners.
---------------------------------------------------------------------------
Determination of no significant impact. The RFA does not define
``significant'' or ``substantial'' and Small Business Administration
(SBA) guidance provides that what is ``significant'' or ``substantial''
depends on the problem that needs to be addressed, the rule's
requirements, and the preliminary assessment of the rule's impact.
Guidelines provided by the SBA Office of Advocacy suggest that an added
cost of more than one percent of the gross revenues of the affected
entities in a particular sector may be a significant impact. The total
added cost per firm of this rule of $2,320 is 0.04% of the $6.5 million
threshold for a religious organization to be considered small.
Guidelines suggested by the SBA Office of Advocacy also indicate
that the impact of a rule could be significant if the cost of the
regulation exceeds five percent of the labor costs of the entities in
the sector. Since the religious worker program is an employment based
visa program, DHS analyzed the additional costs imposed by this rule on
the petitioning organizations relative to the costs of the typical
employee. According to the Bureau of Labor Statistics, the mean annual
salary of clergy is $43,060, for Directors of Religious Activity it is
$37,570, and for other religious workers it is $29,350.\5\ Based on an
average of 6.4 religious workers petitioned-for per organization, the
average annual cost per religious worker petitioned-for by the entity
will be $363 per worker. Thus, the costs per worker imposed by this
rule represent only 0.84% of a minister's average salary, 0.97% of a
Director of Religious of Activity's annual salary, 1.24% of the salary
for other religious workers, and only 3.1% of the employee's annual
salary expense if the religious worker is compensated at the Federal
minimum wage of $5.85 per hour for 2,000 hours per year. Therefore,
using both average annual labor costs and the percentage of the
affected religious entities' annual revenue stream as guidelines, the
additional regulatory compliance costs imposed by this rule are not
significant. For these reasons, DHS certifies that this rule will not
have a significant economic impact on a substantial number of small
entities. Accordingly, no regulatory flexibility analysis is required.
---------------------------------------------------------------------------
\5\ U.S. Department of Labor Bureau of Labor Statistics, May
2006 National Occupational Employment and Wage Estimates. Available
online at http://www.bls.gov/oes/current/oes_nat.htm#b00-0000.
---------------------------------------------------------------------------
C. Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by state, local, and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
D. Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 804 of the
Small Business Regulatory Enforcement Act of 1996. This rule will not
result in an annual effect on the economy of $100
[[Page 72287]]
million or more; a major increase in costs or prices; or significant
adverse effects on competition, employment, investment, productivity,
innovation, or on the ability of United States-based companies to
compete with foreign-based companies in domestic and export markets.
E. Executive Order 12866 (Regulatory Planning and Review)
This rule has been designated as a ``significant regulatory
action'' by the Office of Management and Budget (OMB) under Executive
Order 12866, section 3(f), Regulatory Planning and Review. Accordingly,
an analysis of the costs and benefits of this rule has been prepared
and submitted to the Office of Management and Budget (OMB) for review.
That analysis is as follows.
1. Background
The religious worker program is rooted in the regulation of labor
markets. The specific market failure addressed by this rule is the
inability of current program participants to self-police their behavior
and avoid engaging in acts of fraud and misrepresentation.
The impacts of having a sufficient or insufficient supply of
religious workers tend to be more qualitative for the ability of the
particular religion and its members to carry on its functions, rituals,
and traditions in the United States. Aside from the need for workers,
many religions believe it is important for their members in the United
States to intermingle with their members from outside the United States
in order for an exchange of ideas to take place and for their United
States members to receive the intangible benefits that are felt to
inure from exposure to diverse cultures. The benefits of such a program
tend to be intangible from an economic standpoint but very concrete to
devout followers of a particular religion who may be harmed by the lack
of availability of, or benefit from having, a qualified worker to carry
out a defined function in their particular faith. This analysis deals,
however, with only the changes made by this rule, not the benefits and
costs of the program as a whole. DHS has assessed both the costs and
benefits of this rule as follows:
2. Recent Figures
Form I-360. A religious organization seeking a permanent religious
worker or an alien seeking to perform religious work permanently in the
United States files Form I-360, Petition for Amerasian, Widow(er), or
Special Immigrant, with USCIS. Table 1 shows the number of Form I-360
filings with USCIS for a religious worker in the most recent three
fiscal years.
---------------------------------------------------------------------------
\6\ A religious organization may file petitions for several
potential religious workers; however, the organization must file a
separate petition for each worker.
\7\ USCIS does not know why there has been a precipitous drop in
the number of Form I-360 petitioning organizations, petitions
received, and petitions approved in the past three fiscal years.
Table 1--Form I-360 Filings for Immigrant Religious Workers \6\
----------------------------------------------------------------------------------------------------------------
Fiscal year 2005 2006 2007 Average \7\
----------------------------------------------------------------------------------------------------------------
Petitioning Organizations...................... 308 182 88 193
Petitions Received............................. 4,466 5,242 4,382 4,697
Petitions Approved............................. 3,816 2,828 1,086 2,577
----------------------------------------------------------------------------------------------------------------
Form I-129. For an alien currently in the United States to work as
a nonimmigrant religious worker, the religious organization and alien
may file a Form I-129, Petition for Nonimmigrant Worker. Table 2 shows
the number of Form I-129 filings with USCIS for a religious worker in
the most recent three fiscal years.
---------------------------------------------------------------------------
\8\ Includes Form I-129 filings for extensions of current R-1
status.
\9\ Petitions approved in 2007 lagged as a result of uncompleted
site inspections.
Table 2--Form I-129 Filings for Nonimmigrant Religious Workers \8\
----------------------------------------------------------------------------------------------------------------
Fiscal year 2005 2006 2007 \9\ Average
----------------------------------------------------------------------------------------------------------------
Petitioning Organizations.................. 562 493 416 490
Petitions Received by USCIS................ 5,918 5,749 4,370 5,346
Petitions Approved by USCIS................ 4,866 3,685 882 3,144
Average Number of Workers Approved for Each 8.7 8.9 2.1 6.4
Organization...............................
----------------------------------------------------------------------------------------------------------------
Consular or Port of Entry Processing. Aliens outside the United
States may seek an R-1 visa directly from the United States consulate
or embassy abroad or, if visa exempt, be admitted to the United States
as a nonimmigrant religious worker by the United States at a United
States port of entry. Table 3 shows the number of religious worker
visas requested and approved by DOS without a petition being filed with
USCIS in the three most recent fiscal years.
Table 3--Religious Worker Visas Processed by DOS
----------------------------------------------------------------------------------------------------------------
Fiscal year 2005 2006 2007 Average
----------------------------------------------------------------------------------------------------------------
Petitions Received by DOS...................... 12,473 12,944 16,487 13,968
Petitions Approved by DOS...................... 8,538 8,716 10,372 9,209
----------------------------------------------------------------------------------------------------------------
R-2 Visas for Religious Worker Family Members. Table 4 shows the
aliens granted admission into the United States by DOS as derivative
family members of religious workers in the three most recent fiscal
years.
