USCIS Publishes Final Rule for Religious Worker Visa Classifications 

The U.S. Department of Homeland Security (DHS) has made significant revisions to the special immigrant and nonimmigrant (R-1) religious worker visa classification regulations.  The final rule is designed to improve the DHS’s ability to detect and deter fraud and other abuses in the religious worker system. Previously, foreign religious workers were able to request an R-1 religious worker visa at a consular post without any prior, stateside review of the religious organization or job offer. The final rule will require individuals seeking to enter the United States through the nonimmigrant religious worker program to provide a consular officer an approved Form I-129, Petition for Alien Worker. Stateside review of the petition will allow USCIS to verify that the petitioner and the job offer are legitimate prior to the issuance of a visa and admission of the religious worker to the United States.  The following bullet points are key requirements in the new final rule for the religious worker category.

 Petition Requirements

•  U.S Citizenship and Immigration Services (USCIS) will require in every instance the filling of a petition by an employer on behalf of a nonimmigrant religious worker ( the petition requirements already exist for special immigrants and for organizations seeking to extend the stay for or change status to nonimmigrant religious workers already in the U.S.).
• The employing U.S organization must complete and submit the Petition for a Nonimmigrant Worker (Form I-129) or Petition for a Special Immigrant (Form I-360) (except in cases where the special immigrant is self-petitioning). This requirement will allow USCIS to verify the eligibility of the petitioner, the alien beneficiary, and the job offer prior to the issuance of a visa or admission to the United States.
• Petitioning employers will be required to submit an attestation (included in the Forms I-129 and I-360) verifying the worker’s qualifications, the nature of the job offered, and the legitimacy of the organization. 

Onsite Inspections

• The final rule provides additional notification to petitioners that USCIS may conduct onsite inspections of organizations seeking to employ religious worker.
• Inspections are intended to increase deterrence and detection of fraudulent petitions and to increase the ability of the agency to monitor religious workers and ensure their compliance with the terms of their religious worker classification.
• If an onsite inspection yields derogatory information not known to the petitioner, USCIS will issue a Notice of Intent to Deny the petition. The petitioner may submit additional documentation to rebut the derogatory evidence.
• A denial of a petition may be appealed to the USCIS Administrative Appeals Office.

Evidentiary Requirements for Petitioning Organizations

• All petitioning organizations must submit a currently valid determination letter from the Internal Revenue Service establishing their tax-exempt status. (Note: A valid determination letter includes those issued before the effective date of the Internal Revenue Code (IRC) of 1986 and also those which may be issued under future IRC revisions). 
• Petitioning organizations that are not classified as “religious organizations” by the Internal Revenue Service must establish the religious nature and purpose of their organization. They must also certify that they are affiliated with a religious denomination that is tax exempt by completing the Religious Denomination Certification in the revised forms I-129 and I-360. 

Nonimmigrant Religious Worker Classification

• Every petition for a nonimmigrant religious worker (R-1) classification must be initiated by a prospective or existing employer through the filling of a Form I-129 with USCIS. The beneficiary (the religious worker) will no longer be able to obtain an R-1 visa at a U.S. Consulate abroad or at a port-of-entry without prior approval of the Form I-129 by USCIS.
• USCIS is amending the standard initial period of stay for nonimmigrant religious workers from three years to up to 30 months. The period of stay granted is always based on the petitioner’s need for the alien’s services. The revision gives the agency the opportunity to review, at an earlier time, whether the terms of the R-1 have been met. (Requests for one potential extension of an additional 30 months will be considered.) 

Special Immigrant Religious Worker Classification

• USCIS is expanding its interpretation of qualifying prior work experience to include work that is not in the exact same position as the job offered.
• The final rule allows for a short break in the continuity of the required two-year work experience when the beneficiary was engaged in further religious training or on a sabbatical.

New Definitions and Proposed Changes to Existing Definitions

• The rule provides enhanced definitions of the terms Religious Vocation and Religious Occupation.
• The final rule amends the definition of Religious Occupation to be a formal lifetime commitment to a religious way of life.
• The final rule amends the definition of Religious Occupation by removing the list of occupations listed as examples in the proposed rule. The amended definition requires that the occupation relate primarily to a traditional religious function that is recognized as a religious occupation within the denomination.
• The rule defines the term Minister to be a person duly authorized by a religious denomination to conduct religious worship and other duties performed by clergy; but requires no uniform types of training for all denominations. Petitioning organizations may submit evidence of the individual denomination’s requirements for ordination to minister, the duties allowed to be performed by virtue of ordination, and the denomination’s levels of ordination, if any.
• The rule defines Religious Denomination as a religious group or community of believers governed or administered under some form of “ecclesiastical government.” USCIS acknowledges, however, that some denominations lack a central government. Accordingly, the religious entity may satisfy the ‘ecclesiastical government’ requirement by submitting a description of its own internal governing or organizational structure.

