Federal Agencies, Practice Resources

Practice Pointer: Changes to USCIS Policy Manual Affecting Religious Workers

11/3/22 AILA Doc. No. 22110403. Business Immigration, I-360 Religious Workers, R Religious Workers

On August 31, 2022, USCIS issued updated Policy Manual guidance1 relating to Special Immigrant Religious Workers. In 2020, USCIS consolidated and incorporated the agency’s guidance from the Adjudicator’s Field Manual into the Policy Manual and the August 31, 2022, update reorganized the manual’s Religious Workers sections (Vol. 6, Part H, Ch. 2 on Special Immigrants and Vol. 2, Part O, Ch. 3, on R-1s), providing more detailed information and analysis. Many of the changes reflect practitioners experience in recent years. However, the most noteworthy change in this guidance is its clarification of “the circumstances under which certain related petitioners may meet the compensation requirements for the position, even if the attesting employer is not the entity that will directly compensate the religious worker.”2

Highlights of the Revised Policy Manual Guidance:

  • Provides a further description of the special immigrant religious worker filing process, guidance on the verification of evidence, and the site-inspection process.
  • Expands on the further evidence that a special immigrant religious worker petitioner may submit to demonstrate that the prospective employer is a qualifying organization, that the religious worker will be employed in a qualifying position, and how the employer intends to compensate the religious worker.
  • Clarifies that, in situations where the attesting employer is not the entity that will directly compensate the religious worker, USCIS will review the relationship between the attesting employer and the entity directly compensating the religious worker in the totality of the circumstances to confirm eligibility.
  • Volume 6, Part H, Chapter 2, Religious Workers: Replaces existing content in Chapter 2 in its entirety, with updated content (reorganized for consistency with the R-1 content and expanding on existing guidance).
  • Volume 2, Part O, Chapter 3, Section F, Compensation Requirement;
    • Adds to Subsection 1 (Salaried or Non-salaried Compensation) and footnotes.
    • Updates Subsection 3 (Multiple Beneficiaries) with a clarifying edit, revises footnote 31, and adds a new footnote.

VOL 6, PART H, CHAPTER 2: SPECIAL IMMIGRANT RELIGIOUS WORKERS

SECTION A: GENERAL REQUIREMENTS

  • Although this section adds three introductory paragraphs, it has been shortened significantly and some information has been relocated.
    • Includes a discussion of how the Immigration and Nationality Act provides classification for religious workers on a permanent or a temporary basis and about ministers and non-ministers.
    • Discussion of 2005 USCIS FDNS Report describing its assessment of religious worker immigrant program and finding of fraud and non-compliance.
    • Discussion of 2008 USCIS regulation noting the requirement of a site visit before issuing a decision.

Subsection 1. General Eligibility

  • Mentions requirement that employer/petitioner must be a nonprofit religious or affiliated with denomination and discusses requirements for religious worker classifications.

Subsection 2. Filing Process (new section in 8/30/2022 Edition)

  • Includes paragraph noting that statutory authorization for Special Immigrant religious workers in a religious vocation or occupation is temporary but that it has been extended several times. Notes that the statutory authorization for Special Immigrant ministers of religion does not expire.
  • Indicates that, if a petitioner believes the requirements for classification are substantially burdensome, they may seek a written request for an exemption under the Religious Freedom Restoration Act of (1993) (RFRA) in the initial filing, which must explain:
    • How the policy requires participation in an activity prohibited by a sincerely held religious belief; or
    • How it prevents participation in conduct motivated by a sincerely held religious belief.
    • The petitioner must support the request with relevant documentation. The petitioner bears the burden of showing that it qualifies for a RFRA exemption. USCIS decides exemption requests on a case-by-case basis.

SECTION B: PETITIONER REQUIREMENTS

Sub-Section 1: Qualifying Organization

  • Moved from Definitions Section, previously in Section A, subsection 2.
  • Added, “If the bona fide organization affiliated with the denomination was granted tax-exempt status as something other than a religious organization, the petitioner must also submit additional documentation” as indicated in Section 4.
  • Definition of “religious denomination” changed from “comparable evidence of a bona fide religious denomination” to “comparable indicia.”
  • Definition of Tax-Exempt Organization moved from previous Definitions Section with no substantive changes.

