A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Saturday, January 20, 2018

The EB-4 Special Immigrant Religious Workers Visa

The Immigration and Nationality Act provides five visa classifications for employment-based immigration.  Most foreign workers are familiar with the EB-1 (extraordinary ability aliens, multinational managers, outstanding researchers/professors), EB-2 (persons with advanced degrees or exceptional ability) and the EB-3 (bachelor degree holders, skilled workers).  For certain foreign religious workers, they may also apply for U.S. permanent residence under the EB-4 visa classification, which provides immigrant visas to various groups of special immigrants.  

Special Immigrant Religious Workers

Foreign religious workers may apply for U.S. permanent residence if they meet certain legal requirements:

1) They must have been  members of a religious denomination that has a bona fide non-profit religious organization in the United States for at least 2 years immediately before the filing of an immigrant petition.

2) They must seek to enter the United States to work in a full time, compensated position in one of the four allowed occupations:
- Solely as a minister of that religious denomination,
- A religious vocation either in a professional or nonprofessional capacity,
- A religious occupation either in a professional or nonprofessional capacity, or
- Working for a bona fide non-profit religious organization in the United States.

3) They must be coming to work for either a bona fide non-profit religious organization in the United States, or a bona fide organization that is affiliated with the religious denomination in the United States.

4) Before the submission of the visa petition, they must have been working in one of the positions described above after the age of 14 continuously for at least 2 years, abroad or inside the United States. The work they performed can be different from the work that they plan to perform in the United States.

The work did not have to be continuous if the the foreign national was still employed as a religious worker at the time of application. Further, any break must not have exceeded two years, and the nature of the break was for religious training or for sabbatical. The foreign national must also have been a member of the petitioner’s denomination throughout the two years of qualifying employment.

Required Documentation

Generally, a qualified U.S. employer must file the Form I-360 to request special immigrant religious worker classification. However, a religious worker may also file a self-petition if all requirements are met. Extensive documents are required for special immigrant religious worker petitions.  

The petitioning religious organization must provide proof of tax-exempt status (e.g., IRS 501(c)(3) letter or similar IRS tax-exemption letter); documents explaining the religious nature and purpose of the organization; a religious denomination certification; proof of salaried or non-salaried compensation; documents showing compensation for similar positions in the past; budget reports showing the payment of such salaries,; and evidence showing that room and board will be provided to the religious worker; IRS Form W-2 or certified tax returns, etc. 

The religious worker must provide proof that the religious worker is a member of the religious organization or denomination that has a bona fide non-profit religious organization in the United States for at least 2 years immediately before the filing of Form I-360. 

There must also be proof that  the religious worker is qualified to perform the duties of the offered position. For example, for ministers, the religious worker’s certificate of ordination or similar documents, or documents showing acceptance of the religious worker’s qualification as a minister in the religious denomination.  Further, proof of completion of any required theological education at an accredited theological institution should be submitted. If a theological education is not required,  the religious denomination’s requirements for ordination to minister, a list of duties performed by virtue of ordination, and evidence that the religious worker's completion of the requirements must be provided.

Finally, proof of the religious worker's previous religious work must also be provided.  In addition to official certification, evidence of compensation including W-2 salary statements, income tax returns, or other IRS documents must be provided.  If the worker was not compensated before, provide documents to show that there was other financial support.  For overseas employment, comparable evidence of the religious work must also be provided.

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