R-1 Visa 2018-03-13T01:36:08+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.

USCIS Expands Online Filing to allow Replacement Naturalization Certificate and Naturalization Hearing

USCIS has announced that Form N-565, Application for Replacement of Naturalization/Citizenship Document, and Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings (Under Section 336 of the INA), can be filed online.

Applicants use Form N-565 to replace a naturalization certificate, certificate of citizenship, or a repatriation certificate. They may also use it to apply for a special certificate of naturalization as a U.S. citizen to be recognized by a foreign country. Applicants use Form N-336 to request a hearing before an immigration officer if their application for naturalization was denied.

To file an N-400, I-90, N-565, or N-336 application online, the applicant must first create a USCIS online account. The system is completely mobile-responsive, which means applicants can file the forms from a phone or tablet. The account provides a convenient and secure way for individuals to:

Monitor the status of their cases,
Respond to requests for evidence,
Communicate with USCIS through a secure inbox, and
Change their address.

Applicants will be able to complete Forms N-565 and N-336 electronically, pay the filing fee online, and submit evidence to USCIS through the online account. However, Form N-565 applicants will be required to mail their original certificates and photos to the Nebraska Service Center after they file their applications through their online account. Applicants filing the N-336 will simply follow the online filing instructions, and wait to be scheduled for a hearing within 180 days of filing the application.

Attorneys and accredited representatives can also file online for their clients once they create an online account. Representatives can use their online account to submit additional evidence, respond to requests for evidence on behalf of their clients, view the status of their clients’ applications, communicate about their clients’ cases, and manage previously filed paper applications.

USCIS is still accepting the latest paper version of Form N-565 and Form N-336. Applicants who have mailed these forms, or any other USCIS form can still create an online account to track the status of their form throughout the adjudication process, even if they did not file the form online.

USCIS and the Justice Department Formalize Partnership to Protect U.S. Workers from Discrimination and Combat Fraud

USCIS and the Department of Justice announced a Memorandum of Understanding (MOU)  that expands their collaboration to better detect and eliminate fraud, abuse, and discrimination by employers bringing foreign visa workers to the United States. This new effort improves the way the agencies share information, collaborate on cases, and train each other’s investigators.

The MOU will increase the ability of the agencies to share information and help identify, investigate, and prosecute employers who may be discriminating against U.S. workers and/or violating immigration laws. In 2010, USCIS and the Justice Department’s Civil Rights Division entered into an ongoing partnership to share information about E-Verify misuse and combat employment discrimination, and this MOU expands upon the two agencies’ existing partnership.

 

USCIS Changing Policy on Accrued Unlawful Presence by Nonimmigrant Students and Exchange Visitors

USCIS has posted a policy memorandum changing how the agency will calculate unlawful presence for students and exchange visitors in F, J, and M nonimmigrant status, including F-2, J-2, or M-2 dependents, who fail to maintain their status in the United States.

This policy aligns with President Trump’s Executive Order: Enhancing Public Safety in the Interior of the United States to enforce the immigration laws of the country and will go into effect on Aug. 9, 2018.

“USCIS is dedicated to our mission of ensuring the integrity of the immigration system. F, J, and M nonimmigrants are admitted to the United States for a specific purpose, and when that purpose has ended, we expect them to depart, or to obtain another, lawful immigration status,” said USCIS Director L. Francis Cissna. “The message is clear: These nonimmigrants cannot overstay their periods of admission or violate the terms of admission and stay illegally in the U.S. anymore.”

Individuals in F, J, and M status who failed to maintain their status before Aug. 9, 2018, will start accruing unlawful presence on that date based on that failure, unless they had already started accruing unlawful presence, on the earliest of any of the following:

The day after DHS denied the request for an immigration benefit, if DHS made a formal finding that the individual violated his or her nonimmigrant status while adjudicating a request for another immigration benefit;
The day after their I-94 expired; or
The day after an immigration judge or in certain cases, the Board of Immigration Appeals (BIA), ordered them excluded, deported, or removed (whether or not the decision is appealed).

