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.

Naturalization

Hi Vaman and Team,
Good News! I have cleared my US Citizenship Naturalization interview today. My heartfelt thanks to your support and guidance in making this happen. Your knowledge and guidance have been very helpful. I greatly appreciate your time and direction. I really appreciate the time your team spent on organizing all the documents for my case and making sure everything is prepared and done right. Thanks again.

— Ashish, C., USA, E-mail

FY 2022 H-1B Cap Initial Registration Period Opens on March 9

USCIS today announced that the initial registration period for the fiscal year (FY) 2022 H-1B cap will open at noon Eastern on March 9 and run through noon Eastern on March 25. During this period, prospective petitioners and representatives will be able to fill out petitioner and beneficiary information and submit their registrations.

A confirmation number will be assigned to each registration submitted for the FY 2022 H-1B cap. This number is used solely to track registrations; you cannot use this number to track your case status in Case Status Online.

Prospective H-1B cap-subject petitioners or their representatives are required to use a myUSCIS online account to register each beneficiary electronically for the selection process and pay the associated $10 H-1B registration fee for each registration submitted on behalf of each beneficiary. Prospective petitioners submitting their own registrations (U.S. employers and U.S. agents, collectively known as “registrants”) will use a “registrant” account that will be available soon. Representatives may add clients to their accounts at any time, but both representatives and registrants must wait until March 9 to enter beneficiary information and submit the $10 fee. Prospective petitioners or their representatives will be able to submit registrations for multiple beneficiaries in a single online session. Through the account, they will be able to prepare, edit, and store draft registrations prior to final payment and submission of each registration.

If USCIS receives enough registrations by March 25, USCIS will randomly select registrations and send selection notifications via users’ myUSCIS online accounts. USCIS intends to notify account holders by March 31.

An H-1B cap-subject petition may only be filed by a petitioner whose registration for that beneficiary was selected in the H-1B registration process.

USCIS will conduct public engagements and other outreach activities to ensure that representatives and registrants are familiar with the electronic registration process.

Additional information, step-by-step registration instructions, and helpful videos are available on the H-1B Electronic Registration Process page.

H-1B Selection Process Rule Effective Date Delay

USCIS has also announced that DHS is delaying the effective date of the H-1B Selection Process final rule until Dec. 31, 2021. USCIS will apply the regulations currently in place (random selection) to the initial registration period, and, any subsequent registration period for the FY 2022 registration process that takes place before Dec. 31, 2021.

Additional information is available in the Federal Register notice.

Memorandum Issued to Halt USCIS/DOL Action affecting H-1B Visa Process

The Biden Administration through White House Chief of Staff Ron Klain, issued a memorandum on January 20th that specifically instructs Agencies that a “Regulatory Freeze Pending Review” is effective as of noon on January 20, 2021 in order to ensure that the President’s appointees or designees have the opportunity to review any new or pending rules.

Among other things, the Memo further states, at the direction of the President, Agencies take the following steps:

1. Propose or issue no rule in any manner — including by sending a rule to the Office of the Federal Register (the “OFR”) — until a department or agency head appointed or designated by the President after noon on January 20, 2021, reviews and approves the rule.

2. With respect to rules that have been sent to the OFR but not published in the Federal Register, immediately withdraw them from the OFR for review and approval

3. With respect to rules that have been published in the Federal Register, or rules that have been issued in any manner, but have not taken effect, consider postponing the rules’ effective dates for 60 days from the date of this memorandum

According to the American Immigration Lawyers Association, as a result of this Memo, the modified version of the Strengthening the H-1B Nonimmigrant Visa Classification Program Final Rule sent to the Federal Register on January 15, but not yet published, will be withdrawn.

In addition, the H-1B Wage Selection Final Rule, may upon further agency action be postponed until March 21, 2021.

The clarifying filing requirements for LCAs by secondary employers and the H-1B program obligations for common-law employers published by the Department of Labor on January 15, 2021, rely on the finalization of the DHS Rule, and it is likely that they will be withdrawn by DOL as well.

