9 FAM 402.16
(U) Religious Occupations – R Visas
(CT:VISA-1914; 02-14-2024)
(Office of Origin: CA/VO)
9 FAM 402.16-1 (U) Statutory and Regulatory Authorities
9 FAM 402.16-1(A) (U) Immigration and Nationality Act
(CT:VISA-1; 11-18-2015)
(U) INA 101(a)(15)(R) (8 U.S.C. 1101(a)(15)(R)); INA 101(a)(27)(C)(ii) (8 U.S.C. 1101(a)(27)(C)(ii).
9 FAM 402.16-1(B) (U) Code of Federal Regulations
(CT:VISA-1; 11-18-2015)
8 CFR 214.2(r); 22 CFR 41.58.
9 FAM 402.16-2 (U) Overview
(CT:VISA-1851; 10-16-2023)
a. (U) Section 209 of the Immigration Act of 1990, Public Law 101-649, created for the first time a separate NIV classification at INA 101(a)(15)(R) specifically for religious workers. Many nonimmigrant religious workers had previously sought admission to the United States as visitors for business, temporary workers, or exchange visitors. For guidance on B-1 classification for certain religious workers, see 9 FAM 402.2-5(C)(1).
b. (U) The Immigration Act of 1990 also amended INA 101(a)(27)(C), the special immigrant category for ministers of religion, from which the standards for the R classification are derived.
c. (U) R-1 NIVs may be issued only to applicants who are beneficiaries of approved Form I-129 petitions.
9 FAM 402.16-3 (U) Classification symbols
(CT:VISA-1828; 09-12-2023)
(U) 22 CFR 41.12 identifies the following R visa classification symbols for applicants in religious occupations in accordance with INA 101(a)(15)(R):
|
R1 |
Member of a Religious Denomination Performing Religious Work |
|
R2 |
Spouse or Child of R1 |
9 FAM 402.16-4 (U) Effect of an approved individual petition on visa adjudication
(CT:VISA-1851; 10-16-2023)
a. (U) An approved petition is prima facie evidence that the requirements for visa classification, which are examined by a USCIS adjudicator during the petition process, have been met. The approval of a petition by USCIS does not, however, relieve the applicant of the burden of establishing visa eligibility. While most petitions are valid, you should confirm that the facts in the petition are true during the visa interview. Remember that USCIS interacts solely with the petitioner; the interview is the first point during the petition-based visa process where a USG representative can interact with the beneficiary of the petition. Additionally, you benefit from cultural and local knowledge that adjudicators at USCIS do not possess, making it easier to spot exaggerations or misrepresentation in qualifications.
b. (U) You must suspend action on an application and submit a memo to the approving USCIS office via the Kentucky Consular Center if you know or have reason to believe that an applicant applying for a visa under INA 101(a)(15)(R) is not entitled to the classification as approved. For more information on returning an R petition to USCIS for reconsideration and revocation see 9 FAM 601.13.
9 FAM 402.16-5 (U) Verifying Petition Approval
(CT:VISA-1851; 10-16-2023)
a. (U) PIMS or PCQS are the resources available to you to confirm that a petition has been approved. You may use an approved Form I-129 or Form I-797 presented by the applicant as sufficient proof to schedule a visa interview or may schedule an interview based on the applicant’s confirmation that the petition has been approved, but an R visa must not be issued to a potentially eligible applicant unless the petition is approved in PIMS or PCQS.
b. Unavailable
c. (U) If PIMS does not contain the petition approval, you can check PCQS (found in the CCD under the Other Agencies/Bureaus tab) for confirmation that USCIS has approved the petition before sending an email to KCC to confirm that such petition has been approved and is in PIMS. In PCQS, under Search Criteria, select Receipt Number; then enter the number from the Form I-797; e.g., EAC1234567890. Select Receipt Number in the search type and select CLAIMS 3 as the system. Navigate to the CLAIMS 3 record and confirm USCIS approved the petition along with the validity dates. The presence of a CLAIMS 3 record alone is not indicative of its approval. If you find a petition approval in PCQS that was not in PIMS, you should send an email to PIMS@state.gov as follows: "Petition with Receipt Number EAC1234567890 was found in PCQS but not in PIMS." In the event the case is not available within two days, you should contact the KCCFPM@state.gov mailbox. You may not issue an R visa to an eligible applicant without verification of petition approval either through PIMS or PCQS.
d. (U) If you are unable to immediately locate information on a specific petition either through PIMS or PCQS, you must send an email to PIMS@state.gov. KCC will research approval of the petition and, if able to confirm its approval, will make the details available through the CCD within two working days. If the petition is not available before the visa interview, you may submit requests to KCC no more than five working days before the scheduled interview date. You must check PIMS before submitting a request to PIMS@state.gov. KCC will check the USCIS CLAIMS database and will upload the CLAIMS report into PIMS so that you can proceed with the scheduled interview. Always conduct a PIMS query before sending in these special requests, to avoid overburdening KCC.
