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 [...]

Downgrading from EB2 to EB3 – What You Need to Know and Consider before Filing

The October Visa Bulletin has been released and there is significant movement in priority dates, especially for EB3 India and China. See figure below.


For those with pre-approved I-140s in the EB2 category, the possibility of filing a second application under the EB3 category and concurrently filing an Application to Adjust Status is both tantalizing and disconcerting at the same time. Several websites loudly proclaim the ease of filing and the enormous benefit it offers the applicant.

I have been asked to consider this possibility by several clients and I wanted to share some thoughts with you.

  1. How did we get here?

Here is the question that begs asking: why are the EB2s PDs behind the EB3? Several years ago, the EB3 was so far behind the EB2 that several candidates found ways to get ahead by qualifying for and filing petitions for the EB2 classification. This group grew steadily, and as the demand for EB2 grew, the visa numbers began to reflect this shift. So, with hundreds, possibly thousands of individuals looking to “downgrade” we may be back where we started!

  1. What are the risks and How would the USCIS Challenge the EB3 Filing?

Under normal circumstances, the regulations allow for a second Immigrant Petition in a lower category if the Beneficiary is qualified for the benefit even though previously approved under the EB2 category.

However, these are not normal circumstances. The Country has been subject to a life altering event that has caused the unemployment rate to jump to 8.4% after skyrocketing to 14.7% in April. As most practitioners are aware, recent USCIS adjudication of Immigrant Petitions has departed from well establish Service policy. It is instead driven by the President’s April 2107 EO: Buy American and Hire American: Putting American Workers First agenda.

RFEs for Immigrant Petitions have taken a rather activist tone. One recent I-140 RFE requested:

The petitioner must establish that a valid employment relationship exists and that the job was open and available to U.S. workers. Please submit independent objective evidence to illustrate this. This evidence should include, but is not limited to, the following:

  • Copies of recruitment reports
  • Submit the original newspaper job ad
  • Furnish a statement explaining specifically how the alien applied for and was selected for the position, to include how the employer obtained the alien’s job application (e.g., through a direct phone call by the alien or mailed in response by the alien or through a recruiter) and whether and by whom the alien was interviewed
  • Copies of all recruitment reports (which shall include the numbers of workers interviewed for the position, their academic credentials, and the reason(s) they were not hired for the position)
  • Copies of all resumes and job applications submitted by applicants for this position
  • Copies of all job posting notices; including a statement concerning posting location(s) and the beginning and end dates that the notice was posted
  • Copies of all print advertisements
  • State Workforce Agency (SWA) job orders

This RFE received by our Office in the past month, may be considered by some as just an aberration. However, I believe it portends of more ominous things to come. If the Service chooses to question the underlying recruitment efforts, it may also question whether U.S. workers with lesser qualifications were rejected. In other words, did the employer inflate the requirements of the position to eliminate qualified U.S. workers? This goes to the heart of the validity of the underlying certified PERM application. This could seriously jeopardize subsequent filings by the Employer and critically affect others who are currently waiting in line.

  1. What Happens if Thousands Apply?

We started this discussion with the possibility of thousands applying to gain an advantage and it goes without saying that this could certainly slow things down. More importantly, even without the downgrades, this month’s bulletin will lead to a dramatic increase in USCIS workload. A workload that they are ill equipped to handle given their ever-shrinking budget. This could potentially lead to applications remaining pending for several years before being approved.

  1. What is the worst-case Scenario?

For most employees in H-1B status, an approved EB2 I-140 petition is probably the basis for extension beyond the sixth year. If the Service challenges the downgraded petition and subsequently denies it, the regulations allow for the original petition to stand. However, if the underlying PERM is challenged and revoked, the EB2 approval will also be revoked. Should this happen, the very basis for further H-1B extensions would evaporate.

Therefore, I counsel against rushing to file before knowing how this administration is likely to view these cases and to see if the advancement is likely to be sustained. No matter what your decision is, I highly recommend weighing your risks carefully before seeking to pursue a “downgrading” option.

October 2020 Visa Bulletin

October 2020 Visa Bulletin is now available.

Within an hour of first announcing their decision to use “Final Action Dates” for October, the USCIS has again revised the Visa Bulletin message to read “Filing Action Dates”. This new development would mean several clients would be eligible to file their adjustment applications in October. We will begin contacting you shortly to initiate processing. We will pull all eligible candidates and start work on I-485s in batches using a “first year in, first filing out” process. Thank you for your patience.

Mini Cooper Food Drive for Monroe Pantry

Kidambi & Associates, P.C. is very proud to be a part of a food drive to donate to local Monroe Food Pantry to help with food insecurities.  The Firm came together as a team to collect most needed food items to the MINI Cooper food drive where 9 MINI Coopers collected donations from over 180 Monroe residences who donated a grand total of 3,626 lbs to the Monroe Food Pantry.

USCIS Fee increase Table. New Fee effective 10/02/2020

Unlike most government agencies, USCIS is fee funded. Fees collected and deposited into the Immigration Examinations Fee Account fund nearly 97% of USCIS’ budget.