[[Page 72288]]
Table 4--Derivative Family Members (R-2) Visas
----------------------------------------------------------------------------------------------------------------
Fiscal year 2005 2006 2007 Average
----------------------------------------------------------------------------------------------------------------
Petitions Received by DOS....................... 5,118 5,017 4,931 5,022
Petitions Approved by DOS....................... 3,267 3,234 3,216 3,239
----------------------------------------------------------------------------------------------------------------
For relatives of non-immigrant religious workers currently in the
United States to receive R-2 status, a USCIS Form I-539, Application To
Extend/Change Nonimmigrant Status, must be filed. In 2005, 42 Religious
Workers filed an I-539 requesting a change of status for family members
and eight were approved. In 2006, 41 Form I-539 filings were received
and five were approved; and in 2007, 43 were requested, and four
approved. Thus, an average of 42 R-2 visas through Form I-539 were
requested and six approved per year in the three most recent fiscal
years.
Totals. In 2005, 16,679 aliens were approved to enter into or stay
in the United States as Religious Workers (R-1) and family members (R-
2). In 2006, 15,640 were approved, and in 2007, 14,474 entered legally,
for an average of 15,598 religious worker visas per year.
Table 5--Total Religious Workers and Relatives
----------------------------------------------------------------------------------------------------------------
Fiscal year 2005 2006 2007 Average
----------------------------------------------------------------------------------------------------------------
Petitions Received by DOS and USCIS............. 23,551 23,748 25,831 24,376
Petitions Approved by DOS and USCIS............. 16,679 15,640 14,474 15,598
----------------------------------------------------------------------------------------------------------------
3. Projected Petition Volume and Total Fee Collections
USCIS assumes that the demand for religious workers will remain
constant. Although this rule imposes a new petitioning requirement,
nothing in this rule is expected to reduce or decrease the
attractiveness of the program from a petitioner's standpoint.
Therefore, the future number of petitions filed annually and the number
of religious or affiliated organizations seeking workers should be
consistent with recent trends. The predicted future volumes of
petitions and application following the implementation of the changes
in this rule are as follows:
Form I-360.
In the three most recent fiscal years USCIS has received an average
of 4,697 petitions (Form I-360) either from religious organizations
seeking permanent religious workers or from aliens seeking to perform
religious work permanently in the United States.
Filing volume for Form I-360 remained fairly constant from 2005
through 2007. USCIS does not believe that this rule will result in any
additional decreases in volume from that seen in recent years. As
stated in the proposed rule, the level of fraud in the immigrant
religious worker program was found to be 33% of cases reviewed. This
final rule institutes requirements and procedures to reduce fraud in
the program. 72 FR at 20444. Ultimately, as this rule's anti-fraud
measures take full effect, the filing of fraudulent petitions may be
discouraged to the point that there is a noticeable reduction in the
volume of petitions filed with USCIS. However, USCIS started conducting
discretionary site inspections for religious worker petitions in 2006
and there have been recent publicized arrests associated with criminal
activities and fraud in the religious worker program. Filing volume has
not decreased. This rule was drafted to avoid overburdening legitimate
petitioners and the changes in this rule are not expected to reduce or
decrease the attractiveness of the program to eligible petitioners.
Furthermore, DHS estimates that profession-wide demand for religious
workers will remain constant. Therefore, USCIS estimates that filing
volume for I-360s in the next few years will be close to the average
received in the three most recent fiscal years.
Projected annual Form I-360 Volume: 4,700.
Total Fee Receipts: $1,762,500.
Change in Form I-360 Fee Collections Resulting from the Final Rule:
$0.
Form I-129 for a Nonimmigrant in the United States. This rule
requires that a petition be submitted to and approved by USCIS before a
beneficiary who is currently in the United States in another type of
non-immigrant status can change his or her status to that of a
religious worker, or if here as a religious worker, extend that status.
This is not a change from the previous practice. Thus, the future
volume of Forms I-129 filed for individuals already in the United
States will be the historic number of I-129 filings. As shown in Table
2 above, USCIS has received an average of 5,346 form I-129s requesting
nonimmigrant religious workers per year over the past three fiscal
years. However, filing volume decreased by 3% percent from 2005 to
2006, and by another 24% from 2006 to 2007. USCIS does not believe that
this rule will affect this trend and that the number received in 2007
most likely reflects future volumes. Thus, approximately 4,500
petitions for nonimmigrants in the United States are expected per year
following this rule.
Form I-129 for a Nonimmigrant Abroad. This rule now requires that a
Form I-129 be submitted to and approved by USCIS before an individual
who lives abroad may come to the United States as a nonimmigrant
religious worker. The number of Form I-129 filings for a nonimmigrant
religious worker living abroad can be estimated based on the number of
aliens recently applying for admission to the United States as a
nonimmigrant religious worker with DOS. In 2005, 12,473 persons applied
for R-1 visas, in 2006, 12,944 applied, and for 2007, 16,487 applied.
That represents a 4% percent increase in 2006 over 2005, and a 27%
increase in 2007. USCIS believes that the petition requirement will
reduce the number of petitions received slightly from 2007 numbers to
approximately what they have averaged over the previous three years, or
around 14,000 R-1 petitions per year. Thus, based on historic I-129
filing volume plus those who now must file, total Form I-129 filings
projected per year in this analysis are as follows:
Projected annual Form I-129 volume: 18,500.
Total Fee Income: $5,920,000.
Change in I-129 Fee Collections Resulting from the Final Rule:
$4,480,000.
Relatives--Nonimmigrant. An average of 42 Form I-539 filings per
year were received by USCIS in the three most recent fiscal years for
immediate
[[Page 72289]]
relatives of the alien in the United States with no notable trend
upward or downward in volume. DOS received an average of 5,022 requests
to bring a family member of a religious worker into the United States
in the three most recent fiscal years, with a two percent per year
downward trend over that period. These trends are expected to remain
consistent with the recent past. Thus, average annual Form I-539
volumes \10\ for this rule are expected to be as follows:
---------------------------------------------------------------------------
\10\ Form I-539 has many uses. For purposes of this analysis,
Form I-539 is used only in relation to religious workers.
---------------------------------------------------------------------------
Projected annual Form I-539 volume: 50.
Total Fee Income: $15,000.
Increase in I-539 Fee Collections Resulting from the Final Rule:
$0.
Relatives--Immigrant.
Special Immigrant Religious Workers may include a dependent spouse
or child on the same Form I-360 as the worker. However, if the child is
over 21 or the relationship or marriage occurred after the beneficiary
of the approved I-360 becomes a lawful permanent resident, then the
lawful permanent resident can petition for their relative on a separate
USCIS Form I-130, Petition for Alien Relative, plus a $355 fee per
form. USCIS projects an average annual filing volume for Form I-360 of
500 petitions. USCIS has no records on the average number of people who
enter the United States as relatives of special immigrant religious
workers either via the I-360 or I-130 process. Regardless, USCIS knows
no reason why the number of those who do would not remain about the
same as it has been recently. Accordingly, this rule is not expected to
have much of an impact on the number of such immigrants.
4. Costs
Fees. USCIS fee collections associated with the religious worker
program will increase substantially because of the new petitioning
requirement for nonimmigrant religious workers and their relatives. As
shown in B. above, the number of filings of Forms I-129 is expected to
increase by about 14,000, resulting in an estimated $4,480,000 in
additional fee collections from this rule per year.
Paperwork Burden.