9 FAM 402.16-6 (U) INA 214(b) refusals and R Nonimmigrants
(CT:VISA-1638; 10-13-2022)
a. (U) An R applicant is presumed to be an immigrant until they establish to your satisfaction that they are entitled to R nonimmigrant status. The standards for applying 214(b) described at 9 FAM 302.1-2(B)(4) apply to R applicants. Under 8 CFR 214.2(r)(15), R status requires an intention to depart the United States upon the expiration or termination of R status. However, an applicant for an R visa does not have to have a residence abroad which they do not intend to abandon.
b. (U) Further, "dual intent' is permissible for R visa holders, meaning that DHS has determined that a filed or approved request for permanent labor certification or the filing or approval of an IV preference petition may not be the sole basis for denial of R status. The applicant may come to the United States for a temporary period as an R nonimmigrant and depart voluntarily at the end of their authorized stay and, at the same time, lawfully seek to be become an LPR of the United States.
c. (U) A refusal under INA 214(b) is appropriate in situations where you conclude that the applicant does not intend to depart the United States upon conclusion of R status.
d. (U) Referring Approved R Petition to USCIS for Reconsideration: For guidance on sending a petition to USCIS for reconsideration, refer to 9 FAM 601.13.
9 FAM 402.16-7 (U) Classification Criteria
(CT:VISA-1851; 10-16-2023)
(U) The criteria for classification of a nonimmigrant R religious worker are:
(1) (U) The applicant is a member of a religious denomination having a bona fide nonprofit religious organization in the United States (see 9 FAM 402.16-8 below);
(2) (U) The religious denomination and its affiliate, if applicable, are exempt from taxation (see 9 FAM 402.16-8 below);
(3) (U) The applicant has been a member of the organization for two years immediately preceding application for admission (see 9 FAM 402.16-9 below);
(4) (U) The applicant is coming to the United States to work at least in a part time position (average of at least 20 hours per week);
(5) (U) The applicant is entering the United States solely as a minister or to perform a religious vocation or occupation (in either a professional or nonprofessional capacity) (see 9 FAM 402.16-10 and 9 FAM 402.16-11 below);
(6) (U) The applicant is coming to or remaining in the United States at the request of the petitioner to work for the petitioner;
(7) (U) The applicant will not work in the United States in any capacity not approved in a DHS-approved petition;
(8) (U) For R-2 visas, the applicant must be the spouse or child of an R-1 nonimmigrant who is accompanying or following-to-join the R-1 nonimmigrant (see 9 FAM 402.16-13 below); and
(9) (U) If the applicant has spent five years in this classification, they must have resided and been physically present outside the United States for the immediate prior year, except for brief visits for business or pleasure (see 9 FAM 402.16-14(B) below).
9 FAM 402.16-8 (U) Religious Denominations, Organizations, and Affiliated Organizations
(CT:VISA-1; 11-18-2015)
a. (U) An R-1 nonimmigrant must be coming to work for a bona fide nonprofit, religious organization or organization affiliated with a religious denomination in the United States. Such an organization:
(1) (U) Is exempt from taxation in accordance with section 501(c)(3) of the Internal Revenue Code of 1986, subsequent amendment, or equivalent sections of prior enactments of the Internal Revenue Code; and
(2) (U) Possesses a currently valid determination letter from the Internal Revenue Service (IRS) confirming tax exempt status.
b. (U) A bona fide organization which is affiliated with a religious denomination means an organization which is closely associated with the religious denomination and is exempt from taxation under 501(c)(3) of the Internal Revenue Code of 1986, subsequent amendment, or equivalent sections of prior enactments of the Internal Revenue Code.
c. (U) A religious denomination is a religious group or community of believers that is governed or administered under a common type of ecclesiastical government and will generally be found to have one or more of the following elements or comparable indications of its bona fides:
(1) (U) A recognized common creed or statement of faith shared among its members;
(2) (U) A common form of worship;
(3) (U) A common formal code of doctrine and discipline;
(4) (U) Common religious services and ceremonies;
(5) (U) Common established places of religious worship or religious congregations; or
(6) (U) Comparable indicia of a bona fide religious denomination.
