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 [...]

USCIS Announces FY2021 H-1B Cap-Subject Petitions May Be Filed as of April 1

USCIS announced that H-1B cap-subject petitions for FY 2021, including those petitions eligible for the advanced degree exemption,may now be filed with USCIS if based on a valid selected registration. A petitioner is only eligible to file an FY 2021 H-1B cap-subject petition if they electronically registered the beneficiary in the H-1B registration process and USCIS selected the registration submitted for the beneficiary through the random selection process.

Read the news release.

USCIS Temporary Office Closure Extended Until at Least May 3

USCIS announced that it is extending the temporary suspension of in-person services at its field offices, asylum offices, and application support centers until at least May 3, 2020. USCIS will begin reopening its offices on May 4, 2020, unless the public closures are extended further.

H-1B Initial Electronic Registration Selection has Commenced

The USCIS has commenced the selection of H-1B registrations. You may begin seeing selected candidates in your MyUSCIS account. As indicated in an earlier post, USCIS intends to notify petitioners with selected registrations no later than March 31, 2020, that they are eligible to file an H-1B cap-subject petition for the beneficiary named in the applicable selected registration.

Registrants’ online accounts will now show one of the following statuses for each registration (that is, for each beneficiary registered):

Submitted: A registration status may continue to show “Submitted” after the initial selection process has been completed. “Submitted” registrations will remain in consideration for selection until the end of the fiscal year, at which point all registration statuses will be Selected, Not Selected, or Denied.

Selected: Selected to file an FY 2021 H-1B cap-subject petition.

Denied: A duplicate registration was submitted by the same registrant for the same beneficiary, or a payment method was declined and not reconciled. If denied as a duplicate registration, all registrations you submitted for this beneficiary for the fiscal year are invalid.

Only petitioners with selected registrations may file H-1B cap-subject petitions for FY 2021, and only for the beneficiary in the applicable selected registration notice.

For more information, visit the H-1B Electronic Registration Process page.

H-1B Initial Electronic Registration Selection Process Completed

USCIS has received enough electronic registrations during the initial period to reach the FY 2021 H-1B numerical allocations (H-1B cap). USCIS randomly selected from among the registrations properly submitted. USCIS intend to notify petitioners with selected registrations no later than March 31, 2020, that they are eligible to file an H-1B cap-subject petition for the beneficiary named in the applicable selected registration.

Registrants’ online accounts will now show one of the following statuses for each registration (that is, for each beneficiary registered):

Submitted: A registration status may continue to show “Submitted” after the initial selection process has been completed. “Submitted” registrations will remain in consideration for selection until the end of the fiscal year, at which point all registration statuses will be Selected, Not Selected, or Denied.

Selected: Selected to file an FY 2021 H-1B cap-subject petition.

Denied: A duplicate registration was submitted by the same registrant for the same beneficiary, or a payment method was declined and not reconciled. If denied as a duplicate registration, all registrations you submitted for this beneficiary for the fiscal year are invalid.

Only petitioners with selected registrations may file H-1B cap-subject petitions for FY 2021, and only for the beneficiary in the applicable selected registration notice.

For more information, visit the H-1B Electronic Registration Process page.

USCIS Announces Flexibility for Requests for Evidence, Notices of Intent to Deny

In response to the Coronavirus (COVID-19) pandemic, U.S. Citizenship and Immigration Services announced today that it is adopting measures to minimize the immigration consequences associated with responding to requests for evidence (RFEs) and notices of intent to deny (NOIDs) dated between March 1 and May 1, 2020.

Requests for Evidence and Notices of Intent to Deny

For applicants and petitioners who receive an RFE or NOID dated between March 1 and May 1, 2020, any responses submitted within 60 calendar days after the response deadline set forth in the RFE or NOID will be considered by USCIS before any action is taken.

Can H-1Bs and other nonimmigrants apply for unemployment benefits?

As the Covid-19 crisis evolves, several businesses and employees have been impacted. Several questions arise in this context regarding status, unemployment benefits and the all-important question as to whether seeking and receiving unemployment benefits would be considered a public benefit under the public charge rule.