Increased volume. This rule will result in approximately 14,000
more Form I-129 filings than if this rule were not promulgated. This
rule will result in no additional Form I-360, Form I-130, or Form I-539
filings. The approved public reporting burden for Form I-129 is
estimated at 2 hours and 45 minutes, including the time for reviewing
instructions, completing and submitting the form. Therefore, this rule
will result in an additional burden to prepare religious worker
petitions of 38,500 hours for Form I-129. According to the United
States Department of Labor Bureau of Labor Statistics estimates,
employer costs for employee compensation averaged $27.82 per hour
worked in March 2007.\11\ Valuing the effort expended per hour at that
rate, this added time per form will cost the public $1,176,647 in
information collection costs as a result of requiring a petition from a
nonimmigrant religious worker.
---------------------------------------------------------------------------
\11\ See Employer Costs for Employee Compensation, at http://data.bls.gov/PDQ/servlet/SurveyOutputServlet;jsessionid=f03023a343e1t$02$3F$.
---------------------------------------------------------------------------
Increased time. This rule requires USCIS to revise the approved
information collection packages for Form I-129, Petition for
Nonimmigrant Worker, and Form I-360, Petition for Amerasian, Widow(er),
or Special Immigrant--OMB 1615-0009, and 0020, respectively.
Petitioning organizations are required to submit proof of their tax-
exempt status and an attestation regarding the potential religious
worker's qualifications and duties. Organizations will have an
additional burden in terms of time needed to complete the attestation
and certification requirements. These requirements will increase the
existing information collection burden by roughly 15 minutes per
petition for the new attestation for both the Form I-129 and the Form
I-360. For the projected 23,200 combined total of I-360 and I-129
filings to be submitted each year, this new attestation requirement
results in 5,800 hours of additional paperwork burden. Valuing the
effort expended per hour at $27.82, this added time per form will cost
the public $161,356 in information collection costs.
Legal and professional fees. USCIS specifically requested public
comment on the estimated cost to petitioning religious organizations
and bona fide organizations affiliated with a religious denomination to
comply with the new religious worker petition requirements. As a
result, USCIS received some public comments on the costs incurred to
hire legal counsel or another party to prepare religious worker
petitions. For example, one commenting organization stated that it
incurs a cost of $1,500 per petition for either its internal staff or a
hired professional to prepare its petitions. An Internet search quickly
finds several law firms advertising religious worker program services.
One Web site, for example, advertises a fee of $1,000 for preparing
petitions for R-1 cases and an additional $200 for the family (R-2s),
$1,500 for immigrant religious worker petitions and $800 for the
consular processing or adjustment of status applications in the United
States. Additional family members are $400 for a spouse and $200 per
child. USCIS regulations, including this rule, do not require
petitioners to hire legal or professional help to complete religious
worker petitions. Regulations, forms, and instructions are written in
plain language intended for the public to read and follow. Thus, the
only costs imposed by USCIS for the burden of application preparation
are based on estimated completion times and are included in the
increased volume costs calculated in the paperwork burden cost
estimates above.
IRS application fees. USCIS recognizes that many religious
organizations will not have a currently valid determination letter of
their IRC section 501(c)(3), 26 U.S.C. 501(c)(3), status and may be
required to pay a user fee to the IRS to acquire one.\12\ Very small
organizations with gross revenues of not more than $10,000 may be
charged a fee of $300 by the IRS to determine their current IRC section
501(c)(3) status. Organizations with gross receipts in excess of
$10,000 during the previous four years or anticipating gross receipts
averaging more than $10,000 during the first four years, may be charged
a fee of $750 by the IRS to determine their current IRC section
501(c)(3) status. USCIS does not possess sufficient information to
determine how many organizations that will be filing petitions with
USCIS for religious workers will fall into each category or otherwise
be required to pay such a fee. In addition, several organizations are
expected to have lost or destroyed their tax-exempt under IRC section
501(c)(3) determination letter, requiring a fee of $750 to obtain a new
letter from the IRS. However, in such cases, the organization's
incurrence of the fee for obtaining a replacement letter, while
unfortunate, is attributable to the faulty record keeping of the
organization, which caused the organization's letter to be lost, rather
than to this rule.
---------------------------------------------------------------------------
\12\ See United States Department of the Treasury, Internal
Revenue Service, Frequently Asked Questions about Form 1023, at
http://www.irs.gov/charities/article/0,id=139504,00.html.
---------------------------------------------------------------------------
5. Qualitative Benefits
Fraud Prevention. Considering the importance of preventing fraud in
the religious worker program and of
[[Page 72290]]
ensuring that only legitimate religious organizations and bona fide
affiliated organizations participate in the process, DHS believes that
this proposed rule will have a positive impact overall. As stated in
the proposed rule, USCIS found a high level of fraud in the religious
worker program, petitions filed on behalf of religious workers by
nonexistent organizations, and material misrepresentations in
petitions. Recently, there have been several arrests associated with
criminal activities and fraud in the religious worker program.\13\
Decreased fraud and increased national security will ensure that the
benefits of the religious worker visa program go to those who were
intended to benefit and the eligible aliens maintain proper status
during their stay in this country.
---------------------------------------------------------------------------
\13\ See, e.g., supra, note 2.
---------------------------------------------------------------------------
6. Summary and Conclusions
This rule will not significantly change the number of persons who
immigrate to the United States based on employment-based petitions or
temporarily visit based on a nonimmigrant visa petition. This rule is
intended to benefit the public by clarifying definitions associated
with the religious worker classifications, acceptable evidence, and
specific religious worker qualification requirements. Balanced against
the costs and the requirements to collect information, the burden
imposed by the proposed rule appears to USCIS to be justified by the
benefits.
This rule will result in approximately 14,000 more Form I-129
filings than if this rule were not promulgated. This rule will result
in no additional Form I-539, I-360 or Form I-130 filings. The added
time per form resulting from this rule will cost the public $161,356 in
information collection costs. The added volume of filings will cost the
public $1,176,647 in information collection costs as a result of
requiring a petition from a nonimmigrant religious worker.
The cost of this rule's increased information collection is
outweighed by the overall benefit to the public of an improved system
for processing religious workers. The proposed rule is a vital tool in
furthering the protection of the public by: (1) More clearly defining
the requirements and process by which religious workers may gain
admission to the United States and (2) increasing the ability of DHS to
deter or detect fraudulent petitions and to investigate and refer
matters for prosecution.
F. Executive Order 13132 (Federalism)
This rule 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 section 6 of
Executive Order 13132, it is determined that this rule does not have
sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.
G. Executive Order 12988 (Civil Justice Reform)
This rule meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of Executive Order 12988.
H. Paperwork Reduction Act
1. USCIS Forms I-129 and I-360
Any prospective employer must file a Form I-129, Petition for
Nonimmigrant Worker, or Form I-360, Petition for Amerasian, Widow(er),
or Special Immigrant, seeking to classify an alien as a religious
worker under sections 101(a)(15)(R) and (27)(C) of the Act. Individual
aliens may also file Form I-360 on their own behalf. The Forms I-129
and I-360 are considered information collections under the Paperwork
Reduction Act (PRA). The Office of Management and Budget (OMB) has
previously approved both the Forms I-129 and I-360 for use. The OMB
control numbers for these collections for the Form I-129 is OMB 1615-
0009 and for the Form I-360 is OMB 1615-0020.
