Federal Register, Volume 91 Issue 11 (Friday, January 16, 2026)

[Federal Register Volume 91, Number 11 (Friday, January 16, 2026)]
[Rules and Regulations]
[Pages 2049-2066]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2026-00830]

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Rules and Regulations
Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by the Superintendent of Documents.

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Federal Register / Vol. 91, No. 11 / Friday, January 16, 2026 / Rules
and Regulations

[[Page 2049]]

DEPARTMENT OF HOMELAND SECURITY

8 CFR Part 214

[CIS No. 2835-25; DHS Docket No. USCIS-USCIS-2025-0403]
RIN 1615-AD02

Improving Continuity for Religious Organizations and Their
Employees

AGENCY: U.S. Citizenship and Immigration Services, DHS.

ACTION: Interim final rule with request for comments.

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SUMMARY: This interim final rule (IFR) amends U.S. Department of
Homeland Security (DHS) regulations to remove the requirement that R-1
religious workers who have reached the maximum period of stay must
reside abroad and be physically present outside the United States for
one year before being eligible for readmission in R-1 status after
departing from the United States upon reaching the maximum admission
period. The purpose of this change is to promote stability and minimize
disruptions to the vital services that R-1 religious workers provide to
U.S. churches, mosques, synagogues, and other bona fide nonprofit
religious organizations.

DATES: This IFR is effective on January 16, 2026. Written comments and
related material must be submitted on or before March 17, 2026. The
electronic Federal Docket Management System will accept comments prior
to midnight Eastern Time at the end of that day.

ADDRESSES: You may submit comments on the entirety of this rulemaking
package, identified by DHS Docket No. USCIS-2025-0403, through the
Federal eRulemaking Portal: http://www.regulations.gov. Follow the
website instructions for submitting comments.
Comments must be submitted in English, or an English translation
must be provided. Comments that will provide the most assistance to
USCIS in implementing these changes will reference a specific portion
of the interim final rule, explain the reason for any recommended
change, and include data, information, or authority that support such
recommended change. Comments submitted in a manner other than the one
listed above, including emails or letters sent to DHS or USCIS
officials, will not be considered comments on the interim final rule
and may not receive a response from DHS. Please note that DHS and USCIS
cannot accept any comments that are hand-delivered or couriered. In
addition, USCIS cannot accept comments contained on any form of digital
media storage devices, such as CDs/DVDs and USB drives. USCIS is also
not accepting mailed comments at this time.
If you cannot submit your comment by using http://www.regulations.gov, please contact Regulatory Coordination Division,
Office of Policy and Strategy, U.S. Citizenship and Immigration
Services, Department of Homeland Security, by telephone at (240) 721-
3000 for alternate instructions.

FOR FURTHER INFORMATION CONTACT: Business and Foreign Workers Division,
Office of Policy & Strategy, U.S. Citizenship and Immigration Services
(USCIS), DHS, 5900 Capital Gateway Drive, Camp Springs, MD 20746;
telephone (240) 721-3000.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Public Participation
II. Background
A. Purpose of the Regulatory Action
B. Legal Authority
C. Framework for the Religious Worker Programs
1. Religious Worker Nonimmigrant Classification
2. The 1-Year Foreign Residence Requirement Under 8 CFR
214.2(r)(6)
3. Process To Immigrate Permanently to the United States as a
Special Immigrant Religious Worker
D. Need for This Rulemaking
E. Faith-Based Executive Orders and Faith-Based Organizations
III. Discussion of the Interim Final Rule
A. General Discussion
B. Description of Regulatory Changes: Amending 8 CFR 214.2(r)(6)
IV. Statutory and Regulatory Requirements
A. Administrative Procedure Act
1. Good Cause and Bypassing the Delayed Effective Date
2. Foreign Affairs Exemption
B. Executive Orders 12866 (Regulatory Planning and Review),
13563 (Improving Regulation and Regulatory Review), and 14192
(Unleashing Prosperity Through Deregulation)
1. Provision To Remove the Requirement That a Nonimmigrant R-1
Religious Worker Remain Outside the United States for 1 Year Before
Being Readmitted as an R-1
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act of 1995
E. Congressional Review Act
F. Executive Order 13132 (Federalism)
G. Executive Order 12988 (Civil Justice Reform)
H. Family Assessment
I. Executive Order 13175 (Consultation and Coordination With
Indian Tribal Governments)
J. National Environmental Policy Act
K. Paperwork Reduction Act
V. List of Subjects and Regulatory Amendments

Table of Abbreviations

APA--Administrative Procedure Act
CFR--Code of Federal Regulations
CRA--Congressional Review Act
DHS--Department of Homeland Security
E.O.--Executive Order
FY--Fiscal Year
IFR--Interim final rule
INA--Immigration and Nationality Act
NEPA--National Environmental Policy Act
OMB--Office of Management and Budget
PRA--Paperwork Reduction Act
SBREFA--Small Business Regulatory Enforcement Fairness Act of 1996
Secretary--Secretary of Homeland Security
State--Department of State
UMRA--Unfunded Mandates Reform Act of 1995
U.S.C.--United States Code
USCIS--U.S. Citizenship and Immigration Services

I. Public Participation

DHS invites all interested parties to participate in this
rulemaking by submitting written data, views, comments and arguments on
all aspects of this rule. DHS also invites comments that relate to the
economic, environmental, or federalism effects that might result from
this rule. Comments must be submitted in English, or an English
translation must be provided. Comments that will provide the most
assistance to USCIS will reference a specific portion of the rule,
explain the reason for any recommended change, and include data,
information, or authority that support such recommended change.
Comments submitted in a manner other than the one listed above,
including emails or

[[Page 2050]]

letters sent to DHS or USCIS officials, will not be considered comments
on the interim final rule and may not receive a response from DHS.
Instructions: If you submit a comment, you must include the agency
name (U.S. Citizenship and Immigration Services) and the DHS Docket No.
USCIS-2025-0403 for this rulemaking. Regardless of the method used for
submitting comments or material, all submissions will be posted,
without change, to the Federal eRulemaking Portal at http://www.regulations.gov, and will include any personal information you
provide. Therefore, submitting this information makes it public. You
may wish to consider limiting the amount of personal information that
you provide in any voluntary public comment submission you make to DHS.
DHS may withhold information provided in comments from public viewing
that it determines may impact the privacy of an individual or is
offensive. For additional information, please read the Privacy and
Security Notice available at http://www.regulations.gov.
Docket: For access to the docket and to read background documents
or comments received, go to http://www.regulations.gov, referencing DHS
Docket No. USCIS-2025-0403. You may also sign up for email alerts on
the online docket to be notified when comments are posted or a final
rule is published.

II. Background

A. Purpose of the Regulatory Action

The Immigration and Nationality Act (INA or Act) allows for
admission to the United States as nonimmigrants certain aliens who are
members of a religious denomination with a bona fide nonprofit
religious organization in the United States and who seek to enter
temporarily to perform qualifying religious work. INA 101(a)(15)(R); 8
U.S.C. 1101(a)(15)(R). These aliens are known as R-1 religious workers.
The purpose of this rulemaking is to enhance stability and
significantly reduce disruptions for U.S. religious organizations and
their employees, including those who are impacted by long waits for
immigrant visas caused by demand in the fourth employment-based
preference category (EB-4) \1\ that far exceeds the numerical limits
established by Congress. Specifically, this interim final rule (IFR)
amends 8 CFR 214.2(r)(6) to remove the requirement that an R-1
religious worker, who has exhausted his or her maximum period of stay
as an R-1, must reside abroad and be physically present outside the
United States for one year before being eligible for readmission in R-1
status. While an R-1 religious worker is still required to depart the
United States at the end of the maximum admission period, there is no
longer a minimum period for residing and being physically present
outside the United States before seeking readmission in R-1 status.
Thus, this rule may significantly reduce the time that religious
organizations and their communities must wait before their religious
workers, on whom they have come to depend on for services, are able to
return. DHS believes that this rule will enhance stability and
significantly reduce disruptions to the religious organizations with
respect to their activities in providing vital services at U.S.
churches, mosques, synagogues, and other places of worship.
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\1\ See INA sec. 203(b)(4), 8 U.S.C. 1153(b)(4). In addition to
special immigrant religious workers, the EB-4 category includes many
other classifications, including special immigrant juveniles,
certain broadcasters, certain retired officers or employees of a G-4
international organization or NATO-6 civilian employees, certain
U.S. government employees who are abroad, members of the U.S. armed
forces, Panama Canal company or Canal Zone government employees,
certain physicians licensed and practicing medicine in a U.S. state
as of Jan. 9, 1978, and aliens who have supplied information
concerning a criminal organization or enterprise or a terrorist
organization, enterprise, or operation (S nonimmigrants). Special
immigrant juveniles account for the overwhelming majority of demand
within the EB-4 category.
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B. Legal Authority

The Secretary of Homeland Security's authority for the regulatory
amendment is found in various sections of the INA, 8 U.S.C. 1101 et
seq. and the Homeland Security Act of 2002 (HSA), Public Law 107-296,
116 Stat. 2135 (codified in part at 6 U.S.C. 101 et seq.). General
authority for issuing this IFR is found in section 103(a) of the INA, 8
U.S.C. 1103(a), which authorizes the Secretary to administer and
enforce the immigration and nationality laws and establish such
regulations as the Secretary deems necessary for carrying out such
authority,\2\ as well as sections 102 of the HSA, 6 U.S.C. 112, which
vests all of the functions of DHS in the Secretary and authorizes the
Secretary to issue regulations.\3\ Further authority is found in
section 101(a)(15)(R) of the Act, 8 U.S.C. 1101(a)(15)(R), which
establishes the R-1 nonimmigrant classification, and section 214(a) of
the INA, 8 U.S.C. 1184(a), which authorizes the Secretary to prescribe
by regulation the conditions on aliens admitted as nonimmigrants.
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\2\ See 6 U.S.C. 522 (``Nothing in [the HSA], any amendment made
by [the HSA], or in section 1103 of Title 8, shall be construed to
limit judicial deference to regulations, adjudications,
interpretations, orders, decisions, judgments, or any other actions
of the Secretary of Homeland Security or the Attorney General.'').
\3\ Although several provisions of the INA discussed in this IFR
refer exclusively to the ``Attorney General,'' such provisions are
now to be read as referring to the Secretary of Homeland Security by
operation of the HSA. See 6 U.S.C. 202(3), 251, 271(b), 542 note,
557; 8 U.S.C. 1103(a)(1) and (g), 1551 note; Nielsen v. Preap, 586
U.S. 392, 397 n.2 (2019).
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C. Framework for the Religious Worker Programs

1. Religious Worker Nonimmigrant Classification
In 1990, as part of a comprehensive overhaul of the immigration
system, Congress created new immigration classifications for religious
workers, that is the R-1 nonimmigrant classification and the special
immigrant religious worker classification.\4\ Prior to that,
nonimmigrant religious workers were admitted into the United States
under various business-related classifications, such as the B-1
(Business Visitor), H (Temporary Worker), and L-1 (Intracompany
Transferee).
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\4\ See Immigration Act of 1990 (IMMACT 90), Public Law 101-649,
sec. 209, 104 Stat. 4978, 5027 (Nov. 29, 1990) (creating new section
101(a)(15)(R) of the Act, 8 U.S.C. 1101(a)(15)(R)); see also IMMACT
90 sec. 151 (creating new section 101(a)(27)(C) of the Act, 8 U.S.C.
1101(a)(27)(C)). Special immigrant religious workers are classified
under the fourth employment-based preference category (EB-4). See
INA sec. 203(b)(4), 8 U.S.C. 1153(b)(4).
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By creating the new religious worker classifications, Congress
acknowledged that the existing visa classifications traditionally used
by religious workers were not suited to the unique characteristics and
needs of the religious workers and religious

[[Page 2051]]

