USCIS Final Rule for Religious Workers 
Posted Dec 19, 2008
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This overall description of the new rule pertaining to religious nonimmigrant and immigrant workers is provided for the benefit of MurthyDotCom and MurthyBulletin readers who might be impacted. There have been some recent and significant changes with regard to the religious worker classification. On November 21, 2008, the USCIS issued a series of informational documents on the final rule pertaining to nonimmigrant (R-1) and immigrant religious worker (EB4) classifications. The new rule is meant to "ensure integrity of the Religious Worker Program." The final rule was published in the Federal Register on November 26, 2008 and became effective immediately upon publication. In addition to the changes described below, the new rule includes many other important changes. All those who may be affected by the new rule should review it in its entirety and consult with a qualified immigration attorney.
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R-1 Visas Will Require an Approved Petition
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One of the most important changes embodied in the final rule is the universal requirement of an approved petition before the R-1 visa may be issued. Previously, individuals seeking to enter the United States in the nonimmigrant, R-1 visa category were able to request a religious worker visa at the appropriate U.S. consulate, without the prospective R-1 employer filing a petition and obtaining the approval. The new rule requiring the approval of the I-129 Petition filed by the employer should "allow USCIS to verify that the petitioner and the job offer are legitimate prior to the issuance of a visa and admission of the religious worker to the United States."
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This requirement is in accord with the already existing requirement for filing of a petition (Form I-360) on behalf of special religious worker immigrants and most other nonimmigrant categories. A petitioner is now required to submit an attestation (included in the nonimmigrant Form I-129 and the immigrant Form I-360), verifying the worker's qualifications, the nature of the job offered, and the legitimacy of the organization.  
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R-1 Initial Time Period and Extension
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While the five-year maximum period of stay for an R-1 religious worker remains unchanged, the initial period of admission is now reduced from three years to 30 months. A petitioner is allowed to request an extension of the R-1 category for up to an additional 30 months.
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USCIS Onsite Inspections of Religious Facilities
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Under the new rule, the additional notification may be provided to employers that USCIS "may conduct onsite inspections of organizations seeking to employ religious workers." If, during an inspection, the USCIS reveals any derogatory information that prevents the approval of the petition, the USCIS is obligated to issue a Notice of Intent to Deny (NOID). The petitioner has the option to rebut the derogatory evidence with new evidence in an attempt to overcome the NOID and obtain an approval.
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Special Immigrant Non-Minister Categories
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The sun set on the current religious worker law as of October 10, 2008. It was for classes of immigrant religious workers other than religious ministers. The new rule extends the period during which non-minister petitions have to be approved until March 6, 2009. By then, such an individual "must have a petition approved on [his/her] behalf and either enter the United States as an immigrant or adjust status to permanent residence while in the United States." All cases that have been held in abeyance at the USCIS, pending the outcome of the new rule, will be adjudicated accordingly.
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Reasons for Changes in Religious Worker Classification
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MurthyDotCom and MurthyBulletin readers may recall from our May 11, 2007 article, USCIS Proposes Revisions for Religious Workers, that the USCIS proposed significant revisions to the religious worker classifications in 2007. This was to address fraud and misrepresentation in these categories. After a period of public comments, the USCIS adopted most of the initially proposed provisions, effective November 26, 2008.
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Sources for Additional Information on Religious Workers
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The USCIS documents regarding the Final Rule include, USCIS Update [PDF 31.9KB], USCIS Fact Sheet [PDF 46.2KB], and Questions and Answers [PDF 44.1KB]. The complete Final Rule is available in the Federal Register [PDF 187KB].