CENTER FOR RELIGIOUS IMMIGRATION AND PROTECTION

PRESENTS

U.S. Immigration Lawfor Religious Workers/Vocations

Center for Migration StudiesNew York, New YorkDecember 12, 2012

We are immigration attorneys for the Catholic Legal Immigration Network, Inc. (CLINIC). We practice exclusively in the

area of “religious” immigration law.

We prepare cases for filing with the U.S. Citizenship & Immigration Service (USCIS),

and represent over 170 Archdioceses, Dioceses, and Religious Communities.

Center for Religious Immigration & Protection

COMMON SCENARIOS FROM VOCATION DIRECTORS

•Candidate is unlawfully present

•Candidate is outside the U.S.

•Candidate is in the U.S. in another status

• New Development -Deferred Action for Childhood Arrivals (DACA)

• Basic Immigration Terms• Non-immigrant -R-1 Eligibility/Process• Other Options B-1 – Eligibility and Process F-1 – Eligibility and Process• Immigrant – Legal Permanent

Resident

Today’s Topics

DACA

• Help for undocumented young men and women

• A new plan for young people who entered the U.S. before 16 years of age

• Work authorization for two years• Written assurance that they will not be

deported for a two-year period

Eligibility

• Must be physically in U.S. by June 15, 2012

• Continuously resided the U.S. for five years by June 15, 2012 (since June 15, 2007)

• Entered the U.S. before 16 years old

• Be under age 31 when filing6

Eligibility

• Currently in school, or graduated from high school, or has a GED certificate

• Not convicted of a felony, three or more misdemeanors, or significant misdemeanor

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Limitations

• Currently does not lead to permanent resident status

• No benefits for family members

• DACA can be terminated

• Could lead to enforcement action for fraud and security reasons

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Risks

• Prior criminal activity, gang affiliations, serious juvenile offenses or prior unlawful re-entry after deportation could be grounds for denial.

• Fraud or false claim to U.S. citizenship could affect future eligibility for immigration benefits.

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DACA Application Process

• Form I-821D – DACA Application• Form I-765 – Employment Authorization

Application• Form I-765 WS – Economic Necessary

application\• $465 fee• Documentation proving eligiblity

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Important Resources

• http://cliniclegal.org/resources/deferred-action-for-dreamers

• http://www.uscis.gov

• Religious Immigration Section will be taking cases in November. RIS@cliniclegal.org

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These concepts are the building blocks of immigration law

BASIC IMMIGRATION TERMSStatus

Immigrant

Nonimmigrant

NonimmigrantVisa

StatusImmigrant

Undocumented or unlawfully present

A nonimmigrant

• is admitted to the U.S. for a temporary period of time;

• is limited in length of time in the U.S;

• is limited in activities s/he can do in the U.S.

Who is a Nonimmigrant?

B1/B2 – Business Visitor/Tourist

F-1 – Student

H-1B – Professional Occupation

R-1 – Religious Worker

COMMON NONIMMIGRANTS

A visa• is issued by U.S. Consulate (Department

of State);

• is the key to entering U.S.;

• shows the last date on which an individual may apply to enter the U.S.

What is a Visa?

R-1 Nonimmigrant Visa

FVisa Issue Date E

Petitioner and I-129 Receipt #

G“M” is for “Multiple Entries

AVisa Type is “R” for Regular versus “D” for Diplomatic

D Visa Number (in red)

BVisa class is “R-1” for R-1 Religious Worker.

C The visa

expiration date is the last date on which an individual may apply to enter the U.S (see “PED” – Petition Expiration Date is the same.

Status• is granted on admission to the U.S.

by an Immigration inspector at the port of entry or by extension by USCIS;

• is the period of time an individual is authorized to stay in the U.S.

• is shown on I-94 card

What is Status?

I-94 Arrival/Departure Record at Border

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I-94 Number

Admitted to the U.S. on July 29, 2010

R-1 STATUS (period of authorized stay)expires September 11, 2012 (compare to VISA expiration date and PED).