Compensation Requirements

• In both the immigrant and nonimmigrant programs, compensation can include either salaried or non-salaried compensation.
• Verifiable evidence must demonstrate how the alien will be supported.
• The only exception to the compensation requirement is for certain nonimmigrant religious workers who are participating in an established program for temporary, uncompensated missionary work within the petitioning organization, which is part of a broader, international program of missionary work sponsored by the denomination. Such missionary workers would nevertheless have to submit evidence of financial resources sufficient to support them during their work. 

Revocation Procedures and Appeal Rights

• Appeal rights and revocation procedures are currently applicable to immigrant religious workers.
• The final rule adds a provision allowing an appeal of a denied nonimmigrant religious worker petition.
• The final rule also establishes procedures for revocation of the approval of nonimmigrant religious worker petitions. As with immigrant religious worker petitions, the revocation may be automatic or may require notice depending on the grounds for revocation. A petition that is revoked on notice may be appealed. 

Extension of Nonminister Categories Affected by the Sunset

• On October 10, 2008, President Bush signed the Special Immigrant Nonminister Religious Worker Program Act, Public Law 110-391.
• This legislation granted a six-month extension of the two special immigrant categories for nonministers that expired on October 1, 2008. These two categories now expire on March 6, 2009.
• Although this legislation was enacted on October 10, 2008, it does not become effective until the Secretary of Homeland Security publishes final regulations eliminating or reducing fraud, issues a certification to Congress, and publishes a notice in the Federal Register that such regulations have been issued and are in effect.
• Now that the regulations are published and effective, USCIS has resumed the acceptance and processing of nonminister special immigrant religious worker petition.

Federal contractors and subcontractors will be required to begin using the U.S. Citizenship and Immigration Services’ (USCIS) E-Verify system starting Jan. 15, 2009, to verify their employees’ eligibility to legally work in the United States. This new rule requires federal contractors to agree, through language inserted into their federal contracts, to use E-Verify to confirm the employment eligibility of all persons hired during a contract term, and to confirm the employment eligibility of federal contractors’ current employees who perform contract services for the federal government within the United States.

Federal contracts awarded and solicitations issued after Jan. 15, 2009 will include a clause committing government contractors to use E-Verify. The same clause will also be required in subcontracts over $3,000 for services or construction. Contracts exempt from this rule include those that are for less than $100,000 and those that are for commercially available off-the-shelf items. Companies awarded a contract with the federal government will be required to enroll in E-Verify within 30 days of the contract award date. They will also need to begin using the E-Verify system to confirm that all of their new hires and their employees directly working on federal contracts are authorized to legally work in the United States.

More than 92,000 employers currently use E-Verify, a free Internet-based system operated by the Department of Homeland Security in partnership with the Social Security Administration that allows participating employers to electronically verify the employment eligibility of their employees.  To read the USCIS Frequently Asked Questions (FAQs) on this subject, please click here.

Computer World Magazine online has an article explaining why President-elect Obama might increase the H-1B cap and immigrant visa numbers, this despite our economic problems.   

Obama has been a proponent of the H-1B visa program.  Although he supports reform of the program, he has also made it clear that he supports an increase of the H-1B visa cap.  Furthermore, the U.S. should want to encourage foreign students and employees to stay, live and work in the United States.  Studies have shown that a vast number of entrepreneurs are immigrants.  If there is one thing that will help the U.S. recover from this economic crisis, it's entrepreneurism and the entrepreneurial spirit.

We will soon find out what Obama's priorities will be when it comes to immigration.  But we at Bashyam Spiro believe that his first two moves should be to: 1) increase the H-1B cap and 2) make it easier for foreign workers and foreign students with advanced U.S. degrees to get permanent resident status.

To read the entire article in Computer World online, please go to THIS LINK.

After a historic election, we now know who will be the 44^th President of the United States - President Elect Barack Obama.  With the election of Senator Obama, the focus now turns to what he will do with the economy, health care reform, and the war in Iraq.  But what will he do about immigration reform?  After years of ‘near misses’ on this issue, will President Elect propose legislation that will end immigrant visa backlogs, provide a path for undocumented aliens to obtain citizenship, and reform a system that needs to keep up with our global economy?

Our prediction is that he will.   

To get an idea of Senator Obama’s position on immigration reform, one only has to listen to what he actually says on the issue.  In response to the U.S. Senate’s failure to move on the DREAM Act, a bill he sponsored, Senator Obama said the following in October 2007. 

“We need comprehensive immigration reform in this country – reform that promotes our national and economic security and creates a pathway to earned citizenship for the 12 million undocumented immigrants in this country. We should not punish undocumented children who were brought to this country illegally through no choice of their own by keeping them in the shadows. The DREAM Act would have given these young people the opportunity to earn a degree or serve in our military, and eventually become legalized citizens. Failing to pass the DREAM Act only compounds the immigration crisis by continuing to drive thousands of young people every year into hiding.” 