organizations.\5\ In 1991, the former Immigration and Naturalization
Service promulgated implementing regulations for the new nonimmigrant
R-1 religious worker classification in a final rule, ``Aliens in
Religious Occupations (R-1 Nonimmigrants),'' 56 FR 66965 (Dec. 27,
1991).\6\ Current regulations can be found at 8 CFR 214.2(r).
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\5\ See H.R. Rep. 101-723, 101st Cong., 2d Sess. 1990, 1990
U.S.C.C.A.N. 6710, 6755, 1990 WL 200418 (``Currently, nonimmigrant
religious workers are required to pursue business-related visas,
such as B, H, and L, for admission to the United States and
immigrant religious workers are admitted as special immigrants.'');
see also Gordon, Mailman, Yale-Loehr, Immigration Law and Procedure
(rel. 107-12/04), Section 26.2, Background (``For various reasons,
these other nonimmigrant categories often were unavailable to or
inappropriate for temporary religious workers. A primary problem was
that religious occupations and jobs with nonprofit religious
organizations required qualifications different from those used in
filling professional positions or management positions within
multinational cooperations.'').
\6\ DHS later updated these regulations. See Special Immigrant
and Nonimmigrant Religious Workers, 73 FR 72276 (Nov. 26, 2008).
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The R-1 classification allows alien religious workers to
temporarily perform services in the United States as a minister or in a
religious occupation or vocation.\7\ In order to obtain R-1 religious
worker status, a U.S. employer must file a Petition for a Nonimmigrant
Worker (Form I-129) on behalf of the alien. The R-1 nonimmigrant
petition must, among other things, demonstrate that the petitioner is a
bona fide non-profit religious organization (or a bona fide
organization that is affiliated with the religious denomination) and
that the alien has been a member of the same type of religious
denomination as the petitioner for the immediately preceding two
years.\8\
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\7\ The INA defines a religious nonimmigrant worker as an
``alien, and the spouse and children of the alien if accompanying or
following to join the alien, who--(i) for the 2 years immediately
preceding the time of application for admission, has been a member
of a religious denomination having a bona fide nonprofit, religious
organization in the United States; and (ii) seeks to enter the
United States for a period not to exceed 5 years to perform the work
described in subclause (I), (II), or (III) of paragraph
(27)(C)(ii).'' See INA sec. 101(a)(15)(R), 8 U.S.C. 1101(a)(15)(R);
see also 8 CFR 214.2(r).
\8\ See INA sec. 101(a)(15)(R)(i), 8 U.S.C. 1101(a)(15)(R)(i);
see also 8 CFR 214.2(r).
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If the petition is approved, the alien may be admitted as a
nonimmigrant R-1 religious worker \9\ for a period of up to 30 months
from the date of initial admission. See 8 CFR 214.2(r)(4). USCIS may
grant one extension for up to 30 months, with the total period of stay
not to exceed the statutory maximum of 60 months (five years). See
section 101(a)(15)(R)(ii) of the INA, 8 U.S.C. 1101(a)(15)(R)(ii) and 8
CFR 214.2(r)(5).
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\9\ The alien may also obtain a change of status to R-1
nonimmigrant classification. See section 248 of the Act, 8 U.S.C.
1258; 8 CFR 248.1.
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The spouse and any unmarried child under the age of 21 of an R-1
religious worker can be admitted to the United States in R-2
nonimmigrant status in order to accompany, or follow to join, the
principal R-1 religious worker. R-2 nonimmigrants are admitted for the
same period and subject to the same limits as the principal, regardless
of the time such spouse and child may have spent in the United States
in R-2 status. See 8 CFR 214.2(r)(4)(ii).
If otherwise eligible, the R-1 religious worker, spouse, and
children may seek to immigrate permanently to the United States under
the special immigrant religious worker category during the R-1
religious worker's stay.
2. The 1-Year Foreign Residence Requirement Under 8 CFR 214.2(r)(6)
Currently, R-1 religious workers who have reached the 5-year
maximum period of stay may not be readmitted or receive an extension of
stay in R-1 status until they have resided abroad and been physically
present outside the United States for one year. This is due to the one-
year foreign residence requirement in 8 CFR 214.2(r)(6).
The one-year foreign residence requirement does not apply to R-1
religious workers 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.\10\ It also
does not apply to R-1 religious workers who reside abroad and regularly
commute to the United States to engage in part-time employment. See 8
CFR 214.2(r)(6).\11\
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\10\ In practice, these aliens will never reach the 5-year
limitation during a single stay in the United States. These
exceptions were added in a final rule in 2008. While the NPRM sought
comments on the proposed change without providing an explanation for
the change, the final rule did not further discuss the exceptions as
there were no comments on that issue. See Special Immigrant and
Nonimmigrant Religious Workers, 72 FR 20442, 20448 (Apr. 25, 2007)
(NPRM); Special Immigrant and Nonimmigrant Religious Workers, 73 FR
72276 (Nov. 26, 2008) (Final Rule). Thus, these R-1 nonimmigrants
are not subject to the 5-year limit and are not required to reside
abroad and be physically present outside the United States for the
immediate prior year before being readmitted in R-1 nonimmigrant
status. This rule does not change these exceptions.
\11\ The petitioner and the alien must provide clear and
convincing proof that the alien qualifies for such an exception. See
8 CFR 214.2(r).
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Because these exceptions to the one-year requirement are limited,
the vast majority of R-1 religious workers who reach the end of the
five-year period, and have not filed their Form I-485, Application to
Register Permanent Residence or Adjust Status, to immigrate permanently
to the United States, are required to depart the United States and
remain outside the United States for at least one year before being
eligible to return to the United States to work as an R-1 religious
worker.\12\
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\12\ Following departure upon the end of the 5-year period, in
order to return to the United States in R-1 status, the alien must
be the beneficiary of an approved Form I-129 petition and must, with
few exceptions, have been granted an R-1 nonimmigrant visa from the
U.S. Department of State (State). State will not issue an R-1
nonimmigrant visa until the alien has met the 1-year foreign
residence requirement. See 9 FAM 402.16-16(b), Admission, Extension
of Stay, and Readmission (``An individual who has spent five years
in the United States in R status as described in 9 FAM 402.16-14(B)
above may not be issued a visa or be readmitted to the United States
as an R nonimmigrant unless they have resided and been physically
present outside the United States for the previous year, except for
brief visits for business or pleasure. Such visits do not end the
period during which an individual is residing abroad, but time spent
in the United States during such visits does not count towards
fulfilling the one-year abroad requirement.'').
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The status of an R-2 dependent of a principal R-1 religious worker
is subject to the same period of stay and limitations as the principal
beneficiary. See 8 CFR 214.2(r)(4)(ii)(A). Therefore, the spouse or
child of the R-1 religious worker cannot be readmitted into the United
States as the spouse and the child of an R-1 religious worker until the
R-1 religious worker has complied with the one1-year foreign residence
requirement.\13\
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\13\ A former R-2 nonimmigrant is not precluded from being
readmitted as a R-1 nonimmigrant in his or her own right or changing
his or her status to an R-1 nonimmigrant category if he or she
qualifies for this classification. In this case, the former R-2
nonimmigrant is not subject to the 1-year foreign resident
requirement.
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3. Process To Immigrate Permanently to the United States as a Special
Immigrant Religious Worker
An R-1 religious worker may not need to depart the United States if
a petition is filed for the R-1 religious worker to permanently
immigrate to the United States, the petition is approved, and the R-1
religious worker subsequently applies to adjust his or her status to
lawful permanent resident. United States immigration laws generally
provide avenues for employers to petition for aliens to come to, or
remain in, the United States permanently to live and work. Section
203(b) of the INA, 8 U.S.C. 1153(b), establishes categories of aliens
who may be classified as employment-based immigrants and allocates the
allowable number of immigrant visas in a given fiscal year among those
categories. These are referred to as the first through the fifth
employment-based (EB)

[[Page 2052]]

preference categories.\14\ In 1990, along with the R-1 nonimmigrant
classification, Congress also created the special immigrant religious
worker classification under the EB-4 category. Similar to the R-1
nonimmigrant classification, the special immigrant religious worker
classification allows alien religious workers to perform services in
the United States as a minister or in a religious occupation or
vocation, but in a permanent position.
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\14\ See INA sec. 203(b), 8 U.S.C. 1153(b).
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R-1 religious workers--and the religious organizations that employ
them--often use the special immigrant religious worker classification
under the EB-4 category to obtain lawful permanent residence for the
religious worker. The eligibility requirements for R-1 nonimmigrant
religious workers and special immigrant religious workers are generally
similar. Both classifications, among other requirements, require the
alien to have at least 2 years of denominational membership, work as a
minister (or in a religious vocation or occupation), and be employed in
the United States by either a bona fide non-profit religious
organization or a bona fide organization affiliated with the religious
organization.\15\
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\15\ See INA sec. 101(a)(15)(R), (27)(C), 8 U.S.C.
1101(a)(15)(R), (27)(C); see also 8 CFR 204.5(m), 8 CFR 214.2(r).
Notable differences include a requirement that special immigrants
have been employed in a qualifying position as a religious worker
for the 2 years preceding the filing of the petition, and that the
work be full-time employment of at least 35 hours per week, while R-
1 nonimmigrants may work in a part-time position of at least 20
hours per week. Compare 8 CFR 214.2(r)(1)(ii), with 8 CFR
204.5(m)(1) and (2). Also, while special immigrant religious workers
must receive salaried or non-salaried compensation, R-1
nonimmigrants may, in limited circumstances, engage in uncompensated
missionary work. Compare 8 CFR 214.2(r)(11), especially (r)(11)(ii),
with 8 CFR 204.5(m)(10).
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A religious organization that seeks to petition for an alien
beneficiary in the special immigrant religious worker classification
must file Form I-360, Petition for Amerasian, Widow(er), or Special
Immigrant.\16\ A special immigrant religious worker may also petition
for him or herself.\17\ Approval of an immigrant petition does not give
the alien beneficiary any lawful immigration status in the United
States (i.e., does not change the requirement that the R-1 religious
worker must depart the United States at the end of five years). Once
the petition is approved, the beneficiary of the approved petition must
take steps to apply for and obtain lawful permanent resident status by
either applying for an immigrant visa abroad, or by seeking adjustment
of status in the United States.\18\ The alien, however, may only apply
for an immigrant visa or adjustment of status if an immigrant visa is
available.
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\16\ INA sec. 204, 8 U.S.C. 1154, contains provisions relating
to the filing and adjudication of immigrant petitions. Implementing
regulations can be found at 8 CFR 204.5.
\17\ 8 CFR 204.5(m)(6).
\18\ For immigrant visas processed by State, see INA secs. 221,
222, 8 U.S.C. 1201, 1202; for adjustment of status, see INA sec.
245, 8 U.S.C. 1255.
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Under sections 201 through 203 of the INA, 8 U.S.C. 1151-1153,
Congress set annual numerical limits for each preference category. In a
typical year, 9,940 visas are allocated for the fourth employment-based
preference category, which are shared among the various classifications
that are assigned to the fourth preference category, including special
immigrant religious workers.\19\ Section 203(e) of the INA, 8 U.S.C.
1153(e), and section 203(g) of the INA, 8 U.S.C. 1153(g), contain
provisions establishing that the Secretary of State must maintain a
waiting list of applicants for immigrant visas, make reasonable
estimates on anticipated numbers of visas to be issued, and rely upon
those estimates in issuing visas.
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\19\ Of the visas allocated to the fourth preference, no more
than 5,000 each year may be made available for non-minister
religious workers. INA sec. 203(b)(4), 8 U.S.C. 1153(b)(4).
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Immigrant visas, including many employment-based preference
categories, are made available to potential immigrants based on the
order in which an immigrant petition or labor certification, as
applicable, is filed on their behalf (the applicable filing date is
referred to as the priority date).\20\ Congress also established a
numerical limit on the issuance of visas in the family-sponsored and
employment-based preference categories based on the alien's country of
origin. This per-country limit for these preference immigrants is set
at 7 percent of the total annual family-sponsored and employment-based
preference limits, or about 25,620 in a typical fiscal year.\21\
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\20\ See INA sec. 203(e), 8 U.S.C. 1153(e). Certain employment-
based potential immigrants may file petitions on their own behalf.
See INA sec. 203(b)(1)(A), 8 U.S.C. 1153(b)(1)(A) (aliens of
extraordinary ability); INA sec. 203(b)(2)(B), 8 U.S.C.
1153(b)(2)(B) (waivers of job offer based on the national interest);
see also INA secs. 101(a)(27)(C) and 203(b)(4), 8 U.S.C.
1101(a)(27)(C) and 1153(b)(4) (special immigrant religious workers).
\21\ See INA sec. 202, 8 U.S.C. 1152.
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The U.S. Department of State (State) publishes in the monthly State
Bureau of Consular Affairs Visa Bulletin relevant dates that determine
who may apply for or be approved for an immigrant visa or adjustment of
status. Those with a priority date that precedes the relevant date may
apply for or be approved for the visa or adjustment of status.\22\
These dates are generally arranged according to preference category and
any applicable subcategories or country-specific limitations. Once the
R-1 religious worker's priority date precedes the relevant Visa
Bulletin date, the R-1 religious worker may then apply for an immigrant
visa abroad or seek adjustment of status in the United States.
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\22\ The Visa Bulletin can be accessed on State's website at
https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin.html (last visited Sep. 11, 2025).
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D. Need for This Rulemaking

As noted previously, special immigrant religious workers are one of
many types of immigrants classified under EB-4.\23\ For several fiscal
years, demand for immigrant visas within the EB-4 category has exceeded
the number of visas available in this category, meaning that visas
cannot be provided immediately to every alien otherwise eligible to
receive one. Therefore, aliens classified under this category have had
to wait until a visa number is available before they are eligible to
apply for an immigrant visa abroad or seek adjustment of status in the
United States.
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\23\ See INA sec. 203(b)(4), 8 U.S.C. 1153(b)(4).
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Visas were generally available without any wait in EB-4 for aliens
from all countries until May 2016 and remained available without any
wait for aliens from all but a few countries until December 2022.
Beginning in December 2022, the Visa Bulletin reflected that aliens
from all countries would have to wait before receiving EB-4 visas.\24\
For aliens from most countries within the EB-4 category, wait times for
visas then greatly increased in the spring of 2023, as demonstrated by
retrogression of the Final Action Dates for EB-4 in the Visa
Bulletin.\25\ This followed a legal

[[Page 2053]]

correction by State, in how immigrant visas are allocated within the
employment-based preference categories for nationals of countries who
have not reached the per-country limit under section 202(a)(2) of the
INA, 8 U.S.C. 1152(a)(2). On March 28, 2023, State issued a Federal
Register notice,\26\ explaining that this change was required to bring
its practice into compliance with applicable statutory provisions.\27\
Prior to April 2023, aliens chargeable to El Salvador, Guatemala, and
Honduras had been listed separately with their own country-specific
final action dates. In the April 2023 Visa Bulletin, State corrected
this approach, consistent with its March 2023 Federal Register notice,
and eliminated the separate final action dates for these three
countries, thus moving all aliens chargeable to those countries to the
subcategory represented by the ``All Chargeability Areas Except Those
Listed'' column.\28\
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\24\ Reflected by the establishment of dates for aliens from all
countries in the ``Final Action Dates for Employment-Based
Preference Cases'' in the December 2022 Visa Bulletin.
\25\ Retrogression is the term used to describe the backwards
movement of a Final Action Date for a particular country or category
from one month to the next in the Visa Bulletin. For example, in the
March 2023 Visa Bulletin the Final Action Date for Philippines EB-4
was February 1, 2022. However, in the April 2023 Visa Bulletin the
Final Action Date for Philippines EB-4 retrogressed to September 1,
2018. The effect of retrogression is to make visas available to a
smaller population of applicants (including, in cases where the
annual limit has been reached, to no applicants at all). State
retrogresses a particular Final Action Date to ensure that visa use
remains within the limits established by Congress and that visas
within a particular queue (based on category and country of
chargeability) are generally allocated to those with the earliest
priority dates.
\26\ See Employment-Based Preference Immigrant Visa Final Action
Dates and Dates for Filing for El Salvador, Guatemala, and Honduras,
88 FR 18252 (Mar. 28, 2023).
\27\ See INA sec. 202(a), 8 U.S.C. 1152(a).
\28\ See State, Visa Bulletin for April 2023, https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2023/visa-bulletin-for-april-2023.html (Mar. 21, 2023)).
---------------------------------------------------------------------------