On Feb. 24, 2020, USCIS implemented the Inadmissibility on Public Charge Grounds final rule nationwide, including in Illinois. USCIS will apply the final rule to all applications and petitions postmarked (or, if applicable, submitted electronically) on or after that date.

The new rule is primarily based on the concept of “self-sufficiency”. According to the USCIS Public Charge website,

Since the 1800s, Congress has put into statute that aliens are inadmissible to the United States if they are unable to care for themselves without becoming public charges. Since 1996, federal laws have stated that aliens generally must be self-sufficient. On Aug. 14, 2019, DHS published a final rule regarding how DHS determines if someone applying for admission or adjustment of status is likely at any time to become a public charge.

This final rule also requires immigrants seeking to extend their nonimmigrant stay or change their nonimmigrant status to show that they have not received public benefits (as defined in the rule) over the designated threshold.

For nonimmigrants, status is linked to employment. When employment is terminated, the nonimmigrant is considered out of status. However, in 2017, the USCIS passed a Final Rule that extended the portability provision for certain nonimmigrants including H-1Bs to include certain grace days to look for alternate employment.

In such circumstances, one may be entitled to 60 grace days where the individual is considered to eligible to accept employment and not out of status. See 8 CFR 214.1(l)(2), (3) which state:

(2) An alien admitted or otherwise provided status in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN classification and his or her dependents shall not be considered to have failed to maintain nonimmigrant status solely on the basis of a cessation of the employment on which the alien’s classification was based, for up to 60 consecutive days or until the end of the authorized validity period, whichever is shorter, once during each authorized validity period. DHS may eliminate or shorten this 60-day period as a matter of discretion. Unless otherwise authorized under 8 CFR 274a.12, the alien may not work during such a period.

(3) An alien in any authorized period described in paragraph (l) of this section may apply for and be granted an extension of stay under paragraph (c)(4) of this section or change of status under 8 CFR 248.1, if otherwise eligible.

Clearly, termination of employment may not be the end of the road for non-immigrants in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN classification and the filing for unemployment benefits may be warranted under certain circumstances.

In fact, the question as to whether non-citizens can apply for unemployment benefits is dealt with at the State level by various departments of Labor. For purposes of this article, we have compared the guidance provided by the departments of labor in the states of Connecticut, Massachusetts, New Jersey and New York.

Connecticut

The CT DOL website FAQ section does not address this question. However, a publication from prior years did address the question directly (see Page 8):

Non U.S. Citizens
If you are not a U.S. citizen, you must be in legal alien status now, as well as during the time in which you earned your base period wages, for benefits to be paid. Such individuals will be required to present proof of satisfactory legal alien status as part of the new claim process. There are several documents issued by the Immigration Naturalization Service that are accepted as proof of legal alien status. When you file your claim for benefits, you will be asked for personally identifying information. This information will be verified through SAVE, a federal government database. You do not have to give the agency the information if you do not want to. However, if you do not provide the information, the agency may be required to deny your claim for benefits.

Massachusetts

The Massachusetts DOL addresses this question specifically under the title, Filing for unemployment benefits as a non-U.S. citizen and states:

Verifying your legal authorization to work

If you’re a non-U.S. citizen filing for unemployment benefits, DUA must verify that you are legally authorized to work in the United States. This is required by the Immigration Reform and Control Act of 1986.

Your legal authorization to work will be verified through a computer match with the U.S. Citizenship and Immigration Services (USCIS). The information received from the USCIS may affect your eligibility for unemployment benefits.

New Jersey

New Jersey uses a more direct approach to answer the question in its FAQ section. The relevant section reads as follows:

I currently have a H-1B visa but have lost my job. Am I eligible?

H-1B visa holders are authorized to work in the United States for one specific employer. If you are permanently separated from that employer and your alien status has not changed, you cannot legally work for another employer, so you would be ineligible for benefits. You may be eligible for benefits if you are on a temporary layoff from your employer with a definite return-to-work date.