“Today is another missed opportunity in the battle to solve the immigration crisis in this country. The immigration debate has been wrought with the politics of division and fear, and been exploited by some politicians, blocking the real reform we need. Today's vote proves that we need to do more to transcend these divisions – especially to provide solutions to help the most vulnerable in our society. I will continue to work with Senators Durbin, Hagel, Lugar and Kennedy on this issue, and will fight to bring this legislation back for another vote as soon as possible.”  

It is clear that immigration reform is essential.  Companies must be able to hire the workers that they need to stay competitive.  A person should not have to wait 6-12 years to obtain permanent residency, and a lawful permanent resident should not have to wait 4-5 years to bring their spouse to the United States. Furthermore, something has to be done to bring illegal aliens ‘out of the shadows’.  Any workable solution must ultimately balance fair immigration reform with immigration enforcement.    

President Elect Obama will have many issues to tackle during his first year as President.  But because immigration is so important to so many people and businesses in the United States, we hope that he makes positive immigration reform one of his top priorities. 

USCIS has informed the American Immigration Lawyers Association (AILA) that applicants may continue to use the N-400 Application or Naturalization form even though the prior edition expired on October 31, 2008.  A new edition of the form has not been posted to the USCIS web site.

The information on acceptability of the expired form has been added to the “Special Instructions” section of the N-400 page and is also referenced in the “Edition Date” section.

When a new edition becomes available, we will post it here at www.bashyamspiro.com.

The bilateral adoption agreement between the United States and Vietnam expired on Sept. 1, 2008.  Both nations have agreed to cease processing new adoption cases until the United States and Vietnam sign a new bilateral agreement. 

Question:   Now that Sept. 1 has passed, what is the status of adoptions from Vietnam?

According to the Vietnamese Ministry of Justice, prospective adoptive parents who received a formal referral (matched with a child) by Sept. 1 will be allowed to process their adoption to conclusion.  Dossiers that were not referred by Sept. 1 will be closed and returned to the adoption service provider.    

Question:  Should adoption service providers stop working on new adoptions from Vietnam?

The Department of State (DOS) and United States Citizenship and Immigration Services (USCIS) strongly urge adoption service providers to stop matching prospective adoptive parents with children from Vietnam, and we also strongly encourage prospective adoptive parents not to seek or accept post-Sept. 1 referrals from Vietnam at this time.  By stopping such activities, families will not be put in the extraordinarily difficult situation of being matched and bonding with a child that cannot come to the U.S. based on an adoption.  

Question:  Does this also apply to adoptions involving special medical needs, among others?

Because there are exceptions in Vietnamese law that allow certain cases to be processed even without a bilateral agreement, including some cases for children with medical issues and certain relative adoptions, agencies and adoptive parents have asked about processing such cases.  However, the definitions and procedures for such cases are not clearly defined.   At this time, USCIS and the Department of State will not process these types of cases.  The Vietnamese government is in agreement that such cases will not be processed without a new bilateral agreement in place. 

With the de-licensing of adoption service providers and the strong possibility that a post-Sept. 1 special needs system would be decentralized, it is likely that a post-Sept. 1, 2008 adoption system would have even less safeguards and protections for children than the pre-Sept. 1 system with which we had significant concerns.  Therefore, DOS and USCIS have determined that it would be difficult, if not impossible, to implement a transparent and reliable adoption program for the special needs and other excepted types of cases in Vietnam without new protections and safeguards.  USCIS and DOS have thus concluded that it is in the best interest of children and families not to resume processing any post-Sept. 1 adoption cases until a new bilateral agreement is reached that resolves these concerns. 

Question:  How do I know if my case is a pre-Sept. 1 case?

On Sept. 23, 2008, the Vietnamese Department of International Adoptions (DIA) has provided a list of 534 United States dossiers that received referrals before Sept. 1.  These cases will be processed to conclusion.  Prospective adoptive parents unclear about the status of their case may wish to verify via e-mail with the United States Embassy in Hanoi (hanoiadoptions@state.gov) to confirm if their case is on the DIA list. 

Question:  When will processing of adoption cases resume in Vietnam?

The processing of adoption cases for children from Vietnam will resume when the United States and Vietnam enter into a new bilateral agreement on adoptions or the Government of Vietnam accedes to the Hague Convention on Intercountry Adoptions and the adoption system in Vietnam is recognized by the United States as Hague compliant.

