Chat with us, powered by LiveChat
R-1 Visa2018-03-13T01:36:08+00:00

R-1 Visa

The Religious Worker (R) visa is for persons seeking to enter the United States (U.S.) to work in a religious capacity on a temporary basis, under provisions of U.S. law, specifically the Immigration and Nationality Act.

Our approach to processing R-1 Visas

An R-1 is a foreign national who could be temporarily employed at least part time (average of at least 20 hours per week) by a non-profit religious organization in the United States (or an organization which is affiliated with the religious denomination in the United States) to work as a minister or in a religious vocation or occupation.

Important Note: It is very important for prospective employers to file the petition as soon as possible (but not more than 6 months before the proposed employment will begin) to provide adequate time for petition and subsequent visa processing.

Religious workers include persons authorized, by a recognized employing entity, to conduct religious worship and perform other duties usually performed by authorized members of the clergy of that religion, and workers engaging in a religious vocation or occupation.

  • The applicant must be a member of a religious denomination having a bona fide nonprofit religious organization in the U.S.;
  • The religious denomination and its affiliate, if applicable, are either exempt from taxation or qualifies for tax-exempt status; and
  • The applicant has been a member of the denomination for two years immediately preceding applying for religious worker status. The applicant is planning to work as a minister of that denomination, or in a religious occupation or vocation for a bona fide, non-profit religious organization (or a tax-exempt affiliate of such an organization). There is no requirement that individuals applying for “R” visas have a residence abroad that they have no intention of abandoning. However, they must intend to depart the U.S. at the end of their lawful status, absent specific indications or evidence to the contrary. The applicant has resided and been physically present outside the U.S. for the immediate prior year, if he or she has previously spent five years in this category.

Every petition for an R-1 worker must be filed by a prospective or existing U.S. employer through the filing of a Form I-129, Petition for Nonimmigrant Worker. An R-1 visa cannot be issued at a U.S. Embassy or Consulate abroad without prior approval of Form I-129 by U.S. Citizenship and Immigration Services (USCIS). If the foreign national is visa-exempt (e.g. Canadian), he or she must present the original Form I-797, Notice of Action, reflecting an approval of a valid I-129 R petition at a port of entry.

Important Note: Visa applicants must bring the approved I-129 petition receipt number to the interview, so that petition approval can be verified.

There are certain general requirements which must be satisfied by the petitioning organization as well as by the religious worker, the beneficiary of the petition. These requirements are listed in the chart below.

The petitioning employer must submit Form I-129 including the R-1 Classification Supplement signed by the employer as well as the following supporting documents:

