The Immigration Act of 1990 (INA), §10(a)(15)(R), established the nonimmigrant R visa category, which allows aliens to perform services related to their religious calling or vocation and receive direct compensation for their work.
An experienced attorney can assist his client in completing an application for the nonimmigrant R status. INA §101(a)(15)(R) defines the R visa category by reference to the definition of special immigrant religious workers set forth in INA §101(a)(27)(C). Section 209 of IMMACT90 (codified and amended as 8 USC §1101(a)(15)(R)), defines aliens who are eligible for R visas. United States Citizenship and Immigration Services (USCIS) regulations governing R non-immigrants are at 8 CFR §§214.2(r)(1) et seq. State Department regulations are at 22 CFR §§41.58(a) et seq. Please see also 9 FAM §41.58, Note 1, et seq.
Section §101(a)(15)(R) of the INA defines a nonimmigrant religious worker as:
1. An alien who has been a member of a religious denomination having a bona fide nonprofit, religious organization in the United States for the two years immediately preceding an R-visa application, and
2. An alien wishing to enter the United States to perform the work of a “special immigrant” as described in Section §101(a)(27)(C)(ii) of the INA for a period not to exceed five years. The cross-reference at INA §101(a)(27(C)(ii) states that the term special immigrant includes one seeking to enter the United States solely:
For the purpose of carrying out the duties of a minister of that religious denomination;
To work for the organization at the request of the organization in a professional capacity in a religious vocation or occupation; or
To work for the organization (or for a bona fide organization that is affiliated with the religious denomination and is exempt from taxation as an organization described in §501(c)(3) of the Internal Revenue Code of 1986 (IRC)) at the request of the organization in a religious vocation or occupation.
What is a Religious Denomination?
According to 8 CFR 214.2(r)(2), a religious denomination must be a bona fide, nonprofit organization in the United States and possess the following attributes:
(1) some form of ecclesiastical government;
(2) recognized creed and form of worship;
(3) a formal code of doctrine and discipline;
(4) religious services and ceremonies;
(5) established places of religious worship; and
(6) religious congregations.
An interdenominational religious organization will also be treated as a religious denomination if it is tax-exempt as defined in §501(c)(3) or the IRC. According to 8 CFR 214.2(r)(3), a bona fide, nonprofit, religious organization is an organization exempt from taxation as defined in §501(c)(3) of the IRC, or one that has never sought the exemption but would qualify for it.
Religious Worker Categories
Minister. An individual authorized by a recognized religious denomination to conduct worship and perform other duties also done by the clergy of that religion. Evidence of such qualifications normally consists of certificates of ordinations, licenses and formal letters of conferral. According to 8 CFR 214.2(r)(2), there must be a “reasonable connection between the activities performed and the religious calling of the minister.”
A lay preacher. One who is not authorized to conduct services and perform other duties usually performed by clergy of the particular religion. He does not qualify as a minister.
Deacon. A person of a recognized religious denomination may qualify when ordination or an equivalent form of authorization has occurred and conferred upon him certain powers.
Practitioners and Nurses of the Christian Science Church. These occupations qualify under the religious worker category.
Commissioned Officers of the Salvation Army. These individuals fall within specific occupations of the religious worker category.
To qualify as a professional R worker, the applicant must engage in a religious vocation or occupation, the minimum educational level of which is an American baccalaureate degree or a foreign equivalent.
Other Religious Workers.
To come to the United States as a nonprofessional religious worker, the applicant must engage in a traditional, religious function.
What is a Religious Occupation?
According to 8 CFR 214.2(r)(2), a religious occupation is an activity which relates to a traditional function. Examples include counselors, missionaries, cantors, catechists, liturgical workers, religious instructors, translators or broadcasters, workers in religious hospitals or health care facilities. However, the religious entity’s maintenance workers, clerks, fundraisers or similar occupations are excluded from this category. Furthermore, working with a religious organization does not, in itself, qualify a layperson for an R visa. To qualify, the applicant must demonstrate that the very nature of his activity embodies the tenets of his religion and has religious significance.