Individuals in F, J, or M status who fail to maintain their status on or after Aug. 9, 2018, will start accruing unlawful presence on the earliest of any of the following:

The day after they no longer pursue the course of study or the authorized activity, or the day after they engage in an unauthorized activity;
The day after completing the course of study or program, including any authorized practical training plus any authorized grace period;
The day after the I-94 expires; or
The day after an immigration judge, or in certain cases, the BIA, orders them excluded, deported, or removed (whether or not the decision is appealed).

Individuals who have accrued more than 180 days of unlawful presence during a single stay, and then depart, may be subject to three-year or 10-year bars to admission, depending on how much unlawful presence they accrued before they departed the United States. Individuals who have accrued a total period of more than one year of unlawful presence, whether in a single stay or during multiple stays in the United States, and who then reenter or attempt to reenter the United States without being admitted or paroled are permanently inadmissible.

Those subject to the three-year, 10-year, or permanent unlawful presence bars to admission are generally not eligible to apply for a visa, admission, or adjustment of status to permanent residence unless they are eligible for a waiver of inadmissibility or another form of relief.

This policy memorandum is updating Chapter 40.9.2 of the USCIS Adjudicator’s Field Manual.

USCIS is accepting comments on the policy memorandum. The 30-day public comment period begins today and closes on June 11, 2018. For complete information on the comment process, visit the Policy Memoranda for Comment page.

USCIS Completes Data Entry of Fiscal Year 2019 H-1B Cap Subject Petitions

USCIS has completed data entry for all fiscal year 2019 H-1B cap-subject petitions selected in their computer-generated random selection process. USCIS will now begin returning all H-1B cap-subject petitions that were not selected. Due to the high volume of filings, they cannot provide a definite time frame for returning unselected petitions.

Additionally, USCIS may transfer some Form I-129 H-1B cap subject petitions between the Vermont Service Center and the California Service Center to balance the distribution of cap cases. If your case is transferred, you will receive notification.

Extending OPT beyond the initial period and When to Apply for STEM OPT

  1. CAP Gap Employment:

The USCIS has clarified that F-1 nonimmigrant students with degrees in science, technology, engineering, or mathematics (STEM) may apply for a 24-month extension of their post-completion OPT employment authorization. An F-1 student who is the beneficiary of an H-1B petition and request for change of status that is filed on time may have his or her F-1 status and any current employment authorization extended until the first day of the new fiscal year (10/1/2018). The “cap-gap” period starts when an F-1 student’s status and work authorization expires and, unless terminated, ends on October 1, the required start date of their approved H-1B employment.

  1. When to Apply for STEM OPT Extension:

Students who are eligible for a cap-gap extension of post-completion OPT employment and F-1 status may apply for a STEM OPT extension during the cap-gap extension period. However, students may not apply for a STEM OPT extension once the cap-gap extension period is terminated (if the H-1B petition is rejected, denied, revoked, or withdrawn) and the student has entered the 60-day departure grace period.

  1. SEVIS Data Fix

If the student’s OPT end date is shortened to September 30 even though their H-1B employment would not begin until a later date, the student should contact their DSO. The DSO may request a data fix in the Student and Exchange Visitor Information System (SEVIS) by contacting the SEVIS helpdesk.

  1. Recovering Unused OPT Period

If the student has been approved to change their status to an H-1B nonimmigrant but is laid off/terminated by the H-1B employer before the date they officially obtain H-1B status, the student can retrieve any unused OPT if he or she has an unexpired EAD issued for post-completion OPT. The student will remain in F-1 status and can continue his or her OPT using the unexpired EAD. The student also needs to make sure that USCIS receives a withdrawal request from the petitioner before the H-1B change of status goes into effect. This will prevent the student from changing to H-1B status. Once the petition has been revoked or withdrawn, the student must provid his or her DSO with a copy of the USCIS acknowledgement of withdrawal (the notice of revocation). The DSO may then contact the SEVIS helpdesk to request a data fix in SEVIS to prevent the student from being terminated in SEVIS.

Additional information is available on the USCIS website regarding OPT CAP Gap and the STEM OPT Hub

Let’s Not Forget the H-4 EAD Issue!

