Chapter 2 - Religious Workers

A. Purpose and Background

Ministers of a religious denomination have long been a part of the framework of U.S. immigration law. Congress provided lawful permanent residence for certain ministers and their families as early as the Immigration Act of 1924.^[1] In 1990, Congress created a new special immigrant category that includes both ministers and other religious workers in the Immigration and Nationality Act (INA).^[2]

While the statutory provision for minister is permanent, the Immigration Act of 1990 (IMMACT 90)^[3] specified that other religious workers must adjust status or immigrate before October 1, 1994.^[4] Congress has extended this sunset date several times.^[5] While there is no limit on the number of ministers who may adjust status or immigrate, there is an annual limit of 5,000 for all other religious workers.^[6]

B. Legal Authorities

• INA 101(a)(27)(C) – Certain ministers and religious workers
• ​INA 203(b)(4) – Certain special immigrants
• ​INA 245; 8 CFR 245 – Adjustment of status of nonimmigrant to that of person admitted for permanent residence
• ​8 CFR 204.5(m) – Religious workers

C. Eligibility Requirements

To adjust to lawful permanent resident (LPR) status as a special immigrant religious worker, an applicant must meet the eligibility requirements shown in the table below.^[7]

1. Eligibility to Receive an Immigrant Visa^[14]

To be eligible to receive an immigrant visa to adjust status as a religious worker, the principal applicant must obtain classification as a religious worker from USCIS. Either the applicant or the applicant’s employer must file a Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360) to obtain this classification.

A noncitizen may be classified as a special immigrant religious worker based on full-time employment with a bona fide nonprofit religious organization in the United States or bona fide organization affiliated with the religious denomination in the United States if all of the following criteria are met: 

• The work to be performed in the organization is: solely as a minister for a religious denomination, in a religious vocation in a professional or nonprofessional capacity, or in a religious occupation either in a professional or nonprofessional capacity; 
• ​The religious worker has been a member of a religious denomination that has a bona fide nonprofit religious organization in the United States for at least 2 years immediately preceding the filing of the petition for classification as a religious worker; and 
• ​The religious worker must have been working continuously in one of the positions described above either abroad or in the United States^[15] for at least 2 years immediately preceding the filing of the petition. Only employment after 14 years of age qualifies under this requirement.^[16]

The religious organization seeking to employ the noncitizen as a special immigrant religious worker may file Form I-360 with USCIS on behalf of the person. Alternatively, the noncitizen may file the Form I-360 as a self-petitioner.^[17] The petition must include evidence to prove the above eligibility criteria.^[18] USCIS may conduct an on-site inspection of all petitioning organizations. If USCIS conducts a pre-approval inspection, satisfactory completion of the inspection is a condition of approval of any petition. USCIS may also randomly inspect a petitioner’s site after adjudication. 

Verifying the Underlying Basis to Adjust Status and Determining Ongoing Eligibility^[19]

The religious worker petition should already be adjudicated and approved when the officer adjudicates the adjustment application. USCIS does not re-adjudicate the religious worker petition at the time of the adjudication of the adjustment application. However, the officer should ensure that the applicant remains classified as a religious worker and thus is eligible to adjust as a religious worker. As a result, there may be instances when USCIS may require the applicant to provide additional evidence to show he or she continues to be classified as a religious worker. In other words, the officer must verify the status of any underlying immigrant petition that forms the basis for adjustment.

2. Bars to Adjustment

Unless exempt, religious workers and their derivatives are ineligible for adjustment of status if any of the bars to adjustment of status apply.^[20] Religious workers and their derivatives may be exempt under INA 245(k) from some of the bars to adjustment.^[21] To qualify for an exemption, the applicant must not have accrued more than 180 days of certain immigration violations since his or her last lawful admission. If the applicant does not qualify for the exemption, then the applicant remains subject to the adjustment bars.^[22]

3. Admissibility and Waiver Requirements

In general, an applicant who is inadmissible to the United States may only obtain LPR status if he or she obtains a waiver or other form of relief, if available.^[23] In general, if a ground of inadmissibility applies, an applicant must apply for a waiver or other form of relief to overcome that inadmissibility.^[24] If a waiver or other form of relief is granted, USCIS may approve the application to adjust status if the applicant is otherwise eligible. 

The following table specifies which grounds of inadmissibility apply and which do not apply to applicants seeking LPR status based on the religious worker classification.

4. Sunset Date

Except for ministers, all other religious workers and their derivatives must adjust to LPR status on or before the designated sunset date.^[25] USCIS denies any adjustment applications based on special immigrant religious worker petitions (other than for ministers) that are pending or filed after the designated sunset date.