R-1 classification based on R-1 nonimmigrant visa.

SFR

Port of Entry – “SFR” San Francisco, CA

I-129 Approval Notice: Form I-797 “A” from USCIS

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I-129 Approval Notice: Form I-797 “A”

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I-94 Card – for change and/or extension of R-1 “STATUS”

An immigrant • Is admitted to the U.S. without

restriction as to length of stay, i.e., is arriving to stay permanently.

• Also called “green card” holder, LPR.

• Can do everything a U.S. citizen can do except vote in state and federal elections.

Who is an Immigrant?

Sample Permanent Residence Card

A person who• entered the U.S. without documents, or

stayed beyond expiration date on I-94 card

• cannot regularize immigration status• subject to removal• bars to re-entry

Undocumented Individual

Barred from U.S. for 3 years – if unlawfully present more than 6 months, but less than a year.

Barred from U.S. for 10 years – if unlawfullly present for more than one year.

Can be subject to removal proceedings

DACA may help

UNDOCUMENTED AND UNLAWFULLY PRESENT

R-1 – Religious Visa

• The R-1 Religious Worker category is an EMPLOYMENT- BASED nonimmigrant category.

• Think in terms of job – must show compensation and qualification for the position on the I-129 petition

•

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Two-step process:

1. Sponsor files an I-129 petition in the U.S. and the I-129 petition must be approved

2. Beneficiary applies for R-1 Visa at U.S. consulate abroad and is interviewed

Overview of R-1 Process

•Admission period: 2.5 years•Can be extended for another 2.5 years•Extensive Documentation•Attestation Requirements•Site Visits

Overview of R-1 Process

1. Sponsor files I-129 Petition in U.S. (with USCIS)

2. I-129 Petition is approved.3. Beneficiary applies for R-1 Visa at

U.S. consulate and is interviewed.4. R-1 Visa is granted/approved.5. Religious Worker enters U.S. with R-

1 Visa and is granted R-1 Status

I-129s for R-1 Religious Workers: The R-1 Process:

• Member of denomination for two (2) years

• Denomination has a nonprofit, federally tax-exempt religious organization in the U.S.

• Coming to U.S. to work at least 20 hours per week

• May be in US for a temporary period of time -- not more than five (5) years

Basic Requirements

Must fit into one of three (3) categories:1.minister (clergy)2.religious vocation

(vowed religious sisters and brothers)

3.religious occupation (those in formation, lay ministers and other lay religious workers)

Basic Requirements

Requires:

• Individual authorized by a recognized denomination to conduct religious worship and perform other duties traditionally reserved for the clergy.

• Must be fully trained according to the denomination’s standards.

1. Minister/Priest

• formal lifetime commitment

• demonstrated by vows or other ceremonies; and

• evidence of a traditional established class different from secular members.

2. Religious Vocation

• primarily relates to traditional religious function and

• recognized as a religious occupation within the denomination [and]

• primarily related to, and clearly involves carrying out the religious belief or creed of the denomination.

3. Religious Occupation

• Look at definition of religious occupation

• Focus on “work” in terms of prayer and ministry

• Mention study as only incidental to their primary traditional religious function

What about Candidates?

• Refer to canon law showing that being in formation is a recognized religious occupation within the church

• Refer to history of religious order showing novices and postulants are participating in a traditional religious function

• Refer to other writings of the church on the role of formation

• Show daily schedule of prayer and ministry involving carrying out Catholic creed

Possible Documentation for Religious Occupation Category

Sponsor files I-129 Petition

• Form I-129 – all I-129 Petitions are filed at the USCIS California Service Center (Fee $325)

• Form is 13 pages long (with “R” Supplement) with questions about sponsor and beneficiary

• “R” Supplement contains Attestation Section requiring very specific, detailed information

• A duplicate copy must be sent with the application to ensure consular notification abroad (from Kentucky Consular Center)

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Extensive Documentation

I-129 Petition requires extensive documentation to prove elements and category.

NOTE: English translations must be provided for all foreign language documents.