According to 8 CFR 214.2(r)(2) a religious vocation is a calling to a religious life demonstrated by a commitment to practice in a denomination. Nuns, monks and religious brothers and sisters who have taken vows, or their equivalent, and have made lifelong commitments are engaged in religious vocations. Furthermore, persons engaged in religious vocations may engage in any activity within their denominations as long as they have taken or have been preparing to take vows or their equivalent. To determine whether an applicant is engaged in a religious vocation, USCIS will examine the applicant’s status within the religious organization and the job he performs.
The distinction between a religious occupation and vocation is important for applicants who will be engaged in activities that are unrelated to a traditional religious function such as clerical work. While the definition of religious occupation excludes a layperson performing clerical work, one performing such work who has taken religious vows may qualify as being engaged in a religious vocation. Thus, a nun or monk working for a qualifying religious organization will be considered engaged in a religious vocation even if he offers services that are clerical in nature.
R-1 visa applicants, unlike religious immigrant applicants, must show only membership in a qualifying denomination for the two years prior to their application. There is no prior-experience requirement. The position in which the religious worker will perform services need not be temporary in nature. In addition, Section §101(a)(15)(R) of the INA does not require full-time employment to qualify for an R-1 visa. Rather, an alien must request such visa solely for the qualifying religious purpose. In practice, a consulate worker processing the application may conclude that a part-time R visa employment might be insufficient to classify as the principal purpose for an admission and thus deny the visa.
PROCEDURE FOR OBTAINING AN R VISA
If abroad, the applicant must apply directly to an American consulate on Form OF-156. Males, ages 16 to 46, must complete a supplemental, nonimmigrant visa application on Form DS-157 as well. No prior application to USCIS is necessary for consular processing of R-1 visas. If an alien is in the United States and wants to change his status to an R-1 visa, then he must do so on Form I-129.
INA §101(a)(15)(R)(ii) does not require an applicant for an R-1 visa to maintain residence in his home country. As long as the applicant confirms his intention to depart the United States upon conclusion of the authorized stay, absent specific indications or evidence that the alien’s intent is to the contrary, he will satisfy the requirements of this law.
Evidence in Support of an R-1 Application
The application shall contain the following documentation:
Documentation that the alien will provide services to a bona fide, nonprofit, religious organization in the United States or to an affiliated religious organization, and that the alien meets the criteria to perform the services.
Documentation that the organization is tax exempt under IRC §501(c)(3), or that would establish eligibility therefore;
A letter from the religious organization that will engage the alien’s services showing that the foreign and American religious organizations belong to the same denomination, and that the applicant has been a member of this religious denomination for at least two years immediately preceding the application.
If the applicant is a minister, he is authorized to conduct religious worship for the denomination and perform other duties usually performed by members of the clergy, including a detailed description of those duties. If the alien is a religious professional, he has the requisite degree or its foreign equivalent; or if the alien is to work in another religious vocation or occupation, he is qualified in this field.
The name and location of the specific organizational unit of the religious organization for which the alien will be provide services.
Evidence of the arrangements made for remuneration, if any, to be provided to the applicant.
If the alien is to work in a non-ministerial or nonprofessional capacity for a bona fide organization that is affiliated with a religious denotation, the existence of the affiliation.
Admission, Employment, Extensions of Stay and Change of Employers
The R-1 visa holder may enter the United States for a period not to exceed three years and may extend his stay for two years. An applicant who has spent five years in the United States in R status must reside outside the country (except for brief visits) for one year before being readmitted in R status. The R-1 visa holder is authorized to work in the United States only for the petitioning organization.
The spouse and unmarried children under twenty-one who are accompanying or joining at a later date the R-1 principal qualify in the R-2 category. R-2 derivative nonimmigrants may not work in the United States but may pursue educational opportunities.
A petitioning organization may extend the alien’s stay in the United States by filing the application for extension on Form I-129, Petition for a Nonimmigrant Worker. The petition must be filed at the service center with jurisdiction over his place of employment. Likewise, if another religious organization wants to hire the alien, the new employer must file an application for a change of employment on Form I-129.
Since the application process for an R-1 visa requires the completion of numerous documents and requires attention to detail, assistance from an experienced immigration attorney is the key to fast and successful adjudication.