[Federal Register Volume 72, Number 79 (Wednesday, April 25, 2007)]
[Proposed Rules]
[Pages 20442-20457]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-7743]
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DEPARTMENT OF HOMELAND SECURITY
8 CFR Parts 204, 214, and 299
[CIS No. 2302-05; DHS Docket No. USCIS-2005-0030]
RIN 1615-AA16
Special Immigrant and Nonimmigrant Religious Workers
AGENCY: U.S. Citizenship and Immigration Services, DHS.
ACTION: Proposed rule.
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SUMMARY: This rule proposes to amend U.S. Citizenship and Immigration
Services (USCIS) regulations regarding the special immigrant and
nonimmigrant religious worker visa classifications. This rule addresses
concerns about the integrity of the religious worker program by
proposing a petition requirement for religious organizations seeking to
classify an
[[Page 20443]]
alien as an immigrant or nonimmigrant religious worker. This rule also
addresses an on-site inspection for religious organizations to ensure
the legitimacy of petitioner organizations and employment offers made
by such organizations.
This rule also would clarify several substantive and procedural
issues that have arisen since the religious worker category was
created. This notice proposes new definitions that describe more
clearly the regulatory requirements, and the proposed rule would add
specific evidentiary requirements for petitioning employers and
prospective religious workers.
Finally, this rule also proposes to amend how USCIS regulations
reference the sunset date, the statutory deadline by which special
immigrant religious workers, other than ministers, must immigrate or
adjust status to permanent residence, so that regular updates to the
regulations are not required each time Congress extends the sunset
date.
DATES: Written comments must be submitted on or before June 25, 2007.
ADDRESSES: You may submit comments, identified by DHS Docket No. USCIS-
2005-0030, by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Mail: Director, Regulatory Management Division, U.S.
Citizenship and Immigration Services, Department of Homeland Security,
111 Massachusetts Avenue, NW., 3rd Floor, Washington, DC 20529. To
ensure proper handling, please reference DHS Docket No. USCIS-2005-0030
on your correspondence. This mailing address may also be used for
paper, disk, or CD-ROM submissions.
Hand Delivery/Courier: Regulatory Management Division,
U.S. Citizenship and Immigration Services, Department of Homeland
Security, 111 Massachusetts Avenue, NW., 3rd Floor, Washington, DC
20529. Contact Telephone Number (202) 272-8377.
FOR FURTHER INFORMATION CONTACT: Irene Hoffman Moffatt, Senior Program
Analyst, Service Center Operations, U.S. Citizenship and Immigration
Services, Department of Homeland Security, 111 Massachusetts Avenue,
NW., 3rd Floor, Washington, DC 20529, telephone (202) 272-8410.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Public Participation
II. Background
A. Current Eligibility Requirements for the Special Immigrant
Religious Worker and Nonimmigrant Religious Worker
B. Rationale for the Proposed Rule
III. Analysis of Proposed Rule
A. Proposed Changes to Definitions
B. Proposed Petitioning Requirements
C. On-site Inspections
D. Evidentiary Requirements for Petitioning Organizations
E. Changes Unique to the Special Immigrant Religious Worker
Classification
F. Changes Unique to the Nonimmigrant Religious Worker
Classification
IV. Regulatory Requirements
A. Regulatory Flexibility Act
B. Unfunded Mandates Reform Act of 1995
C. Small Business Regulatory Enforcement Fairness Act of 1996
D. Executive Order 12866 (Regulatory Planning and Review)
E. Executive Order 13132 (Federalism)
F. Executive Order 12988 (Civil Justice Reform)
G. Paperwork Reduction Act
List of Subjects
I. Public Participation
Interested persons are invited to participate in this rulemaking by
submitting written data, views, or arguments on all aspects of this
proposed rule. The Department of Homeland Security (DHS) and U.S.
Citizenship and Immigration Services (USCIS) also invite comments that
relate to the economic or federalism effects that might result from
this proposed rule. Comments that will provide the most assistance to
USCIS in evaluating these procedures will reference a specific portion
of the proposed rule, explain the reason for any recommended change,
and include data, information, or authority that support such
recommended change. See ADDRESSES above for information on how to
submit comments.
Instructions: All submissions received must include the agency name
and DHS Docket No. USCIS-2005-0030. All comments received will be
posted without change to http://www.epa.gov/feddocket, including any
personal information provided. For detailed instructions on submitting
comments and additional information on the rulemaking process, see the
``Public Participation'' heading of the SUPPLEMENTARY INFORMATION
section of this document.
Docket: For access to the docket to read background documents or
comments received, go to http://www.epa.gov/feddocket. Submitted
comments may also be inspected at the Regulatory Management Division,
U.S. Citizenship and Immigration Services, Department of Homeland
Security, 111 Massachusetts Avenue, NW., 3rd Floor, Washington, DC
20529. To make an appointment please contact the Regulatory Management
Division at (202) 272-8377.
II. Background
A. Current Eligibility Requirements for Special Immigrant and
Nonimmigrant Religious Workers
Aliens may be classified either as nonimmigrant or special
immigrant religious workers under the Immigration and Naturalization
Act (INA) and USCIS regulations. See sections 101(a)(15)(R) and (27)(C)
of the Immigration and Nationality Act of 1952, as amended, 8 U.S.C.
1101(a)(15)(R) and (27)(C); 8 CFR 204.5(m), 214.2(r). To be eligible
for classification as a religious worker, the alien must have been a
member of a religious denomination having a bona fide, nonprofit
religious organization in the United States for at least two years
prior to the application for admission to the United States if seeking
the religious worker (R-1) nonimmigrant status, or to the filing of the
petition with USCIS if seeking special immigrant status. The alien must
seek to enter the United States to work for the organization, or a bona
fide organization affiliated with the denomination, as a minister or a
worker in a religious vocation or occupation, regardless of whether or
not in a professional capacity. Unlike some nonimmigrant categories,
the R classification does not require that the alien establish that he
or she has a residence in a foreign country which he or she has no
intention of abandoning.
Under current USCIS regulations, ``professional capacity'' is
defined as ``an activity in a religious vocation or occupation for
which the minimum of a United States baccalaureate degree or a foreign
equivalent degree is required.'' 8 CFR 214.2(r)(2). ``Religious
occupation'' is defined as ``an activity which relates to a traditional
religious function,'' including, but not limited to, religious
instructors, cantors and workers in religious health care facilities.
Id. The term generally would not include maintenance workers, clerical
staff or fund raisers. Id. A ``religious vocation'' is a ``calling to
religious life evidenced by the demonstration of commitment practices
in the religious denomination, such as the taking of vows.'' Id. A
bachelor's degree or foreign equivalent is only required for aliens
working in a professional capacity, assuming the other vocation or
occupation requirements are met.
The main substantive difference between the special immigrant
religious worker and the nonimmigrant religious worker classification
is that the special immigrant religious worker must not only have been
a member of the
[[Page 20444]]
religious denomination for the two years immediately preceding the
application, but must have also been working as a minister or
performing the religious vocation or occupation continuously, either
abroad or in the United States or both, for at least two years
immediately preceding the filing of the application.
The spouse or child of a nonimmigrant granted R-1 status can be
admitted to the United States as an R-2 nonimmigrant in order to
accompany, or follow to join, the principal R-1 alien. The spouse or
child of a special immigrant religious worker is eligible to apply for
permanent residence by virtue of the worker's acquisition of permanent
residence.
There is a significant procedural difference between the filing
processes for special immigrant religious workers and nonimmigrant
religious workers. Section 203(e) of the INA, 8 U.S.C. 1153(e),
requires that an alien seeking status as a special immigrant religious
worker file a petition (Form I-360) with USCIS. The petition must be
approved before the alien can obtain special immigrant status. Under
current USCIS regulations, there is no requirement that a nonimmigrant
living outside of the United States file a petition to obtain a R-1
visa. At present, an R-1 classification can be initiated at a consular
office overseas through application for an R-1 visa (without any prior
approval of a petition by USCIS) or, for aliens who are visa-exempt, by
seeking initial admission into the United States. Organizations seeking
to employ a nonimmigrant religious worker already present in the United
States, or to extend the stay of a current R-1 nonimmigrant employee in
the United States, must file a Form I-129, Petition for a Nonimmigrant
Worker, with USCIS, along with the appropriate fee. Filing a Form I-129
with USCIS is not the only way that a religious worker may obtain
further periods of lawful stay in the United States. A religious worker
may obtain additional approved periods of lawful stay in the United
States by using a visa to reenter or, if visa-exempt, by seeking
reentry at the border.
Unlike the provision for ministers, which does not contain a sunset
provision, section 101(a)(27)(C)(ii)(II) and (III) of the Act, 8 U.S.C.
1101(a)(27)(C)(ii)(II) and (III), as enacted by section 151(a) of the
Immigration Act of 1990 (IMMACT '90), Pub. L. No. 101-649, 104 Stat.
4978 (Nov. 29, 1990), provided that professional and other religious
workers must ``seek to enter the United States * * * before October 1,
1994.'' See also An Act to Amend the Immigration and Nationality Act to
Extend for an Additional 5 years the Special Immigrant Religious Worker
Program, Pub. L. No. 108-99, 117 Stat. 1176 (Oct. 15, 2003). This
sunset provision has been extended four times and now expires on
October 1, 2008. Based on the pattern since 1990, further extensions to
the sunset date can be anticipated. To immigrate under the special
immigrant religious worker category, aliens who are not ministers must
have a petition approved on their behalf and either enter the United
States as an immigrant or adjust their status to permanent residence
while in the United States by no later than September 30, 2008. This
rule proposes to simply reference the statutory deadline contained in
section 101(a)(27)(C) of the Act, rather than mention a specific date,
so that regular updates to the regulations are not required each time
Congress extends the sunset date provision. The sunset provision only
applies to special immigrant workers in a religious vocation or
occupation; it does not apply to the nonimmigrant religious worker
category or to special immigrant ministers.