The Visa Bulletin correction has significantly impacted the EB-4
availability and specifically the religious communities in the United
States. Members of Congress have recently called the impact on R-1
religious workers a real crisis.\29\ Based on the historical low
numbers of Form I-129 petitions filed for religious workers who
exceeded the maximum five-year period, DHS understands that R-1
religious workers and religious organizations have historically used
the special immigrant religious worker classification under the EB-4
category to obtain lawful permanent residence for the R-1 religious
worker within the first five years of obtaining R-1 status.\30\ This
means that the R-1 religious worker had either obtained lawful
permanent residence or had a pending application to adjust status to
that of a lawful permanent resident, either of which provided the
ability to remain and work in the United States past the maximum five
year time period.\31\ Therefore, prior to December 2022, many R-1
religious workers did not have to rely on having R-1 status in order to
continue serving their communities for more than five years and never
had to leave the United States to satisfy the regulatory one-year
foreign residence requirement.
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\29\ See Press Release, April 8, 2025, Kaine, Collins, Risch
Introduce Religious Workforce Protection Act, https://www.kaine.senate.gov/press-releases/kaine-collins-risch-introduce-religious-workforce-protection-act (``When Maine parishes where I
attend mass started losing their priests, I saw this issue creating
a real crisis in our state . . . Our bill would help religious
workers of all faith traditions continue to live and serve here in
the United States while their applications for permanent residency
are being fully processed . . . Many Mainers and Americans cannot
imagine their lives without the sense of community and services
their local religious organizations provide.'').
\30\ See Section IV. B. 1.c., Table 1, Table 1: Annual Number of
R-1 Nonimmigrants Who Have Petitions filed on their behalf for New
R-1 Status within 5 to 6\1/2\ Years after the Initial Approval, by
Fiscal Year of First Approval, FY 2015-2019; see also Section
IV.B.1.c., Table 2.: Annual Number of I-360, Petition for Amerasian,
Widow(er), or Special Immigrant, Religious Worker Approvals without
I-485 Filing by Fiscal Year, FY 2019-2025 (as of Aug. 26).
\31\ Public information confirms DHS' assessment of the typical
filing behavior and circumstances that R-1s and their employers have
historically faced. See, e.g., Congress.gov Religious Workforce
Protection Act (Executive Session); Congressional Record Vol. 171,
No. 63, S2464-2466, https://www.congress.gov/congressional-record/volume-171/issue-63/senate-section/article/S2464-3 (last visited
Sept. 10, 2025) (``The R-1 visa lasts for 5 years. Often, during the
course of that 5 years, the faith congregation decides, `Here is
somebody who is really great; we would like to keep him'-or her-and
they apply for an EB-4 visa, which is a more extended visa. And the
idea would be you would apply, and the application process would
finish before your R-1 visa expires.''); see also Newsweek, Green-
Card Changes Threaten Pastor's Ability to Remain in the US, https://www.newsweek.com/green-card-changes-threatens-pastors-ability-remain-2105229 (``Many religious workers come to the U.S. on R-1
visas, which are valid up to five years, and can apply for an EB-4
visa, which gives them lawful permanent resident status. After five
years, R-1 visa holders are required to return to their home country
if they do not obtain a green card. A backlog created by that 2023
[change] means that the once-shorter processing time has gone up for
religious workers, according to the Associated Press.''); CLINIC,
The Religious Workforce Protection Act: Helping Religious Workers
Stay and Aide Their Communities, https://www.cliniclegal.org/resources/religious-immigration-law/religious-workforce-protection-act-helping-religious-workers.
---------------------------------------------------------------------------

Now, however, the very long waits for visas in the EB-4 category
means that R-1 religious workers are not able to obtain permanent
residence or file an adjustment of status application within the first
five years of obtaining R-1 status. Because the current and projected
demand for immigrant visas in the EB-4 category greatly exceeds the
available supply, R-1 religious workers who are also the beneficiaries
of an approved special immigrant religious worker petition will
generally reach their five-year maximum period of stay in R-1
nonimmigrant status well before an immigrant visa becomes available to
them. At the end of fiscal year 2022, there were fewer than 63,000
approved petitions in the EB-4 category with priority dates on or after
the established Final Action Dates in the Visa Bulletin.\32\ As of
March 2025, the number of approved petitions where no visa was
immediately available in the EB-4 category had grown to approximately
217,500.\33\ Since in a typical year only 9,940 visas are available in
the EB-4 category,\34\ and significantly more than 9,940 aliens enter
the queue each year, barring a statutory change or fundamental shift in
filing patterns, this long wait for visas is expected to grow even
longer over time. Given the significant wait for visas in the EB-4 visa
category, it is possible that a religious worker who is the beneficiary
of a Form I-360 petition filed today may not be able to obtain an
immigrant visa for at least two decades.
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\32\ See USCIS, ``Form I-140, I-360, I-526 Approved EB Petitions
Awaiting Visa Final Priority Dates (Fiscal Year 2022, Quarters 3 and
4),'' https://www.uscis.gov/sites/default/files/document/data/EB_I140_I360_I526_performancedata_fy2022_Q3_Q4.pdf.
\33\ See USCIS, ``Form I-140, I-360, I-526 Approved EB Petitions
Awaiting Visa Final Priority Dates (Fiscal Year 2025, Quarter 2),''
https://www.uscis.gov/sites/default/files/document/data/eb_i140_i360_i526_performancedata_fy2025_q2.xlsx (last visited Aug.
1, 2025). USCIS data indicate that, since fiscal year 2023, there
are an average of approximately 1,700 EB-4 religious workers per
year on whose behalf a Form I-360 has been approved but who have not
yet been able to file a Form I-485. This is a significant increase
from the average of approximately 550 per year in the 4 years prior
to fiscal year 2023. See Table 3 below. Source: DHS, USCIS, Office
of Performance and Quality, CLAIMS3 & ELIS, queried 08/2025,
PAER0018660.
\34\ See INA sec. 203(b)(4), 8 U.S.C. 1153(b)(4).
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As a result, without either an extended nonimmigrant visa status or
the ability to file an adjustment of status application based on an
available immigrant visa, these aliens generally will have to leave the
United States for the one-year period required by current regulations
before they can, based on a new R-1 petition approval, reenter the
United States in R-1 status to continue to provide their services on
behalf of their religious organization for their congregation,
community, and the American public.\35\
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\35\ See 8 CFR 214.2(r)(6).
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E. Faith-Based Executive Orders and Faith-Based Organizations

On February 7, 2025, President Trump issued Executive Order (E.O.)
14205, Establishment of the White House Faith Office, 90 FR 9499 (Feb.
12, 2025), highlighting the important work that religious workers
perform in faith-based entities, community organizations and houses of
worship. The E.O. states that these organizations have tremendous
ability to serve individuals, families, and communities through means
that are different from those of government, and are essential to

[[Page 2054]]

strengthening families and revitalizing communities.\36\ The E.O.
reiterates the importance of E.O. 13397, Responsibilities of the
Department of Homeland Security With Respect to Faith-based and
Community Initiatives), 71 FR 12275 (Mar. 9, 2006), and directs DHS to
help strengthen faith-based and other community organizations.\37\
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\36\ See section 1 of the E.O.
\37\ E.O. 13397, as amended by E.O. 14205, directs the Secretary
of Homeland Security to establish within DHS a Center for Faiths
with the goal of coordinating agency efforts to eliminate regulatory
and other obstacles to the participation of faith-based and other
community organizations in the provision of social and community
services. See secs. 2 and 3 of E.O 13397; see also secs. 1 and 4 of
E.O. 14205 (establishing the White House Faith Office, which shall
make recommendations and advise on the implementation regarding
changes to policies, programs and practices and aspects of the
Administration's policy agenda that affect the ability of faith-
based entities, community organizations and houses of worship to
serve families and communities).
---------------------------------------------------------------------------

R-1 religious workers are a significant portion of the religious
workers in the United States. According to the May 2023 National
Occupational Employment and Wage Estimates, there were approximately
91,770 people employed as religious workers in the United States.\38\
In the 30 months prior to May 2023, 11,199 aliens were approved for new
employment R-1 visas and approximately 7,789 additional aliens were
approved for continuation of previous R-1 employment.\39\ These 19,000
(approximately) R-1 visa holders account for approximately 21 percent
of the religious workers in the United States.\40\ These R-1 religious
workers help serve the approximately 41 percent of the U.S. population
that attend religious services about once a month or more often.\41\
---------------------------------------------------------------------------

\38\ DOL, Bureau of Labor Statistics, May 2023 National
Occupational Employment and Wage Estimates Religious Workers (21-
2000), Employment, https://www.bls.gov/oes/2023/may/oes_nat.htm
(last visited August 18, 2025).
\39\ The period used to calculate this population is November
2020 to April 2023. Source: DHS, USCIS, Office of Performance and
Quality (OPQ), CLAIMS3 & ELIS, queried 08/2025, PAER 0018648.
\40\ Calculation: 11,199 new employment + 7,789 continuing
employment = 18,988, or approximately 19,000.
Calculation: approximately 19,000 R-1 religious worker/91,770
religious workers in the United States = 0.2070 (rounded) or
approximately 21%.
\41\ See Gallup ``Church Attendance Has Declined in Most U.S.
Religious Groups'' (Mar. 25, 2024), https://news.gallup.com/poll/642548/church-attendance-declined-religious-groups.aspx.
Calculation: 21% attend every week + 9% attend almost every week
+ 11% attend about once a month = 41% attending about once a month
or more often.
---------------------------------------------------------------------------

Many religious organizations depend on alien religious workers to
provide crucial services and spiritual support to communities in the
United States. Apart from performing duties reserved to members of the
clergy, religious workers and organizations also perform services such
as providing support to the neediest, caring for and ministering to the
sick, aged, and dying in hospitals and special facilities, assisting
religious leaders who lead their congregations, counseling victims of
trauma or hardship, and supporting families and individual members in
crisis. Religious workers and organizations also work with adolescents
and young adults, and serve as principals, teachers, and school support
staff. National organizations representing a variety of religious
denominations and faith traditions report that some traditions must
rely on the services of alien religious workers because they do not
have established institutions in the United States to recruit and train
the workers they require. Consequently, their presence is vital for
religious organizations to serve those in need and respond effectively
to the dynamic intercultural realities of modern America.\42\
---------------------------------------------------------------------------

\42\ See Interfaith Letter on Policy Change Impacting EB-4 Visas
(May 25, 2023), https://www.usccb.org/resources/Interfaith%20Letter%20on%20Policy%20Change%20Impacting%20EB-4%20Visas.pdf.
---------------------------------------------------------------------------

The important work of faith-based entities is being increasingly
disrupted by the very long wait for EB-4 immigrant visas combined with
the regulatory one-year foreign residence requirement for R-1 religious
workers. As a result, many R-1 religious workers serving vital roles in
their communities have been forced to leave the country for at least
one year due to delays in transitioning to permanent residence.\43\
This disruption has negatively impacted religious organizations by
creating staffing shortages, hindering their ability to provide
essential services, and limiting their outreach efforts.\44\ It is
impacting religious congregations of many faiths all across the
country.\45\ For example, Idaho's religious communities risk losing up
to a quarter of their clergy due to the very long wait for EB-4 visas
and the one-year foreign residence requirement.\46\ Faith leaders
report that hospitals will go without chaplains, schools will go
without teachers, and seminaries will go without instructors if this
situation is not addressed expeditiously.\47\
---------------------------------------------------------------------------

\43\ See CLINIC, The Religious Workforce Protection Act: Helping
Religious Workers Stay and Aide Their Communities, https://www.cliniclegal.org/resources/religious-immigration-law/religious-workforce-protection-act-helping-religious-workers (last updated
July 1, 2025) (noting that these delays have ``led to many religious
communities across the country being in dire straits as their
religious workers have been forced to leave''); United States
Conference of Catholic Bishops, Letter to Congress on the Religious
Workforce Protection Act (April 10, 2025), https://www.usccb.org/resources/letter-congress-religious-workforce-protection-act-april-10-2025.
\44\ See Archdiocese of Milwaukee, Due to green card backlog,
Archdiocese of Milwaukee at risk of losing 24 internationally-born
priests (Nov. 14, 2024), https://spectrumnews1.com/wi/milwaukee/news/2024/11/07/green-card-processing-backlog-archdiocese-of-milwaukee (Noting that the Archdiocese of Milwaukee was at risk of
losing 24 priests and that ``[t]heir absence would create a hardship
for dioceses having to operate with fewer priests, including an
interruption in outreach ministries'').
\45\ See Interfaith Letter to Congress on the Religious
Workforce Protection Act (June 23, 2025), https://www.usccb.org/resources/interfaith-letter-congress-religious-workforce-protection-act-june-23-2025 (noting that the requirement for a religious worker
to remain outside the United States for at least 1 full year ``poses
tremendous hardship for religious organizations'').
\46\ See Press Release, April 8, 2025, Kaine, Collins, Risch
Introduce Religious Workforce Protection Act, https://www.kaine.senate.gov/press-releases/kaine-collins-risch-introduce-religious-workforce-protection-act.
\47\ See CatholicVote, Religious worker visa crisis prompts
bipartisan response in Congress, May 21, 2025, https://catholicvote.org/religious-worker-visa-crisis-prompts-bipartisan-response-congress/.
---------------------------------------------------------------------------

This crisis comes at a time when American religious institutions
are already struggling on multiple fronts. Faith communities across the
nation report at an alarming rate that they do not have enough clergy
to lead congregations, in particular in rural areas, in part because
clergy are retiring and dying faster than new ones are entering the
ministry.\48\ Congregations continue to raise the alarm, and DHS has
received multiple letters regarding these issues.\49\ In April 2025,
Congress highlighted the problem and the urgency by introducing
bipartisan and bicameral measures confirming broad support in resolving
the issue that this rulemaking seeks to resolve.\50\
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\48\ See NPR, Churches in America are having a hard time finding
pastors, Nov. 25, 2024, https://www.npr.org/2024/11/25/nx-s1-5193755/churches-in-america-are-having-a-hard-time-finding-pastors.
\49\ See, e.g., Letter dated May 25, 2023, from multiple
national organizations representing many different religious
denominations and faith traditions, available in the regulatory
docket.
\50\ See section 4 of H.R.2672--Religious Workforce Protection
Act (introduced Apr. 7, 2025) at https://www.congress.gov/bill/119th-congress/house-bill/2672/text?s=2&r=1&q=%7B%22search%22%3A%22H.r.+2672%22%7D (last visited
Aug. 13, 2025); S. 1298--Religious Workforce Protection Act
(introduced Apr. 3, 2025) at https://www.congress.gov/bill/119th-congress/senate-bill/1298/text (last visited Sept. 9, 2025); see
also Newsweek, ``Green-Card Changes Threatens Pastors' ability to
Remain in U.S.'' (July 28, 2025), https://www.newsweek.com/green-card-changes-threatens-pastors-ability-remain-2105229 (describing
that the situation related to the visa waitlist and the 1-year
period that a religious worker has to stay outside, has
significantly upended religious communities across the country that
rely on foreign workers).

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[[Page 2055]]

III. Discussion of the Interim Final Rule

DHS believes that removing the one-year foreign residence
regulatory requirement for religious workers may significantly reduce
the time that a religious organization is without its trusted clergy
and non-ministerial religious workers. As the waitlist for EB-4 visas
may continue to grow without Congressional action to increase visa
availability for these essential religious workers in the United
States, this rulemaking can significantly reduce damaging losses to
religious organizations and American religious communities. DHS
strongly believes that this action must be taken to address the
immediate needs of religious organizations and to avert a further
crisis. Given the broad public and congressional support, DHS believes
this IFR is the appropriate measure to provide immediate relief to the
American community while providing the public the opportunity for
further input post-promulgation.