As discussed in the proposed rule, the number of respondents filing
Form I-129 will increase. In addition, Forms I-129 and I-360 will be
revised with respect to evidentiary attestations. Accordingly, these
requirements are considered information collections subject to review
by OMB under the Paperwork Reduction Act of 1995. DHS requested
comments on the revision to the forms during a 60-day period until June
25, 2007. DHS did not receive any comments on the revision to these two
forms. Accordingly, under the PRA, DHS is requesting comments during an
additional 30-day period until December 26, 2008. When submitting
comments on the information collection, your comments should address
one or more of the following four points.
(1) Evaluate whether the collection of information is necessary for
the proper performance of the functions of the agency, including
whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of
the collection of information, including the validity of the
methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to
be collected; and
(4) Minimize the burden of the collection of the information on
those who are to respond, including through the use of any and all
appropriate automated, electronic, mechanical, or other technological
collection techniques or other forms of information technology, e.g.,
permitting electronic submission of responses.
Overview of Information Collection for the Form I-129
(1) Type of information collection: Revision of currently approved
collection.
(2) Title of Form/Collection: I-129, Petition for a Nonimmigrant
Worker.
(3) Agency form number, if any, and the applicable component of the
Department of Homeland Security sponsoring the collection: Form I-129,
U.S. Citizenship and Immigration Services.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Individuals. This form is necessary for an
employer to petition for an alien to come to the U.S. temporarily to
perform services or labor.
(5) An estimate of the total number of respondents and the amount
of time estimated for an average respondent to respond to the new
requirements: 364,048 respondents at 2.75 hours per response, and
18,500 respondents at 3 hours per response.
(6) An estimate of the total of public burden (in hours) associated
with the collection: Total reporting burden hours is 1,056,632.
All comments and suggestions or questions regarding additional
information should be directed to the Department of Homeland Security,
U.S. Citizenship and Immigration Services, Chief, Regulatory Management
Division, 111 Massachusetts Avenue, NW., 3rd Floor, Washington, DC
20529; telephone 202-272-8377.
Overview of Information Collection for Form I-360
(1) Type of information collection: Revision of currently approved
collections.
(2) Title of Form/Collection: Form I-360 Petition for Amerasian,
Widow(er), or Special Immigrant.
(3) Agency form number, if any, and the applicable component of the
Department of Homeland Security sponsoring the collection: Form I-360,
U.S. Citizenship and Immigration Services.
[[Page 72291]]
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Individuals. The Form I-360 may be used by
several prospective classes of aliens who intend to establish their
eligibility to immigrate to the United States.
(5) An estimate of the total number of respondents and the amount
of time estimated for an average respondent to respond to the new
requirements: 8,984 respondents at 2 hours per response, 5,000
respondents at 3 hours per response, and 4,700 respondents at 2.25
hours per response.
(6) An estimate of the total of public burden (in hours) associated
with the collection: Total reporting burden hours is 43,543.
All comments and suggestions or questions regarding additional
information should be directed to the Department of Homeland Security,
U.S. Citizenship and Immigration Services, Chief, Regulatory Management
Division, 111 Massachusetts Avenue, NW., 3rd Floor, Washington, DC
20529; telephone 202-272-8377.
2. U.S. Internal Revenue Service Form 1023
This rule defines ``bona fide non-profit religious organization in
the United States'' as an organization possessing a currently valid
determination letter from the IRS confirming such exemption. If a
religious organization wishes to petition USCIS for a religious worker
and it does not have such a letter from the IRS, this rule requires it
to obtain one. The regulations at 8 CFR 204.5(m)(2) existing prior to
this rule provided that a religious organization could document that it
was bona fide either by showing it is ``an organization exempt from
taxation as described in IRC section 501(c)(3), 26 U.S.C. 501(c)(3), as
it relates to religious organizations, or one that has never sought
such exemption but establishes to the satisfaction of the Service that
it would be eligible therefore if it had applied for tax-exempt
status.'' In practice, for an organization to establish that it would
be tax-exempt, USCIS required the same information to be submitted to
it that the organization would have had to submit to the IRS on IRS
Form 1023, Application for Recognition of Exemption Under Section
501(c)(3) of the Internal Revenue Code, and its schedules. Thus, by
requiring the religious organization to provide a determination letter
from the IRS, this rule does not change the paperwork burden from the
previous regulations.
As stated above, a little over 3,000 religious entities are
expected to petition for religious workers each year. According to the
supporting statement submitted to OMB under the Paperwork Reduction Act
for Form 1023 and approved under OMB control number 1545-0056, the IRS
expects to receive over 29,000 Forms 1023 per year, with each requiring
an average of 101.68 hours to complete, plus supporting schedules which
may require an additional 7 to 15 hours each, for a total of 3,138,550
hours of burden and 33,378 respondents. USCIS has determined that the
burden approved under OMB control number 1545-0056 is sufficiently
large to encompass any increase in applications for IRC section
501(c)(3), 26 U.S.C. 501(c)(3), status caused by this rule.
List of Subjects
8 CFR Part 204
Administrative practice and procedure, Immigration, Reporting and
recordkeeping requirements.
8 CFR Part 214
Administrative practice and procedure, Aliens, Employment, Foreign
officials, Health professions, Reporting and recordkeeping
requirements, Students.
8 CFR Part 299
Immigration, Reporting and recordkeeping requirements.
0
Accordingly, chapter I of title 8 of the Code of Federal Regulations is
amended as follows:
PART 204--IMMIGRANT PETITIONS
0
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, 1641; 8 CFR part 2.
0
2. Section 204.5 is amended by revising paragraph (m) to read as
follows:
Sec. 204.5 Petitions for employment-based immigrants.
* * * * *
(m) Religious workers. This paragraph governs classification of an
alien as a special immigrant religious worker as defined in section
101(a)(27)(C) of the Act and under section 203(b)(4) of the Act. To be
eligible for classification as a special immigrant religious worker,
the alien (either abroad or in the United States) must:
(1) For at least the two years immediately preceding the filing of
the petition have been a member of a religious denomination that has a
bona fide non-profit religious organization in the United States.
(2) Be coming to the United States to work in a full time (average
of at least 35 hours per week) compensated position in one of the
following occupations as they are defined in paragraph (m)(5) of this
section:
(i) Solely in the vocation of a minister of that religious
denomination;
(ii) A religious vocation either in a professional or
nonprofessional capacity; or
(iii) A religious occupation either in a professional or
nonprofessional capacity.
(3) Be coming to work for a bona fide non-profit religious
organization in the United States, or a bona fide organization which is
affiliated with the religious denomination in the United States.
(4) Have been working in one of the positions described in
paragraph (m)(2) of this section, either abroad or in lawful
immigration status in the United States, and after the age of 14 years
continuously for at least the two-year period immediately preceding the
filing of the petition. The prior religious work need not correspond
precisely to the type of work to be performed. A break in the
continuity of the work during the preceding two years will not affect
eligibility so long as:
(i) The alien was still employed as a religious worker;
(ii) The break did not exceed two years; and
(iii) The nature of the break was for further religious training or
for sabbatical that did not involve unauthorized work in the United
States. However, the alien must have been a member of the petitioner's
denomination throughout the two years of qualifying employment.