B. Rationale for the Proposed Rule
The former Immigration and Naturalization Service (INS) published a
proposed rule in 1995. 60 FR 29771 (June 5, 1995). While USCIS reviewed
this earlier proposed rule, the Department determined that further
changes to the regulations governing the religious worker program were
needed. This was particularly evident given the passage of time, recent
indications of fraud in the religious worker program and a renewed
focus on eradicating such fraud, and the need to update current
regulations to reflect recent statutory amendments.
In March 1999, the Governmental Accountability Office (GAO)
identified incidents of fraud in the religious worker program. GAO,
Issues Concerning the Religious Worker Visa Program, Report GAO/NSIAD-
99-67 (March 26, 1999). The report stated that the fraud often involved
false statements by petitioners about the length of time that the
applicant was a member of the religious organization, the qualifying
work experience, and the position being filled. The report also noted
problems with the applicants making false statements about their
qualifications and exact plans in the United States.
USCIS has since continued to assess the potential for fraud in the
religious worker program. USCIS developed and implemented a benefit
fraud assessment to measure the integrity of specific nonimmigrant and
immigrant applications and petitions by conducting administrative
inquiries on randomly selected cases. The review is referred to as an
``assessment'' because the 220 cases reviewed were not attached to any
suspicions of fraud; rather, they were a statistically valid
combination of pending and completed cases filed over a six month
period that were reviewed to determine the extent of fraud occurring
within the sample. This assessment by the USCIS Office of Fraud
Detection and National Security (FDNS) confirmed that there was a 33%
rate of fraud in the religious worker program. The assessment also
indicated patterns of potential fraud and weaknesses that created
vulnerabilities for fraud. Through this sample of religious worker
cases, FDNS established that a significant number of petitions filed on
behalf of religious workers were filed by nonexistent organizations
(44% of fraudulent cases) and/or contained material misrepresentations
in the documentation submitted to establish eligibility (54% of
fraudulent cases). There exists a compelling need to eliminate this
fraud. A summary of the USCIS FDNS Religious Worker Benefit Fraud
Assessment can be found on the docket at http://www.regulations.gov or
at http://www.uscis.gov under the ``about USCIS'' tab, then under
``Freedom of Information and Privacy Act (FOIA).''
In keeping with the DHS anti-fraud strategy, cases identified with
preliminary findings of fraud are referred to the Bureau of Immigration
and Customs Enforcement (ICE) for further investigation, possible
removal proceedings, or referral for criminal prosecution.
The changes proposed in this rule, if implemented, would decrease
the opportunity for fraud in the religious worker program.
III. Analysis of Proposed Rule
This rule proposes changes to the current religious worker process
to address concerns about the integrity of the religious worker
program. Those changes include expanding the petition requirement for
all religious organizations seeking to classify an alien as an
immigrant or nonimmigrant religious worker and the possibility of an
on-site inspection for religious organizations to ensure the legitimacy
of petitioner organizations and employment offers made by such
organizations.
USCIS also is proposing new and amended definitions to describe
more clearly the regulatory requirements, as well as add specific
evidentiary
[[Page 20445]]
requirements for petitioning employers and prospective religious
workers. This rule also proposes to amend how USCIS regulations
reference the sunset date, the statutory deadline by which special
immigrant religious workers, other than ministers, must immigrate or
adjust status to permanent residence, so that regular updates to the
regulations are not required each time Congress extends the sunset
date.
USCIS does not believe that the requirements proposed under this
rule (as discussed below) would substantially burden the free exercise
of religion and therefore this rule should not raise any concerns under
the Religious Freedom Restoration Act of 1993. See Pub. L. No. 103-141,
107 Stat. 1488, found as amended at 42 U.S.C. 2000bb et seq. The
regulation of the process that organizations must follow to petition
for foreign workers and of foreign workers seeking to enter or remain
in the United States exists independently of whether the employing
organization is classified as ``religious'' in nature. The existing
regulation of the religious worker program is only being continued by
the present rule--it is not a new form of regulation or a regulation
that otherwise intrudes upon the existing expectations of religious
freedom under the First Amendment. USCIS has carefully crafted the
additional requirements proposed in an attempt to eradicate fraud in
the religious worker program.
The proposed rule applies to the religious organizations who
petition for an immigrant or non-immigrant religious worker to perform
religious work in the United States. The proposed rule does not make
any distinction that is known to be based on the substance of an
individual's religious beliefs; it only sets qualifications for the
organization seeking to employ an individual, and the qualifications of
that individual. USCIS, however, is interested in public comment on
this issue and will consider comments received in the development of
the final rule.
A. Proposed Changes to Definitions
The applicable definitions for applicants and petitioners for
religious worker classification are set forth in 8 CFR 204.5(m) and
214.2(r)(2). This proposed rule adds several definitions, and expands
or clarifies others as described below. Because each of the defined
terms are repeated in both 204.5 and 214.2, the amendments and
additions proposed below apply to both sections as indicated in the
regulation text at the end of this rule.
Bona Fide Organizations
USCIS proposes to clarify the existing definition of ``bona fide
nonprofit religious organization in the United States'' to mean a
religious organization exempt from taxation as described in section
501(c)(3) of the Internal Revenue Code of 1986, 26 U.S.C. 501(c)(3), or
subsequent amendment, as a religious organization and possessing a
currently valid determination letter from the IRS confirming such
exemption. A church must petition as a bona fide nonprofit religious
organization and may not petition as a bona fide organization which is
affiliated with a religious organization as a means to avoid the
evidentiary requirements applicable to churches. USCIS has determined
that this letter is the best means for a petitioner to provide
immediate and certain documentation at the time of the initial
application that the religious organization is exempt from taxation
under section 501(c)(3). The agency welcomes public comments on
alternative means for the initial petition to include such
documentation.
USCIS also proposes to add to the existing definition of ``bona
fide organization which is affiliated with the religious organization
in the United States,'' to include entities such as educational
institutions, hospitals, or private foundations. See 8 CFR 204.5(m)(2),
214.2(r)(2). Such entities may qualify as a petitioning employer
organization for immigration purposes, even if their purpose is not
exclusively religious, if documentation is provided to establish the
organization's religious purpose and the religious nature of its
activities. The eligibility of each organization will be determined on
a case-by-case basis. An organization granted section 501(c)(3) status
by the IRS as something other than a religious organization must submit
the Religious Denomination Certification contained in the Forms I-360
and I-129, signed by the attesting religious organization in the
denomination to confirm the petitioning organization's affiliation with
the religious denomination. Additionally, the bona fide nonprofit
religious organization attesting to the petitioning organization's
affiliation with the denomination must be exempt from taxation as
described in section 501(c)(3) of the Internal Revenue Code of 1986 and
as evidenced by a currently valid determination letter from the IRS
confirming the bona fide nonprofit religious organization's exemption.
A church may not present itself as a bona fide organization affiliated
with a religious denomination as a means of avoiding the requirement
that churches present an IRS tax-exempt letter as a religious
organization.
Denominational Membership
USCIS proposes to add a definition of ``denominational membership''
to clarify that, during at least the two-year period immediately
preceding the filing of the petition, the alien must have been a member
of the same religious denomination as the United States employer that
seeks to employ him or her. The definition is premised on the shared
faith and worship practices of the institution, rather than on their
formal affiliation. The purpose of this definition is to avoid the
immigration of religious workers (1) into institutions that are not
truly practicing a religion, and (2) based on the alien's recent
``conversion'' to a religious commitment in the interest of immigration
status rather than a sincere intention to perform service to one's
longstanding faith.
Ministers
A ``minister'' is currently defined as an individual duly
authorized by a religious denomination to conduct religious worship and
to perform other duties usually performed by authorized members of the
clergy of that religion. USCIS proposes to amend this definition to
require that an individual also be ``fully trained according to the
denomination's standard.'' The revised definition focuses on the
denomination's traditional requirements for ordination or its
equivalent, because some denominations do not require a particular
level of formal academic training or experience.
Religious Denomination
USCIS is modifying the definitions of ``religious denomination'' to
clarify that it applies to a religious group or community of believers
governed or administered under some form of common ecclesiastical
government. See 8 CFR 204.5(m)(2), 214.2(r)(2). The denomination must
share a common creed or statement of faith, some form of worship, a
formal or informal code of doctrine and discipline, religious services
and ceremonies, established places of religious worship, religious
congregations, or comparable indicia of a bona fide religious
denomination. The proposed definition does not require a hierarchical
governing structure because some legitimate denominations officially
shun such structures; instead, the focus is on the commonality of the
faith and internal organization of the participating organizations.
[[Page 20446]]
Religious Occupation
``Religious occupation'' is now defined as habitual employment in
an occupation the duties of which primarily relate to a traditional
religious function and that is recognized as a religious occupation
within the denomination. USCIS proposes to amend the definition to
clarify that the duties of the position must be ``primarily, directly,
and substantially related to the religious beliefs or creed of the
denomination.'' Examples of religious occupations include, but are not
limited to, liturgical workers, religious instructors, religious
counselors, cantors, catechists, missionaries, religious translators,
religious broadcasters, youth ministers, religious choir directors or
music ministers, or ritual slaughter supervisors. ``Religious
occupation'' does not include positions whose duties are primarily
administrative or supportive in nature, and any administrative duties
must be incident to the substantive, traditionally religious functions.
Examples of non-qualifying administrative and support positions
include, but are not limited to: janitors; maintenance workers; clerks;
secretaries; fund raisers; secular musicians; secular translators;
those who sell literature, volunteer as ushers during worship services,
serve in the choir, volunteer part-time to assist the clergy, or lead a
weekly study group; or similar persons engaged in primarily secular,
administrative or support duties. These examples are primarily drawn
from the legislative history of IMMACT '90. Family Unity and Employment
Opportunity Immigration Act of 1990, H. Rept. 101-723(I), 101st Cong.,
2nd Sess. (Sept. 19, 1990).