A. General Discussion

DHS is amending 8 CFR 214.2(r)(6) to remove the requirement that a
nonimmigrant religious worker (R-1), who has exhausted the five-year
maximum period of stay as an R-1 religious worker, must reside abroad
and be physically present outside the United States for one year before
being eligible for readmission as an R-1 religious worker.\51\
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\51\ See 8 CFR 214.2(r)(6). As explained above, that provision
also states that the limitations contained in paragraph (r)(6) do
not apply to R-1 religious workers who do not reside continually in
the United States and whose employment in the United States is for
an aggregate of less than 6 months per year or is seasonal or
intermittent. The limitations also do not apply to R-1 religious
workers who reside abroad and regularly commute to the United States
to engage in part time employment. See id. This rule does not change
these exceptions.
---------------------------------------------------------------------------

By statute, R-1 religious workers may not continuously remain in
the United States in that status for more than five years.\52\ The
statute does not state that an R-1 religious worker must remain
physically present outside of the United States for any specific period
of time after being admitted for five years as an R-1 religious worker
in the United States.\53\ However, the current regulation at 8 CFR
214.2(r)(6) states that an alien who has spent five years in the United
States in R-1 nonimmigrant status may not be readmitted to or receive
an extension of stay in the United States under the R-1 nonimmigrant
visa classification unless the alien has resided abroad and has been
physically present outside the United States for the immediate prior
year.
---------------------------------------------------------------------------

\52\ See INA sec. 101(a)(15)(R)(ii), 8 U.S.C. 1101(a)(15)(R)(ii)
(``seeks to enter the United States for a period not to exceed 5
years''); see also 8 CFR 214.2(r)(6).
\53\ INA sec. 101(a)(15)(R)(ii), 8 U.S.C. 1101(a)(15)(R)(ii).
---------------------------------------------------------------------------

This one-year period was established in a 1991 rulemaking and was
based on the one-year period that an H-1 or L-1 nonimmigrant is
required to remain outside the United States under the same
circumstances.\54\ In response to a comment asking for longer periods
between nonimmigrant stays, the 1991 Final Rule stated that because a
one-year period outside the United States applied to H-1 and L-1
nonimmigrants, the same period was sufficient for R-1
nonimmigrants.\55\
---------------------------------------------------------------------------

\54\ See Final Rule, Aliens in Religious Occupations (R-1
Nonimmigrants), 56 FR 66965 (December 27, 1991). Prior to the
publication of the final rule, INS published a proposed rule, which
did not provide a justification for the one-year approach. See
Proposed Rule, Aliens in Religious Occupations (R-1 Nonimmigrants),
56 FR 33886, 33887 (July 24, 1991) (``A religious worker who has
remained in the United States in R nonimmigrant status for five
years will not be readmitted to the United States in that
classification unless he/she has resided and been physically present
outside the United States, except for brief visits for business or
pleasure, for the immediate prior year. This limitation on admission
is found in paragraph (r)(7).'').
\55\ ``Finally, although the Service must require an alien to
leave the United States between stays as a religious worker, since
the Act mandates that such stays shall not exceed five years, one
year outside the United States is a sufficient minimum period. That
period has previously been used satisfactorily for H-1 and L-1
nonimmigrants, and the Service will also use it for R
nonimmigrants.'' See 56 FR 66965, 66966-66967.
---------------------------------------------------------------------------

DHS is now amending 8 CFR 214.2(r)(6) to remove the requirement
that an alien who has spent five continuous years in the United States
as an R-1 religious worker must reside abroad and be physically present
outside of the United States for the immediate year prior to being
readmitted or receiving an extension of stay as an R-1 religious
worker.\56\ This regulatory requirement has become disruptive due to
the very long wait for EB-4 immigrant visas. The goal of this change is
to significantly reduce disruptions for religious organizations who
want to retain R-1 religious workers that have reached five years in R-
1 status.\57\
---------------------------------------------------------------------------

\56\ This IFR falls within the statutory language of
sec.101(a)(15)(R) of the INA, 8 U.S.C. 1101(a)(15)(R), which among
other things, does not require an R-1 nonimmigrant to have a foreign
residence that he or she has no intention of abandoning. This
proposal does not change any of State's longstanding practices
relating to R-1 nonimmigrants. R-1 nonimmigrants will still have to
meet section 214(b) of the INA, 8 U.S.C. 1181(b), and the
requirements outlined by State in their Foreign Affairs Manual to
receive their R-1 visa from State after USCIS sends the approved R-1
petition to the applicable consulate. See 9 FAM 402.16-6, INA sec.
214(b) Refusals and R Nonimmigrants, see generally 9 FAM 402.16,
Religious Occupations, https://fam.state.gov/fam/09FAM/09FAM040216.html (last updated Mar. 6, 2024).
\57\ Because a religious organization is able to file a new Form
I-129 petition for a R-1 religious worker before the 5-year maximum
period is reached, the petition could be filed early enough so that
it would possibly be approved by the time the R-1 worker needs to
depart the United States and apply for a visa with State to reenter
the United States as an R-1 worker with a new maximum 5-year period
of admission.
---------------------------------------------------------------------------

DHS is executing a very narrowly tailored solution to provide a
reasonable and rational solution to the problem at hand.\58\ In
carrying out its broad statutory authorities and responsibility to
administer immigration laws, promulgate regulatory provisions, and
prescribe conditions on nonimmigrant admissions,\59\ DHS has determined
that the impact of the very long waits for EB-4 immigrant visas on R-1
religious workers and their faith communities and ministries is best
addressed through the amendment of the regulatory requirement specified
above.
---------------------------------------------------------------------------

\58\ The change in this rule does not modify the amount of a
time an R-1 religious worker would need to wait for an EB-4 special
immigrant religious worker visa number to be available. It also does
not give priority to EB-4 special immigrant religious workers in the
allocation of EB-4 visas or otherwise displace other immigrant visa
applicants who are also awaiting a priority date in the EB-4
category. Finally, this change does not change the number of visas
available to those in the EB-4 category or allocate more visas than
assigned by Congress.
\59\ See INA secs 101(a)(15)(R), 103(a)(1), (3), 214(a)(1), 8
U.S.C. 1101(a)(15)(R), 1103(a)(1), (3), 1184(a)(1); see also HSA
secs. 451(a)(3), (b); 6 U.S.C. 271(a)(3), (b) (establishing the
Bureau of Citizenship and Immigration Services, now USCIS, and
transferring to USCIS the authority to adjudicate benefit requests
and set national immigration services policies and priorities).
---------------------------------------------------------------------------

DHS notes that there are no specific statutory requirements imposed
on R-1 religious workers \60\ or on special immigrant religious workers
as to how long R-1 religious workers have to remain outside the United
States after the five-year maximum period of stay has passed.\61\
Section 101(a)(15)(R)(ii) of the Act, 8 U.S.C. 1101(a)(15)(R)(ii), does
not mention or mandate a one-year period. Further, other than providing
for the statutory limit of the period of stay for five years, Congress
has conferred expansive delegated authority to DHS to set by regulation
the conditions of admission of nonimmigrants.\62\
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\60\ See INA sec. 101(a)(15)(R), 8 U.S.C. 1101(a)(15)(R).
\61\ See INA sec. 101(a)(27)(C), 8 U.S.C. 1101(a)(27)(C).
\62\ See INA secs. 103(a)(1), (3), 214(a)(1), 8 U.S.C.
1103(a)(1), (3), 1184(a)(1); see also HSA secs. 451(a)(3), (b); 6
U.S.C. 271(a)(3), (b) (establishing the Bureau of Citizenship and
Immigration Services, now USCIS, and transferring to USCIS the
authority to adjudicate benefit requests and set national
immigration services policies and priorities).

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[[Page 2056]]

As noted above, DHS created the one-year requirement to remain
outside the United States for R-1 nonimmigrants to be consistent with
the H-1B and L-1 nonimmigrant classifications. However, DHS does not
believe that there are specific similarities between the R-1
nonimmigrant classification and the H-1B \63\ and L-1 nonimmigrant
classifications that support the requirement that R-1 nonimmigrants
need to remain outside the United States for the same time period as
the H-1B and L-1 nonimmigrant classifications before being eligible for
a renewed period of eligibility. DHS believes R-1 nonimmigrants are
distinguishable from H-1B and L-1 nonimmigrants, and it is, therefore,
not necessary to similarly require R-1 nonimmigrants to remain outside
of the United States for a specified period. First, H-1B nonimmigrants,
by definition, are coming to the United States to perform services in a
specialty occupation or as fashion models of distinguished merit and
ability.\64\ L-1 nonimmigrants are coming to the United States
temporarily in order to continue rendering services to the same
employer (including a parent, subsidiary, or affiliate) in managerial,
executive, and specialized knowledge capacities.\65\ In general, the
positions filled by R-1 nonimmigrant workers tend not to have those
characteristics. By definition, R-1 nonimmigrant workers are driven by
their commitment to their particular religion and likely wish to serve
that religion in some way regardless of the type of position or
compensation.\66\ One way this commitment is demonstrated is by the
requirement that the nonimmigrant has been a member of the denomination
for at least two years immediately preceding the application for
admission.\67\ As religious workers generally must have this commitment
to their faith in order to serve their religious denomination,
employers of R-1 workers cannot easily replace such religious
workers.\68\ Thus, these employers draw from a smaller pool of workers
than H-1B or L-1 nonimmigrant employers do.
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\63\ The 1991 final rule referred to the H-1 and L-1
nonimmigrant visa categories, when justifying the 1-year foreign
residence requirement. See 56 FR 66965, 66966-66967. At the time,
the H category also contained the H-1A classification. However, the
H-1A classification was eliminated with the repeal of INA section
101(a)(15)(H)(i)(a), 8 U.S.C. 1101(a)(15)(H)(i)(a), by section 2(c)
of the Nursing Relief for Disadvantaged Areas Act of 1999 (NRDAA of
1999), Public Law 106-95, 113 Stat. 1312 (Nov. 12, 1999). At the
same time, Congress created the H-1C category for registered nurses
working in a health professional shortage area. See section 2 of the
NRDAA of 1999. However, that nonimmigrant visa category expired on
December 20, 2009, when Congress did not renew section 2 of the
NRDAA of 1999 after it reauthorized the program until December 20,
2009, under the Nursing Relief for Disadvantage Areas
Reauthorization Act of 2005, Public Law 109-423, 120 Stat. 2900
(Dec. 30, 2006). Therefore, this rule is only referring to the
current H-1B category.
\64\ See INA sec. 101(a)(15)(H)(i)(b), 8 U.S.C.
1101(a)(15)(H)(i)(b); 8 CFR 214.2(h).
\65\ See INA sec. 101(a)(15)(L), 8 U.S.C. 1101(a)(15)(L); 8 CFR
214.2(l).
\66\ See 8 CFR 214.2(r)(11) (requiring either salaried or in-
kind compensation but not establishing a minimum required
compensation).
\67\ 8 CFR 214.2(r)(1)(i).
\68\ See, e.g., Elizabeth Evans, ``As Churches Shrink and
Pastors Retire, Creative Workarounds are Redefining Ministry'' (July
31, 2023) https://www.washingtonpost.com/religion/2023/07/31/churches-shrink-pastors-retire-creative-workarounds-are-redefining-ministry.
---------------------------------------------------------------------------

In addition, certain workers in H-1B nonimmigrant status can extend
their nonimmigrant status beyond the general statutory limits if they
have reached certain benchmarks in their lawful permanent residence
process, which is a flexibility that is not present in any other
nonimmigrant classification, including the R-1 nonimmigrant
classification.\69\
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\69\ See American Competitiveness in the Twenty-First Century
Act of 2000, Public Law 106-313, sec. 106(a), 114 Stat. 1251, 1253-
54; 21st Century Department of Justice Appropriations Authorization
Act, Public Law 107-273, sec. l1030A(a), 116 Stat. 1758, 1836-37
(2002).
---------------------------------------------------------------------------

Finally, the recent increased waiting period for an immigrant visa
in the EB-4 category does not impact H-1B and L-1 nonimmigrants in the
same way that it does the R-1 nonimmigrants applying for lawful
permanent residence because H-1B and L-1 nonimmigrants generally apply
for lawful permanent residence under the EB-1, EB-2, or EB-3
categories.\70\ Because of the differences between these
classifications and the limited use of the EB-4 category by H-1B and L-
1 nonimmigrants intending to apply for lawful permanent residence, it
is not appropriate to treat the R-1 nonimmigrant classification like
these classifications for determining the required period an R-1
religious worker must remain outside the country before reapplying.
---------------------------------------------------------------------------

\70\ See, e.g., Congressional Research Service, U.S. Employment-
Based Immigration Policy (Jul. 21, 2022), page 13 and footnote 53
https://www.congress.gov/crs_external_products/R/PDF/R47164/R47164.5.pdf (``Together, H-1B and L-1 workers and their families
account for the majority of nonimmigrant adjustments to LPR status
under the EB1, EB2, and EB3 categories''); Congressional Research
Service, U.S. Employment-Based Immigration Policy (Nov. 19, 2024),
page 15 https://www.congress.gov/crs_external_products/R/PDF/R47164/R47164.7.pdf.
---------------------------------------------------------------------------

Treating R-1 nonimmigrants consistent with the category of
nonimmigrants that do not require a minimum period outside of the
United States is more appropriate. There is precedent to not require a
minimum period of time outside the United States before a nonimmigrant
may be readmitted to the United States for a new initial period of stay
after departing due to a statutory maximum period of stay. For example,
the statutory provisions for the P-1 (athlete) nonimmigrant
classification do not require a specific period outside the United
States for athletes who have reached the 10-year maximum period of
stay.\71\ The regulation at 8 CFR 214.2(p) sets limits on the
incremental and total periods that a P-1 nonimmigrant may remain in P-1
status but is silent as to how long the P-1 nonimmigrant must remain
outside the United States. In 2009, USCIS issued policy guidance
stating that P-1 nonimmigrants who have been in the United States for
10 years must depart the United States and reapply for admission as a
P-1 nonimmigrant for a new initial period of stay, but there is no
required minimum period of time that the nonimmigrant must be
physically present abroad.\72\
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\71\ See INA sec. 101(a)(15)(P), 214(a)(2)(B), 8 U.S.C.
1101(a)(15)(P), 1184(a)(2)(B). Section 214(a)(2)(B) of the Act, 8
U.S.C. 1184(a)(2)(B) states: ``In the case of nonimmigrants admitted
as individual athletes under section 101(a)(15)(P), the period of
authorized stay may be for an initial period (not to exceed 5 years)
during which the nonimmigrant will perform as an athlete and such
period may be extended by the [Secretary of Homeland Security] for
an additional period of up to 5 years.''
\72\ See USCIS, ``Procedures for Applying the Period of
Authorized Stay for P-1 Nonimmigrant Individual Athletes'' HQ 70/
6.2.19 (Mar. 6, 2009).
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DHS is now taking a similar approach for the R-1 nonimmigrant
classification.\73\ Under this rule, an R-1 nonimmigrant who has been
physically present in the United States for five continuous years would
still be required to depart the United States.\74\ However, once a new
R-1 nonimmigrant petition has been approved and sent to the appropriate
consulate (if applicable), and the consulate issues a new R-1
nonimmigrant visa to the alien (unless visa exempt), the alien will be
able to apply for admission under that petition as an R-1 nonimmigrant
for a new initial period of stay. Under this rule,

[[Page 2057]]

there is no requirement for the alien to reside and be physically
present outside the United States for any specific period of time
before being readmitted as an R-1 nonimmigrant under the new approved
petition.
---------------------------------------------------------------------------

\73\ As discussed in Section III.A. and elsewhere in this rule,
religious workers need to be members of their religious
denominations and have a commitment to their faith in order to serve
their religious denomination, and thus, employers of R-1 workers
cannot easily replace such religious workers. Similarly, P-1
individual athletes, among other numerous requirements under 8 CFR
214.2(p)(1), need to perform at specific athletic competition as an
athlete at an internationally recognized level of performance, and
accordingly both could not be readily replaced by other individuals.
\74\ See new 8 CFR 214.2(r)(6).
---------------------------------------------------------------------------

This change is intended to significantly reduce disruptions for R-1
nonimmigrants and U.S. employers who want to retain R-1 nonimmigrant
workers. It is also intended to specifically provide relief for those
religious workers who have been awaiting an immigrant visa under the
EB-4 category because the change will permit them to return as a
temporary R-1 nonimmigrant without having to reside abroad and be
physically present outside the United States for a year, and to
continue to pursue the permanent immigration status in the United
States once the worker's EB-4 priority date becomes current. This is
particularly important because the wait for EB-4 visas is growing.\75\
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\75\ As explained in Section II.D. of this preamble, although
new visa numbers became available as of the beginning of fiscal year
2026 (starting Oct. 1, 2025), the fact that the number of approved
petitions without available EB-4 visas has exceeded 217,000 and that
Congress only allocated about 9,940 EB-4 immigrant visas per fiscal
year, renders it a virtual certainty that an R-1 Religious Worker
would not be able to obtain an immigrant visa as a special immigrant
religious worker prior to the expiration of their 5-year limitation
of stay.
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DHS believes that removing the requirement that an R-1 nonimmigrant
religious worker, who has exhausted the five-year maximum period of
stay as an R-1, must reside abroad and be physically present outside
the United States for one year before being eligible for readmission as
an R-1 nonimmigrant will enhance stability and significantly reduce
disruptions to religious organizations with respect to their activities
in providing vital services at U.S. churches, mosques, synagogues, and
other places of worship.