(5) Definitions. As used in paragraph (m) of this section, the
term:
Bona fide non-profit religious organization in the United States
means a religious organization exempt from taxation as described in
section 501(c)(3) of the Internal Revenue Code of 1986, subsequent
amendment or equivalent sections of prior enactments of the Internal
Revenue Code, and possessing a currently valid determination letter
from the IRS confirming such exemption.
Bona fide organization which is affiliated with the religious
denomination means an organization which is closely associated with the
religious denomination and which is exempt from taxation as described
in section 501(c)(3) of the Internal Revenue Code of 1986, subsequent
amendment or equivalent sections of prior enactments of the Internal
Revenue Code and possessing a currently valid
[[Page 72292]]
determination letter from the IRS confirming such exemption.
Denominational membership means membership during at least the two-
year period immediately preceding the filing date of the petition, in
the same type of religious denomination as the United States religious
organization where the alien will work.
Minister means an individual who:
(A) Is fully authorized by a religious denomination, and fully
trained according to the denomination's standards, to conduct such
religious worship and perform other duties usually performed by
authorized members of the clergy of that denomination;
(B) Is not a lay preacher or a person not authorized to perform
duties usually performed by clergy;
(C) Performs activities with a rational relationship to the
religious calling of the minister; and
(D) Works solely as a minister in the United States, which may
include administrative duties incidental to the duties of a minister.
Petition means USCIS Form I-360, Petition for Amerasian, Widow(er),
or Special Immigrant, a successor form, or other form as may be
prescribed by USCIS, along with a supplement containing attestations
required by this section, the fee specified in 8 CFR 103.7(b)(1), and
supporting evidence filed as provided by this part.
Religious denomination means a religious group or community of
believers that is governed or administered under a common type of
ecclesiastical government and includes one or more of the following:
(A) A recognized common creed or statement of faith shared among
the denomination's members;
(B) A common form of worship;
(C) A common formal code of doctrine and discipline;
(D) Common religious services and ceremonies;
(E) Common established places of religious worship or religious
congregations; or
(F) Comparable indicia of a bona fide religious denomination.
Religious occupation means an occupation that meets all of the
following requirements:
(A) The duties must primarily relate to a traditional religious
function and be recognized as a religious occupation within the
denomination.
(B) The duties must be primarily related to, and must clearly
involve, inculcating or carrying out the religious creed and beliefs of
the denomination.
(C) The duties do not include positions that are primarily
administrative or support such as janitors, maintenance workers,
clerical employees, fund raisers, persons solely involved in the
solicitation of donations, or similar positions, although limited
administrative duties that are only incidental to religious functions
are permissible.
(D) Religious study or training for religious work does not
constitute a religious occupation, but a religious worker may pursue
study or training incident to status.
Religious vocation means a formal lifetime commitment, through
vows, investitures, ceremonies, or similar indicia, to a religious way
of life. The religious denomination must have a class of individuals
whose lives are dedicated to religious practices and functions, as
distinguished from the secular members of the religion. Examples of
individuals practicing religious vocations include nuns, monks, and
religious brothers and sisters.
Religious worker means an individual engaged in and, according to
the denomination's standards, qualified for a religious occupation or
vocation, whether or not in a professional capacity, or as a minister.
Tax-exempt organization means an organization that has received a
determination letter from the IRS establishing that it, or a group that
it belongs to, is exempt from taxation in accordance with sections
501(c)(3) of the Internal Revenue Code of 1986 or subsequent amendments
or equivalent sections of prior enactments of the Internal Revenue
Code.
(6) Filing requirements. A petition must be filed as provided in
the petition form instructions either by the alien or by his or her
prospective United States employer. After the date stated in section
101(a)(27)(C) of the Act, immigration or adjustment of status on the
basis of this section is limited solely to ministers.
(7) Attestation. An authorized official of the prospective employer
of an alien seeking religious worker status must complete, sign and
date an attestation prescribed by USCIS and submit it along with the
petition. If the alien is a self-petitioner and is also an authorized
official of the prospective employer, the self-petitioner may sign the
attestation. The prospective employer must specifically attest to all
of the following:
(i) That the prospective employer is a bona fide non-profit
religious organization or a bona fide organization which is affiliated
with the religious denomination and is exempt from taxation;
(ii) The number of members of the prospective employer's
organization;
(iii) The number of employees who work at the same location where
the beneficiary will be employed and a summary of the type of
responsibilities of those employees. USCIS may request a list of all
employees, their titles, and a brief description of their duties at its
discretion;
(iv) The number of aliens holding special immigrant or nonimmigrant
religious worker status currently employed or employed within the past
five years by the prospective employer's organization;
(v) The number of special immigrant religious worker and
nonimmigrant religious worker petitions and applications filed by or on
behalf of any aliens for employment by the prospective employer in the
past five years;
(vi) The title of the position offered to the alien, the complete
package of salaried or non-salaried compensation being offered, and a
detailed description of the alien's proposed daily duties;
(vii) That the alien will be employed at least 35 hours per week;
(viii) The specific location(s) of the proposed employment;
(ix) That the alien has worked as a religious worker for the two
years immediately preceding the filing of the application and is
otherwise qualified for the position offered;
(x) That the alien has been a member of the denomination for at
least two years immediately preceding the filing of the application;
(xi) That the alien will not be engaged in secular employment, and
any salaried or non-salaried compensation for the work will be paid to
the alien by the attesting employer; and
(xii) That the prospective employer has the ability and intention
to compensate the alien at a level at which the alien and accompanying
family members will not become public charges, and that funds to pay
the alien's compensation do not include any monies obtained from the
alien, excluding reasonable donations or tithing to the religious
organization.
(8) Evidence relating to the petitioning organization. A petition
shall include the following initial evidence relating to the
petitioning organization:
(i) A currently valid determination letter from the Internal
Revenue Service (IRS) establishing that the organization is a tax-
exempt organization; or
(ii) For a religious organization that is recognized as tax-exempt
under a group tax-exemption, a currently valid determination letter
from the IRS
[[Page 72293]]
establishing that the group is tax-exempt; or
(iii) For a bona fide organization that is affiliated with the
religious denomination, if the organization was granted tax-exempt
status under section 501(c)(3) of the Internal Revenue Code of 1986, or
subsequent amendment or equivalent sections of prior enactments of the
Internal Revenue Code, as something other than a religious
organization:
(A) A currently valid determination letter from the IRS
establishing that the organization is a tax-exempt organization;
(B) Documentation that establishes the religious nature and purpose
of the organization, such as a copy of the organizing instrument of the
organization that specifies the purposes of the organization;
(C) Organizational literature, such as books, articles, brochures,
calendars, flyers and other literature describing the religious purpose
and nature of the activities of the organization; and
(D) A religious denomination certification. The religious
organization must complete, sign and date a religious denomination
certification certifying that the petitioning organization is
affiliated with the religious denomination. The certification is to be
submitted by the petitioner along with the petition.