Religious Vocation
USCIS is proposing to revise the definition of ``religious
vocation'' to clarify that it refers to a formal lifetime commitment to
a religious way of life. The opportunity to immigrate as a religious
worker in a vocation should be reserved for those individuals whose
lives are dedicated to religious practices and functions, as
distinguished from the secular members of the religion.
Religious Workers
USCIS proposes to add a new definition of ``religious workers'' and
to define the term, in part, as individuals engaged in a religious
occupation or vocation either in a professional or non-professional
capacity. Religious workers in a vocation are those individuals who
have made a formal lifetime commitment to a religious way of life.
USCIS is proposing to require evidence that the religious denomination
has a traditional established class of individuals whose lives are
dedicated to religious practices and functions, as distinguished from
the secular members of the religion. Such evidence may include, but is
not limited to, the taking of vows, or other investitures or
ceremonies. USCIS requests comments with regard to other types of
available evidence and alternative criteria for establishing the
required level of commitment to a religious way of life applicable to
diverse religious denominations.
Religious workers in a religious occupation are those seeking to be
employed by a religious organization in a religious occupation, the
duties of which involve traditional religious functions. The new
definition of religious occupation seeks to distinguish more clearly
between non-qualifying lay or administrative work, and the kind of
committed religious work justifying immigration status. The definition
and evidentiary requirement for religious workers in a religious
occupation use the bright lines of: (1) compensation by the employer,
and (2) either 20 hours per week for nonimmigrants or 35 hours per week
(full-time) for special immigrants.
The revised requirements for immigrant petitions and nonimmigrant
status require that the alien's work be compensated by the employer
because that provides an objective means of confirming the legitimacy
of and commitment to the religious work, as opposed to lay work, and of
the employment relationship. Unless the alien has taken a vow of
poverty or similarly made a formal lifetime commitment to a religious
way of life, this rule requires that the alien be compensated in the
form of a salary or in the form of a stipend, room and board, or other
support so long as it can be reflected in a W-2, wage transmittal
statements, income tax returns, or other verifiable IRS documents.
USCIS recognizes that legitimate religious work is sometimes performed
on a voluntary basis, but allowing such work to be the basis for an R-1
nonimmigrant visa or special immigrant religious worker classification
opens the door to an unacceptable amount of fraud and increased risk to
the integrity of the program. In this rule, USCIS is proposing to
implement bright lines that will ease the verification of petitioner's
claims in the instances where documentary evidence is required. It
should be noted that this rule greatly reduces the burden on
petitioners for submission of evidence. For example, petitioners are
currently required to submit evidence of the beneficiary's education
and training whereas under this proposed rule they need only attest to
the beneficiary's eligibility. Documentary evidence is generally only
required when it is in the form of an official government document or
similarly provides added reliability. This change to the evidentiary
requirements, in favor of an attestation scheme, can only successfully
insure against fraud and abuse where petitioner's claims can be
verified. In accordance with 8 CFR 214.2(b)(1), members of a religious
denomination coming temporarily and solely to do missionary work on
behalf of a religious denomination may do so by obtaining a B-1 visa
and may be granted extensions in increments of up to one year (provided
such work does not involve the selling of articles or the solicitation
or acceptance of donations).
The issue of training is also clarified. The rules do not require a
specific set of training, but a religious worker must be minimally
competent to do the work and must intend to do it. Religious study or
training for religious work in the United States does not justify
special immigrant status, though an R-1 religious worker may pursue
study or training incident to status, as is appropriate in several
other nonimmigrant classifications. Aliens seeking to pursue religious
study in the United States not incident to R-1 status may pursue
options such as F-1 or J-1 classifications. All of these definitions
recognize that some administrative duties are incidental to many
religious functions, but require that the religious functions
predominate.
B. Proposed Petitioning Requirements
USCIS is proposing to impose a new petition requirement on
employers or organizations seeking to classify an alien as a religious
worker, whether as an immigrant (Form I-360) or nonimmigrant (Form I-
129). A petition requirement already exists for special immigrants and
for organizations that seek to extend the stay or change status of a
nonimmigrant religious worker already in the United States. The
addition of the petition requirement for nonimmigrants seeking an R-1
visa or R-1 visa-exempt entry is needed in order to facilitate current
and future on-site inspections and to further ensure the integrity of
the program. Only the employing, United States organization will be
allowed to complete and submit the Form I-129 or Form I-360 on behalf
of the beneficiary. Allowing petitions to be filed by the aliens
themselves or by third parties does not support the
[[Page 20447]]
integrity of the process. Given that there always must be an employing
United States organization; this requirement should not pose any undue
hardship on filers.
USCIS also is proposing to require that the petitioning employer
complete and submit an attestation along with the Form I-129 or the
Form I-360, for non-immigrants and special immigrants, respectively.
The attestation will serve to establish that the alien will be entering
the United States solely to carry on the vocation of a minister or to
work in a religious vocation or occupation, that the alien is qualified
for such position, and that the job offer is legitimate. These
attestations must be executed by an authorized official of the
organization. This requirement is designed to ensure that the
prospective employer has the ability and intention to compensate the
alien at a level at which the alien and accompanying family members
will not become public charges, and that funds to pay the alien's
compensation do not include any monies obtained from the alien,
excluding reasonable donations or tithing to the religious
organization.
C. On-Site Inspections
This rule proposes that USCIS may conduct on-site inspections of
petitioning organizations seeking to employ either an R-1 nonimmigrant
or special immigrant religious worker. Pursuant to its general
authority under section 103 of the INA and 8 CFR part 103, USCIS may
conduct audits, on-site inspections, reviews or investigations, to
ensure that an alien is entitled to the benefit sought and that all
laws have been complied with before and after approval of such
benefits. DHS has determined that the option to conduct such on-site
inspections is vital to the integrity of the religious worker program
and petitioning process. A recent assessment by the FDNS confirmed that
there was a high percentage of fraud (33%) in the religious worker
program. Through the statistically valid sample of Form I-360 religious
worker petitions, FDNS established that a significant number of
petitions filed on behalf of religious workers were filed by
nonexistent organizations and/or contained material misrepresentations
in the documentation submitted to establish eligibility. By
promulgating the option to conduct on-site inspections as proposed in
this rule, USCIS is emphasizing this tool, with other program
enhancements, as a deterrent to fraud and an aid in the detection of
fraudulent petitions in the R-1 nonimmigrant and special immigrant
religious worker categories. This rule will also allow DHS to monitor
religious workers and ensure they maintain lawful status while in the
United States. The purpose of this activity is to eliminate the
inappropriate award of immigration benefits to unqualified individuals.
D. Evidentiary Requirements for Petitioning Organizations
USCIS also proposes to change the evidentiary requirements for
petitioning employer organizations seeking a religious worker. Existing
regulations require that the organization submit documentation showing
that it is exempt from taxation in accordance with section 501(c)(3) of
the Internal Revenue Code of 1986 as it relates to religious
organizations. USCIS is proposing to specifically require that
petitioning organizations submit a currently valid determination letter
from the Internal Revenue Service (IRS). Likewise, a group of religious
organizations, that are recognized as tax exempt under a group tax
exemption, must provide the most current determination letter from the
IRS that establishes that the group is an organization as described in
section 509(a)(1) of the Internal Revenue Code of 1986, 26 U.S.C.
509(a)(1), and that the group's tax exemption is in accordance with
section 501(c)(3) of the Internal Revenue Code of 1986. USCIS
recognizes that in some cases such a determination letter will require
the payment of a user fee to the IRS. See IRS Form 8718 (rev. June
2006).
Although churches may not be required to obtain a section 501(c)(3)
exemption for tax purposes, such an exemption is required when
requesting immigration benefits on behalf of an alien. See Internal
Revenue Service, Tax Guide for Churches and Religious Organizations:
Benefits and responsibilities under the Federal Tax Law (IRS pub. no.
1828, Rev. Sept. 2006); compare, section 101(a)(27)(C)(ii)(III) of the
INA, 8 U.S.C. 1101(a)(27)(C)(ii)(III). Entities seeking to employ alien
religious workers should be willing to request IRS recognition of their
tax-exempt status, and their certifications to IRS under applicable tax
rules will help ensure the integrity of their participation in the
immigration process. In addition, the proposed regulation would modify
the current regulatory text by replacing the ``it'' with
``organization'' in order to clarify that the organization must be
exempt from taxation. USCIS requests comments regarding how to document
bona fide tax exempt status, including the availability of other
government agencies that may certify the bona fide tax exempt status of
organizations located in United States territories that may be outside
the jurisdiction of the IRS.
E. Changes Unique to the Special Immigrant Religious Worker
Classification
Current regulations describing various categories of religious
workers have led to much confusion. USCIS is now proposing to
reorganize 8 CFR 204.5(m) in its entirety and simplify the religious
worker classification by dividing it into three distinct categories:
ministers, individuals engaged in a religious vocation, and individuals
engaged in a religious occupation. Individuals within the latter two
categories may be either professionals or non-professionals.
The proposed rule recognizes that the prior religious work need not
correspond precisely to the type of work to be performed; for instance,
a former minister may immigrate to work as a missionary, and a former
missionary, now ordained, may immigrate to work as a minister. The rule
codifies longstanding recognition that a break in the continuity of
religious work during the two years immediately preceding the filing of
the petition will not affect eligibility if the alien has performed as
a religious worker on a compensated, full-time basis, the break did not
exceed two years, and the nature of the break was for further religious
training or for sabbatical and did not involve unauthorized work in the
United States.
