Monday, December 08, 2008

Religious Worker Visa Rules Have Been Amended

The Department of Homeland Security has recently amended its regulations implementing the Citizenship and Immigration Services' Religious Worker program. (73 Fed. Reg. 72275 (Nov. 26, 2008)). The long-pending regulations were adopted after Public Law 110-391, signed by the President on Oct. 10, 2008, mandated their issuance within 30 days. Responding to concerns about fraud in the religious worker program, the new regulations require

religious organizations seeking the admission to the United States of nonimmigrant religious workers to file formal petitions with USCIS on behalf of such workers.... USCIS will conduct inspections, evaluations, verifications, and compliance reviews of religious organizations to ensure the legitimacy of the petitioner and statements made in the petitions. This rule adds and amends definitions and evidentiary requirements for both religious organizations and religious workers. Finally, this rule amends how USCIS regulations reference the sunset date by which special immigrant religious workers, other than ministers, must immigrate or adjust status to permanent residence.
The new rules appear to answer prospectively an issue left open by the 9th Circuit in a decision handed down last week. In order to qualify as a "religious occupation," among other things the duites may not be "primarily administrative or support such as janitors, maintence workers, clerical employees, fund raisers, persons solely involved in the solicitation of dontations, or similar positions, although limited administrative duties that are only incidental to religious functions ar permissible."

Responding to criticism of the rules as they were originally proposed in 2007 (see prior posting), USCIS announced:

The final rule also removes the examples of employment positions from the proposed definition of "religious occupation.'' The listed employment positions were only examples, but commenters appeared to believe that the examples represented an exhaustive or biased list of employment positions that were eligible for religious worker status and that the list was tailored only to Judeo-Christian organizations. USCIS has removed those examples to eliminate confusion. The final rule, however, clarifies that religious organizations must submit evidence identifying religious occupations that are specific to that denomination.