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Religious Ministers as Special Immigrants

By: Cesar G. Cutaran, Esq.

The U.S. Congress amended the Immigration and Nationality Act in 1990 to create a special immigrant status for religious ministers granting said individuals lawful permanent residence (“green card”) and eligibility to apply for naturalization. Petition is made on Form I-360 and must be approved by the US Citizenship and Immigration Services (USCIS). On approval, the beneficiary of the I-360 petition can apply for adjustment of status to that of a lawful permanent resident (“green card holder”) and, eventually, U.S. citizenship by naturalization.

To qualify as a special immigrant (religious minister), an individual/beneficiary:

1) must, for at least 2 years immediately preceding the time of the application, be a member of a religious denomination having a bona fide, nonprofit, religious organization in the U.S.;

2) seeks to enter the U.S. solely to carry on his or her vocation as a minister; and

3) has been carrying on such vocation as a minister for at least 2 years immediately
preceding the time of the application.

Additionally, among other requirements, USCIS regulations mandate that the petitioning religious organization establish that it “has the ability to pay the proffered wage … and demonstrate this ability at the time the priority date is established and continuing until the beneficiary obtains lawful permanent residence. Evidence of this ability shall be either in the form of copies of annual reports, federal tax returns, or audited financial statements.”  This critical requirement was highlighted in a recent case before the USCIS Administrative Appeals Office (AAO) which has jurisdiction over the appeals from decisions on most immigration petitions and applications entered by the US Service Centers, District, and Field Directors.

In said case, the USCIS initially approved the I-360 special immigrant petition (religious minister beneficiary) after the petitioner church initially stated in its petition that it would compensate the beneficiary with an annual salary of “$24,000 plus housing and transportation.” On a subsequent visit (3 years after the I-360 approval!) by an immigration officer (IO) to the church’s premises to verify the petitioner’s claims, the church’s pastor who signed the petition, advised the IO that the church did not have the current ability to pay the beneficiary as indicated in the petition.   As a result of the onsite inspection, the USCIS sent the church a Notice of Intent to Revoke (NOIR) the previously approved I-360 petition and directing the church to verifiably document its continued ability to pay the proffered wage. The church responded that “due to the unforeseen economic crisis we have found that we were not able to provide” the stated salary but that a “temporary extension” of the petition would allow the church to secure “additional funding”. In the meantime, the church stated that the beneficiary began working with one of its affiliate churches and that he has been staying at one of the church member’s house free of charge. The USCIS, nonetheless, revoked the church’s previously approved petition as a result of the church’s failure to demonstrate its ability to pay the beneficiary the proffered salary.

The church appealed to the AAO which ultimately dismissed the appeal. AAO ruled that in addition to the church’s inability to pay the proffered wage, allowing the beneficiary minister to work with an “affiliate” of the petitioner church without a separate petition by the affiliate church is also a violation of immigration law. On review of the entire record, AAO further found that the church failed to prove that beneficiary worked continuously in a qualifying religious occupation or vocation for 2 full years immediately preceding the filing of the petition.

What can prospective special immigrant (religious minister) petitioners and beneficiaries learn from the above-discussed case? First, be truthful in stating the wage to be given to the beneficiary. Although there is no specific salary required in the law and regulations, the salary level should be realistic and consistent with the petitioner’s financial resources at the time of filing. Such petitioner’s ability to pay should continue until the beneficiary attains lawful permanent residence. Second, be prepared for the usually-unannounced site visit by an immigration officer who will conduct a tour of the premises and inspect relevant documentation (501[c][3] determination letter, financials, literature describing the nature and purpose of the petitioner’s activities, etc). In 2005, the USCIS Office of Fraud Detection and National Security (FDNS) conducted a Benefit Fraud Assessment of special immigrant religious worker cases and found a 33% fraud rate prevailed. Third, the beneficiary should resist the “temptation” of engaging in any employment other than as religious minister for the petitioning religious organization. The beneficiary is supposed to “solely carry on his or her vocation as a minister,” hence, no “moonlighting” is allowed. Lastly, do not assume that the beneficiary can work in an “affiliate” or sister religious organization. As AAO noted, a new and separate petition on behalf of the beneficiary is required in this instance.

The Holy Scriptures in I Timothy 5:17 command that those “who labour in word and doctrine” be “counted worthy of double honour.” Compensating religious minister special immigrant the proffered wage stated in the I-360 petition is not only in compliance with immigration law but also, and perhaps more importantly, in obedience of Scriptural mandate.

Atty. Cesar G. Cutaran is a partner in the Law Firm of Chua Tinsay and Vega (CTV) –  a full service law firm with offices in San Francisco, San Diego, Elk Grove and Manila.  The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship.   The CTV attorneys will be holding regular free legal clinics at the Max’s Restaurant in Vallejo, California.  Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (415) 495-8088; (619) 955-6277; ccutaran@ctvattys.com.

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