The proposed rule also clarifies that qualifying prior experience
(that is, during the two years immediately preceding the petition or
preceding any acceptable interruption of religious work) acquired in
the United States must have been authorized under United States
immigration law and in conformity with all other laws of the United
States such as the Fair Labor Standards Act of 1938, 29 U.S.C. 201 et
seq., 52 Stat 1060, as amended. If the alien was employed in the United
States during the two years immediately preceding the filing of the
application, the petitioner must submit the alien's W-2 wage
statements, the employer's wage transmittal statements, and the
transcripts of the alien's processed income tax returns (IRS Form
4506T) for the preceding two years reflecting such work. Additionally,
the alien must have belonged to the same denomination as the petitioner
organization throughout the two years of qualifying employment. The
evidentiary requirements in the rule also will ensure that the tax laws
have been generally observed. Allowing periods of unauthorized,
unreported employment to qualify an alien toward
[[Page 20448]]
permanent immigration undermines the integrity of the United States
immigration system.
USCIS proposes to remove existing 8 CFR 204.5(m)(3)(iv), which
currently states that the director may request appropriate additional
evidence relating to the eligibility under section 203(b)(4) of the
Act, 8 U.S.C. 1153(b)(4), of the religious organization, the affiliated
organization, or the alien. This paragraph is unnecessary, since it
merely repeats general adjudicative procedures found in 8 CFR 103.2. A
similar provision has been stricken from the nonimmigrant religious
worker regulations.
F. Changes Unique to the Nonimmigrant Religious Worker Classification
To maintain consistency in the adjudication of the nonimmigrant and
special immigrant religious worker classifications, DHS has made
conforming changes to the nonimmigrant religious worker classification
(R visa category), where appropriate, to reflect the changes proposed
in the definitions and filing requirements for special immigrant
religious workers.
Some proposed requirements, such as the period of authorized stay,
are applicable only to the R visa category. Under current regulations,
the standard period of stay is three years (with one potential
extension of two years). USCIS proposes to change the standard period
of stay to one year (with two potential extensions of two years each).
An alien may apply for a one-year period of stay by filing the Form I-
129 and the R Classification Supplement with the required attestation
section completed and supporting documentation. This one-year admission
runs from the date of initial admission in order to provide the alien
the benefit of the full year and also to accommodate for any delay in
consular processing. An alien may apply for additional periods of stay
by filing the Form I-129 with USCIS and through demonstration of the
alien's compensation by the approved employer in a manner that assures
compliance with tax policies and provides better assurance to USCIS
that the required employment relationship truly exists. Any request for
R-1 status, admission beyond the first year of R-1 status, or any
period of extension of stay, must include initial evidence of the
previous R-1 employment in the form of the alien's W-2 wage statements,
the employer's wage transmittal statements, and transcripts of the
alien's processed income tax returns (IRS Form 4506T) for any preceding
period spent in the United States in R-1 status. For any period of such
employment not yet reflected in documents, such as W-2s, wage
transmittal statements or income tax returns, required to be completed
or filed at the time of filing the petition, then pay stubs relating to
payment for such employment shall also be presented for work not yet
reflected in such documents. Aliens who have taken a vow of poverty or
similar formal lifetime commitment to a religious way of life may
submit evidence of such commitment in lieu of the above documentary
requirements, but must also submit evidence of all financial support
(including stipends, room and board, or other forms of support)
received while in R-1 status.
The proposed rule will require that every petition for R-1
classification must be initiated by filing a Form I-129 with USCIS.
Beneficiaries will no longer be able to obtain an R-1 visa or status at
a United States Consulate abroad or at a port-of-entry without the
prior approval of the Form I-129 by USCIS. Visa-exempt aliens will
present the USCIS approval of the Form I-129 at the port-of-entry when
applying for admission in R-1 status. Only a prospective or existing
employer can complete and file the Form I-129, and the employer must
notify USCIS when the individual on an R-1 visa has been released from
his or her employment or is no longer working the minimally required
hours.
DHS is proposing to exempt from the five-year maximum stay certain
aliens whose work in the United States is intermittent or seasonal. DHS
requests comments on the need for this exemption in the religious
worker context. Lastly, the existing rule is clarified to allow R-2
spouses and children to remain in the United States for the same time
limits as the principal alien. Nevertheless, as with any dependent
nonimmigrant status, the primary purpose of the spouse or child must be
to join or accompany the principal R-1 alien in the United States.
USCIS may limit, deny or revoke on notice any stay for an R-2 that is
not primarily intended for that purpose or is intended to evade the
normal requirements of the nonimmigrant classification that otherwise
would apply when the principal alien is absent from the United States.
An R-1 alien may not use occasional work visits to the United States in
order to ``park'' the R-2 family members in the United States for
extended periods while the principal alien is absent.
IV. Regulatory Requirements
A. Regulatory Flexibility Act
USCIS has reviewed this regulation in accordance with the
Regulatory Flexibility Act (5 U.S.C. 605(b)). USCIS is not able at this
time to certify this rule will not have a significant economic impact
on a substantial number of small entities. This proposed rule amends
existing regulations pertaining to the special immigrant and
nonimmigrant religious worker classifications and also is designed to
address fraud in, and ensure the integrity of, the religious worker
program. This rule affects only those religious organizations and bona
fide organizations affiliated with a religious denomination (which may
include educational institutions, hospitals, and private foundations)
that are seeking to classify an alien as a nonimmigrant religious
worker or special immigrant religious worker. DHS estimates that USCIS
likely will receive approximately 22,338 petitions filed annually from
such organizations and that in most instances, such organizations would
be considered ``small entities'' as that term is defined under 5 U.S.C.
601. The 22,338 figure is derived from the total number of Forms I-360
and I-129 religious worker petition filings in the prior fiscal year
(4,617 Form I-360s and 5,939 Form I-129s filed for change of status or
extension of stay of R-1 nonimmigrants), plus 11,782 visas issued by
the Department of State for initial R-1 nonimmigrant visas, which USCIS
projected will be the number of new petitions it will see for the R-1
nonimmigrant category in light of the new petition requirement for that
classification. The 22,338 figure, however, does not take into account
petitioning organizations that file petitions for several potential
religious workers. Further, there are no available statistics on the
total number of religious organizations and affiliated bona fide
organizations that may exist in the United States and of that the
number the percentage of organizations that ultimately may seek to hire
a foreign national to perform work in a religious occupation or
vocation. The Department, therefore, seeks comments on the extent of
any potential economic impact of this rule on small entities.
USCIS recognizes that there will be certain additional costs and
burdens on the religious organizations and bona fide organizations
affiliated with a religious denomination due to the new petitioning
requirement for R-1 nonimmigrants. The estimated costs and benefits are
described in detail in the Executive Order 12866 section below.
[[Page 20449]]
Even assuming that the number of petition filings remains constant
annually and projecting that approximately 15,637 (70% of the 22,338
petitions) individual organizations will seek religious workers, USCIS
has determined that the total costs to a religious or affiliated bona
fide organization of for a religious worker petition ($190) would
represent a small percentage of the organization's total annual wage
cost for the beneficiary of the religious worker petition (depending on
the type of worker sought and assuming, for purposes of this analysis,
that the position is salaried). USCIS also projects that the petition
cost would be an even smaller percentage of the petitioning
organization's overall operating budget. These percentages were
calculated based on Bureau of Labor Statistics indicating national
average wages for the private sector ($17.25/hour), religious workers
($11.41/hour), Directors of Religious Activities/Education ($16.41/
hour), and clergy ($19.23/hour) and based on the standard 35 hours per
week for a full-time worker for a full year. Finally, petitioning
organizations will have an additional burden in terms of time needed to
complete attestation and certification requirements related to the
organization's tax exempt status and the potential religious worker's
qualifications and to collect and submit additional information related
to the employer's tax exempt status and an attestation regarding the
potential religious worker's qualifications and duties, etc. USCIS
anticipates, however, that most of this information will be readily
available to the organization. Thus, any impact on religious or
affiliated organizations or individuals to comply with these
requirements should be minimal.
Additionally, USCIS recognizes that many religious organizations
will be required to pay a user fee to the IRS to acquire a currently
valid determination letter of their IRC section 501(c)(3) status. IRS
Forms 1023 and 8718 (rev. June 2006). Very small organizations with
gross revenues of not more than $10,000 may be charged a fee of $300 by
the IRS to determine their current 501(c)(3) status. Organizations with
gross receipts in excess of $10,000 during the previous four years or
anticipating gross receipts averaging more than $10,000 during the
first four years, may be charged a fee of $750 by the IRS to determine
their current 501(c)(3) status. USCIS does not currently possess
sufficient information to determine which organizations would fall into
each category or otherwise not be required to pay such a fee.
Accordingly, DHS invites comments on the scope of these costs and more
accurate means for defining these costs. Again, DHS invites comments on
ways that a religious organization could demonstrate that they meet the
requirements without providing a 501(c)(3) letter, but without USCIS
being required to analyze sizeable paperwork to verify the status.
USCIS is also pursuing alternative avenues of verification directly
with the IRS.
Considering the importance of preventing fraud in the religious
worker program and of ensuring that only legitimate religious
organizations and bona fide affiliated organizations participate in the
process, DHS believes that this proposed rule will have a positive
impact overall. USCIS anticipates a net reduction of many of the
adjudicative resources that might be expended in determining whether a
religious worker petition involves potential fraud or
misrepresentations. USCIS, however, specifically invites public comment
on the estimated cost to petitioning religious organizations and bona
fide organizations affiliated with a religious denomination to comply
with the new religious worker petition requirements and prepare for the
on-site inspections.
B. Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by state, local, and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
C. Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 804 of the
Small Business Regulatory Enforcement Act of 1996. This rule will not
result in an annual effect on the economy of $100 million or more; a
major increase in costs or prices; or significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.
D. Executive Order 12866 (Regulatory Planning and Review)
This rule is considered by the Department of Homeland Security to
be a ``significant regulatory action'' under Executive Order 12866,
section 3(f), Regulatory Planning and Review. Accordingly, this
regulation has been submitted to the Office of Management and Budget
for review.
Assessment of the Costs
This proposed rule amends existing regulations pertaining to the
special immigrant and nonimmigrant religious worker classifications.