5. Treatment of Family Members

The spouse or child (unmarried and under 21 years of age) of a religious worker may accompany or follow-to-join the principal applicant if the spouse or child is otherwise eligible.^[26] The spouse and child may, as derivative applicants, apply to adjust status under the same immigrant category and priority date as the principal applicant. 

D. Documentation and Evidence

An applicant should submit the following documentation to adjust status as a religious worker: 

• Application to Register Permanent Residence or Adjust Status (Form I-485), with the correct fee;
• Copy of the Approval Notice (Form I-797) for the principal applicant’s special immigrant religious worker petition;^[27]
• Employment letter from the applicant’s Form I-360 employer-petitioner;^[28]
• ​Two passport-style photographs;
• ​Copy of government-issued identity document with photograph;
• ​Copy of birth certificate; 
• Copy of passport page with nonimmigrant visa (if applicable);
• ​Copy of passport page with admission or parole stamp (if applicable);
• ​Copy of Arrival/Departure Record (Form I-94) or copy of U.S. Customs and Border Protection (CBP) admission or parole stamp on the travel document (if applicable);^[29]
• Evidence of continuously maintaining a lawful status since arrival in the United States;
• Any other evidence, as needed, to show that an adjustment bar does not apply or that the applicant qualifies for an exemption;^[30]
• Report of Immigration Medical Examination and Vaccination Record (Form I-693);^[31]
• ​Certified police and court records of criminal charges, arrests, or convictions (if applicable);
• ​Application for Waiver of Grounds of Inadmissibility (Form I-601) or other form of relief (if applicable); and 
• ​Documentation of past or present J-1 or J-2 nonimmigrant status, including proof of compliance with or waiver of the 2-year foreign residence requirement under INA 212(e) (if applicable).

In addition, a spouse or child who is filing as a derivative applicant should submit the following:

• Copy of documentation showing relationship to the principal applicant, such as a marriage certificate or adoption decree (if applicable);
• Copy of approval notice (Form I-797) for the principal applicant’s Form I-360; and
• Copy of the approval or receipt notice (Form I-797) for the principal applicant’s Form I-485 or a copy of the principal applicant’s permanent resident card (Form I-551), (if applicable and not filing together with the principal applicant).

E. Adjudication^[32]

An officer adjudicating the adjustment application must review the application for completeness and supporting documents to verify the applicant’s eligibility under these provisions. The A-file should contain evidence of the approved Form I-360 petition. As appropriate, the A-file should also contain a denominational certification for religious organizations that are affiliated with a religious denomination.^[33] The officer may issue a Request for Evidence for any missing information or documents. 

The officer should verify that a USCIS site visit was satisfactorily completed. The officer may request an initial or follow-up site visit as needed before adjudicating the principal’s adjustment adjudication.^[34]

In addition, the officer should review the title and duties stated in the special immigrant religious worker petition and ensure the principal applicant was properly classified as a minister or other religious worker based on the underlying petition.^[35] If the principal applicant is not a minister but some other religious worker, the officer must verify that the principal’s and any family member’s adjustment adjudications can be approved before the specified sunset date.

1. Filing

An applicant seeking adjustment of status as a special immigrant religious worker may file his or her adjustment application with USCIS after USCIS approves the special immigrant petition^[36] (as long as the petition is still valid), provided:

• USCIS has jurisdiction over the adjustment application;^[37] and
• ​The visa availability requirements are met.^[38]

These applicants may not file an adjustment application concurrently with Form I-360.^[39]

2. Interview

The officer must schedule the applicant for an in-person interview at the appropriate field office and transfer jurisdiction to that field office for final adjudication in cases where:

• The officer cannot make a decision based on the evidence of record; or
• The applicant does not meet the criteria for an interview waiver.^[40]

3. Decision

Approval

The officer must determine that the applicant meets all the eligibility requirements as well as merits the favorable exercise of discretion before approving the application to adjust status as a special immigrant religious worker (or family member).^[41] If the application for adjustment of status is approvable, the officer must determine if a visa is available at the time of final adjudication.^[42]

If approved, USCIS assigns the codes of admission to applicants adjusting under this category as shown in the table below.

The applicant becomes an LPR as of the date of approval of the adjustment application.^[43]

Denial

If the officer determines that the applicant is ineligible for adjustment, the officer must deny the adjustment application. The officer must provide the applicant a written reason for the denial.^[44] Although there are no appeal rights for the denial of an adjustment application, the applicant may file a motion to reopen or reconsider. The denial notice should include instructions for filing a Notice of Appeal or Motion (Form I-290B).