I-129 Petition Processing Times

• Regular Processing:

Current processing time at USCIS is 5 months – must plan ahead! USCIS fee of $325.

• Premium Processing:

15 days or less with additional fee of $1225 (or fee returned) – but only available for religious organizations that have had successful site inspection at location where beneficiary will be employed

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What is a Site Visit?

• Officer visits – with or without notification• Location – petitioner AND beneficiary work

address• Now more focus on beneficiary’s address• Officer may ask to see ANY documents or

records• Officer may take photos• Officer may make return visit

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• Assign designated person to respond to officer

• Keep records of immigration documents

• Know what the individual is doing• Keep religious organization’s

documents• Be cooperative

Prepare for Site Visits

• I-129 Approval Notice is received by employer. It is not a VISA

• Notify the foreign born individual

• Make plans for individual to apply for a visa

• Individual interview at U.S. Consulate abroad

I-129 Approved – Now What?

Applying for R -1 Visa

• Visit the appropriate Consulate’s website and review the requirements: www.usembassy.gov

• Review the visa wait times for planning purposes

http://travel.state.gov/visa/temp/wait/wait_4638.html

• Check fees and reciprocity requirements:

http://travel.state.gov/visa/fee/ fees_1341.html

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R-1 Visa: Required Documents

• Original Notice of Action - Form I-797 (I-129 approval notice)

• Receipt from Online Nonimmigrant Visa Electronic Application, Form DS-160

• Sponsor Letter• Proof of employer’s tax-exempt status• One (1) 2 x 2 inch photograph• Receipt for payment of $190 application fee• Passport Valid for at least 6 months

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• Answer all questions honestly on all forms (prior arrests, convictions, or past immigration problems)

• Read and understand the I-129 petition filed by your sponsor

• Articulate purpose of stay in the U.S. and that it is temporary

Preparing for Visa Interview

• Erroneous denials based on lack of adequate ties abroad, lack of experience, misunderstanding of categories of religious workers

• Administrative Reviews (security check, name check, etc.)

• Petition approval is somehow not verified by the Department of State's Petition Information Management Service (PIMS).

Possible Delays in Visa Issuance

• Passport returned with R-1 Visa

• R-1 Visa validity dates vary according to the approved petition validity dates

• A Visa does NOT automatically guarantee admission into the U.S.

R-1 Visa is Granted/Approved

• Show passport, visa, and I-129 petition approval notice to CBP Officer.

• R-1 Admission: Admitted for up to 30 months (2.5 years)

• Make sure the I-94 card has symbol “R-1” and the expiration date is at least 30 months (2.5 years) or to the expiration date of I-129 petition.

Admission to US

Canadians

• Canadians are visa exempt

• Canadians entering in R-1 status for the first time must have approved I-129 petition before requesting R-1 status at the border

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Finally in the U.S.!

Now what do we do???

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•Do only what authorized to do•Remain in the U.S. only for authorized period•Leave the U.S. when status expires•Seek change of status or extension before current status expires

MAINTAIN STATUS

Why Maintain R-1 Status?

• Preserve opportunity for future immigration benefits

• Preserve eligibility for extension of R-1 status

• Preserve eligibility for permanent residence

• Avoid Removal from U.S.

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Overstays (3/10 Year Bar)

• If you overstay on your R-1 status (stay beyond the date on I-94 card) you accrue UNLAWFUL PRESENCE and cannot file for an extension.

• If you accrue over 6 months of unlawful presence you are subject to the 3 year bar.

• If you overstay over 1 year, you are subject to the 10 year bar.

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•Support and maintain the individual

•Assist the individual in maintaining immigration status by monitoring documents, expiration dates, and activities

•Report dismissal or departure to USCIS

SPONSOR’S RESPONSIBILITY

Notify USCIS within 14 days when a person in R-1 status is no longer with the Diocese or is working less than the required number of hours

Include the following information:Reason for notification or late notification;USCIS receipt number of approved R-1 petition;Diocesan name, address, and phone;R-1 beneficiary information (name, date of birth, country of birth, last known physical address and phone).

