In Love Korean Church v. Chertoff, (9th Cir., Dec. 5, 2008), the 9th Circuit Court of Appeals interpreted the provisions of 8 USC 1153(b)(4) that provide up to 5000 permanent resident visas per year for religious workers other than ministers. Implementing regulations (8 CFR 204.5(m)(5)) define "religious occupation" as "an activity which relates to a traditional religious function." In deciding whether a choir director qualified, the court rejected the BCIS Administrative Appeal Office's determination that no part of a religious worker’s duties could be non-religious. The court remanded the case for the AAO to determine what quantum of religious duties must be present for the job to qualify. The court also rejected the AAO’s holding that a visa could be issued only if the church had traditionally employed a salaried full-time choir director, saying that the Bureau of Citizenship and Immigration Services was focusing unduly "on the labor history of the institution filing the petition as opposed to the type of work described…." [Thanks to Bob Ritter for the lead.]
UPDATE: As noted by a commenter, the religious worker regulations that are the subject of this decision have recently been amended. The amendments appear to resolve prospectively the issue left open by this decision. See this posting for details.