For fiscal year 2005, 3,230 individual organizations filed 4,617
petitions with USCIS seeking special immigrant religious workers. Also,
5,939 petitions were filed with USCIS for extensions and changes of
status for R-1 nonimmigrant religious workers. Not all of these R-1
petitions represent filings by a single religious organization or bona
fide organization affiliated with a religious denomination. These
figures also do not account for instances where a single religious
organization or affiliated bona fide organization filed petitions for
several potential religious workers.
Currently, there is no petition requirement for religious
organizations or bona fide affiliated organizations initially seeking a
nonimmigrant religious worker. To estimate the number of organizations
that may be affected by the new petition requirement for the
nonimmigrant religious worker classification (R-1), USCIS looked at the
number of nonimmigrant visas that were issued by the Department of
State for religious workers in 2004. Department of State issued 11,782
visas for 2004; however, this number does not exclude those aliens who
potentially have multiple visas or those aliens who were previously in
R-1 nonimmigrant status and received extension of their status by
obtaining a new visa and reentering the United States (rather than
seeking an extension while in the United States).
Assuming the number of religious worker petitions filed annually
and the number of religious or affiliated organizations seeking workers
remain constant, DHS projects that approximately 15,637 individual
organizations will seek religious workers each fiscal year. This
projection is based on the percentage of religious organizations and
bona fide affiliated organizations that sought special immigrant
religious workers in FY 2005 (70%) applied against the total population
of projected annual petition filings of 22,338. In order to
differentiate the amount attributed to each form associated with the
Religious Worker program (Form I-129 and I-360) the following figures
will be used to estimate costs and burden hours for
[[Page 20450]]
each form. Based on the percentage of religious organizations and bona
fide affiliated organizations that sought special immigrant religious
workers in FY 2005 (70%) applied against the population of projected
annual petition filings for the Form I-129, DHS estimates that there
will be approximately 12,407 (17,721 x 70%) Form I-129 filings for the
nonimmigrant religious worker, and 3,230 (4,617 x 70%) for the Form I-
360 which comprises the total 15,637 (22,338 x 70%) total projected
filings for both forms.
The current fees for the Form I-129, Petition for Nonimmigrant
Worker, and the Form I-360, Petition for Amerasian, Widow(er), or
Special Immigrant are $190. USCIS is proposing to modify these fees in
a separate rule. USCIS already has an approved information collection
for the Form I-129, OMB 1615-0009, and Form I-360, OMB 1615-0020.
Petitioning organizations are required to submit additional initial
evidence related to their tax-exempt status and an attestation
regarding the potential religious worker's qualifications and duties,
etc. Information collection costs, therefore, are increased by these
requirements, which would increase the existing information collection
burden by roughly 15 minutes per respondent for the new attestation for
both the Form I-129 and the Form I-360. If there are 15,637
respondents, this increases the information collection burden by
approximately 3,908 hours, which at $16 per hour increases public costs
by $62,528. DHS estimates that the Form I-129 will have 12,407 of the
15,637 estimates filings which would be an increase in information
collection burden by approximately 3,101 hours for the attestation
which at $16 per hour increases the public costs for the Form I-129 by
$49,616. DHS estimates that the Form I-360 will have 3,230 of the
15,637 estimates filings (based on the FY05 filings stated earlier)
which would be an increase in information collection burden by
approximately 807 hours which at $16 per hour increases the public
costs for the Form I-360 by $12,912. The total cost of petitioning
under this proposed rule is estimated to be $6,510,103. ($5,165,373 for
the Form I-129 and $1,344,730 for the Form I-360). In addition, changes
in filing requirements will increase the frequency of filings for
extensions or changes of status over a five-year period, increasing the
total costs to the public to $6,665,503.
In addition, several respondents are expected to pay the fee
required under Internal Revenue Regulations of ($750) for obtaining a
section 501(c)(3) status determination letter from that agency. Since
this is a new requirement, USCIS has no data on which to base an
estimate of how many will be required to resort to this course of
action. The agency has anecdotal stories from adjudications and other
programs indicating that these letters are regularly lost or destroyed,
and the existence of the IRS form points to its eventuality.
Nonetheless, even assuming that all 15,637 religious worker petitions
expected to be received per year are required to pay this fee, the
total cost of such requests would be under $12 million. USCIS feels
that the actual number will be much less and welcomes comments on this
impact.
Together the total cost of these proposed changes are estimated to
be $18,393,253, which remains well below the threshold of an
economically significant rule as provided by the Executive Order.
Assessment of Benefits
The cost of the proposed rule's increased information collection is
outweighed by the overall benefit to the public of an improved system
for processing religious workers.
The proposed rule is a vital tool in furthering the protection of
the public by (1) more clearly defining the requirements and process by
which religious workers may gain admission to the United States, and
(2) increasing the ability of DHS to deter or detect fraudulent
petitions and to investigate and refer matters for prosecution. A
recent assessment by the USCIS Office of Fraud Detection and National
Security confirmed that there was a high percentage of fraud in the
religious worker program. Through this statistically valid sample of I-
360 religious worker petitions, FDNS established that a significant
number of petitions filed on behalf of religious workers were filed by
nonexistent organizations and/or contained material misrepresentations
in the documentation submitted to establish eligibility. The benefits
of decreased fraud and increased national security tend to be
intangible, thus, the benefits of such reduction in the high level of
fraud in this program are difficult to quantify. On the other hand, the
lack of such protections become quite tangible as soon as the lack of
protections such as those proposed in this rule are manifested in the
tangible economic or societal damage caused by a recipient of a
fraudulent religious worker visa. The changes to the petition
requirements for all religious workers as well as other program
enhancements, such as a possible on-site inspection, are intended to
increase detection of fraudulent petitions in this category and
increase the ability of DHS to monitor that the eligible alien
maintains status during their stay as valued guests in this country.
This rule amends requirements for the special immigrant and
nonimmigrant religious worker visa classifications. It will not
significantly change the number of persons who immigrate to the United
States based on employment-based petitions or temporarily visit based
on a nonimmigrant visa petition. This rule is intended to benefit the
public by clarifying definitions associated with the religious worker
classifications, acceptable evidence, and specific religious worker
qualification requirements. Balanced against the costs and the
requirements to collect information, the burden imposed by the proposed
rule appears to USCIS to be justified by the benefits.
E. Executive Order 13132 (Federalism)
This rule will not have substantial direct effects on the States,
on the relationship between the National Government and the States, or
on the distribution of power and responsibilities among the various
levels of government. Therefore, in accordance with section 6 of
Executive Order 13132, it is determined that this rule does not have
sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.
F. Executive Order 12988 (Civil Justice Reform)
This rule meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of Executive Order 12988.
G. Paperwork Reduction Act
Any prospective employer must file a Form I-129, Petition for
Nonimmigrant Worker, or Form I-360, Petition for Amerasian, Widow(er),
or Special Immigrant seeking to classify an alien as a religious worker
under sections 101(a)(15)(R) and (27)(C) of the Act. The Forms I-129
and I-360 are considered information collections under the Paperwork
Reduction Act (PRA). The Office of Management and Budget (OMB) has
previously approved both the Forms I-129 and I-360 for use. The OMB
control numbers for these collections for the Form I-129 is OMB 1615-
0009 and for the Form I-360 is OMB 1615-0020.
This proposed rule extends the number of respondents for Form I-129
and adds new information collections with respect to evidentiary
attestations
[[Page 20451]]
for both the Form I-129 and Form I-360. These requirements are
considered information collections subject to review by OMB under the
Paperwork Reduction Act of 1995. Written comments are encouraged and
will be accepted until June 25, 2007. When submitting comments on the
information collection, your comments should address one or more of the
following four points.
(1) Evaluate whether the collection of information is necessary for
the proper performance of the functions of the agency, including
whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of
the collection of information, including the validity of the
methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to
be collected; and
(4) Minimize the burden of the collection of the information on
those who are to respond, including through the use of any and all
appropriate automated, electronic, mechanical, or other technological
collection techniques or other forms of information technology, e.g.,
permitting electronic submission of responses.
Overview of Information Collection for Attestation in the Form I-129
(1) Type of information collection: Revision of currently approved
collections.
(2) Title of Form/Collection: I-129, Petition for a Nonimmigrant
Worker/Evidentiary requirements; religious worker.
(3) Agency form number, if any, and the applicable component of the
Department of Homeland Security sponsoring the collection: Form I-129,
U.S. Citizenship and Immigration Services.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Individuals. The information collection is
necessary in order for USCIS to make a determination whether the
prospective employer is a bona fide non-profit religious organization
or a bona fide organization which is affiliated with the religious
denomination, that the job offer is legitimate, that the beneficiary
qualifies for the classification sought, and that the employer is
providing compensation in compliance with the Internal Revenue Code.
(5) An estimate of the total number of respondents and the amount
of time estimated for an average respondent to respond to the new
requirements: 381,355 respondents at 3 hours per response. In addition,
the on-site inspection is estimated to be an additional 65 minutes for
each religious organization (12,407 respondents).
(6) An estimate of the total of public burden (in hours) associated
with the collection: Total reporting burden hours is 1,157,501.
All comments and suggestions or questions regarding additional
information should be directed to the Department of Homeland Security,
U.S. Citizenship and Immigration Services, Regulatory Management
Division, 111 Massachusetts Avenue, NW., 3rd Floor, Washington, DC
20529; Attention: Richard A. Sloan, Director, 202-272-8377.
Overview of Information Collection for Attestation in the Form I-360
(1) Type of information collection: Revision of currently approved
collections.
(2) Title of Form/Collection: Form I-360 Petition for Amerasian,
Widow(er), or Special Immigrant /Evidentiary requirements; religious
worker.
(3) Agency form number, if any, and the applicable component of the
Department of Homeland Security sponsoring the collection: Form I-360,
U.S. Citizenship and Immigration Services.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Individuals. The information collection is
necessary in order for USCIS to make a determination whether the
prospective employer is a bona fide non-profit religious organization
or a bona fide organization which is affiliated with the religious
denomination, that the job offer is legitimate, that the beneficiary
qualifies for the classification sought, and that the employer is
providing compensation in compliance with the Internal Revenue Code.