Footnotes

[^ 1] See Section 4(d) of Pub. L. 68-139, 43 Stat. 153, 155 (May 26, 1924) which states, “An immigrant who continuously for at least two years immediately preceding the time of his application for admission to the United States has been, and who seeks to enter the United States solely for the purpose of, carrying on the vocation of minister of any religious denomination, or professor of a college, academy, seminary, or university; and his wife and his unmarried children, under 18 years of age, if accompanying or following to join him.” 

[^ 2] See INA 101(a)(27)(C).

[^ 3] See Pub. L. 101-649 (PDF) (November 29, 1990). 

[^ 4] In this chapter, the term “religious workers” broadly includes both ministers (clergy) and all other types of eligible religious workers; we also use the terms “ministers” and “other religious workers” when discussing the different eligibility rules that apply to these two categories.

[^ 5] Except for ministers, all other religious workers seeking adjustment of status as a special immigrant religious worker must have their Form I-485 approved before the specified sunset date. See Section 3 of Pub. L. 112-176 (PDF), 126 Stat. 1325, 1325 (September 28, 2012). For information on the current sunset date, see the USCIS website.

[^ 6] See INA 203(b)(4).

[^ 7] See INA 245(a) and (c). See 8 CFR 245. See Instructions to Form I-485. 

[^ 8] The job offered to the applicant based on the Form I-360 must still exist with the employer that filed the petition, and the applicant must intend to accept this employment upon approval of the applicant’s Form I-485.

[^ 9] See Part A, Adjustment of Status Policies and Procedures, Chapter 3, Filing Instructions, Section B, Definition of “Properly Filed” [7 USCIS-PM A.3(B)].

[^ 10] See Part A, Adjustment of Status Policies and Procedures, Chapter 6, Adjudicative Review, Section C, Verify Visa Availability [7 USCIS-PM A.6(C)].For information on Visa Availability and Priority Dates, see the DOS Visa Bulletin.

[^ 11] See INA 245(c). See Part B, 245(a) Adjustment [7 USCIS-PM B].

[^ 12] For more information, see Volume 8, Admissibility [8 USCIS-PM] and Volume 9, Waivers and Other Forms of Relief [9 USCIS-PM].

[^ 13] See INA 245(a). For more information, see Part A, Adjustment of Status Policies and Procedures [7 USCIS-PM A] and Part B, 245(a) Adjustment [7 USCIS-PM B].

[^ 14] See Part A, Adjustment of Status Policies and Procedures, Chapter 6, Adjudicative Review [7 USCIS-PM A.6] and Part B, 245(a) Adjustment, Chapter 2, Eligibility Requirements, Section C, Eligible to Receive an Immigrant Visa [7 USCIS-PM B.2(C)].

[^ 15] Federal regulations at 8 CFR 204.5(m)(4) and (11) specify that any qualifying employment a noncitizen performs in the United States must have occurred while the noncitizen was in a lawful immigration status. However, the U.S. Court of Appeals in Shalom Pentecostal Church v. Acting Secretary DHS, 783 F.3d 156 (3rd Cir. 2015), found this regulatory requirement to be inconsistent with the statute. As a result of this decision and a growing number of Federal courts reaching the same conclusion, USCIS decided to apply the Shalom Pentecostal decision nationally. As of July 5, 2015, USCIS does not deny special immigrant religious worker petitions based on the lawful status requirements at 8 CFR 204.5(m)(4) and 8 CFR 204.5(m)(11). Therefore, any employment in the United States can be used to qualify a noncitizen under the special immigrant religious worker requirements, regardless of whether the noncitizen was in a lawful or unlawful immigration status.

[^ 16] See 8 CFR 204.5(m)(4) and (11).

[^ 17] See 8 CFR 204.5(m)(6).

[^ 18] See Instructions to Form I-360 for more information on the special immigrant petition for religious workers. Required documentation and information includes the Employer Attestation section and Religious Denomination Certification section in Form I-360. 

[^ 19] For more information, see Part A, Adjustment of Status Policies and Procedures, Chapter 6, Adjudicative Review [7 USCIS-PM A.6].

[^ 20] See INA 245(c). For more information on the bars to adjustment, see Part B, 245(a) Adjustment [7 USCIS-PM B].

[^ 21] See INA 245(c)(2), INA 245(c)(7), and INA 245(c)(8).

[^ 22] See INA 245(k). See Part B, 245(a) Adjustment, Chapter 8, Exemptions from Bars to Adjustment, Section C, Certain Special Immigrants [7 USCIS-PM B.8(C)] and Section E, Employment-Based Exemption under INA 245(k) [7 USCIS-PM B.8(E)].