We will continue to monitor any agency action and provide you with an update through iMail©

DOL Final Rule on Computation of Prevailing Wage Levels

The DOL published a final rule adopting, with changes, the interim final rule published at 85 FR 63872. The Rule is amending the regulations governing permanent labor certifications and Labor Condition Applications to incorporate changes to the computation of prevailing wage levels. The rule is effective 3/15/21. (86 FR 3608, 1/14/21).  Read the final rule.

USCIS to Replace Sticker That Extends Validity of Green Cards

USCIS announced that starting in January 2021, it will replace the sticker that is currently issued to lawful permanent residents (LPRs) to extend the validity of their Form I-551, Permanent Resident Card (PRC or “Green Card”) with a revised Form I-797, Notice of Action for Form I-90, Application to Replace Permanent Resident Card. The revised I-797 receipt notice, together with an applicant’s PRC, will serve as temporary evidence of lawful permanent resident status for 12 months from the expiration date on the face of the Green Card. Read the news release.

DHS Publishes Final Rule Creating Wage-Based Selection System for Cap-Subject H-1B Petitions

On January 8, 2021, the Department of Homeland Security (DHS) published a final rule which will replace the current random selection process by which USCIS selects H-1B registrations for filing of H-1B cap-subject petitions with a wage-based selection process. The new system will select registrations based on the highest Occupational Employment Statistics (OES) prevailing wage level that the offered wage equals or exceeds for the relevant Standard Occupational Classification (SOC) code and area(s) of intended employment. This ranking process will not affect the order of selection as between the regular cap and the advanced degree exemption; the wage level ranking will occur first for the regular cap selection and then for the advanced degree exemption.

The following summary provides an overview of the main provisions of the rule and how it will change the H-1B registration process:

  • If more registrations are received during the annual initial registration period than necessary to reach the applicable numerical allocation, USCIS will rank and select the registrations received on the basis of the highest OES wage level that the proffered wage equaled or exceeded for the relevant SOC code and in the area of intended employment, beginning with OES wage level IV and proceeding in descending order with OES wage levels III, II, and I.
  • If the proffered wage falls below an OES wage level I, because the proffered wage is based on a prevailing wage from another legitimate source (other than OES) or an independent authoritative source, USCIS will rank the registration as OES level I.
  • After completion of the selection process for the regular 65,000 H-1B cap, USCIS will utilize the same ranking and selection process to meet the advanced-degree exemption if a sufficient number of registrations were submitted during the annual initial registration period to reach the advanced-degree exemption.
  • If USCIS receives and ranks more registrations at a particular wage level than the projected number needed to meet the applicable numerical allocation, USCIS will randomly select from all registrations within that particular wage level to reach the applicable numerical limitation.
  • If the H-1B beneficiary will work in multiple locations, USCIS will rank and select the registration based on the lowest corresponding OES wage level that the proffered wage will equal or exceed.
  • Where there is no current OES prevailing wage information for the proffered position, USCIS will rank and select the registration based on the OES wage level that corresponds to the requirements of the proffered position.
  • DHS has proposed changes to the H-1B electronic registration tool and Form I-129 to require petitioners to indicate the highest OES wage level that the beneficiary’s proffered wage equals or exceeds for the relevant SOC code in the area of intended employment.
  • USCIS may deny or revoke approval of a subsequent new or amended petition filed by the petitioner, or a related entity, on behalf of the same beneficiary, if USCIS determines that the filing of the new or amended petition is part of the petitioner’s attempt to unfairly decrease the proffered wage to an amount that would be equivalent to a lower wage level, after listing a higher wage level on the registration to increase the odds of selection.
  • USCIS will not deny an amended or new petition solely based on a different proffered wage if that wage does not correspond to a lower OES wage level than the wage level on which the registration was based.
  • Notably, DHS estimates in its final rule that under the new wage-based selection process, no registrations for individuals who are paid a Level 1 wage will be selected to submit an H-1B cap-subject petition.

The rule is scheduled to take effect on March 9, 2021. However, the President-Elect’s transition team has indicated that the Biden Administration will issue a memorandum on January 20 delaying implementation of “midnight regulations” (i.e., those issued since the election but not yet effective). It is anticipated that the Biden Administration will adopt a 60-day delayed effective date for such midnight regulations. Depending on how the memorandum is worded, the effective date of this DHS final rule could be delayed either to March 21, 2021 (sixty days from the date of the Presidential memorandum) or May 8, 2021 (sixty days from the regulation’s effective date as published in the Federal Register).