(5) An estimate of the total number of respondents and the amount
of time estimated for an average respondent to respond to the new
requirements: 16,914 respondents at 2.25 hours per response.
(6) An estimate of the total of public burden (in hours) associated
with the collection: Total reporting burden hours is 41,554.
All comments and suggestions or questions regarding additional
information should be directed to the Department of Homeland Security,
U.S. Citizenship and Immigration Services, Regulatory Management
Division, 111 Massachusetts Avenue, NW., 3rd Floor, Washington, DC
20529; Attention: Richard A. Sloan, Director, 202-272-8377.
List of Subjects
8 CFR Part 204
Administrative practice and procedure, Immigration, Reporting and
recordkeeping requirements.
8 CFR Part 214
Administrative practice and procedure, Aliens, Employment, Foreign
officials, Health professions, Reporting and recordkeeping
requirements, Students.
8 CFR Part 299
Immigration, Reporting and recordkeeping requirements.
Accordingly, chapter I of title 8 of the Code of Federal
Regulations is proposed to be amended as follows:
PART 204--IMMIGRANT PETITIONS
1. The authority citation for part 204 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1151, 1153, 1154, 1182, 1186a,
1255, 1641; 8 CFR part 2.
2. Section 204.5 is amended by revising paragraph (m) to read as
follows:
Sec. 204.5 Petitions for employment-based immigrants.
* * * * *
(m) Religious workers. (1) Any prospective employer may file a Form
I-360, Petition for Amerasian, Widow(er), or Special Immigrant visa
petition, on behalf of an alien for classification under section
203(b)(4) of the Act as a section 101(a)(27)(C) of the Act special
immigrant religious worker. Such a petition may be filed for an alien
who (either abroad or in the United States) for at least the two years
immediately preceding the filing of the petition has been a member of a
religious denomination that has a bona fide nonprofit religious
organization in the United States. The alien must be coming to the
United States solely for the purpose of working, on a compensated,
full-time basis, in one of the following capacities:
(i) The vocation of a minister of that religious denomination; or
(ii) A religious vocation; or
(iii) A religious occupation.
(2) The alien also must be coming to work for a bona fide nonprofit
religious organization in the United States, or a bona fide
organization which is affiliated with the religious denomination and is
exempt from taxation as an organization described in section 501(c)(3)
of the Internal Revenue Code of 1986 or subsequent amendment, at the
request of the organization to fulfill a reasonable need of the
[[Page 20452]]
organization. All three types of religious workers must have been
performing, on a compensated, full-time but not necessarily exclusive
basis, as a minister or in a religious vocation or occupation in the
denomination continuously for at least the two-year period immediately
preceding the filing of the petition. A full-time position is
considered to be 35 hours per week. The prior religious work may be
either abroad or in lawful immigration status in the United States, and
must have occurred after the age of 14 years. The prior religious work
need not correspond precisely to the type of work to be performed; for
instance, a former minister may immigrate to work as a missionary, and
a former missionary, now ordained, may immigrate to work as a minister.
(3) A break in the continuity of the required religious work during
the two years immediately preceding the filing of the petition will not
affect eligibility so long as:
(i) The alien was still employed as a religious worker on a
compensated, full-time basis,
(ii) The break did not exceed two years, and
(iii) The nature of the break was for further religious training or
for sabbatical that did not involve unauthorized work in the United
States. However, the alien must have been a member of the petitioner's
denomination throughout the two years of qualifying employment.
(4) Definitions. As used in this paragraph (m) the term:
Bona fide nonprofit religious organization in the United States
means a religious organization exempt from taxation as described in
section 501(c)(3) of the Internal Revenue Code of 1986, as a religious
organization and possessing a currently valid determination letter from
the IRS confirming such exemption. A church must petition as a bona
fide nonprofit religious organization and may not petition as a bona
fide organization that is affiliated with an organization as a means to
avoid the evidentiary requirements applicable to churches.
Bona fide organization which is affiliated with the religious
denomination means an organization which is closely associated with and
routinely and substantially acts to further the religious goals of the
religious denomination, as attested to by a bona fide nonprofit
religious organization in the United States within the denomination.
The bona fide nonprofit religious organization attesting to the
petitioning organization's affiliation must be exempt from taxation as
described in section 501(c)(3) of the Internal Revenue Code of 1986,
and as evidenced by a currently valid determination letter from the IRS
confirming the bona fide nonprofit religious organization's exemption.
``Affiliation'' for this particular purpose does not require legal
relationship in the form of ownership or control by the denomination or
by religious organizations within the denomination, but it does require
a solid and public commitment by the affiliated organization to the
tenets of the religious denomination.
Denominational membership means membership during at least the two-
year period immediately preceding the filing date of the petition, in
the same type of religious denomination as the United States religious
organization where the alien will be employed. Membership in religious
denominations, including interdenominational organizations, sharing
forms of government and worship, creeds, and disciplinary practices may
be sufficient to show denominational membership. The denominational
membership requirement shall be interpreted in a manner to allow
qualification of persons who have demonstrated a sincere commitment to
the religious faith of the United States organization of employment,
and to prevent qualification by persons who may have taken on the faith
of the United States organization for purposes of facilitating
eligibility for United States immigrant or nonimmigrant status.
Minister means an individual duly authorized by a religious
denomination, and fully trained according to the denomination's
standards, to conduct religious worship and to perform other duties
usually performed by authorized members of the clergy of that
denomination. The term does not include a lay preacher or a person not
authorized to perform such duties. In all cases, there must be a
rational relationship between the activities performed and the
religious calling of the minister. The minister must also intend to
work solely as a minister in the United States, but the performance of
administrative duties incident to the predominant, essentially
religious duties does not exclude one from the definition of minister.
Religious denomination means a religious group or community of
believers governed or administered under a common type of
ecclesiastical government. Members of a denomination must share a
recognized common creed or statement of faith, a common form of
worship, a common formal code of doctrine and discipline, religious
services and ceremonies, common established places of religious
worship, religious congregations, or comparable indicia of a bona fide
religious denomination. For the purposes of this definition, religious
organizations that are recognized as tax exempt under a group tax
exemption issued pursuant to section 501(c)(3) of the Internal Revenue
Code of 1986, as a religious organization will be presumed to belong to
the same religious denomination, but such official affiliation is not
necessary for denominational membership.
Religious occupation means habitual employment in an occupation the
duties of which primarily relate to a traditional religious function
and which is recognized as a compensated religious occupation within
the denomination. The duties of the position must be primarily,
directly and substantively related to, and must clearly involve
inculcating or carrying out the religious creed and/or beliefs of the
denomination. The position must be traditionally recognized by the
religious organization or similar organizations as a compensated
occupation within the denomination. A religious occupation, in contrast
to a vocation, must be salaried, or otherwise compensated by stipend,
room and board, or other support that is reflected in an alien's W-2,
wage transmittal statements, or income tax returns. Examples of
occupations that can qualify as a religious occupation include
liturgical workers, religious instructors, religious counselors,
cantors, catechists, missionaries, religious translators, religious
broadcasters, youth ministers, religious choir directors or music
ministers, or ritual slaughter supervisors. ``Religious occupation''
does not include positions whose duties are primarily administrative or
supportive in nature, and any administrative duties must be incident to
the substantive, traditionally religious functions. Examples of non-
qualifying administrative and support positions include, but are not
limited to: janitors; maintenance workers; clerks; secretaries; fund
raisers; secular musicians; secular translators; those who sell
literature, volunteer as ushers during worship services, serve in the
choir, volunteer part-time to assist the clergy or teach religion
classes; or similar persons engaged in primarily secular,
administrative or support duties. It is expected that members of
religious organizations volunteer their time even in traditionally
religious functions, and immigration status will not be conferred to
lay persons who have arranged to be paid for
[[Page 20453]]
traditionally volunteer work in order to obtain immigration status.
Religious study or training for religious work does not constitute
religious work, but a religious worker may pursue study or training
incident to status. For nonimmigrant purposes, prior experience or
training is not required, the petition must demonstrate that the alien
truly intends to take up the described religious occupation, and the
position must require at least 20 hours per week of compensated
service. For immigrant petitions only, the position offered must be
permanent and full-time, and the alien's experience in the preceding
years must have been full-time. Full-time is considered to be 35 hours
per week.
Religious vocation means a formal lifetime commitment to a
religious way of life. There must be evidence that the religious
denomination has a traditional established class of individuals whose
lives are dedicated to religious practices and functions, as
distinguished from the secular members of the religion. It requires
that the individual make a formal lifetime commitment through vows, or
other investitures or ceremonies, to this class of individuals and
religious way of life. Examples of individuals with a religious
vocation include, but are not limited to nuns, monks, and religious
brothers and sisters.
Religious worker means an individual engaged in and, according to
the denomination's standards, qualified for a religious occupation or
vocation, whether or not in a professional capacity. Such individuals
may work in a religious vocation if they have made a formal lifetime
commitment to a religious way of life and in a religious occupation if
the duties predominantly involve traditional religious functions.
(5) Form and filing requirements. The Form I-360, Petition for
Amerasian, Widow(er), or Special Immigrant, along with the fee
specified in 8 CFR 103.7(b)(1), and supporting evidence must be filed
at the appropriate USCIS service center. Such a petition must be filed
by the prospective United States employer on behalf of an alien who is
either abroad or in the United States. After the date stated in section
101(a)(27)(C) of the Act (as amended), immigration or adjustment of
status on the basis of this section is limited solely to ministers of
religion.