[^ 23] See INA 212(a) for the specific grounds of inadmissibility. 

[^ 24] See Volume 8, Admissibility [8 USCIS-PM] and Volume 9, Waivers and Other Forms of Relief [9 USCIS-PM]. See Application for Waiver of Grounds of Inadmissibility (Form I-601) and Application for Permission to Reapply for Admission into the United States after Deportation or Removal (Form I-212).

[^ 25] See the USCIS website for the current sunset date.

[^ 26] See INA 101(a)(27)(C) and INA 203(d). For the definition of child, see INA 101(b)(1).

[^ 27] See Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360).

[^ 28] The letter should be on official business letterhead verifying the job offer, the job title or position, summary of duties, and wages or salary to be paid. If the applicant filed the Form I-360 as a self-petitioner, the applicant should include a signed statement confirming that he or she intends to work in the occupation specified in the Form I-360.

[^ 29] Noncitizens admitted to the United States by CBP at an airport or seaport after April 30, 2013, may be issued an electronic Form I-94 by CBP instead of a paper Form I-94. Such noncitizens may visit the CBP Web site to obtain a paper version of an electronic Form I-94.

[^ 30] Such as evidence that the INA 245(c)(2) adjustment bar does not apply because the applicant’s failure to maintain status was through no fault of his or her own or for technical reasons, or evidence that the applicant qualifies for an exemption under INA 245(k). See 8 CFR 245.1(d)(2). See Part B, 245(a) Adjustment, Chapter 4, Status and Nonimmigrant Visa Violations – INA 245(c)(2) and INA 245(c)(8), Section E, Exceptions [7 USCIS-PM B.4(E)] and Chapter 8, Exemptions from Bars to Adjustment, Section E, Employment-Based Exemption under INA 245(k) [7 USCIS-PM B.8(E)].

[^ 31] The applicant may submit Form I-693 together with Form I-485 or later at USCIS’ request. See the USCIS website for more information. For more information on when to submit Form I-693, see Volume 8, Admissibility, Part B, Health-Related Grounds of Inadmissibility, Chapter 4, Review of Medical Examination Documentation [8 USCIS-PM B.4]. 

[^ 32] For more information, see Part A, Adjustment of Status Policies and Procedures, Chapter 6, Adjudicative Review [7 USCIS-PM A.6].

[^ 33] The denominational certification includes the name of the employing organization, the name of the religious denomination, a signature and date attesting that the religious denomination is tax exempt as a 501(c)(3) organization, the attesting name and title of the person signing the document, and the attesting organization name, street address, and contact information. See 8 CFR 204.5(m)(8)(iii)(D).

[^ 34] See 8 CFR 204.5(m)(12). See Religious Worker Benefit Fraud Assessment Summary (PDF) (July 2006) by the USCIS Office of Fraud Detection and National Security. 

[^ 35] An officer can assess the title and duties of the special immigrant religious worker by reviewing the Employer Attestation section of the Petition for Amerasian, Widow(er), and Special Immigrant (Form I-360).

[^ 36] See Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360). 

[^ 37] For more information, see Part A, Adjustment of Status Policies and Procedures, Chapter 3, Filing Instructions, Section D, Jurisdiction [7 USCIS-PM A.3(D)].

[^ 38] The applicant must have an immigrant visa immediately available when he or she filed the adjustment of status application and at the time of final adjudication. See Section C, Eligibility Requirements [7 USCIS-PM F.7(C)].

[^ 39] See Ruiz-Diaz v. United States, 618 F.3d 1055 (9th Cir. 2010) (affirming USCIS rule prohibiting religious workers from concurrently filing as a permissible construction of the statute). See 8 CFR 245.2(a)(2)(i)(B).

[^ 40] For more information, see Part A, Adjustment of Status Policies and Procedures, Chapter 5, Interview Guidelines [7 USCIS-PM A.5].

[^ 41] See INA 245(a). For more information, see Part A, Adjustment of Status Policies and Procedures [7 USCIS-PM A] and Part B, 245(a) Adjustment [7 USCIS-PM B].

[^ 42] For more information, see Part A, Adjustment of Status Policies and Procedures, Chapter 6, Adjudicative Review, Section C, Verify Visa Availability [7 USCIS-PM A.6(C)].

[^ 43] The date of approval is shown in the USCIS approval notice mailed to the applicant; that date is also shown on the actual Permanent Resident Card (Form I-551) the applicant receives after adjustment approval. 

[^ 44] See 8 CFR 103.2(b)(19) and 8 CFR 103.3(a).