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Visa requirements for ministers and religious workers

NOTE:  Please scroll down for information about temporary ("R") nonimmigrant visas for ministers and religious workers.

By BOYD F. CAMPBELL
Attorney at Law and Civil Law Notary

    Ministers and other religious workers may apply for an immigrant (permanent resident) visa individually or through their church to U.S. Citizenship and Immigration Services (CIS) of the Department of Homeland Security under a special immigrant visa program that continues to be renewed.  Labor certification is not required.
    To qualify, the alien applicant must:

    (1) Have worked for at least two years immediately before the time of the application as a "member of a religious denomination having a bona fide, nonprofit, religious organization in the United States"; and,
    (2) Seek to enter the United States solely to carry on a vocation as a minister, or seek to work in a professional capacity in a religious vocation or occupation, or to work for an organization or § 501(c)(3) (nonprofit) affiliate in a religious vocation or occupation; and,
    (3) Carry on a vocation or professional work continuously for at least a two-year period, whether in the United States or overseas.

    There are substantial documentation requirements for this program, but a competent immigration law practitioner can prepare supporting documents for your application. It will probably take less time to complete your application through a church by making a fourth preference (special immigrants, religious workers) application than it would to apply for labor certification under second preference (advanced degree).
    Petitioning churches without tax-exempt, § 501(c)(3) status (under the Internal Revenue Code) may wish to apply to strengthen its application on behalf of its minister or religious worker. The rule is that the religious organization that is employing the minister or religious worker must either be a §501(c)(3) organization or the organization must be able to prove that it would have obtained §501(c)(3) status if it had applied for it. It doesn't make much sense to go to the trouble and expense of preparing all of the documentation to show that the religious organization would have qualified for § 501(c)(3) status under the Internal Revenue Code without actually applying for the special tax status. Other documentation concerns budgets that can usually be prepared for submission by a church bookkeeper or elder.
    I often see religious workers, and even ministers, who do not have the customary documentation to prove that they have been trained in the work of their denomination or have graduated from a seminary or other religious educational institution. In these cases, I work closely with the client, the religious organization in the United States, and the religious organization in the client's home country to document the client's education, training, and work on behalf of the religious organization.
    Some denominations in the United States do not require their ministers to have divinity degrees or even to be "ordained," as that term is commonly understood. In these cases, it is necessary to work with leaders in the U.S. religious organization to document its approach, philosophy, and religious practice with respect to religious education and ordination.
    Immigrant visas for religious workers are somewhat more difficult to prepare. Documentation should include a summary of the religious worker's skills and experience in the denomination. The key advantage of this visa is that the long and difficult labor certification process is not involved, but examination by CIS does take many months -- far too long -- as do most visa petitions filed with CIS today.

Religious visas for temporary religious workers

    Ministers and other religious workers may apply for nonimmigrant (temporary) "R" visas with the help of their church organizations to U.S. Citizenship and Immigration Services (CIS) of the Department of Homeland Security, or to a U.S. consulate overseas.  This visa allows those engaged in a wide range of religious occupations to enter the United States to perform religious services and to receive payment for their work.
    To qualify for the "R" visa, which provides for admittance to the United States for three years and an extension of two years, the applicant must establish that he or she has been a member of a religious denomination having a bona fide nonprofit religious organization in the United States for a minimum of two years immediately preceding the date of application.
    The applicant must seek to enter the United States to (1) perform services as a minister of that religious denomination, (2) work in a professional capacity religious vocation or occupation for that organization, or (3) or work in a religious vocation or occupation for a bona fide organization affiliated with a recognized religious denomination.
    Finally, the applicant must seek to enter the United States for no more than five years, meaning that the applicant must be able to show that he or she has a bona fide residence in their home country that they have no intent to abandon.
    "R" visas are granted to ministers of religion who have two years of qualifying religious experience.  This experience need not be full-time or involve one type of religious work or function, but it cannot be volunteer only.
    Applicants who are not ministers and wish to qualify as "other religious workers," must show that their activities relate to "a traditional religious function" and that they have two years of membership in the religious denomination.  The CIS has included musicians, counselors, and broadcasters, but excludes janitors, maintenance workers, clerks, fundraisers, or persons involved solely in the solicitation of donations.  Department of State (DOS) consular posts were reminded in August, 2001, that religious workers who do not meet the "two-year" denominational membership test may apply for "B-1" (business visitor) visas.  Many workers fall into this category and, as far as I know, the DOS guidance has not changed.
    The sponsoring church must be able to show that it is a bona fide, nonprofit, religious organization in the United States.  Nonprofit corporations that have an affiliation with a religious denomination may also sponsor religious workers.  Federal regulations require that the sponsoring religious organization have nonprofit, tax-exempt §501(c)(3) status under the Internal Revenue Code.  Churches without tax-exempt, §501(c)(3) status may wish to apply to the IRS to strengthen its application on behalf of the minister or religious worker.  The rule is that the church employing the minister or religious worker must either be a §501(c)(3) organization, or the organization must be able to prove that it would have obtained §501(c)(3) status if it had applied for it.  Often, a church or association of churches may qualify under a "blanket" 501(c)(3) designation held by a parent association, convention, or diocese.
    It doesn't make much sense to go to the trouble and expense of preparing all of the documentation to show that the religious organization would have qualified for §501(c)(3) status without actually applying for the special tax status.  Other documentation concerns church budgets that can usually be prepared for submission by a church bookkeeper or elder.
    Some ministers and religious workers will not have the customary documentation to prove that they have been trained in the work of their denomination or have graduated from a seminary or other religious educational institution.  This is usually not a problem.  Some U.S. denominations do not have a structured church governing body.  CIS or a U.S. consulate will require documentation of such a religious organization's approach to ordination, its philosophy, and its religious practices.  But actual ordination of some sort is normally required.

    HERE IS OUR WARNING AGAIN:  Family, friends, fellow employees, and acquaintances are good sources of bad advice about immigration and nationality law, visas, and immigration procedures.  Your future in the United States is too important to trust to just anyone.  U.S. Citizenship and Immigration Services considers petitions and applications filed to be legal cases for adjudication.  You should find and hire a qualified immigration lawyer to guide you and help you with a change in visa status or a petition for an immigrant visa. If you do not wish to hire Mr. Campbell, please call the American Immigration Lawyers Association in Washington, D.C., 1-800-954-0254, and ask for the Lawyer Referral Service.

    Boyd F. Campbell is a former Chair of the Immigration Law Committee of the America Bar Association's General Practice, Solo & Small Firm Lawyers Section.  He was a member of the ABA’s Coordinating Committee on Immigration Law from 1994 to 1998.  He is a member of the American Immigration Lawyers Association and serves as Chair of the International Law Section of the Alabama State Bar.  Mr. Campbell was selected for inclusion in The Best Lawyers in America Consumer Guide, published by Woodward/White, Inc.  This database of U.S. attorneys can be found online at www.bestlawyers.com and is available by subscription.  In 2001, he was received an appointment from the Alabama Secretary of State to become Alabama's first practicing civil law notary.

Questions or comments about this article may be directed to:
Immigration Law Center, L.L.C.
P.O. Box 11032
Montgomery, Alabama 36111-0032 USA

Telephone:  (334) 832-9090
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