B. Description of Regulatory Changes: Amending 8 CFR 214.2(r)(6)

With this IFR, DHS is amending 8 CFR 214.2(r)(6) to remove the
requirement that an alien who has spent five years in the United States
in R-1 status must reside abroad and be physically present outside the
United States for one year before being readmitted to or receiving an
extension of stay in the United States under the R visa classification.
Correspondingly, DHS is removing the reference to readmission in the
first sentence of the paragraph to clarify that, although the IFR does
not remove the requirement that the alien be physically present outside
the United States prior to readmission in R-1 status after spending
five years in the United States in R-1 status, it does remove any
minimum period of time that the alien must be physically present
outside the United States before readmission.
Additionally, DHS is retaining the reference to the extension of
stay in the first sentence of the paragraph and adding a new second
sentence that explicitly requires departure of the alien when reaching
the maximum five-year period of stay in the United States in R-1
status. Therefore, under new 8 CFR 214.2(r)(6), an alien in the R-1
nonimmigrant category who has spent five years in the United States in
R-1 status cannot receive an extension of stay in the United States
pursuant to 8 CFR 214.1. Rather, the alien must depart the United
States and, upon having a new Form I-129 approval from USCIS and a new
R-1 nonimmigrant visa from State (if applicable), may be readmitted to
the United States as an R-1 nonimmigrant without having to wait outside
the United States for a particular time period. See new 8 CFR
214.2(r)(6).
DHS is not substantively changing the regulation with respect to R-
1 nonimmigrants who do not continually reside in the United States and
whose employment in the United State was seasonal or intermittent or
was for an aggregate of six month or less, and with respect to R-1
nonimmigrants who reside abroad and regularly commute to the United
States to engage in part-time employment. See 8 CFR 214.2(r)(6).
DHS is also making updates throughout 8 CFR 214.2(r)(6) to replace
the term ``shall,'' which may be ambiguous depending on the context in
which it is used, with ``will'', if appropriate, to clarify the meaning
of the provision. These changes are technical in nature and do not
substantively impact the regulated public. They enhance the usability
and readability of the provision. Additionally, DHS is removing the
term ``shall'' in the last sentence of the paragraph, and changing the
infinitive form of the verb ``consist'' to the third person singular
present tense. By using ``such as,'' the sentence intends to covey that
arrival and departure records, transcripts of processed income tax
returns and records of employment abroad are examples of proof that an
alien may submit. That is consistent with longstanding interpretation
of USCIS.\76\ The modifications are intended to help reduce confusion.
---------------------------------------------------------------------------

\76\ See USCIS Policy Manual, Volume 2, Part O, Chapter 7
(``Such proof generally consists of evidence such as: Arrival/
Departure Records (Form I-94), transcripts of processed income tax
returns, and records of employment abroad.''), https://www.uscis.gov/policy-manual/volume-2-part-o-chapter-7 (last visited
Aug. 28, 2025).
---------------------------------------------------------------------------

IV. Statutory and Regulatory Requirements

A. Administrative Procedure Act

DHS is invoking the ``good cause'' exceptions of the APA under 5
U.S.C. 553(b)(B) and (d)(3) and issuing this rule without prior notice-
and-comment and without a 30-day delayed effective date. Furthermore,
DHS finds that the regulatory amendment involves a foreign affairs
function under 5 U.S.C. 553(a)(1), thereby exempting this rule from all
requirements of 5 U.S.C. 553. Notwithstanding the explanation below,
DHS nonetheless welcomes post-promulgation comment on all aspects of
this IFR.
1. Good Cause and Bypassing the Delayed Effective Date
An agency may forgo notice and comment rulemaking when the agency
``for good cause finds . . . that notice and public procedure thereon
are impracticable, unnecessary, or contrary to the public interest.'' 5
U.S.C. 553(b)(B). Likewise, section 553(d)'s requirement of 30-day
advanced publication may be waived by the agency for good cause found
and published with the rule, or if the rule relieves a restriction. See
5 U.S.C. 553(d)(1), (3).
The ``impracticable'' prong of the good cause exception excuses
notice and comment in emergency situations, or where the delay caused
by the APA's notice and comment procedures would result in real
harm.\77\ An agency may also bypass notice and comment procedures if
notice and comment would be ``unnecessary''. Typically, this standard
is satisfied if a rule or amendment is relatively minor and the public
is not particularly interested.\78\ Courts, for example, have stated
that the prong is usually confined to those situations, in which the
administration rule is a routine determination, insignificant in nature
and impact, and inconsequential to the industry and to the public.\79\
However, courts have also

[[Page 2058]]

found that the unnecessary could be satisfied if, for example, the
rescission of a rule had been consistent with legislation or judicial
decision and leaving no room for public debate over the agency's course
of action.\80\
---------------------------------------------------------------------------

\77\ See, e.g., Sorenson Comms., Inc. v. FCC, 755 F.3d 702, 707
(D.C. Cir. 2014); Jifry v. FAA, 370 F.3d 1174, 1197 (D.C. Cir.
2004).
\78\ See Attorney General's Manual on the Administrative
Procedure Act (1947), at 31, https://www.regulationwriters.com/downloads/AttorneyGeneralsManual.pdf (last visited Aug. 13, 2025).
\79\ See Mack Trucks, 682 F.3d at 94 (quoting Utility Solid
Waste Activities Grp., 236 F.3d at 755); see also Senate Report, No.
752, 79th Cong. 1st Sess. at 14 (1945), pg. 200 (``Unnecessary means
unnecessary so far the public is concerned, as would be the case if
a minor or merely technical amendment in which the public is not
particularly invested were involved.'').
\80\ See EME Homer City Generation, LP v. EPA, 795 F.3d 118,
134-35 (D.C. Cir. 2015) (EPA had good cause to issue interim rule
rescinding agency prior regulatory approvals of certain state
implementation plans under the Clean Air Act, consistent with D.C.
Circuit decision holding those approvals have been erroneous, as
commenters would have had little to say.'').
---------------------------------------------------------------------------

An agency may invoke the good cause exemption if providing notice
and comment would be contrary to the public interest. 5 U.S.C.
553(b)(B). The question is not whether dispensing with notice and
comment would be contrary to the public interest, but whether providing
notice and comment would be contrary to the public interest.\81\ The
public interest prong of the good cause exception is met only in the
rare circumstance when ordinary procedures under the APA--generally
presumed to serve in the public interest--would in fact harm that
interest.\82\ The good cause inquiry is inevitably fact- or context-
dependent and assessed on a case-by-case basis \83\ and the need for
notice and comment gains in importance the more expansive the
regulatory reach of the agency rule.\84\ Finally, in determining
whether to invoke the exception to the 30-day delay in effective date
under 5 U.S.C. 553(d)(3), some courts call for the agency to balance
the necessity for immediate implementation against the principles of
fundamental fairness which requires that all affected persons be
afforded a reasonable time to prepare for its ruling.\85\ Although the
good cause exception for the 30-day effective date in 5 U.S.C. 553(d)
mirrors the ``good cause'' language of 5 U.S.C. 553(b), the good cause
exception from the 30-day effective date requirement is easier to meet
because these provisions have different purposes.\86\ Unlike the notice
and comment requirement, which is designed to ensure public
participation in rulemaking, the 30-day waiting period is intended to
give affected parties time to adjust their behavior before the final
rule takes effect. See Riverbend Farms, 958 F.2d at 1485.
---------------------------------------------------------------------------

\81\ See Mack Trucks, Inc. v. EPA, 682 F.3d 87, 95 (D.C. Cir.
2012).
\82\ See id.
\83\ See, e.g., Am. Fed'n of Govt. Emp., AFL-CIO v. Block, 655
F.2d 1153, 1157 (D.C. Cir. 1981) (concluding that the agency's good
cause finding was a reasonable response to avoid economic harm to
certain poultry processors and likely shortages and increases in
consumer prices); Nat'l Venture Capital Ass'n v. Duke, 291 F. Supp.
3d 5, 18 (D.D.C. 2017) (reasoning that fiscal injury to an agency
may be less likely to support a good cause finding than fiscal
injury to third parties).
\84\ See Mid-Tex Elec. Co-op., Inc. v. FERC, 822 F.2d 1123, 1132
(D.C. Cir. 1987) (``But public notice and comment, we have also
said, gain in importance ``the more expansive the regulatory reach
of [agency] rules'').
\85\ See, e.g., N. Arapahoe Tribe v. Hodel, 808 F.2d 741, 752
(10th Cir. 1987).
\86\ See, e.g., Riverbend Farms, Inc. v. Madigan, 958 F.2d 1479,
1485 (9th Cir. 1992); see also U.S. Steel Corp. v. EPA, 605 F.2d
283, 289-90 (7th Cir.1979) (good cause more easily found as to 30-
day waiting period).
---------------------------------------------------------------------------

For the reasons explained below, DHS believes that, based on the
totality of the circumstances, it has good cause to bypass ordinary
notice-and-comment procedures.
As discussed in the preamble, religious organizations are facing a
crisis affecting not only their religious workers but also the
communities they serve and the American public at large. Because of the
converging circumstances related to the long wait for visas in the EB-4
category, the current regulatory one-year foreign residence
requirement, DHS, consistent with its missions and responsibilities, is
immediately taking measures to ensure that the religious worker program
is administered in a manner that averts harm to the public. Engaging in
the APA's notice and comment requirement under 5 U.S.C. 553(b) in this
situation would impede the due execution of DHS's missions and
responsibilities, including the responsibilities as outlined in the
directive of E.O.s 14205 and 13397, to administer the religious worker
nonimmigrant and immigrant programs effectively and to strengthen
faith-based organizations, and would result in real and serious harm to
religious organizations and American religious communities. Unless DHS
acts immediately, every day that goes by, there is a risk that another
religious organization has an R-1 pastor or religious worker who must
depart the United States, and who is unable to return for at least 1
year as an R-1 worker on account of the one-year foreign residence
requirement. The current harm and the risk of future harm is
tremendous, considering that R-1 religious workers account for
approximately 21 percent of all religious workers in the United States
that are serving and providing crucial services and spiritual support
to 41 percent of the U.S. population.\87\ As explained in Section II of
this preamble in detail, DHS reasonably believes, based on the numerous
accounts of the faith community, news reports, and Congressional
action, that this regulation will bring immediate relief and
significantly reduce the disruption and harm that the very long wait
for EB-4 immigrant visas and the one-year foreign residence requirement
causes for affected religious workers, religious organizations, and the
public at large, who bear no fault in the current situation.
---------------------------------------------------------------------------

\87\ See Section II.D, Need for this Rulemaking, of this
preamble.
---------------------------------------------------------------------------

DHS anticipates that, without this action, the number of religious
workers who have to leave the United States may significantly increase,
further impacting religious organizations and American faith
communities by reducing the ability for these communities to receive
the essential services these workers provide.\88\ Any delay in action
to provide advance opportunity for notice and comment, therefore, would
risk further harm and unnecessarily burden religious workers, religious
organizations and the American public at large. In these circumstances,
DHS believes that providing advance notice and comment procedures is
impracticable and not in the public interest.
---------------------------------------------------------------------------

\88\ As explained more fully in Section II.D and Section
IV.B.1.c of this preamble, religious organizations have historically
sought to use the EB-4 category to obtain lawful permanent residence
for the religious workers within the first 5 years of the religious
worker obtaining R-1 status. This population did not have to rely on
obtaining R-1 status for their R-1 workers beyond the 5-year maximum
period of stay. Because of the long wait for visas in the EB-4
category, it is likely that most special immigrant religious workers
will not have current priority dates for a significant amount of
time; thus R-1s who may have approved EB-4 religious worker
petitions cannot promptly file an adjustment of status application,
Form I-485, that would have allowed them to remain in the United
States and continue to pursue their vocation while the Form I-485
was pending. Because they are unable to file a Form I-485, it is
thus possible that this provision, which eliminates the 1-year
foreign residence requirement, would result in an increase in the
number of Form I-129 petitions filed for R-1 nonimmigrant religious
workers to allow them to quickly return to the United States and
continue working. Table 2 in Section IV.B.1.c shows that since
fiscal year 2023, there are an average of approximately 1,700
religious workers per year on whose behalf a Form I-360 EB-4
petition has been approved, but who have not yet filed an adjustment
of status application (i.e., Form I-485). This is a significant
increase from the average of approximately 550 per year in the 4
years prior to fiscal year 2023. Finally, as the wait for EB-4
immigrant visas continues to increase each year since more than
9,940 (the number of visas available each year) aliens enter the
queue each year, it will be even more difficult for a religious
worker to use the EB-4 petition and subsequent adjustment of status
application process as a means to remain in the United States
without relying on multiple 5-year R-1 period of stays.
---------------------------------------------------------------------------

DHS also believes that bypassing notice and comment procedure is
warranted because of the narrow scope of the rule, providing a limited
fix by eliminating the unique element of the one-year foreign residence
requirement. Additionally, this rulemaking is