  • As required by federal law, USCIS conducted a comprehensive biennial fee review and determined that current fees do not recover the cost of providing adjudication and naturalization services. Under a new final rule published August 3rd, DHS is adjusting USCIS fees by a weighted average increase of 20% to help recover its operational costs.
  • The adjustments include fee increases for both H, O and L fees by 21%, 53% and 75% respectively. The highest increase is for L petitions with the fee going up from $460 to $805
  • The rule accounts for increased costs to adjudicate immigration benefit requests, detect and deter immigration fraud, and thoroughly vet applicants, petitioners and beneficiaries. The rule also supports payroll, technology and operations to accomplish the USCIS mission. The rule removes certain fee exemptions, includes new nominal fees for asylum applicants, and reduces fee waivers to help recover the costs of adjudication
  • For a full list of changes and a complete table of final fees, see the final rule (PDF).
  • This final rule is effective Oct. 2, 2020. Any application, petition, or request postmarked on or after this date must include payment of the new, correct fees established by this final rule.

Please see table below for a few select fees:

Form Number/Purpose Current USCIS Fee New USCIS Fee Difference $ Approximate
Difference %
Some Employment Based Services
I-129 (H-1B) $460 $555 $95 21%
I-129 (L-1) $460 $805 $345 75%
I-129 (E, TN, MISC) $460 $695 $235 51%
I-129 (O) $460 $705 $245 53%
I-907 (Premium Processing) $1,440 $1,440 No Change No Change
I-539 (Dependents) + Biometrics $370 + $85 $400 + $30 -$25 -5%
I-140 (Immigrant Petition) $700 $555 -$145 -21%
I-485 (Application to Adjust Status) + Biometrics $1,140 + $85 $1130 + $30 $-65 -5%
I-765 (Employment Authorization) $410 $550 $140 34%
I-131 (Advance Parole/Travel Doc) $575 $590 $15 3%
 
Some Family Based Services
I-129 F (Petition for Fiancé(e)) $535 $510 -$25 -5%
I-130 (Petition for Alien Relative) $535 $560 $25 5%
I-751 (Petition to Remove Condition) $595 $760 $165 28%
 
Miscellaneous Services
I-90 (Application to Replace GC) $455 $415 -$40 -9%
I-290B (Notice of Appeal/MTR) $675 $700 $25 4%
N-400 (Naturalization + Biometrics) $725 $1,200 $475 65%

Final Rule on Changes to USCIS Fee Schedule

On August 3, 2020, USCIS published a Final Rule that significantly alters the USCIS fee schedule by adjusting fees by a weighted average increase of 20 percent, adding new fees, establishing multiple fees for nonimmigrant worker petitions, and limiting the number of beneficiaries for certain forms.
The rule also removes certain fee exemptions, changes fee waiver requirements, alters premium processing time limits, and modifies certain intercountry adoption processing.

Presidential Proclamation Limiting Entry of Certain Nonimmigrants

This evening, President Trump issued a proclamation continuing Proclamation 10014 from April 22nd

 

At the outset, here is what you need to know:

  1. Most domestic immigration – H-1Bs, L-1s, Os, Ps and all other forms of nonimmigrant visas including,
  2. H-1B CAP filings are unaffected
  3. Change of Employment and Extensions of nonimmigrant status can continue without any disruption
  4. Dependents can continue to extend status
  5. H-4 and L-2 dependents may continue to apply for EADs and Extensions
  6. EAD cards are unaffected and extensions will continue to be processed
  7. Immigrant Petitions (I-130s and I-140s) and Applications to Adjust Status (I-485) may continue to be filed
  8. PERM and other Labor Certification processes are unchanged
  9. Anyone already granted an immigrant visa may travel to the U.S.
  10. Anyone possessing a valid travel document (Advance Parole) can reenter the U.S.

The proclamation has the effect of suspending and limiting the entry of any individual seeking entry pursuant to any of the following nonimmigrant visas

(a) an H-1B or H-2B visa, and any individual accompanying or following to join such individual;

(b) a J visa, to the extent the individual is participating in an intern, trainee, teacher, camp counselor, au pair, or summer work travel program, and any individual accompanying or following to join such individual; and

(c) an L visa, and any individual accompanying or following to join such individual.

The proclamation shall apply only to any individual who:

(i) is outside the United States on the effective date of this proclamation;

(ii) does not have a nonimmigrant visa that is valid on the effective date of this proclamation; and

(iii) does not have an official travel document other than a visa (such as a transportation letter, an appropriate boarding foil, or an advance parole document) that is valid on the effective date of this proclamation or issued on any date thereafter that permits him or her to travel to the United States and seek entry or admission.

The suspension and limitation on entry pursuant to section 2 of this proclamation shall not apply to:

(i) any lawful permanent resident of the United States;

(ii) any individual who is the spouse or child, as defined in section 101(b)(1) of the INA (8 U.S.C. 1101(b)(1)), of a United States citizen;

(iii) any individual seeking to enter the United States to provide temporary labor or services essential to the United States food supply chain; and

(iv) any individual whose entry would be in the national interest as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.

The proclamation is effective immediately, and shall expire on December 31, 2020, and may be continued.

USCIS Issues Updated Policy Guidance and Rescinds Two Policy Memos Regarding the Adjudication of Certain H-1B Petitions

USCIS issued a memo rescinding two policy memoranda regarding the adjudication of certain petitions for H-1B nonimmigrant classification. USCIS is issuing updated policy guidance in their place. The rescinded memos are:

  •    Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements (Reference AFM Chapter 31.3(g)(16) ), HQ 70/6.2.8 (AD 10-24), issued January 8, 2010
  •    Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites, PM-602-0157, issued February 22, 2018

The new guidance on the adjudication of H-1B petitions contained in the memo is effective immediately.

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