Sub-Section 2: Attestation and Denomination Certification

  • Modifies attestation: “The religious worker is qualified to perform the duties of the offered position and has worked as a religious worker for the 2 years immediately preceding the filing of the application” (highlighted portion added in 8/30/2022 Policy Manual edition)

Sub-Section 3: Verification of Evidence

  • USCIS may conduct on-site inspections either before or after USCIS makes a final decision on the petition to verify the evidence submitted in support of the petition including but not limited to any of the following:
      - petitioner’s attestations and qualifications as a religious organization
      - location(s) where the beneficiary will work
      - organization’s facilities (including places of worship, where applicable)
      - nature of the proposed position.
  • Pre-Approval Inspections are conducted through the Administrative Site Visit and Verification Program (ASVVP) on all petitioners for religious workers. USCIS closely monitors the site visit program to ensure that it does not cause undue delays in the adjudication process. Satisfactory completion of the pre-approval compliance review, which can include an on-site inspection, is a condition for approval of the petition.
  • Post-Approval Inspection may occur as part of the compliance review process, to verify work hours, compensation, and duties or where the petitioning organization has undergone substantial changes since its last filing. USCIS may also conduct for cause, post-adjudication inspection in cases where there is suspected fraud.
  • Note: The previous edition of the Policy Manual stated a more flexible requirement: “USCIS may verify the submitted evidence through any means that USCIS determines is appropriate, up to and including an on-site inspection. If USCIS decides to conduct a pre-approval inspection, satisfactory completion of such an inspection will be a condition for approval of any petition.”

Summary of Sub-Section 3: There has been no change to language regarding contents of the site inspection and the new guidance indicates that a pre-approval compliance review is required for all petitions. This inspection may include a site visit, which USCIS may conduct either pre-approval or post-approval. Overall, the guidance formalizes practitioners’ experience for the past several years, i.e. that a pre-approval site visit might not be required if USCIS can verify the evidence submitted through other means.

Sub-Section 4: Documentation and Evidence

  • Individual Religious Organization Granted Individual Tax-Exempt Status. Adds the following language: “The letter must demonstrate that the religious organization was qualified to file the petition at the time of filing.”
  • Individual Religious Organization Covered Under a Group Tax-Exempt Ruling. Adds the following language: “If the religious organization is recognized as tax-exempt under a group IRS tax-exempt determination, the petitioner must submit a copy of a currently valid 501(c)(3) determination letter for the group and evidence that “the parent organization has authorized the religious organization to use its tax-exempt status. If the letter demonstrates that the group was granted tax-exempt status under IRC 501(c)(3) under a category other than religious organization, see the evidentiary requirements to show the religious nature and purpose of the organization under the following heading.”
  • Individual Tax-Exempt Organization Affiliated with a Religious Denomination. Moves the following language from another section: “the petitioner must also submit a Religious Denomination Certification signed by an authorized official of the religious denomination, certifying that the organization is affiliated with the religious denomination.”
  • Adds the following: If the affiliated organization was granted tax-exempt status under IRC 501(c)(3) under a category other than religious organization, in addition to the general requirements, the petitioner must also provide:
      - Documentation that establishes the religious nature and purpose of the organization, such as a copy of the organizing instrument of the organization that specifies the purposes of the organization; and
      - Organizational literature, such as books, articles, brochures, calendars, flyers, and other literature describing the religious purpose and nature of the activities of the organization
  • Also added: Helpful detailed chart entitled: Summary of Evidence Requirements Relating to Tax-Exempt Status.

Sub-Section 5: Compensation Requirements

  • Adds the following: The petitioner is required to state how it intends to compensate the religious worker, and to submit corresponding, verifiable evidence. A self-petitioning religious worker must submit evidence establishing how the prospective employer intends to provide such compensation.
  • Moved the following language from the list of evidence of salaried/non-salaried compensation: The petitioner must submit IRS documentation of compensation, such as IRS Forms W-2 or tax returns, if available. If IRS documentation is unavailable, then the petitioner must explain why it is unavailable and submit comparable verifiable documentation.
  • In the list of types of evidence of compensation, replaced “housing, medical care, or transportation” with “room and board.”
  • And added: “Other evidence acceptable to USCIS”
  • New Section Added on Compensation Evidence
    • Unaudited budgets or financial statements should be accompanied by verifiable supporting evidence (e.g. bank statements).
    • USCIS does not consider salaried or non-salaried support derived from a third party as a portion of the required compensation. The employer must provide the salaried or non-salaried compensation. Room and board at a church member’s home or provided by another church is a form of third-party compensation. The church must reimburse the other party for the room and board or it won’t be considered as part of compensation package. Employer must provide proof that they own the property or that it pays the lease.
    • Where the employer/petitioner is not the entity that will directly compensate the worker, USCIS will review the relationship between the petition and the entity directly compensating the worker and will look at the totality of the circumstances to determine that the petitioner is the employer and that petitioner has the ability and intent to compensate the beneficiary.
    • USCIS considers whether there is a documented relationship between the petitioner and entity providing compensation to show that the petitioner is actually compensating the beneficiary. Factors to be considered include:
      • Authority to dictate financial policy, remove clergy, veto acquisition of debt;
      • Petitioner owns compensating entity’s assets or includes the compensating entity on its audited financial statements;
      • Petitioner makes personnel decisions for the compensating entity based on established rules/practices; and/or
      • Any other docs showing petitioner has direct oversight/involvement in financial and personnel matters of the compensating entity.
    • Employer must have the ability and intent to compensate at a level that will allow beneficiary and accompanying family members to avoid becoming public charges. Funds to pay compensation cannot be derived from the beneficiary, excluding reasonable donations/tithing.
    • Unlike regulations for R-1s, there are no provisions to allow a Special Immigrant Religious Worker to be self-supporting.
    • Added: to the requirement to attest to the number of special immigrant religious workers and R-1 nonimmigrants: Where the petitioner has filed for multiple beneficiaries, the petitioner may be required to demonstrate that it has the ability to compensate all of its religious workers, including R-1 nonimmigrants and special immigrant religious workers other than the beneficiary of the petition currently being submitted.”