USCIS lockbox updates

Due to the COVID-19 pandemic and other factors, USCIS is experiencing delays in issuing receipt notices for some applications and petitions filed at a USCIS lockbox facility.

As a result of COVID-19 restrictions, an increase in filings, current postal service volume and other external factors, you may experience a delay of four to six weeks in receiving your receipt notice after properly filing an application or petition with a USCIS lockbox. These delays will not affect the receipt date which is determined pursuant to 8 C.F.R. 103.2(a)(7). Delays may vary among form types and lockbox locations. In some cases, you may experience significant delays if you filed a non-family based Form I-485, Application to Register Permanent Residence or Adjust Status, or Form I-765, Application for Employment Authorization, based on eligibility categories described in 8 C.F.R. 274a.12(c)(3), relating to F-1 students.

The USCIS lockbox workforce is working extra hours and redistributing its workload in order to minimize delays. Once they open and process your application, they will print and mail the receipt notice. They do not anticipate any receipting delays that would result in a payment that is past its validity date.

Please see USCIS lock box updates.

USCIS Modifies H-1B Selection Process to Prioritize Wages

U.S. Citizenship and Immigration Services has announced a final rule that will modify the H-1B cap selection process, amend current lottery procedures, and prioritize wages to protect the economic interests of U.S. workers and better ensure the most highly skilled foreign workers benefit from the temporary employment program. According to the USCIS, modifying the H-1B cap selection process is supposed to incentivize employers to offer higher salaries, and/or petition for higher-skilled positions, and establish a more certain path for businesses to achieve personnel needs and remain globally competitive.

OFLC Announces Updates to Implementation of the Wage Protections Interim Final Rule in Compliance with District Court Order

On December 1, 2020, the U.S. District Court for the Northern District of California issued an order in Chamber of Commerce, et al. v. DHS, et al., No. 20-cv-7331, finding that the U.S. Department of Labor (the Department) failed to show it had good cause to forgo advance notice and comment under the Administrative Procedure Act for the Interim Final Rule (IFR), Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States, 85 FR 63872 (Oct. 8, 2020).  The court’s order sets aside the IFR, which took effect on October 8, 2020 and implemented reforms to the prevailing wage methodology for the Permanent Employment Certification, H-1B, H-1B1, and E-3 visa programs.  Similarly, on December 3, 2020, the U.S. District Court for the District of New Jersey issued a preliminary injunction in ITServe Alliance, Inc., et al. v. Scalia, et al., No. 20-cv-14604, applying to the plaintiffs in that case.

The Department is taking necessary steps to comply with the courts’ orders, including making required technical changes to the Foreign Labor Application Gateway (FLAG) system, in a manner that minimizes service disruptions for customers and OFLC staff.  Specifically, the Department must make changes to the FLAG system modules to replace the 10/8/2020-6/30/2021 wage source year data that was implemented under the IFR with the OES prevailing wage data that was in effect on October 7, 2020.  To reduce the risk of unintended system problems or errors while this occurs, employers and their authorized attorneys or agents may experience a brief delay in their ability to use the FLAG system to submit new Labor Condition Applications for Nonimmigrant Workers (LCAs), Form ETA-9035/9035E, and receive determinations on Applications for Prevailing Wage Determination, Form ETA-9141, where the Occupational Employment Statistics (OES) survey data is the prevailing wage source.

OFLC Announces Updates to Implementation of the Wage Protections Interim Final Rule in Compliance with District Court Order including implementation Timeframe for: Filing LCAs, Technical Changes to FLC Online Data Center and Processing Prevailing Wage Determinations.

Implementation Timeframe for Technical Changes to FLC Online Data Center

  • The OES prevailing wage data for each SOC and area of intended employment that was in effect on October 7, 2020 (i.e., data for 7/1/2020-10/7/2020) has remained publicly accessible at https://www.flcdatacenter.com/.
  • To limit any confusion for stakeholders, beginning at approximately 12:00PM (Noon) Eastern Time on December 4, 2020, this data source will be updated at https://www.flcdatacenter.com/ to reflect the correct prevailing wage data for each SOC and area of intended employment through June 30, 2021.