Supporting Documents Required for the Religious Organization

Supporting Documents Required for the Religious Worker

Proof of tax-exempt status
· If the religious organization has its own individual IRS 501(c)(3) letter, provide a currently valid determination letter from the IRS establishing that the organization is a tax-exempt organization
· If the organization is recognized as tax-exempt under a group tax-exemption, provide a group ruling
· If the organization is affiliated with the religious denomination, provide:
A currently valid determination letter from the IRS;
Documentation that establishes the religious nature and purpose of the organization;
Organizational literature; and
A religious denomination certification, which is part of the R-1 Classification Supplement to Form I-129 (see the links to the right).
Proof of salaried or non-salaried compensation
· Verifiable evidence of how the organization intends to compensate the religious worker, including specific monetary or in-kind compensation. Evidence of compensation may include:
Past evidence of compensation for similar positions
Budgets showing monies set aside for salaries, leases, etc.
Evidence that room and board will be provided to the religious worker
If IRS documentation, such as IRS Form W-2 or certified tax returns, is available, it must be provided
If IRS documentation is not available, an explanation for its absence must be provided, along with comparable, verifiable documentation
If the religious worker will be self-supporting
· Documents that establish the religious worker will hold a position that is part of an established program for temporary, uncompensated missionary work, which is part of a broader international program of missionary work sponsored by the denomination
· Evidence that establishes that the organization has an established program for temporary, uncompensated missionary work in which:
Foreign workers, whether compensated or uncompensated, have previously participated in R-1 status;
Missionary workers are traditionally uncompensated;
The organization provides formal training for missionaries; and
Participation in such missionary work is an established element of religious development in that denomination.
· Evidence that establishes that the organization’s religious denomination maintains missionary programs both in the United States and abroad
· Evidence of the religious worker’s acceptance into the missionary program
· Evidence of the duties and responsibilities associated with this traditionally uncompensated missionary work
· Copies of the religious worker’s bank records, budgets documenting the sources of self-support (including personal or family savings, room and board with host families in the United States, donations from the denomination’s churches), or other verifiable evidence acceptable to USCIS
Proof of membership
· Evidence that the religious worker is a member of a religious denomination having a bona fide non-profit religious organization in the United States for at least 2 years immediately preceding the filing of Form I-129
If the religious worker will be working as a minister, provide:
· A copy of the religious worker’s certificate of ordination or similar documents
· Documents reflecting acceptance of the religious worker’s qualification as a minister in the religious denomination, as well as evidence that the religious worker has completed any course of prescribed theological education at an accredited theological institution normally required or recognized by that religious denomination. Include transcripts, curriculum, and documentation that establishes that the theological institution is accredited by the denomination
· If the denominations do not require a prescribed theological education, provide:
The religious denomination’s requirements for ordination to minister
A list of duties performed by virtue of ordination
The denomination’s levels of ordination, if any, and
Evidence of the religious worker’s completion of the denomination’s requirements for ordination
Proof of previous R-1 employment (for extension of stay as an R-1)
· If you received salaried compensation, provide IRS documentation that you received a salary, such as an IRS Form W-2 or certified copies of filed income tax returns reflecting such work and compensation for the previous R-1 employment
· If you received non-salaried compensation:
If IRS documentation is available, provide IRS documentation of the non-salaried compensation
If IRS documentation is not available, provide an explanation for the absence of IRS documentation and verifiable evidence of all financial support, including stipends, room and board, or other support for you with a description of the location where you lived, a lease to establish where you lived, or other evidence acceptable to USCIS
· If you received no salary but provided for your own support and that of any dependents, provide verifiable documents to show how support was maintained, such as audited financial statements, financial institution records, brokerage account statements, trust documents signed by an attorney, or other evidence acceptable to USCIS

Period of Stay

An R-1 status may be granted for an initial period of admission for up to 30 months. An extension of an R-1 status may be granted for up to an additional 30 months. The total stay in the United States in an R-1 status cannot exceed 60 months (5 years).

Family of R-1 Visa Holders

R-1 worker’s spouse and unmarried children under the age of 21 may be eligible for R-2 classification. The dependents of an R-1 worker may not accept employment while in the United States in R-2 status.

12Mar, 2012

R-1 Visa Memorandum

This memorandum provides instruction to Immigration Service Officers who adjudicate R-1 nonimmigrant petitions for aliens who are coming to the [...]

BREAKING NEWS: Court Grants Injunction of Public Charge Rule and New Forms

The American Immigration Lawyers Association is reporting that:

On October 11, 2019, the U.S. District Court of the Southern District of New York enjoined and restrained the Department of Homeland Security and USCIS from “enforcing, applying, or treating as effective” the DHS Public Charge Final Rule. In addition, the court specifically enjoined the government from implementing the use of any new or updated forms whose submission would be required under the Final Rule, including the Form I-129, Form I-485, Form I-539, Form I-864, Form I-864 EZ, Form I-944 and Form I-945.

 See the order here:  https://www.scribd.com/document/429825721/10-11-19-Make-the-Road-Opinion

ICE Updates Policy for OPT Students – How to Determine if Employment is in a “Major Area of Study”

  1. On September 27, 2019, Immigration and Customs Enforcement updated and provided policy guidance on how to determine whether a student’s practical training is in an area “directly related” to the student’s major area of study. This is in keeping with the regulations at 8 CFR 214.2(f)(10)(ii)(A) and is applicable to both CPT and OPT employment.

The regulation specifically states:

(10) Practical training. Practical training may be authorized to an F-1 student who has been lawfully enrolled on a full time basis, in a Service-approved college, university, conservatory, or seminary for one full academic year. This provision also includes students who, during their course of study, were enrolled in a study abroad program, if the student had spent at least one full academic term enrolled in a full course of study in the United States prior to studying abroad. A student may be authorized 12 months of practical training and becomes eligible for another 12 months of practical training when he or she changes to a higher educational level. Students in English language training programs are ineligible for practical training. An eligible student may request employment authorization for practical training in a position that is directly related to his or her major area of study. Emphasis supplied.

