AILA 2012 Conference Update: Religious Worker Issues

There are some important matters of interest to individuals present in the United States as religious workers, which were discussed at the 2012 American Immigration Lawyers Association (AILA) Annual Conference, held recently in Nashville, TN. These issues involve the upcoming sunset of certain portions of the permanent residence provisions for religious workers, as well as a favorable interpretation regarding counting the allowed time as a nonimmigrant religious worker in R-1 status. These issues are summarized here for the benefit of our readers.

R-1 Can Recapture Time Spent Abroad

The R-1 category enables religious workers to remain in the United States for a period of five years. These workers are now eligible to take advantage of a more favorable policy allowing for the recapture of time spent abroad during the R-1 stay. This policy, set forth in a U.S. Citizenship and Immigration Services (USCIS) memorandum dated March 8, 2012, is in line with the recapture policy applied to foreign nationals in L-1 and H1B statuses. Under the March 2012 memo, the time R-1 workers have spent abroad will no longer be counted against their allowed five years of R-1 stay. They will need to retain records and provide proof of their travels in order to request the time be recaptured.

R-1 Restrictions on Change of Employer

Unlike many other nonimmigrant categories, an R-1 religious worker does not enjoy the “portability” benefit that allows her/him to start work with a new employer while a new R-1 petition is pending. There is also no premium processing option available to expedite the timeframe for adjudication of an R-1 petition. Thus, while an R-1 is allowed to have either a concurrent or successive R-1 petition approval with a different employer, the R-1 can face processing time issues on the petitions. The processing times vary, but can be lengthier if the USCIS has not conducted a site visit to verify the existence and qualifications of the R-1 petitioning religious organization. The H1B category for temporary professional workers provides an alternative for some, but not all, religious workers.

Religious Worker Green Cards: Sunset September 30, 2012

The permanent resident (commonly, “green card”) category for those in religious vocations or occupations not classified as “ministers” has a sunset or ending date of September 30, 2012.  In the past, this category has been extended, typically at the last minute. The last extension occurred in October 2009. However, such extensions are never guaranteed and there has not been any formal announcement on the topic.

The green card cases for religious workers fall within the EB4, Special Immigrant, category. There are a number of types of cases that fit within this category. The sunset or expiration discussed in this article involves solely the the non-minister religious worker provisions. The expiration does not extend generally to the entire EB4 category.

NSC Processing I-360 and I-485s Expeditiously

The Nebraska Service Center (NSC) advised AILA that it has a robust process in place to process any pending I-360 petitions filed for religious workers in the expiring category. It is important to file the application for adjustment of status (I-485), without delay as soon as the I-360 is approved, as the priority dates are current in the EB4, Special Immigrant, category which includes religious workers. The USCIS recommends filing I-485 applications in these cases no later than August 2012 to increase the chance of adjudication prior to the September 30, 2012 sunset, or expiration date.

In this category, the I-485 cannot be filed prior to the approval of the I-360. There is no premium processing service available for the I-360. As explained above, however, the USCIS is working to process these cases in an expedited manner. The sunset of the law means that, absent an extension, it is necessary to obtain approval of both the I-360 and the I-485 prior to September 30, 2012.

Conclusion

The ability to recapture time spent abroad may be useful for some religious workers, particularly if the non-minister green card option is allowed to expire. While the Special Immigrant I-360 is an option for certain religious workers, this does not preclude using the general employment-based PERM labor certification process for green card cases for these workers, if it becomes necessary to do so. We at the Murthy Law Firm will provide our readers with updates on the expiration of the non-minister religious worker green card category as it is made available.

Copyright © 2012, MURTHY LAW FIRM. All Rights Reserved