(9) Evidence relating to the qualifications of a minister. If the
alien is a minister, the petitioner must submit the following:
(i) A copy of the alien's certificate of ordination or similar
documents reflecting acceptance of the alien's qualifications as a
minister in the religious denomination; and
(ii) Documents reflecting acceptance of the alien's qualifications
as a minister in the religious denomination, as well as evidence that
the alien has completed any course of prescribed theological education
at an accredited theological institution normally required or
recognized by that religious denomination, including transcripts,
curriculum, and documentation that establishes that the theological
institution is accredited by the denomination, or
(iii) For denominations that do not require a prescribed
theological education, evidence of:
(A) The denomination's requirements for ordination to minister;
(B) The duties allowed to be performed by virtue of ordination;
(C) The denomination's levels of ordination, if any; and
(D) The alien's completion of the denomination's requirements for
ordination.
(10) Evidence relating to compensation. Initial evidence must
include verifiable evidence of how the petitioner intends to compensate
the alien. Such compensation may include salaried or non-salaried
compensation. This evidence may include past evidence of compensation
for similar positions; budgets showing monies set aside for salaries,
leases, etc.; verifiable documentation that room and board will be
provided; or other evidence acceptable to USCIS. If IRS documentation,
such as IRS Form W-2 or certified tax returns, is available, it must be
provided. If IRS documentation is not available, an explanation for its
absence must be provided, along with comparable, verifiable
documentation.
(11) Evidence relating to the alien's prior employment. Qualifying
prior experience during the two years immediately preceding the
petition or preceding any acceptable break in the continuity of the
religious work, must have occurred after the age of 14, and if acquired
in the United States, must have been authorized under United States
immigration law. If the alien was employed in the United States during
the two years immediately preceding the filing of the application and:
(i) Received salaried compensation, the petitioner must submit IRS
documentation that the alien received a salary, such as an IRS Form W-2
or certified copies of income tax returns.
(ii) Received non-salaried compensation, the petitioner must submit
IRS documentation of the non-salaried compensation if available.
(iii) Received no salary but provided for his or her own support,
and provided support for any dependents, the petitioner must show how
support was maintained by submitting with the petition additional
documents such as audited financial statements, financial institution
records, brokerage account statements, trust documents signed by an
attorney, or other verifiable evidence acceptable to USCIS.
If the alien was employed outside the United States during such two
years, the petitioner must submit comparable evidence of the religious
work.
(12) Inspections, evaluations, verifications, and compliance
reviews. The supporting evidence submitted may be verified by USCIS
through any means determined appropriate by USCIS, up to and including
an on-site inspection of the petitioning organization. The inspection
may include a tour of the organization's facilities, an interview with
the organization's officials, a review of selected organization records
relating to compliance with immigration laws and regulations, and an
interview with any other individuals or review of any other records
that the USCIS considers pertinent to the integrity of the
organization. An inspection may include the organization headquarters,
satellite locations, or the work locations planned for the applicable
employee. If USCIS decides to conduct a pre-approval inspection,
satisfactory completion of such inspection will be a condition for
approval of any petition.
* * * * *
PART 214--NONIMMIGRANT CLASSES
0
3. The authority citation for part 214 continues to read as follows:
Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1185 (pursuant
to E.O. 13323, 69 FR 241, 3 CFR, 2003 Comp., p. 278), 1186a, 1187,
1221, 1281, 1282, 1301-1305, 1372, 1379, 1731-32; section 643, Pub.
L. 104-208, 110 Stat. 3009-708; section 141 of the Compacts of Free
Association with the Federated States of Micronesia and the Republic
of the Marshall Islands, and with the Government of Palau, 48 U.S.C.
1901 note, and 1931 note, respectively, 8 CFR part 2.
0
4. Section 214.2 is amended by revising paragraph (r) to read as
follows:
Sec. 214.2 Special Requirements for admission, extension, and
maintenance of status.
* * * * *
(r) Religious workers. This paragraph governs classification of an
alien as a nonimmigrant religious worker (R-1).
(1) To be approved for temporary admission to the United States, or
extension and maintenance of status, for the purpose of conducting the
activities of a religious worker for a period not to exceed five years,
an alien must:
(i) Be a member of a religious denomination having a bona fide non-
profit religious organization in the United States for at least two
years immediately preceding the time of application for admission;
(ii) Be coming to the United States to work at least in a part time
position (average of at least 20 hours per week);
(iii) Be coming solely as a minister or to perform a religious
vocation or occupation as defined in paragraph (r)(3) of this section
(in either a professional or nonprofessional capacity);
(iv) Be coming to or remaining in the United States at the request
of the petitioner to work for the petitioner; and
(v) Not work in the United States in any other capacity, except as
provided in paragraph (r)(2) of this section.
[[Page 72294]]
(2) An alien may work for more than one qualifying employer as long
as each qualifying employer submits a petition plus all additional
required documentation as prescribed by USCIS regulations.
(3) Definitions. As used in this section, the term:
Bona fide non-profit religious organization in the United States
means a religious organization exempt from taxation as described in
section 501(c)(3) of the Internal Revenue Code of 1986, subsequent
amendment or equivalent sections of prior enactments of the Internal
Revenue Code, and possessing a currently valid determination letter
from the Internal Revenue Service (IRS) confirming such exemption.
Bona fide organization which is affiliated with the religious
denomination means an organization which is closely associated with the
religious denomination and which is exempt from taxation as described
in section 501(c)(3) of the Internal Revenue Code of 1986, or
subsequent amendment or equivalent sections of prior enactments of the
Internal Revenue Code, and possessing a currently valid determination
letter from the IRS confirming such exemption.
Denominational membership means membership during at least the two-
year period immediately preceding the filing date of the petition, in
the same type of religious denomination as the United States religious
organization where the alien will work.
Minister means an individual who:
(A) Is fully authorized by a religious denomination, and fully
trained according to the denomination's standards, to conduct religious
worship and perform other duties usually performed by authorized
members of the clergy of that denomination;
(B) Is not a lay preacher or a person not authorized to perform
duties usually performed by clergy;
(C) Performs activities with a rational relationship to the
religious calling of the minister; and
(D) Works solely as a minister in the United States which may
include administrative duties incidental to the duties of a minister.
Petition means USCIS Form I-129, Petition for a Nonimmigrant
Worker, a successor form, or any other form as may be prescribed by
USCIS, along with a supplement containing attestations required by this
section, the fee specified in 8 CFR 103.7(b)(1), and supporting
evidence required by this part.
Religious denomination means a religious group or community of
believers that is governed or administered under a common type of
ecclesiastical government and includes one or more of the following:
(A) A recognized common creed or statement of faith shared among
the denomination's members;
(B) A common form of worship;
(C) A common formal code of doctrine and discipline;
(D) Common religious services and ceremonies;
(E) Common established places of religious worship or religious
congregations; or
(F) Comparable indicia of a bona fide religious denomination.
Religious occupation means an occupation that meets all of the
following requirements:
(A) The duties must primarily relate to a traditional religious
function and be recognized as a religious occupation within the
denomination;
(B) The duties must be primarily related to, and must clearly
involve, inculcating or carrying out the religious creed and beliefs of
the denomination;
(C) The duties do not include positions which are primarily
administrative or support such as janitors, maintenance workers,
clerical employees, fund raisers, persons solely involved in the
solicitation of donations, or similar positions, although limited
administrative duties that are only incidental to religious functions
are permissible; and
(D) Religious study or training for religious work does not
constitute a religious occupation, but a religious worker may pursue
study or training incident to status.