[[Page 2059]]

informed by the public's urging to remedy the current situation. DHS
firmly believes that, under these circumstances, advance notice and
comment procedures are unnecessary and seeking post-promulgation
comments is reasonable.
As explained above, courts have noted that the need for notice and
comment gains in importance the more expansive the regulatory reach of
the agency rule, and that the scope of the rule, while itself not
determinative, is an important consideration in the good cause
assessment.\89\ As explained throughout the preamble, the scope of this
rulemaking is addressing a narrowly scoped population (religious
workers) and a single solution (removing the one-year foreign residence
requirement) that is suitably tailored to avert the harm. The reach of
this regulatory change is even smaller when considering that those most
affected by this provision will be the narrow class of religious
workers who are about to exhaust their maximum period of stay and would
otherwise need to remain outside the United States for at least one
year before they can return in R-1 status.\90\ This rule does not
require more green cards, does not displace other potential green card
applicants in the EB-4 category, and does not change the amount of time
that an R-1 visa holder will need to wait to become current for an EB-4
visa. It also does not eliminate the requirement that these religious
workers have to obtain the approval of a Form I-129 (including
submitting to all of the vetting and security checks), and if
necessary, obtain a visa with State before returning to the United
States. The measure merely provides for the elimination of the
regulatorily imposed one-year period during which an R-1 has to wait
outside the United States before being eligible to return to the United
States as an R-1 worker, thereby increasing the possibility that the R-
1 worker can return to his or her religious organization or
congregation earlier.
---------------------------------------------------------------------------

\89\ See Mid-Tex, 822 F.2d at 1132 (stating that public notice
and comment gain in importance the more expansive the regulatory
reach of an agency's rule and that courts, therefore, have
consistently recognized that a rule's temporally limited scope is
among the key considerations in evaluating an agency's ``good
cause'' claim).
\90\ This sentiment is echoed, for example, by a senator, as
part of the bill introduced with bi-partisan support providing,
among other things, a similar solution to the one provided for in
this rulemaking: ``Immigration bills are tough in the current
political climate, but this is a narrow fix for a specific group of
individuals.'' See CatholicVote, Religious worker visa crisis
prompts bipartisan response in Congress (May 21, 2025), https://catholicvote.org/religious-worker-visa-crisis-prompts-bipartisan-response-congress/.
---------------------------------------------------------------------------

The narrow scope of the change in practice therefore supports DHS's
approach of seeking post-promulgation comments rather than advanced
notice-and-comment procedures. Furthermore, the approach of bypassing
advanced notice-and-comment procedures and having an immediate
effective date is further supported by the tremendous positive direct
and indirect benefits of the measure, as well as the fact that DHS, by
removing the one-year foreign residence requirement, lessens a
restriction without further imposing additional requirements. As
explained in Section II of this preamble, removing the one-year foreign
residence requirement for religious workers may allow them to return to
the United States as soon as possible and resume their positions of
providing critical services to the religious organization and the
American public. This rulemaking may, thus, bring immediate relief and
decrease the significant burden that the current converging situations
create, providing not just stability and continuity to religious
organizations and congregations, but also schools, hospitals, and other
social institutions where religious workers perform their essential
work with compassion and dedication. Letters received by the DHS,\91\
bi-partisan \92\ action taken in Congress extending, among other
things, a virtually similar measure as in this rulemaking,\93\ as well
as news reports \94\ underscore the importance and need for immediate
action, and also highlight the reasonable, uncontroversial,\95\ and
effective nature of DHS's approach to seek post-promulgation comments,
rather than advance notice and comment. The fact that Congress felt
compelled to introduce measures in both the Senate and the House to
address and to change the one-year foreign residence requirement
further supports the need for swift action of removing this regulatory
requirement. Contrary to the goal of this rulemaking, engaging in
advance notice-and-comment procedures would only prolong the harm this
current regulatory provision causes, in light of the long wait for EB-4
visas. In this situation, engaging in advanced notice and comment
procedures to take this common-sense and uncontroversial measure is
thus unnecessary, impracticable, and contrary to the public interest.
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\91\ See, e.g., Letter dated May 25, 2023, from multiple
national organizations representing many different religious
denominations and faith traditions, available in the regulatory
docket.
\92\ See Newsweek, ``Green-Card Changes Threatens Pastors'
ability to Remain in U.S.'' (July 28, 2025) (``Even as immigration
issues are controversial and sometimes they run afoul of partisan
politics, we think this fix is narrow enough, and the stakeholder
group we have is significant enough, that we're hoping we can get
this done.'') See also Press Release from Senators Kaine, Collins,
and Risch, addressing the detrimental impact on parishes and faith
community when they are losing their trusted religious workforce,
https://www.kaine.senate.gov/press-releases/kaine-collins-risch-introduce-religious-workforce-protection-act (dated April 8, 2025).
\93\ See section 4 of H.R.2672--Religious Workforce Protection
Act (introduced Apr. 7, 2025). https://www.congress.gov/bill/119th-congress/house-bill/2672/text (last visited Aug. 13, 2025); see also
the identical S. 1298--Religious Workforce Protection Act
(introduced Apr. 3, 2025).
\94\ See, e.g., Newsweek, ``Green-Card Changes Threatens
Pastors' ability to Remain in U.S.'' (July 28, 2025), https://www.newsweek.com/green-card-changes-threatens-pastors-ability-remain-2105229 (describing that the situation related to the visa
waitlist and the 1-year period that a religious worker has to stay
outside, has significantly upended religious communities across the
country that rely on foreign workers).
\95\ See Kaine, Collins, Risch Introduce Religious Workforce
Protection Act (Apr. 8, 2025) (providing supporting statements from
various faith groups); see also Church and Society, The United
Methodist Church, Action Alert: Tell Congress to Support the
Religious Workforce Protection Act (2025)--H.R. 2672/S. 1298 (May
13, 2025), https://www.umcjustice.org/latest/action-alert-tell-congress-to-support-the-religious-workforce-protection-act-2025-h-r-2672-s-1298-6083; AP, Faith leaders hope bill will stop the loss of
thousands of clergy from abroad servicing U.S. communities (July 27,
2025), https://apnews.com/article/immigration-congress-green-card-pastors-bill-f637a65f1deec769d7c3b7dc6ffe570d.
---------------------------------------------------------------------------

DHS notes that in some cases, regarding the good cause standards,
courts have concluded that an agency's claim of good cause and
emergency was undermined because the agency delayed the implementation
of a decision.\96\ DHS has not delayed at all. As explained in Section
II of this preamble, in 2023 State determined that it was required by
law to correct its practices as it related to visa allocation in the
employment-based preference categories to countries who have not
reached the annual per-country

[[Page 2060]]

limit under section 202(a)(2) of the INA, 8 U.S.C. 1152(a)(2).
---------------------------------------------------------------------------

\96\ Many of the leading cases involve circumstances where the
agency cited a need to meet an imminent statutory or administrative
deadline. See Envtl. Def. Fund, Inc. v. EPA, 716 F.2d 915 (D.C. Cir.
1983) (rejecting a claim of good cause to suspend certain reporting
requirements before they entered into effect, because the agency had
almost a year earlier deferred such requirements and announced that
it intended to rescind them); Council of S. Mountains, Inc. v.
Donovan, 653 F.2d 573, 580-82 (D.C. Cir. 1981) (stating that ``only
in exceptional circumstances'' may ``the imminence of [a legal or
administrative] deadline'' for taking a particular action ``permit[
] avoidance of APA procedures,'' because otherwise the agency could
delay in acting and then claim an emergency); NRDC v. Abraham, 355
F.3d 179, 205 (2d Cir. 2004) (rejecting the agency's claim of an
emergent need to review and reconsider certain standards prior to an
impending and self-imposed administrative deadline).
---------------------------------------------------------------------------

Moreover, and as explained in Section II.D, that wait is expected
to grow considering the fact that there are only 9,940 EB-4 visas
available in a typical fiscal year, and as of March 2025, the number of
approved petitions where no visa was immediately available in the EB-4
category had grown to approximately 217,500 (compared to the 63,000
approved petitions at the end of fiscal year 2022). Furthermore, on
March 3, 2025, State announced that it had issued all available
immigrant visas in the EB-4 category, which includes visas made
available to special immigrant religious workers, and the category was
unavailable.\97\ Since that announcement, visa numbers for the EB-4
category had remained unavailable from April 2025 through September
2025.\98\ Thus, the urgency and impact is only recent and DHS is now
taking immediate action to remedy the situation with this rulemaking.
DHS also notes that the harm that the agency seeks to remedy directly
is befalling religious workers and religious organizations who for many
years reasonably relied on a consistent ability to retain their alien
religious workers for more than five years, and are faithfully
complying with immigration law and regulations, including the one-year
foreign residence requirement.
---------------------------------------------------------------------------

\97\ See State, Visa Bulletin for April 2025, (Mar. 3, 2025)
https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2025/visa-bulletin-for-april-2025.html (``The State
Department, working in close collaboration with U.S. Citizenship and
Immigration Services, has issued all available immigrant visas in
the Employment-Based Fourth Preference (EB-4) category, which
includes visas made available to certain religious workers under the
SR visa category, for fiscal year 2025 and the category was made
unavailable on February 28, 2025. Since all available EB-4 visas for
fiscal year 2025 have been used, embassies and consulates may not
issue visas in these categories for the remainder of the fiscal
year. The annual limits will reset with the start of the new fiscal
year (fiscal year 2026) on October 1, 2025. At that point, embassies
and consulates may resume issuing immigrant visas in this category
to qualified applicants.'').
\98\ See id. State Visa Bulletins for April through September
2025 are https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin.html (last visited Sep. 11, 2025); see also USCIS,
When to File Your Adjustment of Status Application for Family-
Sponsored or Employment-Based Preference Visas: April 2025, https://www.uscis.gov/green-card/green-card-processes-and-procedures/visa-availability-priority-dates/when-to-file-your-adjustment-of-status-application-for-family-sponsored-or-employment-based-111 (last
updated Mar. 10, 2025)); USCIS, When to File Your Adjustment of
Status Application for Family-Sponsored or Employment-Based
Preference Visas: May 2025, https://www.uscis.gov/green-card/green-card-processes-and-procedures/visa-availability-priority-dates/when-to-file-your-adjustment-of-status-application-for-family-sponsored-or-employment-based-112 (last updated Apr. 11, 2025); USCIS, When to
File Your Adjustment of Status Application for Family-Sponsored or
Employment-Based Preference Visas: June 2025, https://www.uscis.gov/green-card/green-card-processes-and-procedures/visa-availability-priority-dates/when-to-file-your-adjustment-of-status-application-for-family-sponsored-or-employment-based-113 (last updated May 13,
2025); USCIS, When to File Your Adjustment of Status Application for
Family-Sponsored or Employment-Based Preference Visas: July 2025,
https://www.uscis.gov/green-card/green-card-processes-and-procedures/visa-availability-priority-dates/when-to-file-your-adjustment-of-status-application-for-family-sponsored-or-employment-based-114 (last updated Jun. 10, 2025); USCIS, When to File Your
Adjustment of Status Application for Family-Sponsored or Employment-
Based Preference Visas: August 2025, https://www.uscis.gov/green-card/green-card-processes-and-procedures/visa-availability-priority-dates/when-to-file-your-adjustment-of-status-application-for-family-sponsored-or-employment-based-115 (last updated Jul. 14, 2025);
USCIS, When to File Your Adjustment of Status Application for
Family-Sponsored or Employment-Based Preference Visas: September
2025, https://www.uscis.gov/green-card/green-card-processes-and-procedures/visa-availability-priority-dates/when-to-file-your-adjustment-of-status-application-for-family-sponsored-or-employment-based-116 (last updated Aug. 12, 2025).
---------------------------------------------------------------------------

Finally, DHS believes it is unnecessary to delay this final rule's
effective date under 5 U.S.C. 553(d). First and foremost, a delayed
effective date is unnecessary because the IFR relieves a restriction
that is beneficial to religious workers, their employers and the faith-
community at large as it reduces the interruption and costs that the
one-year foreign residence requirement causes. See 5 U.S.C.
553(d)(1).\99\ There is no need to give affected parties additional
time to adjust their behavior before this final rule takes effect. A
delayed effective date would serve no purpose but create further harm
to the religious organizations and the communities the R-1 nonimmigrant
workers serve. Additionally, as explained in this section, DHS has, for
good cause, found that the delay in effective date is not warranted.
See 5 U.S.C. 553(d)(3).
---------------------------------------------------------------------------

\99\ See also Section IV.B.1.e., Cost savings and benefits
associated with the provision to remove the requirement that a
nonimmigrant R-1 religious worker remain outside the United States
for 1 year before being readmitted as an R-1, of this preamble.
---------------------------------------------------------------------------

In sum, for the reasons outlined above, DHS believes that bypassing
the ordinary notice and comment procedures and the delayed effective
date requirement is justified, under the totality of the circumstances,
and given that immediate action is necessary, is consistent with DHS'
statutory mission to take regulatory action to administer the religious
worker nonimmigrant and immigrant benefits effectively, and the
President's directives in E.O. 13397 and E.O. 14205. Nevertheless,
recognizing the value of public comments, DHS is publishing this rule
as an IFR with a request for public comment.
2. Foreign Affairs Exemption
Agencies may forgo notice and comment rulemaking and a delayed
effective date when the rulemaking involves ``a military or foreign
affairs function of the United States.'' See 5 U.S.C. 553(a)(1). The
Secretary of State, on February 21, 2025,\100\ determined that ``all
efforts conducted by any agency of the federal government to control
the status, entry and exit of people, and the transfer of goods,
services, data, technology, and other items across the borders of the
United States, constitutes a foreign affairs function of the United
States under the Administrative Procedure Act, 5 U.S.C. 553, 554.''
---------------------------------------------------------------------------

\100\ See Determination: Foreign Affairs Functions of the United
States, 90 FR 12200 (Mar. 14, 2025).
---------------------------------------------------------------------------

DHS finds that this rulemaking is directly connected to the alien's
status or authorized period of stay such that it constitutes a foreign
affairs function. Removing the one-year foreign residence requirement
in 8 CFR 214.2(r)(6) allows a religious worker that has departed the
United States after having exhausted the five-year period to be
readmitted under the R classification as soon as possible. Thus, this
rulemaking is related to the control of the entry and exit of aliens
across the borders of the United States and falls within the
Secretary's foreign affairs determination.\101\ Because this rule
implicates the foreign affairs policy of the United States and notice
and comment procedure as well as a 30-day delayed effective date would
definitely result in undesirable consequences, DHS is issuing this rule
without engaging in notice and public procedures and with an immediate
effective date. DHS is nevertheless publishing this rulemaking as an
IFR and seeking post-promulgation public comments.
---------------------------------------------------------------------------

\101\ The Secretary of State's determination references and
implements numerous Presidential actions reflecting the President's
top foreign policy priorities, including E.O. 14161. See
Determination: Foreign Affairs Functions of the United States, 90 FR
12200 (Mar. 14, 2025). See, e.g., Yassini v. Crosland, 618 F.2d
1356, 1361 (9th Cir. 1980) (because an immigration directive ``was
implementing the President's foreign policy,'' the action ``fell
within the foreign affairs function and good cause exceptions to the
notice and comment requirements of the APA'').
---------------------------------------------------------------------------

