Introduction

Congress has used the category of "special immigrant" (also known as the fourth employment-based preference) as a way of conferring immigration benefits on a wide variety of special groups, including religious workers. Special immigrant religious workers include: (a) ministers, (b) religious professionals, and (c) other religious workers.

The special immigrant category relating to religious workers in many ways parallels the nonimmigrant R-1 religious worker category, which is discussed elsewhere at this web site. However, the special immigrant category permits these religious workers to acquire lawful permanent residence.

Each fiscal year, a maximum of 7.1% of the Worldwide number of visas are available annually to special immigrants. Of this 7.1%, up to 5,000 visas may be made available in any fiscal year to "religious professionals" or "other religious workers". However, ministers are exempt from this numerical limitation.

Special immigrant religious workers are defined at INA §101(a)(27)(C)(ii) as an immigrant, and the immigrant's spouse and children if accompanying or following to join the immigrant, who:

1. For at least two years immediately preceding the time of application for admission, has been a member of a religious denomination having a bona fide nonprofit, religious organization in the United States;
2. Seeks to enter the United States--
1. Solely for the purpose of carrying on the vocation of a minister of that religious denomination,
2. Before October 1, 2008, in order to work for the organization at the request of the organization in a professional capacity in a religious vocation or occupation, or
3. Before October 1, 2008, in order to work for the organization (or for a bona fide organization which is affiliated with the religious denomination and is exempt from taxation as an organization described in section 501(c)(3) of the Internal Revenue Code of 1986) at the request of the organization in a religious vocation or occupation; and
3. Has been carrying on such vocation, professional work, or other work continuously for at least the two-year period described in clause (i).

The Immigration Act of 1990 limited the special immigrant religious worker category, with respect to professional religious workers and other religious workers, to immigrants who sought to enter the United States before October 1, 1994. However, Congress has since extended the deadline for religious professionals and other religious workers to October 1, 2008.

Meaning of "Religious Denomination"

According to 8 CFR §204.5(m)(2), a "religious denomination" is defined as a religious group or community of believers having some form of ecclesiastical government, a creed or statement of faith, some form of worship, a code of doctrine and discipline, religious services, established places of religious worship, and religious congregations. For the purposes of this definition, a inter-denominational religious organization recognized under §501(c)(3) of the Internal Revenue Code is also treated as a religious denomination.

In determining whether a religious organization qualifies as a religious denomination, it is useful to refer to Matter of N, 5 I. & N. Dec. 173 (INS Central Office 1953). In Matter of N, it was found that the Salvation Army was a religious organization for purposes of the immigration statute. The decision noted that the Salvation Army:

1. Was incorporated in various states of the United States,
2. Was a worldwide religious organization,
3. Had a recognized creed or form of worship,
4. Had a definite ecclesiastical government,
5. Had a formal code of doctrine and discipline,
6. Had a distinct religious history,
7. Had a membership, not associated with any other church or denomination,
8. Had ministers selected after completing prescribed courses of training,
9. Had its own literature,
10. Had established places of religious worship,
11. Maintained religious congregations and conducted religious services,
12. Maintained a Sunday school for religious instruction, and
13. Conducted schools for preparation of its ministers, who in addition to conducting religious services, perform marriage ceremonies, bury the dead, christen children, and advise and instruct the members of their congregation.

In addition, according to 9 FAM §42.32(d)(1) N3.3, the Christian Science Church is considered a religious denomination with a bona fide organization in the United States.

Meaning of "Bona fide Nonprofit Religious Organization in the United States"

The religious domination must also have a bona fide nonprofit religious organization in the United States. According to 8 CFR §204.5(m)(2), the phrase "bona fide nonprofit religious organization in the United States" means an organization exempt from taxation as described in section 501(c)(3) of the Internal Revenue Code of 1986 as it relates to religious organizations, or one that has never sought such exemption but establishes to the satisfaction of the Service that it would be eligible for such an exemption if it had applied for tax-exempt status.

Eligible Occupations

Ministers

The first type of religious worker entitled to seek lawful permanent residence is a "minister". According to 8 CFR §204.5(m)(2), the term "minister" means an individual duly authorized by a recognized religious denomination to conduct religious worship and to perform other duties usually performed by authorized members of the clergy of that religion. In all cases, there must be a reasonable connection between the activities performed and the religious calling of the minister. The term does not include a lay preacher not authorized to perform such duties. According to 9 FAM §42.32(d)(1) N5.1, the ordination of ministers chiefly involves the investment of the individual with ministerial or sacerdotal functions, or the conferral of holy orders upon the individual. If the religion does not have formal ordination procedures, there must be other evidence that the individual has authorization to conduct religious worship and perform other services usually performed by members of the clergy.

According to §42.32(d)(1) N3.3, practitioners and nurses of the Christian Science Church (Church of Christ, Scientist) may properly be considered as ministers of religion under INA §101(a)(27)(C). Readers and lecturers do not qualify as ministers, but could qualify as an alien seeking to come in a religious vocation or occupation.

According to 9 FAM §42.32(d)(1) N5.2, a deacon of any recognized religious sect or denomination may be considered to be a minister of religion within the meaning of INA §101(a)(27)(C) when the following conditions are present:

1. Ordination or equivalent form of authorization has taken place which distinguishes the clerics from the laity;
2. Ordination or equivalent form of authorization has conferred the power of leading a congregation and preaching;
3. Ordination or equivalent form of authorization has conferred the power to administer the sacraments, baptism, and communion or their equivalents; and
4. Ordination or equivalent form of authorization has conferred the power of giving benediction.