NOTIFICATION REQUIREMENT

Recordkeeping

• Make copies of passport, Visa, all I-94 cards.

• Keep track of important dates – expiration dates of passport, visa, I-94, and initial entry into U.S.

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•

•All non-U.S. citizens must notify USCIS of a new address•Form AR-11•Must be done within 10 days•Can be done online at: www.uscis.gov

CHANGE OF ADDRESS

Other Options

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B-1/B-2 Visitor Visa

The B-1/B-2 visa is a nonimmigrant visa for a temporary visit.

It can also be used for religious activity.

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B-1/B-2 Visitor Visa

Factors to be considered:• Residence in a foreign country, which

they do not intend to abandon;• Intention to enter the US for a period of

specifically limited duration; and• Purpose is to engage in legitimate

activities relating to business or pleasure.

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B-1 Visas – Religious Activities

• Ministers on Evangelical Tour (X)

• Ministers of Religion Exchanging Pulpits (X)

• Missionary Work

• Members of religious denominations, whether ordained or not, entering the U.S. temporarily for the sole purpose of performing missionary work on behalf of a denomination, so long as the work does or involve selling of articles or the solicitation or acceptance of donations and provided the minister will receive no salary or remuneration from U.S. sources other than allowance or other reimbursement for expenses incidental to the temporary stay.

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Missionary Work

• Missionary work may include religious instruction, aid to the elderly and needy, proselytizing, etc.

• Incidental expenses may not exceed reasonable travel expenses and living expenses (room and board, services) 9 FAM 41.31 N9. 1-3, N11.1

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Religious Activities

• Applicants Unable to Qualify for R Status

“In cases where an applicant is coming to perform voluntary services for a religious organization, and does not qualify for R status, the B-1 status remains an option … even if he or she intends to stay a year or more in the United States.”

9 FAM 41.31 N9.1-4

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Qualifying for a B Visa

• The presumption in the law is that every visitor visa applicant is an intending immigrant.

• Applicants must overcome this presumption by demonstrating

--the purpose of their trip qualifies for a B visa

--plan to remain only for a specific, limited time

--evidence of funds to cover expenses in U.S.

--evidence of compelling social and economic ties in

home country that will ensure their return

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Applying for a B Visa• Apply at the U.S. Consulate. www.usembassy.gov

• Apply Early at least 45 to 60 days before needed arrival date

• Check State Department web site: “Visa Wait Times - for Interview Appointments and Processing”

http://travel.state.gov/visa/temp/wait/wait_4638.html

• Fee for B Visa: $160

• Reciprocity Fee: Depends on Country

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For Seminarians

engaged in full-time study

F-1 Student Visas

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• Full-time student• At Immigration–approved educational

institution• Diocese will cover costs• Must show non-immigrant intent• Admitted for D/S (duration of status)• Cannot enter the U.S. more than 30 days

prior to start of academic program

F-1 Student Eligibility

• If outside the U.S., apply for the F-1 at the U.S. Consulate, includes interview.

• If in U.S. and changing status, work through school, and file for a change of status to F-1 with USCIS. No interview.

• If in the U.S. in F-1 status, and transferring to a seminary, must be accepted at the new school and notify current school of transfer.

Ways to Obtain F-1 Status

• School issues I-20• Diocese pays SEVIS (Student

Exchange Visitor Information System) fee

• Student files F-1 application at U.S. Consulate

or• Student is in the U.S. and files I-539

application for change of status at USCIS

F-1 Process

Applying for an F-1 Visa

• Visit the appropriate Consulate’s website and review the requirements: www.usembassy.gov

• Review the visa wait times for planning purposes:http://travel.state.gov/visa/temp/wait/wait_4638.html

• Check fees and reciprocity requirements:http://travel.state.gov/visa/fee/fees_1341. html

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Denial of an F-1 Visa: Immigrant Intent

U.S. consular officers automatically assume that an applicant has immigrant intent and students must overcome this presumption that they intend to staty permanently in the U.S.before they can be issued F-1 visas.