SECTION C: RELIGIOUS WORKER REQUIREMENTS

  • The Policy Manual provides more detailed information and examples of eligibility criteria for qualifying as a minister, religious occupation or vocation. To qualify, the worker must have been:
    • A member of the religious denomination for at least 2 years preceding the filing of the petition, and
    • Working full-time in a compensated position during this period.
  • Minister: The Policy Manual clarifies that a ‘minister’ can take the form of various titles depending on the religion, including priests, rabbi and imam. The person must meet the denomination’s requirements to be a minister, including being authorized to conduct religious worship and other duties of members of the clergy. The minister must be coming to the U.S solely to work as a minister.
  • Religious occupation: the duties must be recognized as religious occupation within the denomination and must clearly involve “the instilling or carrying out of the religious creed and beliefs of the denomination.”
  • Religious vocation: this involves a formal lifetime commitment to a religious life within the denomination. This includes nuns, monks, etc.
  • Religious worker: includes a person engaged in and, according to the denomination’s standards, qualified for a religious occupation or vocation, whether or not in a professional capacity, or as a minister.
  • For proof of prior employment, the new Policy Manual reiterates examples in the prior edition of the type of evidence of past compensation for salaried and non-salaried workers. In those cases, the petition should include financial records of how the beneficiary was supported, including W-2 statements, if available, or an IRS record of non-salaried compensation, etc. In cases involving religious workers who worked outside of the United States, they should provide comparable evidence of compensation during those periods. For those who received no salary but rather provided their own support, they would need to submit financial statements, records and trust statements showing how they maintained themselves during those periods.
  • A break of work during the 2 years preceding the filing of the petition will not affect eligibility if the interruption did not last more than 2 years and the person is still employed as a religious worker within the denomination. Sick or pregnancy leaves are standard in the course of employment and do not break the requirement. Likewise, breaks for sabbatical or training are acknowledged as standard for employment. In the event the break of work affected eligibility during the 2-year period, the 2-year clock must restart.
  • Qualifying Prospective Employment. The new Policy Manual reiterates the requirements from the prior edition that a minister should provide proof of ordination, proof of completion of training and other similar documents showing their qualification as minister within the denomination.
    • If the denomination does not require formal training, the petition should provide records of requirements for ministers within the denomination and that the worker meets those requirements.
    • With respect to a religious occupation or vocation, in professional or nonprofessional capacity, the Policy Manual adds that the petition should include evidence that the religious worker meets the standards of the denomination for the position.

VOL 2, PART O, CH. 3: NONIMMIGRANT RELIGIOUS WORKERS

The information in the new Policy Manual version is unchanged except for Section F.

SECTION F: SALARIED OR NON-SALARIED COMPENSATION.

  • This section adds new information for cases in which the petitioner is not the entity that directly compensates the religious worker. USCIS will look at the totality of the circumstances between the two entities and provides four non-exhaustive factors to consider in demonstrating the required relationship:
    • The petitioning entity has the authority to dictate financial policy, remove clergy for cause, and veto the acquisition of debt at the compensating entity;
    • The petitioning entity owns the compensating entity’s assets or includes the compensating entity on its audited financial statements;
    • According to the established rules or practice in the relevant organization or denomination, the petitioning entity makes personnel decisions for the compensating entity; and/or
    • Any other documentation showing the petitioning entity has direct oversight or involvement in the financial and personnel matters for the compensating entity.
  • The new version of the Policy Manual also changes the documentation a petitioner is required to demonstrate when it has filed for multiple beneficiaries. The previous Policy Manual only mentioned that the petitioner was required to show the ability to compensate all employees, including R-1's. The new version, which primarily impacts organizations that have filed petitions for multiple religious workers requires that petitioners must show the ability to compensate all religious workers, including those not named in the petition, including R-1's and I-360 Special Immigrant religious workers other than the beneficiary of the currently submitted petition.

 

 

Special thanks to AILA members Olga Rojas, Mary O’Leary, Paschal Nwokocha, and Scott Pollock for their assistance in preparing this Practice Pointer.

1 USCIS Policy Alert PA-2022-21“Guidance for Special Immigrant and Nonimmigrant Religious Workers” (August 30, 2022) AILA Doc. No. 22083099.
2 Ibid.

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