Religious vocation means a formal lifetime commitment, through
vows, investitures, ceremonies, or similar indicia, to a religious way
of life. The religious denomination must have a class of individuals
whose lives are dedicated to religious practices and functions, as
distinguished from the secular members of the religion. Examples of
vocations include nuns, monks, and religious brothers and sisters.
Religious worker means an individual engaged in and, according to
the denomination's standards, qualified for a religious occupation or
vocation, whether or not in a professional capacity, or as a minister.
Tax-exempt organization means an organization that has received a
determination letter from the IRS establishing that it, or a group it
belongs to, is exempt from taxation in accordance with sections
501(c)(3) of the Internal Revenue Code of 1986, or subsequent
amendments or equivalent sections of prior enactments of the Internal
Revenue Code.
(4) Requirements for admission/change of status; time limits--(i)
Principal applicant (R-1 nonimmigrant). If otherwise admissible, an
alien who meets the requirements of section 101(a)(15)(R) of the Act
may be admitted as an R-1 alien or changed to R-1 status for an initial
period of up to 30 months from date of initial admission. If visa-
exempt, the alien must present original documentation of the petition
approval.
(ii) Spouse and children (R-2 status). The spouse and unmarried
children under the age of 21 of an R-1 alien may be accompanying or
following to join the R-1 alien, subject to the following conditions:
(A) R-2 status is granted for the same period of time and subject
to the same limits as the principal, regardless of the time such spouse
and children may have spent in the United States in R-2 status;
(B) Neither the spouse nor children may accept employment while in
the United States in R-2 status; and
(C) The primary purpose of the spouse or children coming to the
United States must be to join or accompany the principal R-1 alien.
(5) Extension of stay or readmission. An R-1 alien who is
maintaining status or is seeking readmission and who satisfies the
eligibility requirements of this section may be granted an extension of
R-1 stay or readmission in R-1 status for the validity period of the
petition, up to 30 months, provided the total period of time spent in
R-1 status does not exceed a maximum of five years. A Petition for a
Nonimmigrant Worker to request an extension of R-1 status must be filed
by the employer with a supplement prescribed by USCIS containing
attestations required by this section, the fee specified in 8 CFR
103.7(b)(1), and the supporting evidence, in accordance with the
applicable form instructions.
(6) Limitation on total stay. An alien who has spent five years in
the United States in R-1 status may not be readmitted to or receive an
extension of stay in the United States under the R visa classification
unless the alien has resided abroad and has been physically present
outside the United States for the immediate prior year. The limitations
in this paragraph shall not apply to R-1 aliens who did not reside
continually in the United States and whose employment in the United
States was seasonal or intermittent or was for an aggregate of six
months or less per year. In addition, the limitations shall not apply
to aliens who reside abroad and
[[Page 72295]]
regularly commute to the United States to engage in part-time
employment. To qualify for this exception, the petitioner and the alien
must provide clear and convincing proof that the alien qualifies for
such an exception. Such proof shall consist of evidence such as arrival
and departure records, transcripts of processed income tax returns, and
records of employment abroad.
(7) Jurisdiction and procedures for obtaining R-1 status. An
employer in the United States seeking to employ a religious worker, by
initial petition or by change of status, shall file a petition in
accordance with the applicable form instructions.
(8) Attestation. An authorized official of the prospective employer
of an R-1 alien must complete, sign and date an attestation prescribed
by USCIS and submit it along with the petition. The prospective
employer must specifically attest to all of the following:
(i) That the prospective employer is a bona fide non-profit
religious organization or a bona fide organization which is affiliated
with the religious denomination and is exempt from taxation;
(ii) That the alien has been a member of the denomination for at
least two years and that the alien is otherwise qualified for the
position offered;
(iii) The number of members of the prospective employer's
organization;
(iv) The number of employees who work at the same location where
the beneficiary will be employed and a summary of the type of
responsibilities of those employees. USCIS may request a list of all
employees, their titles, and a brief description of their duties at its
discretion;
(v) The number of aliens holding special immigrant or nonimmigrant
religious worker status currently employed or employed within the past
five years by the prospective employer's organization;
(vi) The number of special immigrant religious worker and
nonimmigrant religious worker petitions and applications filed by or on
behalf of any aliens for employment by the prospective employer in the
past five years;
(vii) The title of the position offered to the alien and a detailed
description of the alien's proposed daily duties;
(viii) Whether the alien will receive salaried or non-salaried
compensation and the details of such compensation;
(ix) That the alien will be employed at least 20 hours per week;
(x) The specific location(s) of the proposed employment; and
(xi) That the alien will not be engaged in secular employment.
(9) Evidence relating to the petitioning organization. A petition
shall include the following initial evidence relating to the
petitioning organization:
(i) A currently valid determination letter from the IRS showing
that the organization is a tax-exempt organization; or
(ii) For a religious organization that is recognized as tax-exempt
under a group tax-exemption, a currently valid determination letter
from the IRS establishing that the group is tax-exempt; or
(iii) For a bona fide organization that is affiliated with the
religious denomination, if the organization was granted tax-exempt
status under section 501(c)(3), or subsequent amendment or equivalent
sections of prior enactments, of the Internal Revenue Code, as
something other than a religious organization:
(A) A currently valid determination letter from the IRS
establishing that the organization is a tax-exempt organization;
(B) Documentation that establishes the religious nature and purpose
of the organization, such as a copy of the organizing instrument of the
organization that specifies the purposes of the organization;
(C) Organizational literature, such as books, articles, brochures,
calendars, flyers, and other literature describing the religious
purpose and nature of the activities of the organization; and
(D) A religious denomination certification. The religious
organization must complete, sign and date a statement certifying that
the petitioning organization is affiliated with the religious
denomination. The statement must be submitted by the petitioner along
with the petition.
(10) Evidence relating to the qualifications of a minister. If the
alien is a minister, the petitioner must submit the following:
(i) A copy of the alien's certificate of ordination or similar
documents reflecting acceptance of the alien's qualifications as a
minister in the religious denomination; and
(ii) Documents reflecting acceptance of the alien's qualifications
as a minister in the religious denomination, as well as evidence that
the alien has completed any course of prescribed theological education
at an accredited theological institution normally required or
recognized by that religious denomination, including transcripts,
curriculum, and documentation that establishes that the theological
education is accredited by the denomination, or
(iii) For denominations that do not require a prescribed
theological education, evidence of:
(A) The denomination's requirements for ordination to minister;
(B) The duties allowed to be performed by virtue of ordination;
(C) The denomination's levels of ordination, if any; and
(D) The alien's completion of the denomination's requirements for
ordination.
(11) Evidence relating to compensation. Initial evidence must state
how the petitioner intends to compensate the alien, including specific
monetary or in-kind compensation, or whether the alien intends to be
self-supporting. In either case, the petitioner must submit verifiable
evidence explaining how the petitioner will compensate the alien or how
the alien will be self-supporting. Compensation may include:
(i) Salaried or non-salaried compensation. Evidence of compensation
may include past evidence of compensation for similar positions;
budgets showing monies set aside for salaries, leases, etc.; verifiable
documentation that room and board will be provided; or other evidence
acceptable to USCIS. IRS documentation, such as IRS Form W-2 or
certified tax returns, must be submitted, if available. If IRS
documentation is unavailable, the petitioner must submit an explanation
for the absence of IRS documentation, along with comparable, verifiable
documentation.