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Duration of Status (D/S

Students in F-1 status are admitted for the duration of their academic program.

Their I-94 cards should have “D/S” rather than a specific ending date.

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Admittance Stamps for F-1 Status

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The Grace Period

F-1 students are allowed a 60-day grace period at the conclusion of their program of study. This is an additional time that they can legally remain in the U.S. following the conclusion of their studies.

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The Grace Period

Manner in Which Program EndsLength of

Grace Period

Student finishes academic program 60 days

Student completes optional practical training 60 days

Student withdraws from course of study with permission of DSO but does not transfer to another school

15 days

Student withdraws without prior DSO approval

0 days

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Permanent Residence Process

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Introduction to Permanent Residence

• Two-part process:

I-360 Petition + I- 485 Application =Permanent Residence Card

• Requires a sponsor (the employer)

• Permanent Residence is not Citizenship – can be lost

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Permanent Residence

Remember:

• R-1 nonimmigrants can remain in the U.S. for up to 5 years.

• Not everyone wants or needs to become a permanent resident.

• The person who wants to become a permanent resident must intend to reside in the U.S. permanently.

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I-360 Basic Requirements (Similar to R-1)

• Two (2) years membership in religious denomination.

• Religious denomination is a nonprofit, tax-exempt 501(c)(3) religious organization in the U.S.

• Be coming to the U.S. to work in a full-time (average of at least 35 hours per week) compensated position in one of the following:

• Solely in the vocation of a minister of that religious denomination

• A religious vocation, or

• A religious occupation

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Other I-360 Petition Requirements

Two additional requirements:

• Two (2) Years Continuous Experience in “lawful immigration status”

• Two (2) Years must be in full-time work (35 hours a week)

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Maintaining Status while I-360 Pending

IMPORTANT:

• Current Processing Time at USCIS for I-360 petition is 5 months

• Individual must continue to maintain R-1 status while I-360 is pending. Filing the I-360 application does not give lawful status in the U.S.

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Filing for Permanent Resident Card

Adjustment of Status (I-485):

• Step 1: File I-360 petition with USCIS and get approval

• Step 2: Apply for an adjustment of one’s status to permanent resident inside the U.S.by filing the I-485 application with USCIS

G-28 I-485 G-325A I-765 (employment authorization

document) I-131 (travel document)

USCIS Forms:

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Adjustment of Status

• Medical Exam• Six (6) Photographs• Birth Certificate• Copies of All Passports and I-94s• I-360 Approval Notice• Employment Letter• Filing Fee (currently $1,070)

Required Documents

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If filed an I-485 application for permanent residence:

•You must have your travel permit from USCIS (advance parole) before taking a trip abroad

OR you abandon your I-485 application!

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Traveling while I-485 Pending

Sample LPR Card

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Once a Permanent Resident . . .

• Allowed to do everything U.S. born citizen can do except vote in state and federal elections

• Admitted without limit as to length of stay, but must renew card every ten (10) years

• Required to maintain the permanence of the residence in the U.S. (limits on living abroad)

• Vulnerable to losing permanent resident status and removal from the U.S. depending on whether individual commits a crime, the type of crime committed, and its legal consequences.

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Re-Entry Permit

• Allows a permanent resident to stay abroad for more than one year without jeopardizing permanent resident status

• Form I-131 must be filed first in the U.S. and attend biometrics appointment before leaving the US

• Re-entry permit can be picked up at a consulate abroad or sent to a U.S. address

• Valid for 2 years and may reapply for another 2 years

• Must show the re-entry permit when coming back to the United States

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Change of Address

• All non-U.S. citizens must notify USCIS when they move to a new address

• Form AR-11 Change of Address Form• Must be done within 10 days of Moving• Can be done online at:

www.uscis.gov

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Center for Religious Immigration and Protection

We provide legal services for foreign born religious workers

Phone: 202-756-5549Email: RIS@cliniclegal.org

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