In a letter dated, April 4, 2018, the Director of the USCIS ( Director Lee Francis Cissna was detailed to Chairman Chuck Grassley’s staff at the Senate Judiciary Committee from 2015 until earlier this year) outlined regulatory changes to the H-4 EAD program:

With regard to regulations, our plans include proposing regulatory changes to remove H-4 dependent spouses from the class of aliens eligible for employment authorization, thereby reversing the 2015 final rule that granted such eligibility.

The H-4 EAD is not available to all H-4 dependents. There are certain threshold qualifying criteria that need to be fulfilled before one becomes eligible for an EAD. Among other things, the H-1B spouse must have, either a labor certification application that has been pending for over 365 days, or an approved immigrant petition. In most instances, the eligible applicant is from a country where there is a severe immigration backlog. Oftentimes, applicants must wait anywhere from 15 to 20 years before they can become permanent residents.

If eliminated, the H-4 EAD program would affect thousands. Far from being monolithic, the H-4 EAD issue involves extraordinary complexity. It would be a tragedy to see it disappear. I came across a few scenarios that were extremely legitimate and deserving:

Earlier this year, I spoke with a wonderful couple from India. Amit, is on an H-1B and his immigrant petition has recently been approved; Ruchi is a qualified doctor from India and had given up a very lucrative clinical practice to follow her husband to the U.S. As we got talking, she told me that she was frustrated with not being able to secure a residency program of her choice unless she had an employment authorization document. We immediately filed the Application and she is now ready to commence a residency program in June. Unfortunately, eliminating the H-4 EAD would render Ruchi incapable of completing her residency.

Huan (Yvonne) is from China. Her husband Hahn is currently waiting for his priority date to become current.  Yvonne was an acupuncturist in Shanghai and had been itching to get back to practicing. Last year, she attended a naturopathic conference in Phoenix and made several connections. Specifically, a medical group wanted to use her services as part of their pain management practice. We filed an obtained an H-4 EAD for her to commence employment with the Group. Yvonne thought the H-4 EAD was godsend and is now working her magic with patients trying acupuncture as an alternative to opioids. In a nation beset with problems caused by addiction to prescription medication, her services would be invaluable. It would be a tragedy is she is unable to continue working.

Megha is a big data scientist and works for a very large marketing and analytics company on the West Coast. She came to the U.S. on a student visa in 1999. She got her first H-1B sometime in 2012 and has been working at various companies. She got married to Ravi, her colleague (also on an H-1B) in 2015. It never occurred to Megha that she was running out of time on the H-1B. She faced the possibility of having to stop working when she maxed out on time. Therefore, it was extremely fortunate that Ravi’s employer had filed an immigrant petition that was approved just in time; she was able to switch to the H-4 EAD and continue working for her employer. In Megha’s case, it would take approximately 15 plus years before she becomes eligible for permanent residency!

The H-4 EAD is a limited option for a select few H-4 dependent spouses. It does not extend to children. The H-4 EAD also does not permit continued employment if the underlying H-1B/H4 visa is not extended. The majority of H-4 EAD beneficiaries, statistics show, are women and that only a little over 100,000 have received the card since the program was implemented in 2015. It is also evident that the program is mainly used by nonimmigrants from India and China.

The benefits of the program including retention of global talent far outweigh the minimal benefit its cancellation is likely to offer the U.S. economy and more specifically contribute to saving U.S. jobs. In fact, several industry organizations committed to growing the U.S. economy support the program. Why then is the current administration trying so hard to cull it? One can only assume that meaningful immigration reform has given way to prejudice and a rush to close every avenue of immigration currently available.

Let us not give into our fears, but instead balance our priorities by reexamining the real issue here.

USCIS Completes the H-1B Cap Random Selection Process for FY 2019

On April 11, USCIS used a computer-generated random selection process to select enough H-1B petitions to meet the congressionally-mandated cap and the U.S. advanced degree exemption, known as the master’s cap, for FY 2019.

USCIS received 190,098 H-1B petitions during the filing period, which began April 2, including petitions filed for the advanced degree exemption. USCIS announced on April 6, that it had received enough H-1B petitions to reach the statutory cap of 65,000 and the master’s cap of 20,000. USCIS will reject and return all unselected petitions with their filing fees.