(ii) Self support. (A) If the alien will be self-supporting, the
petitioner must submit documentation establishing that the position the
alien will hold is part of an established program for temporary,
uncompensated missionary work, which is part of a broader international
program of missionary work sponsored by the denomination.
(B) An established program for temporary, uncompensated work is
defined to be a missionary program in which:
(1) Foreign workers, whether compensated or uncompensated, have
previously participated in R-1 status;
(2) Missionary workers are traditionally uncompensated;
(3) The organization provides formal training for missionaries; and
(4) Participation in such missionary work is an established element
of religious development in that denomination.
(C) The petitioner must submit evidence demonstrating:
[[Page 72296]]
(1) That the organization has an established program for temporary,
uncompensated missionary work;
(2) That the denomination maintains missionary programs both in the
United states and abroad;
(3) The religious worker's acceptance into the missionary program;
(4) The religious duties and responsibilities associated with the
traditionally uncompensated missionary work; and
(5) Copies of the alien's bank records, budgets documenting the
sources of self-support (including personal or family savings, room and
board with host families in the United States, donations from the
denomination's churches), or other verifiable evidence acceptable to
USCIS.
(12) Evidence of previous R-1 employment. Any request for an
extension of stay as an R-1 must include initial evidence of the
previous R-1 employment. If the beneficiary:
(i) Received salaried compensation, the petitioner must submit IRS
documentation that the alien received a salary, such as an IRS Form W-2
or certified copies of filed income tax returns, reflecting such work
and compensation for the preceding two years.
(ii) Received non-salaried compensation, the petitioner must submit
IRS documentation of the non-salaried compensation if available. If IRS
documentation is unavailable, an explanation for the absence of IRS
documentation must be provided, and the petitioner must provide
verifiable evidence of all financial support, including stipends, room
and board, or other support for the beneficiary by submitting a
description of the location where the beneficiary lived, a lease to
establish where the beneficiary lived, or other evidence acceptable to
USCIS.
(iii) Received no salary but provided for his or her own support,
and that of any dependents, the petitioner must show how support was
maintained by submitting with the petition verifiable documents such as
audited financial statements, financial institution records, brokerage
account statements, trust documents signed by an attorney, or other
evidence acceptable to USCIS.
(13) Change or addition of employers. An R-1 alien may not be
compensated for work for any religious organization other than the one
for which a petition has been approved or the alien will be out of
status. A different or additional employer seeking to employ the alien
may obtain prior approval of such employment through the filing of a
separate petition and appropriate supplement, supporting documents, and
fee prescribed in 8 CFR 103.7(b)(1).
(14) Employer obligations. When an R-1 alien is working less than
the required number of hours or has been released from or has otherwise
terminated employment before the expiration of a period of authorized
R-1 stay, the R-1 alien's approved employer must notify DHS within 14
days using procedures set forth in the instructions to the petition or
otherwise prescribed by USCIS on the USCIS Internet Web site at
www.uscis.gov.
(15) Nonimmigrant intent. An alien classified under section
101(a)(15)(R) of the Act shall maintain an intention to depart the
United States upon the expiration or termination of R-1 or R-2 status.
However, a nonimmigrant petition, application for initial admission,
change of status, or extension of stay in R classification may not be
denied solely on the basis of a filed or an approved request for
permanent labor certification or a filed or approved immigrant visa
preference petition.
(16) Inspections, evaluations, verifications, and compliance
reviews. The supporting evidence submitted may be verified by USCIS
through any means determined appropriate by USCIS, up to and including
an on-site inspection of the petitioning organization. The inspection
may include a tour of the organization's facilities, an interview with
the organization's officials, a review of selected organization records
relating to compliance with immigration laws and regulations, and an
interview with any other individuals or review of any other records
that the USCIS considers pertinent to the integrity of the
organization. An inspection may include the organization headquarters,
or satellite locations, or the work locations planned for the
applicable employee. If USCIS decides to conduct a pre-approval
inspection, satisfactory completion of such inspection will be a
condition for approval of any petition.
(17) Denial and appeal of petition. USCIS will provide written
notification of the reasons for the denial under 8 CFR 103.3(a)(1). The
petitioner may appeal the denial under 8 CFR 103.3.
(18) Revocation of approved petitions--(i) Director discretion. The
director may revoke a petition at any time, even after the expiration
of the petition.
(ii) Automatic revocation. The approval of any petition is
automatically revoked if the petitioner ceases to exist or files a
written withdrawal of the petition.
(iii) Revocation on notice--(A) Grounds for revocation. The
director shall send to the petitioner a notice of intent to revoke the
petition in relevant part if he or she finds that:
(1) The beneficiary is no longer employed by the petitioner in the
capacity specified in the petition;
(2) The statement of facts contained in the petition was not true
and correct;
(3) The petitioner violated terms and conditions of the approved
petition;
(4) The petitioner violated requirements of section 101(a)(15)(R)
of the Act or paragraph (r) of this section; or
(5) The approval of the petition violated paragraph (r) of this
section or involved gross error.
(B) Notice and decision. The notice of intent to revoke shall
contain a detailed statement of the grounds for the revocation and the
time period allowed for the petitioner's rebuttal. The petitioner may
submit evidence in rebuttal within 30 days of receipt of the notice.
The director shall consider all relevant evidence presented in deciding
whether to revoke the petition.
(19) Appeal of a revocation of a petition. A petition that has been
revoked on notice in whole or in part may be appealed under 8 CFR
103.3. Automatic revocations may not be appealed.
* * * * *
PART 299--IMMIGRATION FORMS
0
5. The authority citation for part 299 continues to read as follows:
Authority: 8 U.S.C. 1101 and note, 1103; 8 CFR part 2.
0
6. Section 299.1 is amended in the table by revising the entries for
Forms ``I-129'' and ``I-360,'' to read as follows:
Sec. 299.1 Prescribed forms.
* * * * *
[[Page 72297]]
------------------------------------------------------------------------
Form No. Edition date Title and description
------------------------------------------------------------------------
* * * * * * *
I-129......................... XX-XX-XX Petition for a
Nonimmigrant Worker.
* * * * * * *
I-360......................... XX-XX-XX Petition for Amerasian,
Widow(er) or Special
Immigrant.
* * * * * * *
------------------------------------------------------------------------
0
7. Section 299.5 is amended in the table, by revising the entries for
Forms ``I-129'' and ``I-360,'' to read as follows:
Sec. 299.5 Display of control numbers.
* * * * *
------------------------------------------------------------------------
Currently
Form No. Form title assigned OMB
control No.
------------------------------------------------------------------------
* * * * * * *
I-129......................... Petition for a 1615-0009
Nonimmigrant Worker.
* * * * * * *
I-360......................... Petition for Amerasian, 1615-0020
Widow(er) or Special
Immigrant.
* * * * * * *
------------------------------------------------------------------------
Michael Chertoff,
Secretary.
[FR Doc. E8-28225 Filed 11-25-08; 8:45 am]
BILLING CODE 9111-97-P