Both governments acknowledge the complexity of these issues and the importance of developing a transparent adoption system that protects the fundamental rights of all parties prior to resuming adoptions. The United States continues to strongly support the Vietnamese government’s efforts to establish a viable adoption system with sound safeguards and protections for children and families. Until then, USCIS and DOS have concluded it is in the best interest of children and families not to process any post-Sept. 1, 2008 adoption cases without the security of a new agreement. This action does not affect cases where the prospective adoptive parents were matched with a child before Sept. 1, 2008, the date the previous bilateral agreement expired. 

Question:  May I still file a Form I-600A?

Yes.  Persons may continue to file a Form I-600A, Application for Advance Processing of Orphan Petition.  However, if Vietnam is designated as the country from which the prospective adoptive parent intends to adopt, he or she should know that without a valid bilateral agreement in place, it will not be possible to finalize an adoption in Vietnam and immediately bring the child to the United States on the basis of that adoption. 

Question:  May I still file a Form I-600 for a child in Vietnam?

Yes.  If you received a referral prior to Sept. 1, 2008 that meets the criteria set forth above, including being on the list of dossiers forwarded by the Government of Vietnam, you may file Form I-600, Petition to Classify Orphan as an Immediate Relative, for that child and the petition will be processed.

If you did not receive a referral before Sept. 1, 2008, USCIS and DOS will be unable to process your case or issue a visa for the child.

As our economy enters a period of slow growth, and maybe even the ‘R’ word, employers may look to cut costs to ride out the economic downturn. These costs could include reductions in workforce, pay, or hours worked by company employees. If a company currently has foreign employees, the decision must look beyond basic company economics and consider possible violations of immigration laws as well. So what potential immigration laws could a company violate under these circumstances?

Under the H-1B and E-3 professional visa programs, employers are required to pay their foreign employees the higher of the actual wage or prevailing wage for the position. The prevailing wage is determined by the Department of Labor (DOL). These obligations are covered under the Labor Condition Application (LCA) that is filed by employers with the DOL prior to obtaining professional work status for foreign employees. The LCA governs what the employer must pay and the hours the employee must work under the H-1B and E-3 programs.

Employers should be mindful that reducing pay or work hours of foreign employees could result in a violation of the employer’s obligations under the LCA. Make sure that the salary does not fall below the actual wage stated in the LCA for the foreign employee. That will result in a violation of the LCA, and could lead to DOL penalties. Reducing an employee’s status from full-time to part-time is possible, but an employer must first do two things: 1) make sure that they are paying the higher of the actual or prevailing wage for that part-time position and 2) file an amended H-1B/E-3 application that contains a new LCA evidencing the part-time status of the employee. Furthermore, the DOL does not recognize ‘nonproductive work status’, also referred to as ‘benching’. Employers will be required to make pro-rata payment of required wages even if a foreign worker is put on nonproductive work status.

What happens if an employer terminates an H-1B or E-3 professional workers? An employer must pay for the reasonable costs of transportation for the employee back to his/her home country for H-1B workers. This means the cost of a plane ticket back home. The obligation covers the H-1B employee and not the employee’s family. The same legal obligation does not exist for workers holding E-3 status.

Some employers will be considered ‘H1B dependent’ if a certain percentage of their workforce consists of H-1B workers. If an employer is H-1B dependent, it must monitor layoffs within its workforce. After an LCA is certified for a position, an employer must make certain that it has not laid off a U.S. worker from an equivalent position within 90 days preceding and 90 days after the filing of an H-1B petition. Employers must be careful to monitor layoffs of U.S. workers under these conditions.

The PERM labor certification application is the first step of most employer-sponsored permanent residency applications filed on behalf of foreign employees. The purpose of PERM is to prevent the displacement of qualified U.S. workers for the foreign employee’s position. Layoffs of U.S. workers in positions similar to the foreign worker, if they occur within the six-month period preceding the filing of a PERM labor certification, will impact an employer’s recruitment obligations and their ability to file the labor certification application. In this situation, employers will be required to consider the U.S. workers who have been laid off for the position specified in the labor certification. Therefore, it is important that employers monitor layoffs not only in the context of workers in H-1B or E-3 status, but for workers who are going through the permanent residency process as well.

Is it a tough economy? Yes. Will tough decisions need to be made? Perhaps. But be careful not to violate immigration laws while implementing cost cutting measures.

The TN nonimmigrant classification is visa category available to eligible Mexicans and Canadians with at least a bachelor’s degree or appropriate professional credentials who work in certain qualified fields pursuant to the North American Free Trade Agreement (NAFTA). Qualified professions identified within NAFTA include, but are not limited to, accountants, engineers, attorneys, pharmacists, scientists, and teachers.  For a complete llst of professions covered under NAFTA, please go to the 'Immigration Options' link on our home page and click on 'Nonimmigrant Visas'.

Spouses and unmarried minor children of TN nonimmigrants in will also benefit from the new regulation and will be admitted for a three-year period.