B. Executive Orders 12866 (Regulatory Planning and Review), 13563
(Improving Regulation and Regulatory Review), and 14192 (Unleashing
Prosperity Through Deregulation)

Executive Orders 12866 (Regulatory Planning and Review) and 13563
(Improving Regulation and Regulatory Review) direct agencies to assess
the

[[Page 2061]]

costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits. Executive Order 13563 emphasizes the importance of
quantifying both costs and benefits, of reducing costs, of harmonizing
rules, and of promoting flexibility. Executive Order 14192 (Unleashing
Prosperity Through Deregulation) directs agencies to significantly
reduce the private expenditures required to comply with Federal
regulations and provides that ``any new incremental costs associated
with new regulations shall, to the extent permitted by law, be offset
by the elimination of existing costs associated with at least 10 prior
regulations.''
The Office of Management and Budget (OMB) has designated this rule
a ``significant regulatory action,'' under section 3(f) of Executive
Order 12866, although not economically significant under section
3(f)(1). Accordingly, the rule has been reviewed by OMB.
This rule is not an Executive Order 14192 regulatory action because
it is being issued with respect to an immigration-related function of
the United States.\102\ The rule's primary direct purpose is to
implement or interpret the immigration laws of the United States (as
described in section 101(a)(17) of the INA, 8 U.S.C. 1101(a)(17)) or
any other function performed by the U.S. Federal Government with
respect to aliens. See OMB Memorandum M-25-20, ``Guidance Implementing
Section 3 of Executive Order 14192, titled `Unleashing Prosperity
Through Deregulation.' '' (Mar. 26, 2025).
---------------------------------------------------------------------------

\102\ See E.O. 14192, Unleashing Prosperity Through Deregulation
(Jan. 31, 2025), 90 FR 9065 (Feb. 6, 2025).
---------------------------------------------------------------------------

1. Provision To Remove the Requirement That a Nonimmigrant R-1
Religious Worker Remain Outside the United States for 1 Year Before
Being Readmitted as an R-1
a. Summary
This rule would affect R-1 workers and their employers when these
workers have reached their five-year maximum period of stay in the U.S.
Due to changes in the availability of EB-4 immigrant visas, a growing
number of R-1 religious workers have been impacted by the regulatory
requirement of exiting the U.S. and waiting abroad for a one-year
period before being readmitted. Based on the number of R-1
Nonimmigrants between FY 2015 and FY 2019 who had petitions filed for
new R-1 status within 5 to 6\1/2\ years after initial approval, USCIS
estimates between 92 and 127 religious workers and their employers may
take advantage of the flexibilities offered by this rule per year.\103\
However, USCIS acknowledges the number of R-1 workers could be much
higher due to the removal of the one-year foreign residence burden.
This is because there are approximately 1,150 additional religious
workers waiting for an available visa annually. In the absence of this
final rule, this larger population of religious workers, their
sponsoring organizations, and the communities they serve will be
affected by the uncertainty of the impending one-year foreign residence
burden. While the R-1 workers still must travel abroad, their time
abroad may be shortened significantly, and they would not incur
transition costs for relocating to another country or finding short-
term work. USCIS anticipates this could result in an increased number
of R-1 religious workers and their employers reapplying for the R-1
visa to get up to an additional five years of religious work in the
U.S.
---------------------------------------------------------------------------

\103\ Source: DHS, USCIS, Office of Performance and Quality,
CLAIMS3 & ELIS, queried 08/2025, PAER0018665.
---------------------------------------------------------------------------

The main benefit of this rule is to reduce disruptions for
religious organizations who want to retain R-1 workers that have
reached five years in R-1 status, and to reduce disruptions for the
public who are served by these organizations. This rule allows
religious workers to continue their service in the United States
without the cost and logistical challenges of relocating abroad for a
year, thereby permitting employers and their R-1 religious workers
greater continuity of employment. The employer, the R-1 religious
worker, and the community they serve benefit from the retained entity-
specific human capital as a result of the shortened break in
employment. USCIS expects this worker retention to result in increased
productivity for employers and R-1 religious workers.
b. Baseline and Assumptions
As discussed above, under the current regulatory requirement, an R-
1 nonimmigrant who has exhausted the five-year maximum period of stay,
must reside abroad and be physically present outside the United States
for one year before being eligible for readmission as an R-1
nonimmigrant. Prior to December 2022, most R-1 workers and their
employers who wanted to continue their religious work in the U.S. were
able to apply for lawful permanent residency, which effectively allowed
them to remain in the U.S. without reaching the five-year maximum
period for R-1. However, since December 2022, the availability of the
EB-4 visa has dramatically dropped for R-1 workers, and more R-1
workers have become burdened by the current regulatory requirement of
leaving the U.S. for a one-year period before readmittance. There are
costs associated with moving to and residing in the destination country
and post one-year transitioning back to the United States for those
returning as R-1 nonimmigrant workers. Without this rule, R-1 workers
may simply not return to the U.S. as transition costs to move back and
forth after a year may be prohibitive. Employers may have to hire new
workers rather than retain their R-1 workers' positions for a year,
which they may find cost prohibitive. Further, employers holding the
positions vacant could result in lost services for their community.
Employers who hire new religious workers may incur hiring and training
costs for these replacement workers.
As discussed earlier, R-1 employers have recently faced challenges
in retaining their R-1 workers, as previously these R-1 workers were
able to remain in the United State by taking certain steps towards
obtaining lawful permanent residency. However, the unavailability of
the EB-4 visa has changed the baseline conditions for employers,
creating challenges to long-term worker retention. In summary, the
newly realized burdens for employers and R-1 workers to remain in the
United States past the five-year time-period has significantly
increased in recent years and will continue to do so. DHS is issuing
this IFR to address these additional burdens.
c. Population Affected
The rule will remove the requirement that an R-1 nonimmigrant, who
has exhausted the maximum period of stay, remain outside of the United
States for one year before being eligible for readmission as an R-1
nonimmigrant. The rule will not change the requirements that these
nonimmigrants travel abroad for consular processing as an R-1
nonimmigrant and return to the United States with a new R-1 status,
including employment authorization incident to that status.
DHS expects two populations to be affected by this rule. The first
population consists of those religious organizations and religious
workers that would have filed for a renewed R-1 status in the absence
of this rule. This population is estimated below.
The second population consists of those who may be induced into
seeking renewed R-1 status as a result of this

[[Page 2062]]

rule. We believe this population is composed of those religious workers
on whose behalf there is an approved Form I-360 but there is not an EB-
4 visa available for them to adjust status. We estimate this portion of
the population below. Additionally, the population consists of R-1
workers that have exhausted their five years in the United States but
would not seek to renew their R-1 status in the absence of this rule.
However, we do not have enough information to be able to estimate this
portion of the population. As noted above, there are exceptions to the
one-year rule; these exceptions are not included in these populations.
While the removal of the one-year foreign residence requirement
will apply to all R-1 nonimmigrants, the group most affected by this
provision will be those who are about to exhaust their maximum period
of stay with a desire to continue their current work. This population
currently must remain outside of the United States for one year and
then be admitted again in R-1 status in order to maintain continuity in
employment. Due to the recent changes in the availability of special
immigrant status visas, commenters have indicated there would be an
increase in the number of R-1 workers who would be required to depart
the United States for one year and have to decide whether to
return.\104\ Because the change has happened in recent years, DHS does
not have information about how many R-1 workers would choose to return
under the R-1 visa given the removal of the one-year requirement. DHS
is aware that historically many R-1 workers have applied for special
immigrant visas to continue to work in the United States as a religious
worker and apply to adjust status to an LPR before their five-year
limit with the R-1 visa is exhausted. Given the historical behavior of
R-1 workers to extend their residency in the U.S. and maintain
continuity in employment, DHS assumes there could be an increase in the
number of R-1 workers who choose to return with an R-1 visa as a result
of the changes in this rule. DHS has attempted to estimate the number
of R-1 visa holders that would leverage the flexibilities offered in
this rule; however, there is limited data that reflect the recent
changes in policy.
---------------------------------------------------------------------------

\104\ Public information confirms DHS' understanding of the
circumstances that R-1s and their employers face. See, e.g.,
Congress.gov Religious Workforce Protection Act (Executive Session);
Congressional Record Vol. 171, No. 63, S2464-2466, https://www.congress.gov/congressional-record/volume-171/issue-63/senate-section/article/S2464-3 (last visited Sept. 10, 2025).
---------------------------------------------------------------------------

We identify this group by looking at R-1 nonimmigrants who have
Form I-129 petitions filed for them, in fiscal years 2015 to 2019.\105\
Next, we identify those that were then approved for R-1 status, and new
employment within 5 to 6\1/2\ years after the initial approval.\106\
These aliens would have exhausted the maximum period of stay and sought
to return within a short period of time after having to leave the
United States. Based on this calculation, we estimate between 92 and
127 aliens may be directly affected by this provision annually.\107\
Table 1 shows the annual number of R-1 nonimmigrants who have petitions
filed on their behalf for new R-1 status, including employment
authorization incident to such status, within 5 to 6\1/2\ years after
the initial approval, by fiscal year of first approval.
---------------------------------------------------------------------------

\105\ DHS used the lookback period of FY 2015-2019 to have
enough time to account for R-1 nonimmigrants that have reached their
5-year maximum period of stay.
\106\ To evaluate R-1 worker interest in remaining in the United
States, DHS used a period that exceeds the 5-year maximum but also
would be close enough to the one-year bar from returning. DHS
recognizes that it could have chosen a different or longer period to
evaluate and requests comment on this assumption.
\107\ The estimated range is based on the five-year average of
92 and the five-year maximum. The data illustrates an upper ward
trend; to reflect that upward trend we use the maximum value as an
upper bound estimate.

Table 1--Annual Number of R-1 Nonimmigrants Who Have Petitions Filed on Their Behalf for New R-1 Status Within 5
to 6\1/2\ Years After the Initial Approval, by Fiscal Year of First Approval, FY 2015-2019
----------------------------------------------------------------------------------------------------------------
Number of R-1 nonimmigrants who have
Workers in religious petitions filed, on their behalf, for
Fiscal year occupations (R-1) \a\ new R-1 status within 5 to 6\1/2\
years after the initial approval \b\
----------------------------------------------------------------------------------------------------------------
2015............................................ 14,110 74
2016............................................ 14,280 98
2017............................................ 14,360 127
2018............................................ 14,670 89
2019............................................ 14,820 70
5-year Average.................................. 14,448 92
----------------------------------------------------------------------------------------------------------------
Source:
\a\ DHS, USCIS, Office of Performance and Quality, CLAIMS3 & ELIS, queried 08/2025, PAER0018665.
\b\ DHS, OHSS, Yearbook of Immigration Statistics, Yearbook 2023, https://ohss.dhs.gov/topics/immigration/yearbook/2023/table25 yearbook/2023/table25 (last visited October 23, 2025).

Elimination of the requirement that R-1 nonimmigrants reside and
are physically present outside of the United States for one year after
exhausting the maximum period of stay before readmission as an R-1
nonimmigrant will result in those R-1 nonimmigrants seeking readmission
being permitted to return up to one year earlier than in the absence of
this provision. Accordingly, DHS expects a 1-year acceleration in some
of these petitions for R-1 status and employment authorization incident
to such status as an R-1 nonimmigrant. This increase is expected to be
between 92 and 127 petitions annually.
Given the recent increase in wait times for EB-4 visas and the
information DHS received about the impact of this change from religious
communities, DHS anticipates that this rule could benefit significantly
more aliens than between the 92 and 127 who file petitions annually
identified based on prior year experience. As explained more fully in
Section 3 of the Background section of the preamble, prior to December
2022, R-1 nonimmigrants and religious organizations have historically
sought to use the EB-4 category to obtain lawful permanent residence
for the religious workers within the first 5 years of obtaining R-1
status. However, due to the long wait for EB-4 immigrant visa
availability, most special immigrant religious workers will likely face
long wait times before the priority date of their special immigrant
petition (Form

[[Page 2063]]

I-360) is current. As a result, R-1 religious workers who have been
approved for classification as special immigrant religious workers
under the EB-4 category cannot immediately file a Form I-485,
Application to Register Permanent Residence or Adjust Status, that
would have allowed them to remain in the United States and work while
their adjustment of status application was adjudicated.\108\
---------------------------------------------------------------------------

\108\ The Visa Bulletin can be accessed on State's website at
https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin.html (last visited Sep. 11, 2025). See generally State,
Visa Bulletin for September 2025, https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2025/visa-bulletin-for-september-2025.html (Aug. 4, 2025) (showing the unavailability of
EB-4 religious worker visas in the Final Action Date) and USCIS
website, Adjustment of Status Filing Charts from the Visa Bulletin,
https://www.uscis.gov/green-card/green-card-processes-and-procedures/visa-availability-priority-dates/adjustment-of-status-filing-charts-from-the-visa-bulletin (last visited August 28, 2025)
(stating that all employment-based preference categories must use
the Final Action Date section).
---------------------------------------------------------------------------

Thus, because R-1 workers are unable to file a Form I-485 within
their five-year maximum period of stay, which historically they could
and allowed them to remain in the United States after their R-1 maximum
period of stay had been reached, it is possible that this rule, which
eliminates the one-year foreign residence requirement, would result in
an increase in the number of R-1 nonimmigrants interested in obtaining
new R-1 status to allow them to return to the United States
significantly earlier. Table 2 demonstrates that there is a growing
number of R-1 workers who would like to stay in the United States but
have not been able to due to visa limitations. This could be an
indication of the growing interest of R-1 workers to return to the
United States under the beneficial conditions of this rule.
As shown below, since fiscal year 2023, there is an average of
approximately 1,700 religious workers per year on whose behalf a Form
I-360 EB-4 petition has been approved, but who have not yet filed an
adjustment of status application (i.e., Form I-485). This population
has been growing steadily since 2022. This is a significant increase
from the average of approximately 550 per year in the four years prior
to fiscal year 2023.

Table 2--Annual Number of I-360, Petition for Amerasian, Widow(er), or Special Immigrant, Religious Worker
Approvals Without I-485 Filing by Fiscal Year, FY 2019-2025
[As of Aug. 26]
----------------------------------------------------------------------------------------------------------------
Number of I-360, petition for Amerasian,
widow(er), or special immigrant, religious
Fiscal year worker approvals without a Form I-485 filing
with R-1-basis
----------------------------------------------------------------------------------------------------------------
2019........................................................... 534
2020........................................................... 252
2021........................................................... 150
2022........................................................... 1,279
2023........................................................... 1,522
2024........................................................... 1,709
2025 (as of Aug. 26)........................................... 1,921
2019-2022 average.............................................. 554
2023-2025 average.............................................. 1,717
----------------------------------------------------------------------------------------------------------------
Source: DHS, USCIS, Office of Performance and Quality, CLAIMS3 & ELIS, queried 08/2025, PAER0018660.

