Los Angeles Immigration Attorney David M. Sturman

The laws granting benefits to religious workers were written liberally with the intent of easing the transfer of foreign ministers and religious workers to the U.S.  Priests, Ministers, Clergy, and other non-ordained religious workers may qualify for benefits either as a nonimmigrant R-1 religious worker visa or as a Special Immigrant lawful permanent resident.

To qualify for the R-1 visa, you must have been a member of a recognized non-profit religious organization for at least the last two years immediately preceding the petition.  This does not mean that you have to have worked for the organization for the last two years, only that you were a member of the religious organization during this time.  You don’t need any formal education or even an ordination provided you can perform the duties of the position.

The offered position must be in a religious capacity and if the church ordinarily pays its religious workers, must be a paid position. (If the religious normally prohibits the receipt of income by its leaders, such as Buddhist monks, the lack of salary can be justified and waived.)

The petitioning church must be recognized as a nonprofit religious organization and must submit a currently valid determination letter from the Internal Revenue Service (IRS).

An R-1 visa holder can remain in the U.S. for up to five years. If the religious worker has been continuously employed in a religious capacity for the same religious denomination for the last two years, the worker can apply for permanent residence through a petition as a special immigrant.

Over the past few years the Government Accountability Office (GAO), the US Consulates overseas, and the USCIS have determined that the R visa category is susceptible to fraud. The USCIS has found that as many as one-third of the cases filed under the R visa category are fraudulent. Because of the perceived ease in obtaining an R-1 visa, the USCIS carefully scrutinizes the petitions.

To battle this increase in fraud in the category USCIS, the USCIS instituted new guidelines in 2007 to make changes to the Religious Worker Visa Classifications to help weed out fraud.  Among these changes is the requirement that the USCIS conduct an investigation of the U.S. based church before approving a religious worker petition.  This entails a site inspection where an investigator of the Dept of Homeland Security will  visit the church, question its directors and determine if the church is a valid and recognized religious organization and whether there is a valid job for the petitioned worker. Issues such as the size of the church, the building in which it is housed, the assets of the church and the need for a religious worker are all considered to determine if the job offer is legitimate.

It is not advisable to work a second secular job as a caregiver as the religious job must earn sufficient money so that you are not required to secure a second job. You are not permitted to work outside of your position with the religious organization and you cannot perform lay activities, even on a part time basis unless they are incident to your profession.