 

New York

New York also follows a very direct approach. The FAQ section has the following Q&A:

Q: If I am not a US citizen, may I still file a claim?

A: If you are not a U.S. citizen, you may receive unemployment insurance if you:

  • Were working legally when you lost your job
  • Are legally allowed to take a new job
  • Meet the other requirements for UI

New York obviously has the most direct and relevant Q&A. It factors in the final rule that allows the nonimmigrant to legally accept a new job within 60 days.

E-2 EAD, L-2 EAD and H-4 EAD holders could always apply for unemployment benefits.

As to whether applying for unemployment benefits amounts to a public charge is covered in Chapter 10 of the USCIS Policy Manual covering Public Benefits. The USCIS has clearly included unemployment benefits and worker’s compensation in the list of public benefits that USCIS does not consider in the public charge inadmissibility determination as they are considered earned benefits.

In fact, the USCIS has the following pretty extensive, but non-exhaustive list of benefits that are not considered to fall within the public charge inadmissibility rule.

  • Federal Old-Age, Survivors, and Disability Insurance Social Security benefits (SSDI)
  • Social Security
  • Veteran’s benefits including but not limited to HUD-VASH, and medical treatment through the Veteran’s Health Administration
  • Government (including federal and state) pension benefits and healthcare
  • Unemployment benefits
  • Worker’s compensation
  • Medicare; or
  • Federal and state disability insurance.

Other benefits not considered public benefits in the public charge inadmissibility determination include, but are not limited to:

  • Any services provided under the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act).
  • Benefits under the Emergency Food Assistance Act (TEFAP)
  • Child and Adult Care Food Program (CACFP)
  • Food Distribution Program on Indian Reservations (FDPIR)
  • Short-term, non-cash, in-kind emergency disaster relief
  • Programs, services, or assistance (such as soup kitchens, crisis counseling and intervention, and short-term shelter) provided by local communities or through public or private nonprofit organizations
  • Public health assistance for immunizations with respect to immunizable diseases and for testing and treatment of symptoms of communicable diseases whether such symptoms are caused by a communicable disease
  • Attending public school
  • Benefits though school lunch or other supplemental nutrition programs including:
    • Benefits through the Child Nutrition Act
    • Benefits from the National School Lunch Act
  • Summer Food Service program
  • Childcare related services including the Child Care and Development Block Grant Program (CCDBGP)
  • Special Supplemental Nutrition Program for Women, Infants, and Children (WIC)
  • Children’s Health Insurance Program (CHIP) and State Children’s Health Insurance Program (SCHIP)
  • Health Insurance through the Affordable Care Act
  • Tax Credits
  • Transportation vouchers or other non-cash transportation services
  • Housing assistance under the McKinney-Vento Homeless Assistance Act
  • Energy benefits such as the Low Income Home Energy Assistance Program (LIHEAP)
  • Educational benefits, including, but not limited to, benefits under the Head Start Act
  • Student loans and home mortgage loan programs; and
  • Foster care and adoption benefits

The USCIS Policy Manual goes on to state, “As there are multiple federal and state public benefits programs, USCIS is unable to list all programs not included within the public charge inadmissibility determination.”

The USCIS has also updated its Public Charge Website with additional guidance on the COVID-19 issue and seeking medical attention.

USCIS specifically states on its website:

To address the possibility that some aliens impacted by COVID-19 may be hesitant to seek necessary medical treatment or preventive services, USCIS will neither consider testing, treatment, nor preventative care (including vaccines, if a vaccine becomes available) related to COVID-19 as part of a public charge inadmissibility determination, nor as related to the public benefit condition applicable to certain nonimmigrants seeking an extension of stay or change of status, even if such treatment is provided or paid for by one or more public benefits, as defined in the rule (e.g. federally funded Medicaid).

However, as with any public policy statement put out by the USCIS, it is best to err on the side of caution when seeking public benefits. Check with a local attorney specializing in such matters, or your immigration attorney for case specific guidance on what is appropriate and applicable to your unique set of circumstances. This article is meant to provide general guidance and should not be used in place of case specific legal advice.