9 FAM 402.16-9 (U) Member of Religious Denomination
(CT:VISA-1851; 10-16-2023)
The applicant must establish at the time of application for admission that they have been a member of the same religious denomination as the U.S. religious organization where the applicant will work for the two previous years.
9 FAM 402.16-10 (U) Ministers of Religion
(CT:VISA-1; 11-18-2015)
(U) Only individuals authorized by a religious denomination, and fully trained according to the denomination’s standards, to conduct religious worship and to perform other duties usually performed by authorized members of the clergy of that denomination may be classified as ministers of religion. The term does not include lay preachers or other persons not authorized to perform such duties. In all cases, there must be a rational connection between the activities performed and the religious calling of a minister. Ministers of religion must work solely as ministers in the United States but may engage in administrative duties incidental to the duties of a minister.
9 FAM 402.16-11 (U) Other Religious Workers
(CT:VISA-1281; 05-14-2021)
(U) In addition to ministers, applicants coming to the United States to perform a religious vocation or occupation, in either a professional or nonprofessional capacity, may qualify as R-1 nonimmigrants.
9 FAM 402.16-11(A) (U) Religious Vocations
(CT:VISA-1281; 05-14-2021)
(U) Religious vocation means a formal lifetime commitment, through vows, investitures, ceremonies, or similar indicia, to a religious way of life. The religious denomination must have a class of individuals whose lives are dedicated to religious practices and functions, as distinguished from the secular members of the religion. Examples of persons with a religious vocation include, but are not limited to nuns, monks, and religious brothers and sisters. An applicant who has taken vows and has made a lifelong commitment to a religion is presumed to be engaging in activities relating to a traditional religious function regardless of the nature of the activity. Persons with religious vocations may engage in any type of activity within their religious vocations, denomination, or its affiliate. For vocation-based R-1 applicants, the emphasis is therefore on what the applicant's status is within the religious organization, rather than on what the applicant will do in the United States.
9 FAM 402.16-11(B) (U) Religious Occupations
(CT:VISA-1638; 10-13-2022)
a. (U) Religious occupation means an occupation that meets all the following requirements:
(1) (U) The duties must primarily relate to a traditional religious function and be recognized as a religious occupation within the denomination;
(2) (U) The duties must be primarily related to, and must clearly involve, inculcating or carrying out the religious creed and beliefs of the denomination;
(3) (U) The duties do not include positions that are primarily administrative or support such as janitors, maintenance workers, clerical employees, fund raisers, persons solely involved in the solicitation of donations, or similar positions, although limited administrative duties that are only incidental to religious functions are permissible; and
(4) (U) Religious study or training for religious work does not constitute a religious occupation, but a religious worker may pursue study or training incident to status (see 9 FAM 402.16-11(C) below).
b. (U) The activity of a lay person who will be engaged in a religious occupation must relate to a traditional religious function. The very nature of such activity must, therefore, embody the tenets of the religion and have religious significance, i.e., the performance of the activity constitutes “practice” of that religion. Consequently, working within a religious facility does not, in itself, qualify a lay-person for R-1 classification. The applicant must further establish that their prospective activity relates primarily, if not exclusively, to matters of the spirit as they apply to their religion. It is not necessary that the applicant be engaged in a religious occupation at the time of the visa application or have prior experience with religious work.
9 FAM 402.16-11(C) (U) Religious Training
(CT:VISA-1281; 05-14-2021)
(U) Training does not constitute work and therefore does not qualify as a religious occupation. If training is involved, you must examine the case to determine whether the applicant is coming to the United States for training or to perform in a religious occupation. However, an applicant who has a religious vocation (as described in 9 FAM 402.16-11(A) above) may qualify for R-1 status even if they are engaged in training.
9 FAM 402.16-12 (U) B Visas for Certain Religious Activity
(CT:VISA-1281; 05-14-2021)
(U) Certain religious work can be undertaken in B visa status; see 9 FAM 402.2-5(C)(1). In addition, other religious activities (e.g., private worship, prayer, meditation, informal (avocational) religious study, and attendance at religious services or conferences) that do not constitute religious "work" would therefore not be appropriate for R classification unless the applicant has a religious vocation. The applicant, however, may qualify for B-1 or B-2 visa status. Other than in the narrow contexts described in 9 FAM 402.2-5(C)(1) religious workers cannot work on a B visa, and if the applicant will be paid a salary from a U.S. source, B classification may not be used, and the applicant must qualify for R-1 or some other work visa.