For STEM OPT, the regulation is a bit more restrictive. As opposed to “major area of study”, it requires the opportunity be directly related to the degree that qualifies the student for such extension” (8 CFR 214.2(f)(10)(ii)(C)(4)); the relevant portion of the regulation states:

The STEM practical training opportunity that is the basis for the 24-month OPT extension under this paragraph (f)(10)(ii)(C) must be directly related to the degree that qualifies the student for such extension, which may be the previously obtained degree described in paragraph (f)(10)(ii)(C)(3) of this section. Emphasis supplied.

The Designated School Official who makes the recommendation for CPT/OPT is tasked with determining the direct relationship. However, this cannot be done merely based on the employer’s “type of business”. Instead, the DSO must look at the job duties of the position to determine whether the position would be directly related to the student’s major area of study. This is very similar to the process employed by the USCIS when determining whether a position rises to the level of a specialty occupation. In other words, not just the job title, or the employer’s nature of business, but the job duties of the position and how it relates to the student’s major area (field) of study.

The policy guidance provides an example of the complexity of this determination:

For example, when a student who graduates with a degree in music lists his/her employer as a restaurant. There may not appear to be a direct relationship with the degree, but the student could be employed as a musical entertainer. Conversely, a DSO should not assume a direct relationship just because a student with an accounting degree reports working at an accounting firm. Instead, students must describe their job-related duties and explain how those duties relate to their major area of study.

In March 2018, the SEVP portal was further enhanced to allow students to directly explain how their employment relates to their major area of study.

The onus on providing a description of the job opportunity and how it relates to their major area of study, rests with the student. The DSO is required to, on a case by case basis, review the explanation and documentation provided by the student for a “logical connection between the duties involved in the practical training opportunity and the student’s major area of study.” Although not required, the DSO could ask for additional information/documentation to make the determination. The following describes the various scenarios where a determination of “directly related” should be made:

  1. Students on Pre-Completion OPT:
    DSO is only required to collect and retain a written explanation from the student on how each OPT employment opportunity directly relates to their major area of study.
  2. Students on Post-Completion OPT:
    DSO is required to inform the student that he/she can only accept opportunities directly related to the student’s major area of study. Additionally, the student is responsible for reporting employment details and how it relates to the major area of study to the DSO in writing.
  3. Students on STEM OPT Extension:
    Students are required to submit a completed and signed Form 1-983, “Training Plan for STEM OPT Students.” DSOs may direct students to report their OPT information via the Portal.

The determination of whether a job opportunity is directly related a student’s major area of study (and in the case of STEM OPT students directly related to the degree), requires both the student and the DSO to work collaboratively to comply with new policy guidelines.

Whether this policy change leads to a more restrictive interpretation of whether a job opportunity is truly one that is related to a student’s major area of study is yet to be seen. However, if recent H-1B policy changes[1] are any indication of things to come, it can only mean a more restrictive interpretation of which job opportunities would qualify under this standard.

[1] USCIS drastically changed its policy following Defensor v. Meissner and what constitutes a valid employer-employee relationship (especially, for third-party site placements).

 

What to Know and How to Prepare for STEM-OPT Employer Site Visits

In a new development, DHS/Immigration Customs Enforcement (ICE) has commenced site visits to employer locations that train STEM OPT students. This program began about 12 days ago, and clients have started reporting site visits to verify STEM OPT related information.

  1. Advance Notice to Employers:

According to the Study in the States website maintained by DHS, 2 days (48 hours) advance notice will be provided prior to a site visit. The site specifically states:

DHS will provide notice to the employer at least 48 hours in advance of any site visit, unless the visit is triggered by a complaint or other evidence of noncompliance with the STEM OPT extension regulations. In these cases, DHS reserves the right to conduct a site visit without notice. Emphasis supplied

  1. Verification of I-983 and Training Program:

DHS mentions limiting the scope of the site visits to checking information related to student STEM OPT employment and ensuring that students and employers are engaged in work-based learning experiences that are consistent with the information supplied on the student’s Form I-983. The site specifically states:

As part of a site visit, DHS may:

  • Confirm that the employer has sufficient resources and supervisory personnel to effectively maintain the program.
  • Ask employers to provide the evidence they used to assess wages of similarly situated U.S. workers.
  1. ICE Oversight with DOL and Other Federal and Local Agency Referrals:

Although the program is being overseen by ICE personnel, any violations may be referred to the U.S. Department of Labor or any other appropriate federal, state or local agency should a site visit suggest that such a referral is warranted. In other words, the site visit may not be strictly limited to immigration matters.