(6) Attestation. The Form I-360 contains an attestation section
which an authorized official of the prospective employer must complete,
sign and date. The term ``prospective employer'' refers to the
organization or institution where the alien will be performing the
proffered duties. The attestation includes a statement which certifies
under penalty of perjury that the contents of the attestation are true
and correct to the best of his or her knowledge. This attestation must
be submitted by the prospective employer along with the petition. In
the Form I-360, the prospective employer must specifically attest to
the following:
(i) That the prospective employer is a bona fide non-profit
religious organization or a bona fide organization which is affiliated
with the religious denomination and is exempt from taxation in
accordance with section 501(c)(3) of the Internal Revenue Code of 1986;
(ii) The number of members of the prospective employer's
organization, the number and positions (with brief descriptions) of
employees in the prospective employer's organization, the number of
aliens holding R visa status currently employed or employed within the
past five years by the prospective employer's organization, and the
number of special immigrant religious worker and R visa petitions and
applications filed by or on behalf of any aliens to be employed as
ministers or religious workers for the prospective employer in the past
five years;
(iii) The title of the position offered to the alien, the complete
package of compensation being offered and a detailed description of the
alien's proposed daily duties;
(iv) That the alien will be employed at least 35 hours per week and
such services are needed on a full-time basis;
(v) The specific location(s) of the proposed employment;
(vi) That the alien has worked as a compensated, full-time
religious worker for the two years immediately preceding the filing of
the application and is otherwise qualified for the position offered;
(vii) That the alien has been a member of the denomination for at
least two years immediately preceding the filing of the application;
(viii) That the alien will not be engaged in secular employment,
and any compensation for religious work will be paid to the alien by
the attesting employer;
(ix) That the prospective employer has the ability and intention to
compensate the alien at a level at which the alien and accompanying
family members will not become a public charge, and that funds to pay
the alien's compensation do not include any monies obtained from the
alien, excluding reasonable donations or tithing to the religious
organization, and that the petitioner will notify USCIS of any changes
to the alien's employment; and
(7) Evidence relating to the petitioning organization. A petition
shall include the following initial evidence relating to the
petitioning organization:
(i) A currently valid determination letter from the Internal
Revenue Service (IRS) showing that the organization is exempt from
taxation in accordance with section 501(c)(3) of the Internal Revenue
Code of 1986, as a religious organization; or
(ii) For religious organizations that are recognized as tax exempt
under a group tax exemption, a currently valid determination letter
from the IRS establishing that the group is an organization as
described in sections 509(a)(1) of the Internal Revenue Code of 1986,
and that the group's tax exemption is in accordance with section
501(c)(3) of the Internal Revenue Code of 1986, as a religious
organization; or
(iii) For a bona fide organization which is affiliated with the
religious denomination, if the organization was granted a section
501(c)(3) exemption as something other than a religious organization:
(A) A currently valid determination letter from the IRS showing
that the organization is exempt from taxation in accordance with
section 501(c)(3) of the Internal Revenue Code of 1986, not necessarily
as a religious organization;
(B) 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;
(C) Organizational literature, such as brochures, calendars, flyers
and other literature describing the religious purpose and nature of the
activities of the organization;
(D) A Religious Denomination Certification. The Form I-360 contains
a ``Religious Denomination Certification'' section which the petitioner
must have the attesting religious organization complete, sign and date.
The ``Religious Denomination Certification'' includes a statement
certifying under penalty of perjury that the petitioning organization
is affiliated with the religious denomination. The certification must
be submitted by the petitioner along with the petition and attestation;
and
(E) A currently valid determination letter from the IRS evidencing
that the attesting organization is exempt from taxation in accordance
with section 501(c)(3) of the Internal Revenue Code of 1986, as a
religious organization.
(8) Evidence relating to the qualifications of a minister. If the
alien is a minister, the petitioner must submit
[[Page 20454]]
as initial evidence a copy of the alien's certificate of ordination or
similar documents reflecting acceptance of the alien's qualifications
as a minister in the religious denomination, as well as evidence that
the alien has completed any course of prescribed theological education
at an accredited theological institution normally required or
recognized by that religious denomination, including transcripts,
curriculum, and documentation that establishes that the theological
institution is accredited by the denomination. For denominations that
do not require a prescribed theological education, the petitioner must
submit evidence of the denomination's requirements for ordination to
minister, evidence of the duties allowed to be performed by virtue of
ordination, evidence of the denomination's gradations of ordination, if
any, and evidence of the alien's completion of the denomination's
requirements for ordination.
(9) Evidence relating to the alien's prior employment. Initial
evidence must include evidence of the alien's prior religious
employment. If the alien was employed in the United States during the
two years immediately preceding the filing of the application, the
petitioner must submit the alien's W-2 wage statements, the employer's
wage transmittal statements, and the transcripts of the alien's
processed income tax returns for the preceding two years reflecting
such work. If more than six months of such employment is not yet
reflected in the documents such as W-2s, wage transmittal statements or
income tax returns required to be completed or filed at the time of
filing the petition, then pay stubs relating to payment for such
employment shall also be presented for work not yet reflected in such
documents. If the alien was employed outside the United States during
such two years, the petitioner must submit comparable evidence of
compensation and religious work. Aliens who have taken a vow of poverty
or similar formal lifetime commitment to a religious way of life may
submit evidence of such commitment in lieu of the above documentary
requirements, but must also submit evidence of all financial support
(including stipends, room and board, or other support) received in the
preceding two years. Qualifying prior experience (that is, during the
two years immediately preceding the petition or preceding any
acceptable break in the continuity of the religious work) must have
occurred after the age of 14, and, if acquired in the United States,
must have been authorized under United States immigration law.
(10) Audits, inspections, assessment, verification, spot checks,
and site visits. The supporting evidence submitted may be verified by
USCIS through any means determined appropriate by USCIS, up to and
including an on-site inspection of the petitioning organization. The
inspection may include a tour of the organization's facilities, an
interview with the organization's officials, a review of selected
organization records relating to compliance with immigration laws and
regulations, and an interview with any other individuals or review of
any other records that the USCIS considers pertinent to the integrity
of the organization. An inspection may include the organization
headquarters, or satellite locations, or the work locations planned for
the applicable employee. If USCIS decides to conduct a pre-approval
inspection, satisfactory completion of such inspection will be a
condition for approval of any petition.
* * * * *
PART 214--NONIMMIGRANT CLASSES
3. The authority citation for part 214 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1185 (pursuant
to E.O. 13323, 69 FR 241, 3 CFR, 2003 Comp., p. 278), 1186a, 1187,
1221, 1281, 1282, 1301-1305, 1372, 1379, 1731-32; section 643, Pub.
L. 104-208, 110 Stat. 3009-708; section 141 of the Compacts of Free
Association with the Federated States of Micronesia and the Republic
of the Marshall Islands, and with the Government of Palau, 48 U.S.C.
1901 note, and 1931 note, respectively, 8 CFR part 2.
4. Section 214.2 is amended by revising paragraph (r) to read as
follows:
Sec. 214.2 Special requirements for admission, extension, and
maintenance of status.
* * * * *
(r) Religious workers--(1) General. Under section 101(a)(15)(R) of
the Act, an alien who, for at least the two years immediately preceding
the time of application for admission, has been a member of a religious
denomination having a bona fide nonprofit religious organization in the
United States, may be admitted temporarily to the United States to
carry on the activities of a religious worker for a period not to
exceed five years. The alien must be coming to or remaining in the
United States solely for one of the following purposes:
(i) As an employee of a religious organization within the
denomination, or of a bona fide organization which is affiliated with
the religious denomination, at the request of the organization;
(ii) To carry on the vocation of a minister of the religious
denomination; or
(iii) To work in a religious vocation or occupation.
(2) An alien may work for more than one qualifying employer as long
as each qualifying employer submits the Form I-129 and R Classification
Supplement, and, where applicable, accompanying documentation,
submitted either in a single petition or through an additional
petition.
(3) Definitions. As used in this paragraph (r), as applicable to
the proposed employment and to the membership in the two years
preceding the filing of the petition, the definitions of terms set
forth at 8 CFR 204.5(m)(1), concerning immigrant religious workers,
shall apply to nonimmigrant religious workers.
(4) Requirements for admission/change of status; time limits--(i)
Principal applicant. If otherwise admissible, an alien who meets the
requirements of section 101(a)(15)(R) of the Act may be admitted as an
R-1 alien or changed to R-1 status for an initial period of up to one
year from date of initial admission. If visa-exempt, the alien must
present the original Notice of Action, Form I-797 approval notice (not
a copy), at the port of entry.
(ii) Spouse and children. The spouse and children of an R-1 alien
who are accompanying or following to join the principal may be accorded
R-2 status and admitted or have their R-2 status extended for the same
period of time and subject to the same limits as the principal,
regardless of the time such spouse and children may have spent in the
United States in R-2 status. Neither the spouse nor children may accept
employment while in the United States in R-2 status.
(iii) Extension of stay or readmission. An R-1 alien who is
maintaining status or is seeking readmission and who satisfies the
eligibility requirements of this section may be granted an extension of
R-1 stay or readmission in R-1 status for the validity period of the
petition, up to 2 years, provided the total period of time spent in R-1
status does not exceed a maximum of five years. A petition for an
extension of R-1 status must be filed by the United States employer on
Form I-129, Petition for a Nonimmigrant Worker, along with the R
Classification Supplement containing the attestation, the fee specified
in 8 CFR 103.7(b)(1), and the supporting evidence, at the appropriate
USCIS service center.
(iv) Limitation on total stay. An alien who has spent five years in
the United
[[Page 20455]]
States under section 101(a)(15)(R) of the Act may not be readmitted to,
or receive extension of stay in, the United States under the R visa
classification unless the alien has resided abroad and been physically
present outside the United States for the immediate prior year. The
limitations in this paragraph shall not apply to R-1 aliens who did not
reside continually in the United States and whose employment in the
United States was seasonal or intermittent or was for an aggregate of
six months or less per year. In addition, the limitations shall not
apply to aliens who reside abroad and regularly commute to the United
States to engage in part-time employment. To qualify for this
exception, the petitioner and the alien must provide clear and
convincing proof that the alien qualifies for such an exception. Such
proof shall consist of evidence such as arrival and departure records,
transcripts of processed income tax returns, and records of employment
abroad. The primary purpose of the spouse or child must be to join or
accompany the principal R-1 alien in the United States. USCIS may
limit, deny or revoke on notice any stay for an R-2 that is not
primarily intended for this purpose or is intended to evade the normal
requirements of the nonimmigrant classification that otherwise would
apply when the principal alien is absent from the United States.