9 FAM 402.16-13 (U) Spouse and Children
(CT:VISA-1914; 02-14-2024)
a. (U) Derivative Classification: The spouse and unmarried children under 21 years of age of a religious worker classified R-1 are entitled to derivative R-2 classification and to the same length and limitation of stay as the principal if they are accompanying or following-to-join the principal in the United States. R-2 nonimmigrants are not required to demonstrate a residence abroad which they have no intention of abandoning.
b. (U) Employment Prohibited: An individual in R-2 status is not authorized to accept employment. You must take this into account in evaluating whether a family member has furnished adequate evidence of their support while in the United States. An R-2 nonimmigrant is permitted to study during their stay in the United States.
9 FAM 402.16-14 (U) Validity of R Visas
9 FAM 402.16-14(A) (U) Visa Validity Determined by Petition
(CT:VISA-1638; 10-13-2022)
a. (U) The validity of an R visa may not exceed the validity of the R visa petition or the period for which the individual’s authorized stay in R status was extended (see 8 CFR 214.2(r)(4)(i) and 9 FAM 402.16-16 below). If the permitted visa validity is less than the validity of the approved petition or extension of stay, the validity permitted by the reciprocity schedule prevails. If the applicant's prior visa and petition have expired, the applicant is not eligible to receive a new visa until the pending petition has been approved.
b. (U) You are authorized to accept R visa petitions and issue visas to qualified applicants up to 90 days in advance of applicants’ beginning of employment status as noted on the Form I-797, Notice of Action. You must inform applicants that they may enter the United States on or after the effective date of the R-1 approval notice and not before and may wish to annotate the visa to reflect this.
c. (U) While there is no change of employers or gap in authorized status allowed for an individual in R-1 status, an applicant may obtain an R-1 visa that is valid for the time remaining on the first petition (and/or any extensions) extending through the validity of the second petition, so long as there is no gap in the period covered by the two petitions.
9 FAM 402.16-14(B) (U) Maximum Validity of R Status
(CT:VISA-1638; 10-13-2022)
(U) Generally, five years is the maximum allowable stay that will be granted to an R visa holder by DHS. After five years the applicant must reside and be physically present outside of the United States for one year to be eligible for an R-1 visa again. This limitation does not apply, however, for R-1 nonimmigrants who did not reside continually in the United States and whose employment in the United States was seasonable or intermittent or was for an aggregate of six months or less per year. In addition, this limitation does not apply to applicants who reside abroad and regularly commute to the United States to engage in part-time employment.
9 FAM 402.16-15 (U) Annotating R Visas
(CT:VISA-1281; 05-14-2021)
(U) You must annotate the number of the applicant’s approved petition (or the number of the principal’s petition in the case of R-2 dependents) on the visa, followed by the name and location of the religious denomination or affiliate for which the applicant will be providing services. Follow the standard operating instructions for annotating visas; for more details see 9 FAM 403.9-5(E).
9 FAM 402.16-16 (U) Admission, Extension of stay, and Readmission
(CT:VISA-1851; 10-16-2023)
a. (U) Individuals will normally be admitted in R-1 status for an initial stay of 30 months. Any request for an extension of stay in R status must be made by submitting a Form I-129, Petition for a Nonimmigrant Worker, to DHS. An individual may be granted an extension of R-1 stay or readmission in R-1 status for the validity of the petition if the total period spent in the United States does not exceed a maximum of five years.
b. (U) An individual who has spent five years in the United States in R status as described in 9 FAM 402.16-14(B) above may not be issued a visa or be readmitted to the United States as an R nonimmigrant unless they have resided and been physically present outside the United States for the previous year, except for brief visits for business or pleasure. Such visits do not end the period during which an individual is residing abroad, but time spent in the United States during such visits does not count towards fulfilling the one-year abroad requirement.
9 FAM 402.16-17 (U) Change of Employers
(CT:VISA-1281; 05-14-2021)
(U) A different or additional organizational unit of the religious denomination or affiliate seeking to employ or engage the services of a religious worker must file a new Form I-129, Petition for a Nonimmigrant Worker, with the jurisdictional USCIS Service Center, along with evidence that the individual will continue to qualify as a religious worker.