Implementation Timeframe for Filing LCAs

  • All Form ETA-9035/9035Es submitted using the FLAG system through 5:59AM Eastern Time on December 4, 2020, where the OES survey data is the prevailing wage source, will continue to be processed and issued a final determination without delay.
  • Beginning around 6:00AM Eastern Time on December 4, 2020, the FLAG system will be temporarily unavailable to deploy necessary code changes to temporarily disable the OES prevailing wage calculator, which uses the 10/8/2020-6/30/2021 wage source year data to prepare Form ETA-9035/9035Es.
  • Around 8:30AM Eastern Time on December 4, 2020, the FLAG system will be back online; however, employers and their authorized attorneys or agents will temporarily not be able to submit applications for processing where OES survey data is the prevailing wage source.
  • Beginning around 8:30AM Eastern Time on December 9, 2020, employers and their authorized attorneys or agents will be able to submit new LCAs, Form ETA-9035/9035E, using the OES survey data that was in effect on October 7, 2020.

Implementation Timeframe for Processing Prevailing Wage Determinations

  • OFLC’s National Prevailing Wage Center (NPWC) has temporarily paused processing pending Form ETA-9141s for use in filing LCA and PERM applications.  However, employers and their authorized attorneys or agents may continue to file new requests for a prevailing wage determination at any time.
  • Beginning around 8:30AM Eastern Time on December 15, 2020, OFLC’s NPWC will resume processing all pending and new Form ETA-9141s for use in filing LCA and PERM applications and will use the OES survey data that was in effect on October 7, 2020 for prevailing wage determinations where the OES survey data is the prevailing wage source.

More information can be found on ETA webpage

** BREAKING NEWS: ** District Court Sets Aside DHS Specialty Occupation and DOL H-1B Wage Rules

CA District Court Sets Aside DHS Specialty Occupation and DOL H-1B Wage Rules

Yesterday, December 1, 2020, the District Court for the Northern District of California, set aside the IFRs issued by the Department of Labor and the DHS-USCIS (scheduled to take effect December 7th), finding that defendants “failed to show there was good cause to dispense with the rational and thoughtful discourse that is provided by the APA’s notice and comment requirements” (Chamber of Commerce, et al., v. DHS, et al., 12/1/20). The two Interim Final Rules are Strengthening the H-1B Nonimmigrant Visa Classification Program, and Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States .

In setting aside, the DHS IFR, the Court noted, “the DHS Rule makes a number of changes to the H-1B visa program, but Plaintiffs focus on revisions to the regulatory definitions of “specialty occupation” and the employer-employee relationship and on the decision to reduce the validity period for H-1B workers employed at third-party job sites from three years to one year. Because the current motions do not address Plaintiffs’ substantive challenges to the Rule, the Court does not address those changes in detail.”

The Court noted, “the DOL Rule changes the manner in which the DOL will calculate the prevailing wage rates. DOL asserted the current levels were “not advancing the purposes of the INA’s wage provisions” because the existing wage levels were “artificially low” and create an opportunity for employers to hire and train foreign workers at wages well below what their U.S. counterparts … make, creating an incentive – entirely at odds with the statutory scheme – to prefer foreign workers to U.S. workers, and causing downward pressure on the wages of the domestic workforce.” DOL Rule, 85 Fed. Reg. at 63,877. To remedy this perceived problem, DOL has adjusted the prevailing wage percentiles for Levels I and IV upward. Because of the formula set by statute, this also increased the percentiles for Levels II and III.”

Employers may breathe more easily for now since this decision applies across all 50 states. Several changes including limiting the H-1B approval to one-year at a time and the steep increases in prevailing wages that threatened to upend several H-1B extensions scheduled to be filed in the next six months, will no longer go into effect. Please stay tuned for more. The DOL will no doubt revise its OFLC prevailing wages page to reflect this decision, but this may take a few days.

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