(5) Jurisdiction and procedures for obtaining R-1 status. A
petitioner seeking to classify an alien as a religious worker, by
initial petition or by change of status, shall file a petition on Form
I-129, Petition for a Nonimmigrant Worker, along with the R
Classification Supplement containing the attestation, the fee specified
in 8 CFR 103.7(b)(1), and supporting evidence, at the appropriate USCIS
service center. The Form I-129, Petition for a Nonimmigrant Worker,
must be submitted by the employer in the United States seeking to
employ the religious worker.
(6) Attestation. The Form I-129, Petition for a Nonimmigrant
Worker, contains an attestation section in the R Classification
Supplement, which the authorized official of the prospective employer
must complete, sign and date. The term ``prospective employer'' refers
to the organization or institution where the alien will be performing
the proffered duties. The attestation includes a statement which
certifies under penalty of perjury that the contents of the attestation
are true and correct to the best of his or her knowledge. This
attestation must be submitted by the prospective employer along with
the petition. In the Form I-129 R Classification Supplement, the
prospective employer must specifically attest to the following:
(i) That the prospective employer is a bona fide non-profit
religious organization or a bona fide organization which is affiliated
with the religious denomination and is exempt from taxation in
accordance with section 501(c)(3) of the Internal Revenue Code of 1986;
(ii) The number of members of the prospective employer's
organization, the number and positions (with brief descriptions) of
employees in the prospective employer's organization, the number of
aliens holding R visa status currently employed or employed within the
past five years by the prospective employer's organization, and the
number of special immigrant religious worker and R visa petitions and
applications filed by or on behalf of any aliens to be employed as
ministers or religious workers for the prospective employer in the past
five years;
(iii) The title of the position offered to the alien, the complete
package of compensation being offered and a detailed description of the
alien's proposed daily duties;
(iv) That the position that the alien is being offered requires at
least 20 hours per week of compensated service;
(v) The specific location(s) of the proposed employment and that
the alien is otherwise qualified for the position offered;
(vi) That the alien has been a member of the denomination for at
least 2 years;
(vii) That, if the position is not a religious vocation, the alien
will not be engaged in secular employment, and any compensation for
religious work will be paid to the alien by the attesting employer,
(viii) That the prospective employer has the ability and intention
to compensate and otherwise support (through housing, for example) the
alien at a level at which the alien and accompanying family members
will not become public charges, and that funds to pay the alien's
compensation do not include any monies obtained from the alien,
excluding reasonable donations or tithing to the religious
organization; and
(ix) That the petitioner will notify USCIS of any changes to the
alien's employment and reapply by filing a new Form I-129 on behalf of
the alien within 60 days of the occurrence of any change.
(7) Evidence relating to the petitioning organization. The
petitioner must submit the following initial evidence relating to the
petitioning organization:
(i) A currently valid determination letter from the Internal
Revenue Service (IRS) showing that the organization is exempt from
taxation in accordance with section 501(c)(3) of the Internal Revenue
Code of 1986, as a religious organization; or
(ii) For religious organizations that are recognized as tax exempt
under a group tax exemption, a currently valid determination letter
from the IRS establishing that the group is an organization as
described in sections 509(a)(1) of the Internal Revenue Code of 1986 or
subsequent amendment, and that the group's tax exemption is in
accordance with section 501(c)(3) of the Internal Revenue Code of 1986,
as a religious organization; or
(iii) For a bona fide organization which is affiliated with the
religious denomination, if the organization was granted a section
501(c)(3) exemption as something other than a religious organization:
(A) A currently valid determination letter from the IRS showing
that the organization is exempt from taxation in accordance with
section 501(c)(3) of the Internal Revenue Code of 1986, (not
necessarily as a religious organization),
(B) 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,
(C) Organizational literature, such as brochures, calendars, flyers
and other literature describing the religious purpose and nature of the
activities of the organization, and
(D) A Religious Denomination Certification. The Form I-129 contains
a ``Religious Denomination Certification'' section which the petitioner
must have the attesting religious organization complete, sign and date.
The ``Religious Denomination Certification'' includes a statement
certifying under penalty of perjury that the petitioning organization
is affiliated with the religious denomination. The certification must
be submitted by the petitioner along with the petition and attestation.
(E) A currently valid determination IRS letter evidencing that the
attesting organization is exempt from taxation in accordance with
section 501(c)(3) of the Internal Revenue Code of 1986, as a religious
organization.
(8) Evidence relating to the qualifications of a minister. If the
alien is a minister, the petitioner must submit as initial evidence a
copy of the alien's certificate of ordination or similar documents
reflecting acceptance of the alien's qualifications as a minister in
the religious denomination, as well as evidence that the alien has
completed any course of prescribed theological
[[Page 20456]]
education at an accredited theological institution normally required or
recognized by that religious denomination, including transcripts,
curriculum, and documentation which establishes that the theological
education is accredited by the denomination. For denominations that do
not require a prescribed theological education, the petitioner must
submit evidence of the denomination's requirements for ordination to
minister, evidence of the duties allowed to be performed by virtue of
ordination, evidence of the denomination's gradations of ordination, if
any, and evidence of the alien's completion of the denomination's
requirements for ordination.
(9) Change or addition of employers; employer obligations. An alien
admitted in the R-1 classification shall engage only in employment that
is consistent with the approved petition, the attestation contained in
the supplement and supporting documents submitted to USCIS. A different
or additional employer seeking to employ the alien must obtain prior
approval of such employment through the filing of an additional Form I-
129, Petition for a Nonimmigrant Worker, with the R Classification
Supplement, supporting documents and the appropriate fee. Any
compensated work for an unauthorized religious organization will
constitute a failure to maintain status within the meaning of section
237(a)(1)(C)(i) of the Act. When an alien who has obtained R-1
classification is working less than the required number of hours or has
been released from or has otherwise terminated employment before the
expiration of a period of authorized R-1 stay, the employer through
whom R-1 classification has been obtained must notify DHS within 7 days
of such release or termination, using reporting procedures set forth in
the instructions to Form I-129, Petition for a Nonimmigrant Worker,
which can be found on the USCIS Internet Web site at http://www.uscis.gov.
(10) Evidence of previous R-1 employment. Any request for R-1
status, admission beyond the first year of R-1 status, or any period of
extension of stay, must include initial evidence of the previous R-1
employment in the form of the alien's W-2 wage statements, the
employer's wage transmittal statements, and transcripts of the alien's
processed income tax returns for any preceding period spent in the
United States in R-1 status. For any period of such employment not yet
reflected in the documents such as W-2s, wage transmittal statements or
income tax returns required to be completed or filed at the time of
filing the petition, then pay stubs relating to payment for such
employment shall be presented for work not yet reflected in such
documents. Aliens who have taken a vow of poverty or similar formal
lifetime commitment to a religious way of life may submit evidence of
such commitment in lieu of the above documentary requirements, but must
also submit evidence of all financial support (including stipends, room
and board, or other support) received while in R-1 status.
(11) Nonimmigrant intent. The filing or approval of a permanent
labor certification or the filing of a preference petition for an alien
shall not be a basis for denying an R petition, a request to extend
such a petition, or the alien's application for admission, change of
status, or extension of stay. The alien may legitimately come to the
United States for a temporary period as an R nonimmigrant and depart
voluntarily at the end of his or her authorized stay and, at the same
time, lawfully seek to become a permanent resident of the United
States.
(12) Audits, inspections, assessment, verification, spot checks,
and site visits. The supporting evidence submitted may be verified by
USCIS through any means determined appropriate by USCIS, up to and
including an on-site inspection of the petitioning organization. The
inspection may include a tour of the organization's facilities, an
interview with the organization's officials, a review of selected
organization records relating to compliance with immigration laws and
regulations, and an interview with any other individuals or review of
any other records that the USCIS considers pertinent to the integrity
of the organization. An inspection may include the organization
headquarters, or satellite locations, or the work locations planned for
the applicable employee. If USCIS decides to conduct a pre-approval
inspection, satisfactory completion of such inspection will be a
condition for approval of any petition.
* * * * *
PART 299--IMMIGRANT FORMS
5. The authority citation for part 299 continues to read as
follows:
Authority: 8 U.S.C. 1101 and note, 1103; 8 CFR part 2.
6. Section 299.1 is amended in the table by revising the entries
for Forms ``I-129'' and ``I-360'', to read as follows:
Sec. 299.1 Prescribed forms.
* * * * *
------------------------------------------------------------------------
Form No. Edition date Title
------------------------------------------------------------------------
* * * * * * *
I-129.......................... XX-XX-XX Petition for a
Nonimmigrant Worker.
* * * * * * *
I-360.......................... XX-XX-XX Petition for Amerasian
Widow(er) or Special
Immigrant.
* * * * * * *
------------------------------------------------------------------------
7. Section 299.5 is amended in the table, by revising the entries
for Forms ``I-129'' and ``I-360'', to read as follows:
Sec. 299.5 Display of control numbers.
* * * * *
[[Page 20457]]
------------------------------------------------------------------------
Currently
Form No. Form title assigned OMB
control No.
------------------------------------------------------------------------
* * * * * * *
I-129.......................... Petition for a 1615-0009
Nonimmigrant Worker.
* * * * * * *
I-360.......................... Petition for Amerasian 1615-0020
Widow(er) or Special
Immigrant.
* * * * * * *
------------------------------------------------------------------------
Dated: April 16, 2007.
Michael Chertoff,
Secretary.
[FR Doc. E7-7743 Filed 4-24-07; 8:45 am]
BILLING CODE 4410-10-P