Historically, religious organizations have sponsored some of their
R-1 nonimmigrant religious workers as Special Immigrants using Form I-
360. After the Form I-360 is approved, these religious workers wait
until an EB-4 visa becomes available to file a Form I-485 to adjust
status from nonimmigrant to immigrant. As shown in Table 2, the
population of religious workers with an approved Form I-360 that have
not yet filed for adjustment of status (i.e., file a Form I-485) has
grown from an average of approximately 550 to over 1,700. This
difference of approximately 1,150 additional religious workers suggests
that a larger population of R-1 nonimmigrants that have exhausted, or
are close to exhausting, their five-year period in the United States
may also benefit from the reduced disruptions effected by this rule.
While the one-year acceleration of some R-1 petitions is a direct
impact of the estimated population in Table 1, the rule may result in a
larger number of religious organizations petitioning for an additional
period of work for their R-1 religious workers using Form I-129.
d. Impacts of the IFR
The rule is expected to result in at least between 92 and 127
petitions filing a Form I-129 a year earlier than without this rule,
and could potentially be much more. There has been an increase of
approximately 1,150 religious workers annually that have an approved
Form I-360 but have not yet been able file a Form I-485 to adjust
status. It is expected some portion of these religious workers will
take advantage of this rule change, though we do not have an estimate
of how many will. DHS believes any costs associated with filing this
form a year earlier are de minimis.
The rule will allow R-1 nonimmigrants who have exhausted their
maximum period of stay to return to the United States in R-1 status
sooner. Accordingly, it may also increase the number of R-1 workers who
choose to return with an R-1 visa. This rule does not alter the
requirement for these aliens to travel abroad before they return to the
United States with a new R-1 status.
Further, to minimize the aliens' time abroad, employers are
permitted to file a new Form I-129 before their R-1 religious workers
reach their five-year maximum period of stay.\109\ Doing so would
provide USCIS time to review the R-1 petition and potentially approve
it before an R-1 religious worker's departure. This approval could also
allow the alien to schedule consulate processing for his or her visa
application earlier, which could also minimize wait time outside the
U.S.
---------------------------------------------------------------------------

\109\ Consistent with form instructions, a Form I-129 petition
may generally be filed up to 6 months prior to the date that the
relevant employment is scheduled to begin. See USCIS, Form I-129,
Instructions for Petition for Nonimmigrant Worker (Jan. 20, 2025),
https://www.uscis.gov/sites/default/files/document/forms/i-129instr.pdf.
---------------------------------------------------------------------------

The main benefit of this rule is to reduce disruptions for
religious

[[Page 2064]]

organizations who want to retain R-1 workers who have reached five
years in R-1 status, and to reduce disruptions for the communities who
are served by these organizations. This rule allows religious workers
to resume their service in the United States without the cost and
logistical challenges of relocating abroad for at least one full year.
The employer, the R-1 religious worker, and the community they serve
benefit from the retained entity-specific human capital as a result of
the shortened break in employment. USCIS expects this increased worker
retention to result in increased productivity for employers and R-1
religious workers.
We recognize that these aliens would be generating benefits during
the time outside of the United States, however, DHS does not attempt to
estimate comparative utility analysis between the United States and
other countries. Observing that these aliens voluntarily return to work
in the United States provides sufficient evidence of comparatively
greater welfare from additional time as an R-1 nonimmigrant. Similarly,
organizations employing those religious workers who return to work in
the United States faster may benefit indirectly from this productivity
occurring sooner, but DHS has not quantified these effects.

C. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.), as
amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA), requires an agency to prepare and make available to the
public a regulatory flexibility analysis that describes the effect of
the rule on small entities (i.e., small businesses, small
organizations, and small governmental jurisdictions). The RFA's
regulatory flexibility analysis requirements apply only to those rules
for which an agency is required to publish a general notice of proposed
rulemaking pursuant to 5 U.S.C. 553 or any other law. See 5 U.S.C.
604(a). DHS did not issue a notice of proposed rulemaking for this
action. Therefore, a regulatory flexibility analysis is not required
for this rule.

D. Unfunded Mandates Reform Act of 1995

The Unfunded Mandates Reform Act of 1995 (UMRA) is intended, among
other things, to curb the practice of imposing unfunded Federal
mandates on State, local, and Tribal governments. Title II of UMRA
requires each Federal agency to prepare a written statement assessing
the effects of any Federal mandate in a proposed rule, or final rule
for which the agency published a proposed rule, that includes any
Federal mandate that may result in a $100 million or more expenditure
(adjusted annually for inflation) in any 1 year by State, local, and
tribal governments, in the aggregate, or by the private sector.\110\
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\110\ See 2 U.S.C. 1532(a).
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The inflation adjusted value of $100 million in 1995 is
approximately $206 million in 2024 based on the Consumer Price Index
for All Urban Consumers (CPI-U).\111\ This rule does not contain a
Federal mandate as the term is defined under UMRA.\112\ The
requirements of title II of UMRA, therefore, do not apply, and DHS has
not prepared a statement under UMRA.
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\111\ See BLS, ``Historical Consumer Price Index for All Urban
Consumers (CPI-U): U.S. city average, all items, by month,'' https://www.bls.gov/cpi/tables/supplemental-files/historical-cpi-u-202412.pdf (last visited Sep. 24, 2025). Calculation of inflation:
(1) Calculate the average monthly CPI-U for the reference year
(1995) and the current year (2024); (2) Subtract reference year CPI-
U from current year CPI-U; (3) Divide the difference of the
reference year CPI-U and current year CPI-U by the reference year
CPI-U; (4) Multiply by 100 = [(Average monthly CPI-U for 2024-
Average monthly CPI-U for 1995) / (Average monthly CPI-U for 1995)]
x 100 = [(313.689-152.383) / 152.383] = (161.306/152.383) = 1.059 x
100 = 105.86%percent = 106 percent (rounded). Calculation of
inflation-adjusted value: $100 million in 1995 dollars x 2.06 = $206
million in 2024 dollars.
\112\ The term ``Federal mandate'' means a Federal
intergovernmental mandate or a Federal private sector mandate. See 2
U.S.C. 1502(1), 658(6).
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E. Congressional Review Act

The Congressional Review Act (CRA) enacted as part of section 251
of the Small Business Regulatory Enforcement Fairness Act of 1996,
Public Law 104-121, 110 Stat. 847, 868 et seq., generally delays the
effective date of a ``major rule'' as defined by the CRA for at least
60 days. See 5 U.S.C. 801(a)(3). Based on DHS's assessment, the Office
of Information and Regulatory Affairs has determined that this IFR is
not a major rule as defined under the CRA, as this rule will not result
in an annual effect on the economy of $100 million or more; a major
increase in costs or prices; or significant adverse effects on
competition, employment, investment, productivity, innovation, or an
ability of the United States-based companies to compete with foreign-
based companies in domestic and export markets. See 5 U.S.C. 804(2).
DHS will submit this IFR to both houses of Congress and the Comptroller
General before the rule takes effect.

F. Executive Order 13132 (Federalism)

This rule does 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, Federalism, 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 IFR was drafted and reviewed in accordance with Executive
Order 12988, Civil Justice Reform. This IFR was written to provide a
clear legal standard for affected conduct and was reviewed carefully to
eliminate drafting errors and ambiguities, so as to minimize litigation
and undue burden on the Federal Court system. DHS has determined that
this rule meets the applicable standards provided in section 3 of
Executive Order 12988.

H. Family Assessment

DHS has reviewed this rule in line with the requirements of section
654 of the Treasury and General Appropriations Act, 1999.\113\ DHS has
systematically reviewed the criteria specified in section 654(c)(1), by
evaluating whether this regulatory action: (1) impacts the stability or
safety of the family, particularly in terms of marital commitment; (2)
impacts the authority of parents in the education, nurture, and
supervision of their children; (3) helps the family perform its
functions; (4) affects disposable income or poverty of families and
children; (5) only financially impacts families, if at all, to the
extent such impacts are justified; (6) may be carried out by State or
local government or by the family; or (7) establishes a policy
concerning the relationship between the behavior and personal
responsibility of youth and the norms of society. If the agency
determines a regulation may negatively affect family well-being, then
the agency must provide an adequate rationale for its implementation.
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\113\ See Public Law 105-277, 112 Stat. 2681 (1998).
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With this IFR, DHS is removing the requirement that a nonimmigrant
religious worker (R-1) who has exhausted the maximum period of stay as
an R-1 must reside abroad and be physically present outside the United
States for one year before being eligible for readmission as an R-1
nonimmigrant. The purpose of this change is to enhance stability and
significantly reduce disruptions to the vital services that
nonimmigrant religious workers provide to U.S.

[[Page 2065]]

churches, mosques, synagogues, and other religious organizations.
DHS has determined that the implementation of this regulation does
not negatively affect family well-being as outlined in section 654 of
the Treasury General Appropriations Act, 1999. To the contrary, DHS
believes that the consequence of the rule--the fact that religious
workers who are trusted members of their faith communities and
organizations may return faster and are no longer required to comply
with the 1-year foreign residence requirement, positively impacts the
community at large, and given the essential work performed of religious
workers, the well-being of families overall.

I. Executive Order 13175 (Consultation and Coordination With Indian
Tribal Governments)

This IFR does not have Tribal implications under Executive Order
13175, Consultation and Coordination With Indian Tribal Governments,
because it would not have a substantial direct effect on one or more
Indian Tribes, on the relationship between the Federal Government and
Indian Tribes, or on the distribution of power and responsibilities
between the Federal Government and Indian Tribes.

J. National Environmental Policy Act

DHS and its components analyze final actions to determine whether
the National Environmental Policy Act (NEPA), 42 U.S.C. 4321 et seq.,
applies to them and, if so, what degree of analysis is required. DHS
Directive 023-01, Rev. 01 ``Implementing the National Environmental
Policy Act'' (Directive 023-01) and Instruction Manual 023-01-001-01
Revision 01, Implementation of the National Environmental Policy Act''
(Instruction Manual) \114\ establishes the policies and procedures that
DHS and its components use to comply with NEPA.
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\114\ The Instruction Manual contains DHS' procedures for
implementing NEPA and was issued Nov. 6, 2014. See DHS, Publication
Library, DRAFT Revised NEPA Implementing Procedures (June, 2014),
https://www.dhs.gov/publication/draft-revised-nepa-implementing-procedures-instruction-manual-023-01-001-01-rev01-june.
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NEPA allows Federal agencies to establish, in their NEPA
implementing procedures, categories of actions (``categorical
exclusions'') that experience has shown do not, individually or
cumulatively, have a significant effect on the human environment and,
therefore, do not require an environmental assessment or environmental
impact statement.\115\ The Instruction Manual, Appendix A lists the DHS
Categorical Exclusions.\116\
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\115\ See 42 U.S.C. 4336(a)(2), 4336e(1).
\116\ See Instruction Manual, Appendix A, Table 1.
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Under DHS NEPA implementing procedures, for an action to be
categorically excluded, it must satisfy each of the following three
conditions: (1) The entire action clearly fits within one or more of
the categorical exclusions; (2) the action is not a piece of a larger
action; and (3) no extraordinary circumstances exist that create the
potential for a significant environmental effect.\117\
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\117\ See Instruction Manual at V.B(2)(a)-(c).
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This IFR amends DHS regulations to remove the requirement that R-1
religious workers, who have reached the maximum period of stay must,
reside abroad and be physically present outside the United States for
one year before being eligible for readmission in R-1 status. While R-1
nonimmigrants must still depart the United States upon reaching the
maximum admission period, there is no longer a mandated duration for
residing and being physically present outside the United States before
seeking readmission in R-1 status. The purpose of this change is to
promote stability and minimize disruptions to the vital services that
nonimmigrant religious workers provide to U.S. churches, mosques,
synagogues, and other religious organizations.
This final rule is strictly administrative and procedural because
it is only amending existing DHS regulations governing eligibility for
readmission as an R-1 nonimmigrant. DHS has reviewed this IFR and finds
that no significant impact on the environment, or any change in
environmental effect will result from the amendments being promulgated
in this final rule.
Accordingly, DHS finds that the promulgation of this final rule's
amendments to current regulations clearly fits within categorical
exclusion A3 established in DHS's NEPA implementing procedures as an
administrative change with no change in environmental effect, is not
part of a larger Federal action, and does not present extraordinary
circumstances that create the potential for a significant environmental
effect. Therefore, these regulatory amendments are categorically
excluded from further NEPA review.

K. Paperwork Reduction Act

This IFR does not propose any new or revise any existing
``collection[s] of information'' as that term is defined under the
paperwork Reduction Act of 1995, Public Law 104-13, 44 U.S.C. chapter
35, and its implementing regulations, 5 CFR part 13200. This IFR will
eliminate the 1-year foreign residence requirement under 8 CFR
214.2(r)(6), and USCIS has determined there is no need to update the
Petition for Nonimmigrant Worker (Form I-129) or any other information
collection related to religious workers.

List of Subjects and Regulatory Amendments

List of Subjects in 8 CFR Part 214

Administrative practice and procedure, Aliens, Cultural exchange
program, Employment, Foreign officials, Health professions, Reporting
and recordkeeping requirements, Students.

Accordingly, for the reasons set forth in the preamble, DHS amends
8 CFR part 214 as follows:

PART 214--NONIMMIGRANT CLASSES

0
1. The authority citation for part 214 continues to read as follows:

Authority: 6 U.S.C. 202, 236; 8 U.S.C. 1101, 1102, 1103, 1182,
1184, 1186a, 1187, 1221, 1281, 1282, 1301-1305, 1357, and 1372; sec.
643, Pub. L. 104-208, 110 Stat. 3009-708; Pub. L. 106-386, 114 Stat.
1477-1480; 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; 48 U.S.C. 1806; 8 CFR part 2; Pub. L. 115-
218, 132 Stat. 1547 (48 U.S.C. 1806).

0
2. Amend Sec. 214.2 by revising paragraph (r)(6) to read as follows:

Sec. 214.2 Special requirements for admission, extension, and
maintenance of status.

* * * * *
(r) * * *
(6) Limitation on total stay. An alien who has spent five years in
the United States in R-1 status may not receive an extension of stay in
the United States as an R-1 nonimmigrant. The alien must depart the
United States after reaching the maximum five-year admission period of
being physically present in the United States to be eligible to be
readmitted as an R-1 nonimmigrant. There is no minimum period of time
that the alien must remain outside of the United States after reaching
the maximum five-year admission period before seeking readmission as an
R-1 nonimmigrant, provided all other eligibility requirements are met.
The limitations in this paragraph will 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

[[Page 2066]]

year. In addition, the limitations will not apply to aliens who reside
abroad and regularly commute to the United States to engage in part-
time employment. To qualify for this exception, both the petitioner and
the alien must provide clear and convincing proof that the alien
qualifies for such an exception. Such proof consists of evidence such
as arrival and departure records, transcripts of processed income tax
returns, and records of employment abroad.
* * * * *

Kristi Noem,
Secretary, U.S. Department of Homeland Security.
[FR Doc. 2026-00830 Filed 1-14-26; 11:15 am]
BILLING CODE 9111-97-P