Summary of Changes to the Religious Worker Program
The Hindu American Foundation would like to take the opportunity to update you on the results of rulemaking the United States Citizenship and Immigration Services (USCIS) religious worker and special immigrant programs underwent in late 2006. Rulemaking, as we explained previously, is the process by which federal agencies formulate or amend new regulations. The rulemaking process generally consists of a proposed rule stage, a comment period and final rule stage. As part of the rulemaking process, the agency is required to consider the public comments received on the proposed regulation and if appropriate, incorporate responses to the issues raised by those who submitted comments.
The Hindu American Foundation submitted extensive “comments” to the USCIS regarding the religious worker program, highlighting the adverse impact the proposed changes were beginning to have on Hindu Americans (many accounts of shilpis being turned away by consulates in India because they did not fit under any of the definitions of R-1 workers). We are happy to report that most the concerns we raised have been addressed in a satisfactory manner. Below is a summary of the major changes in the Non-Immigrant Religious Worker (R-1 worker) and Special Immigrant programs. The summary by no means is intended to constitute legal advice or form an attorney client relationship between any organization or individual and the Hindu American Foundation. The Foundation also does not intend to substitute the advice of a licensed immigration attorney. The information below is merely a summary of some of the major changes to the above-mentioned programs. Please read the regulations in full and consult a licensed expert for the best understanding. Lastly, the Hindu American Foundation does not provide immigration legal services.
Summary of Major Changes in the Final Rule on Special Immigrant and Nonimmigrant Religious Workers
New Petitioning Requirements
- For workers outside the U.S.: The employer (temple or organization) will now have to file a petition (Form I-129 and associated fee) on behalf of all R-1 workers with the USCIS, meaning R-1 workers will no longer be able to apply for an R-1 visa directly at the overseas consulates.
- For workers currently in the U.S.: If the worker is currently in the U.S. on another valid, non-immigrant status or in need of an extension of his or her R-1 stay, the temple or organization will now have to file a petition (Form I-129 and associated fee) on behalf of the R-1 worker with the USCIS.
- For workers who will be working for more than one employer: If the R-1 worker will be working for more than one temple or organization, each temple or organization will have to file an independent petition (Form I-129 and associated fee) on behalf of the R-1 worker with the USCIS.
Special Immigrant Petitioning
- The regulations continue to allow aliens seeking a special immigrant religious worker status (“green card”) basis for religious workers. Such workers may either be sponsored by a temple or organization or submit a self-petition (Form I-360), meaning he or she does not require a temple or organization’s sponsorship.
Period of Stay
- Initial periods of stay will now be approved for up to 30 months, after which an extension of an additional 30 months may be granted by the USCIS upon application. Workers can stay in the United States in R-1 status for a maximum period of 60 months. Note, this is a shorter initial period than the previous allowance of three years.
Spouses and Unmarried Children
Spouse and unmarried children under the age of 21 may also be admitted to accompany or follow to join with the R-1 worker on an R-2 status. Spouses and children cannot work on the R-2 status.
New Attestation Requirements
- Temple or organizations must now attest or show proof that it is a bona fide non-profit religious organization which means all temple or organizations must be a current 501(c)(3). The following evidence must be submitted:
- IRS determination letter of 501(c)(3). Temple or organizations must acquire a 501(c)(3) determination letters from the IRS. The IRS does charge a fee for the letter, but once in hand, it does not expire so long as the temple or organization maintains valid 501(c)(3) charitable, educational or religious purposes.
- Temple or organizations must provide the USCIS with numbers of:
- devotees, worshippers, paid members, etc.;
- temple or organization members/employees who are aliens holding R-1s or Special Immigrant visas;
- petitions filed by the temple or organization for such status (R-1 or Special Immigrant) within the preceding five years.
- R-1 workers must be compensated with salary or non-salary compensation (room and board, stipends, etc). The temple or organization must provide values similar to those values submitted to the IRS if the R-1 worker is to be compensated with non-salary compensation.
- There will now be only one exception essentially for when an R-1 worker will be approved without any form of compensation and that is with proof that the R-1 worker will be working in an established, traditionally non-compensated, international missionary program with the denomination/sampradaya.
- Temple or organization must show how such R-1 non-compensated worker will be supported.
- An example in the Hindu context may be a swami or swamini who a temple or organization is sponsoring and,
- who will be staying with and supported by temple or organization devotees personally
- the swami/swamini is affiliated with the temple or organization’s sampradaya abroad
- the swami has received formal training with the sampradaya
- the missionary work is traditionally uncompensated
- USCIS will conduct on-site inspections, evaluations, verifications and compliance reviews of religious organizations which may include
- Tour of the temple or organization site
- Interview of temple or organization officials
- Review of select temple or organization records and files relating to compliance with immigration regulations
- USCIS will provide an appeals process at the various stages of the R-1 worker petition process
Definition of “Religious Occupation”
- USCIS has removed the examples of the employment positions falling under this category after a number of Hindu groups, including the Hindu American Foundation, pointed out the bias towards Judeo-Christian traditions.
- Temples or organizations will now be required to submit evidence identifying the religious occupation.
- Below are some examples of Hindu religious occupations and how they may be defined:
- Hindu priest are traditionally trained and perform rituals or rites of passage such as weddings and funerals at the temple or organization site or off-site.
- Religious artists or performing artist are specially trained musicians, singers and dancers and provide devotional services or teach at the temple or organization site or off-site.
- Religious food preparers or paricharakaras are traditionally trained and specialize in the preparation of food offerings or prasadam for religious ceremonies and rituals.
- Religious craftsmen or sthapatis are traditionally trained architects who design and recommend renovations for temples according to ancient scriptural directives.
- Religious artisans or shilpis are traditionally trained stone sculptors who make the intricate, detailed carvings depicting deities and events in Hindu religious history for the architectural embellishment of temple interiors and exteriors.
- Religious carpenters are traditionally trained and construct the temple chariots and other wooden religious accouterments according to ancient religious directives for temple use.
- Religious jewelers are traditionally trained and custom-design and make onsite silver, gold and bejeweled ornamentations for temple murtis or deity forms.
- The USCIS will keep a list of religious vocations, however, temples and organizations should submit evidence to identify traditional Hindu vocations.
- Below are some examples of Hindu religious vocations and how they may be defined:
- Brahmachari (male) or brahmacharini (female) is an individual who has made a formal lifetime commitment in his or her earlier stages of training and initiation. Most sampradayas require a period of novitiate experience under short-term vows prior to the taking of lifetime as the latter requires years of proper study, spiritual guidance and commitment.
- Sannyasin (male) or sannyasini (female) is a traditionally or independently trained individual who has made a formal lifetime commitment and taken vows of celibacy and poverty; a monk or renunciant.
- As of August 2009, the regulations now requires religious employers to notify the USCIS when a religious worker's hours chanage or when employement is terminated (if it is terminated prior the the R1 visa's expiration).