  1. Follow Up and Oversight:

DHS will provide written instructions to correct any violations and conduct follow up review and additional site visits to ensure compliance.

When the STEM OPT program was first introduced, DHS rules offered insight into how the program would be tracked and administered. As far as employers are concerned, the rule specifically requires among other things:

  • it has sufficient resources and trained personnel available to provide appropriate training in connection with the specified opportunity;
  • the student on a STEM OPT extension will not replace a full- or part-time, temporary or permanent U.S. worker; and
  • the opportunity helps the student attain his or her training objectives.

It also requires:

that the student and employer report changes in employment status, including the student’s termination or departure from the employer.

And,

both the student and the employer are obligated to report to the DSO material changes to, or material deviations from, the student’s formal training plan.

The site visits are authorized by and being conducted pursuant to the final rule on STEM OPT issued on March 11, 2016 and have statutory basis in federal law (U.S.C. 1372 and 1762.) that requires DHS to establish an electronic means to monitor and verify, among other things, the admission of international students into the United States, their enrollment and registration at approved institutions, and any other relevant acts by international students. A summary of the major provisions of the rule also specifically states:

…to ensure compliance with program requirements, the rule provides for DHS site visits to employer locations in which STEM OPT students are employed. Although DHS will generally give notice of such site visits, DHS may conduct an unannounced site visit if it is triggered by a complaint or other evidence of noncompliance with the regulations. Emphasis supplied.

It is obvious the USCIS seeks to not only verify information, but enforce the rules established for the process.

 

  • So, as a first step, employers must conduct an immediate audit of all I-983 filed and outstanding for students currently receiving training. The “training program” schedule should be revisited and any internal reporting and review of how the student is fulfilling his or her training objectives, should be properly documented.
  • In fact, all program information should be carefully documented for DHS inspection.

 

  • HR personnel not familiar with the contents of the I-983, should immediately familiarize themselves with program information and work with supervisors to update any I-983s.

 

  • We recommend having both a time sheet style progress report of the milestones involved in the training program, and feedback reports from the students countersigned by the supervisor for ready reference.

 

  • Any changes in the training program should be communicated to the DSO.

 

  • For IT consulting companies that are offering training in conjunction with an end-client, all program information should be made available to the end client supervisor and training schedules properly vetted.

 

  • Salaries paid to STEM-OPT students should be readily available; please remember that STEM-OPT students may not be treated as billable resources since they are receiving training.

 

  • Social media (LinkedIn) and other information regarding the student’s duties and skills, must tie in with the information provided on the I-983.

 

  • Although DHS is required to provide 48-hours’ notice, it is highly unlikely employers can always expect to receive it. Therefore, mock inspections should be carried out to ensure the employer has a process in place to handle DHS inspection with the least amount of disruption possible under the circumstances.

 

Additional information regarding the I-983 and whether IT consulting companies should complete it, is contained an earlier blog article. Please see: A Memo to IT Consulting Companies in the STEM OPT Context

Finally, please do not hesitate to contact us to schedule an appointment to discuss any compliance related issues.

OFLC Announces Schedule for Electronic Filing of LCAs in the FLAG System

Beginning September 16, 2019, the FLAG System’s LCA Program Module will be enabled and stakeholders will be able to begin preparing H-1B, H-1B1, and E-3 applications using the Form ETA-9035E. However, the FLAG System will not permit the submission of LCA applications until 12:00 p.m. Eastern Time on October 1, 2019.

OFLC will continue to accept online submissions of the Form ETA-9035E through the iCERT System until 11:59 a.m. Eastern Time on October 1, 2019. The ability to submit LCA applications using the iCERT System will be deactivated at 12:00 p.m. Eastern Time on that date.  OFLC will process all LCA applications submitted through the iCERT System, and stakeholders will be able to access their iCERT System accounts to check the status of applications submitted through the iCERT System.

OFLC will host an instructional webinar on Wednesday, September 18, 2019, to provide technical assistance to employers and authorized attorneys or agents on how to prepare the Form ETA-9035E using the new FLAG System.