According to 9 FAM §42.32(d)(1) N5.3, the use of "ordained minister" within the Buddhist doctrine frequently will be found to have different meanings depending on the context in which it is used. The term also may apply to different levels of responsibility and participation within the faith. The ceremony conferring monkhood status in the Buddhist religion is generally recognized as the equivalent of ordination. Useful documentation for establishing entitlement to status might include determinations by directors and senior monks of monasteries which verify that the applicant has knowledge and skills which enable him to perform Buddhist rituals and explain Buddhist beliefs independently, and that the applicant has a demonstrated work record or established reputation as an active Buddhist monk.

Religious Professionals

Aliens who seek to enter the United States to work in a professional capacity in a religious vocation or occupation may qualify as special immigrant religious worker. As stated above, religious professionals are only entitled to see permanent residence as a special immigrant religious worker until October 1, 2008. The term "professional capacity" an activity in a religious vocation or occupation for which the minimum of a U.S. baccalaureate degree or a foreign equivalent degree is required.

As a practical matter, the religious professional category does not offer any real benefit over the other religious worker category, since eligibility for both ends on October 1, 2008.

Other Religious Workers

Aliens who seek to enter the United States to work for a religious organization (or for a bona fide organization which is affiliated with the religious denomination and is exempt from taxation as an organization described in section 501(c)(3) of the Internal Revenue Code of 1986) at the request of the organization in a religious vocation or occupation, may qualify as special immigrant religious workers. However, they are only entitled to see permanent residence as a special immigrant religious worker until October 1, 2008.

According to 8 CFR §204.5(m)(2), the term "religious vocation" is defined as a calling to religious life evidenced by the demonstration of commitment practiced in the religious denomination, such as the taking of vows. Examples of individuals with a religious vocation include, but are not limited to, nuns, monks, and religious brothers and sisters.

Similarly, the term "religious occupation" is defined as an activity which relates to a traditional religious function. Examples of individuals in religious occupations include, but are not limited to, liturgical workers, religious instructors, religious counselors, cantors, catechists, workers in religious hospitals or religious health care facilities, missionaries, religious translators, or religious broadcasters. This group does not include janitors, maintenance workers, clerks, fund raisers, or persons solely involved in the solicitation of donations.

According to INA §101(a)(27)(C)(ii), other religious workers may seek admission to work for either a bona fide nonprofit, religious organization in the United States or a bona fide organization which is affiliated with the religious denomination. According to 8 CFR §204.5(m)(2), the phrase "bona fide organization which is affiliated with the religious denomination" means an organization which is closely associated with the religious denomination and which is exempt from taxation as described in section 501(c)(3) of the Internal Revenue Code of 1986 as it relates to religious organizations.

Procedure

According to 8 CFR §204.5(m)(3), each petition for a religious worker must be accompanied by:

1. Evidence that the organization qualifies as a nonprofit organization in the form of either:
1. Documentation showing that it is exempt from taxation in accordance with section 501(c)(3) of the Internal Revenue Code of 1986 as it relates to religious organizations (in appropriate cases, evidence of the organization's assets and methods of operation and the organization's papers of incorporation under applicable state law may be requested); or
2. Such documentation as is required by the Internal Revenue Service to establish eligibility for exemption under section 501(c)(3) of the Internal Revenue Code of 1986 as it relates to religious organizations; and
2. A letter from an authorized official of the religious organization in the United States which (as applicable to the particular alien) establishes:
1. That, immediately prior to the filing of the petition, the alien has the required two years of membership in the denomination and the required two years of experience in the religious vocation, professional religious work, or other religious work; and
2. That, if the alien is a minister, he or she has authorization to conduct religious worship and to perform other duties usually performed by authorized members of the clergy, including a detailed description of such authorized duties. In appropriate cases, the certificate of ordination or authorization may be requested; or
3. That, if the alien is a religious professional, he or she has at least a United States baccalaureate or its foreign equivalent required for entry into the religious profession. In all professional cases, an official academic record showing that the alien has the required degree must be submitted; or
4. That, if the alien is to work in another religious vocation or occupation, he or she is qualified in the religious vocation or occupation. Evidence of such qualifications may include, but need not be limited to, evidence establishing that the alien is a nun, monk, or religious brother, or that the type of work to be done relates to a traditional religious function.
3. If the alien is to work in a non-ministerial and non-professional capacity for a bona fide religious organization which is affiliated with the religious denomination, the letter from the authorized official mustexplain how the affiliation exists. A tax-exempt certificate indicating that the affiliated organization is exempt from taxation in accordance with section 501(c)(3) of the Internal Revenue Code of 1986 as it relates to religious organizations is required in this instance.
4. In appropriate cases, the director may request appropriate additional evidence relating to the eligibility under section 203(b)(4) of the Act of the religious organization, the alien, or the affiliated organization.

According to 8 CFR §204.5(m)(4), the letter from the authorized official of the religious organization in the United States must also state how the alien will be solely carrying on the vocation of a minister (including any terms of payment for services or other remuneration), or how the alien will be paid or remunerated if the alien will work in a professional religious capacity or in other religious work. The documentation should clearly indicate that the alien will not be solely dependent on supplemental employment or solicitation of funds for support. In doubtful cases, additional evidence such as bank letters, recent audits, church membership figures, and/or the number of individuals currently receiving compensation may be requested.

Dependents of Special Immigrant Religious Workers

As stated in INA §101(a)(27)(C)(ii), the spouse or dependent child of a special immigrant religious worker, who is accompanying or following to join the principal alien, may receive derivative status and will be entitled to lawful permanent resident at the same time. According to 9 FAM §42.32(d)(1) N9.1, a spouse or child acquired subsequent to visa issuance but prior to entering the United States, or a child born of a marriage which existed at the time of the principal alien's admission to the United States, is entitled to derivative status.