OFLC Announces Issuance of Electronic PERM Labor Certifications in Response to the Impact of the COVID-19 Pandemic

Due to the impact of the COVID-19 pandemic, the Office of Foreign Labor Certification (OFLC) is making this public service announcement to alert employers and other interested stakeholders that, beginning March 25, 2020, and through June 30, 2020, the Atlanta National Processing Center (NPC) will issue PERM labor certification documents electronically to employers and their authorized attorneys or agents.

Beginning March 25, 2020, and through June 30, 2020, employers or their authorized attorneys/agents who file the application and are granted a permanent labor certification by OFLC will receive the certified Form ETA-9089 and Final Determination letter by email. In circumstances where employers or, if applicable, their authorized attorneys or agents, are not able to receive the certified Form ETA-9089 documents by email, OFLC will send the original security paper Form ETA-9089 and Final Determination letter using UPS regular delivery (i.e., approximately 2 to 8 days depending on delivery location). Upon email receipt of an electronic copy of the certified Form ETA-9089, the form must be printed, and then signed and dated by each of the following prior to filing the Form I-140 with USCIS: the foreign worker, preparer (if applicable), and the employer. USCIS may consider this printed Form ETA-9089, containing all signatures, as satisfying the requirement that petitioners provide evidence of an original labor certification issued by DOL.

Read News Release

USCIS Announces Flexibility in Submitting Required Signatures During COVID-19 National Emergency

USCIS today announced that, due to the ongoing COVID-19 National Emergency announced by President Trump on March 13, 2020, they will accept all benefit forms and documents with reproduced original signatures, including the Form I-129, Petition for Non immigrant Worker, for submissions dated March 21, 2020, and beyond.

USCIS already accepts various petitions, applications and other documents bearing an electronically reproduced original signature. This means that a document may be scanned, faxed, photocopied, or similarly reproduced provided that the copy must be of an original document containing an original handwritten signature, unless otherwise specified.

For forms that require an original “wet” signature, per form instructions, USCIS will accept electronically reproduced original signatures for the duration of the National Emergency. This temporary change only applies to signatures. All other form instructions should be followed when completing a form.

Individuals or entities that submit documents bearing an electronically reproduced original signature must also retain copies of the original documents containing the “wet” signature. USCIS may, at any time, request the original documents, which if not produced, could negatively impact the adjudication of the immigration benefit.

USCIS H-1B Registration Ends

The USCIS Registration for CAP subject H-1Bs ends at noon ET today.

Registration Selection Notifications

As stated on the USCIS website, the Service intends to notify registrants and their representatives with selected registrations via their USCIS online accounts no later than March 31, 2020. April 1st will be the earliest a selected petition may be filed with the USCIS.

A registrant’s USCIS online account will show one of the four following statuses for each registration:

Submitted: A registration status may continue to show “Submitted” after the initial selection process has been completed. “Submitted” registrations will remain in consideration for selection until the end of the fiscal year, at which point all registration statuses will be Selected, Not Selected or Denied.

Selected: Selected to file an FY 2021 H-1B cap-subject petition.

Not Selected: Not selected for this fiscal year.

Please note that a registration will not reflect a status of Not Selected until the conclusion of the fiscal year.

In the event that USCIS determines that it needs to increase the number of registrations projected to meet the H-1B regular cap or the advanced degree exemption allocation, USCIS will select from registrations held in reserve to meet the H-1B regular cap or advanced degree exemption allocation.

Denied: The same registrant or representative submitted more than one registration on the beneficiary’s behalf for the same fiscal year. All registrations the registrant or representative submitted on behalf of the same beneficiary for the same fiscal year are invalid.

H-1B cap-subject beneficiaries, including those eligible for the advanced degree exemption, must have a “Selected” registration notification in order for a registrant or representative to properly file an H-1B cap-subject petition for FY 2021. Registrants and representatives will not be notified until the end of the fiscal year if they are not selected. The status of registrations not selected as part of any initial random selection process and not denied will remain as “Submitted.”