UNCLASSIFIED (U)

9 FAM 402.16 

Religious Occupations – R Visas

(CT:VISA-885;   07-08-2019)
(Office of Origin:  CA/VO/L/R)

9 FAM 402.16-1  Statutory and Regulatory Authorities

9 FAM 402.16-1(A)  Immigration and Nationality Act

(CT:VISA-1;   11-18-2015)

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)  Code of Federal Regulations

(CT:VISA-1;   11-18-2015)

8 CFR 214.2(r); 22 CFR 41.58.

9 FAM 402.16-2  Overview

(CT:VISA-815;   06-03-2019)

a. Section 209 of the Immigration Act of 1990, Public Law 101-649, created for the first time a separate nonimmigrant visa (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. 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.  On November 26, 2008, U.S. Citizenship and Immigration Services (USCIS) promulgated regulations requiring that sponsoring employers must file Form I-129, Petition for a Nonimmigrant Worker, for all aliens for whom R-1 nonimmigrant status is sought.  As a result, no R-1 NIVs may be issued to an alien who is not the beneficiary of an approved Form I-129 petition.

9 FAM 402.16-3  Classification symbols

(CT:VISA-1;   11-18-2015)

22 CFR 41.12 identifies the following R visa classification symbols for aliens in religious occupations in accordance with INA 101(a)(15)(R):

R1

Alien in a Religious Occupation

R2

Spouse or Child of R1

9 FAM 402.16-4  Significance of Approved Petition

(CT:VISA-815;   06-03-2019)

a. DHS Responsibility:  By establishing a preliminary petition process, the Department of Homeland Security (DHS) assumed responsibility for determining whether the alien meets the required qualifications for R status.  The DHS regulations governing adjudication of R petitions are detailed, and you must normally rely on DHS determinations of entitlement to status.

b. Petition Prima Facie Evidence of Entitlement to R Classification:

(1)  An approved Form I-129, Petition for a Nonimmigrant Worker, is, in itself, prima facie evidence that the requirements for R classification examined in the petition process have been met.  You do not have the authority to question the approval of R petitions without specific evidence, unavailable to DHS at the time of petition approval, that the beneficiary may not be entitled to status.  A large majority of approved R petitions are valid and involve bona fide establishments, relationships, and individual qualifications that conform to the DHS regulations in effect at the time the R petition was filed.

(2)  On the other hand, the approval of a petition by DHS does not relieve the alien of the burden of establishing visa eligibility.  In the course of your adjudication questions may arise as to the applicant's eligibility to R classification.  If information developed during the visa interview (e.g., evidence that was not available to DHS) gives you reason to believe that the beneficiary may not be entitled to status, you may request any additional evidence that bears a reasonable relationship to this issue.  Disagreement with DHS interpretation of the law or the facts, however, is not sufficient reason to ask DHS to reconsider its approval of the petition.

c.  Recommending Reconsideration:  You must consider all approved R petitions in light of this guidance, process with dispatch those cases which appear legitimate, and identify those which require local investigation or referral to the approving U.S. Citizenship and Immigration Services (USCIS) office for reconsideration.  Refer cases to USCIS for reconsideration sparingly, to avoid inconveniencing bona fide petitioners and beneficiaries and causing duplication of effort by USCIS.  You must have specific evidence of a requirement for automatic revocation, misrepresentation in the petition process, lack of qualification on the part of the beneficiary, or of previously unknown facts, which might alter USCIS’s finding before requesting review of a Form I-129, Petition for a Nonimmigrant Worker approval.  When seeking reconsideration, you must, under cover of Form DS-3099, NIV Petition Revocation Request Cover Sheet – Kentucky Consular Center, forward the petition, all pertinent documentation, and a written memorandum of the evidence supporting the request for reconsideration to the Kentucky Consular Center (KCC), which will then forward the request to the approving USCIS office.  The KCC will maintain a copy of the request and all supporting documentation, and will track all consular revocation requests.  You are no longer required to maintain a copy of all documents, although scanning the revocation request and supporting documents into the case file is recommended.

9 FAM 402.16-5  Verify Petition through PIMS

(CT:VISA-299;   03-14-2017)

a. Before issuing an R visa, you must use the electronic Petition Information Management Service (PIMS) record created by the Kentucky Consular Center (KCC) to verify petition approval (see 9 FAM 402.16-4 paragraph b above).  You are able to access the details of approved nonimmigrant visa (NIV) petitions through the Consular Consolidated Database (CCD), through the PIMS Report.

b. If PIMS does not contain the petition approval, before sending an email to KCC, you have the option to verify petition approval in PCQS in the CCD under the Cross Applications tab.  In PCQS, under Search Criteria, select Receipt Number; then enter the number from the Form I-797; e.g., EAC1234567890.  First, search just CISCOR to find the petition, but if not found in CISCOR, you must also check CLAIMS 3.  If you find a petition approval in PCQS that was not in PIMS, then you must send an email to PIMS@state.gov as follows: Petition with Receipt Number EAC1234567890 was found in PCQS but not in PIMS.  You may not issue a petition-based NIV without verification of petition approval either through PIMS or PCQS.

c.  When presented at post, an approved Form I-129, Petition for a Nonimmigrant Worker, and a Form I-797, Notice of Action/Approval, may be used as sufficient proof to schedule an appointment, but are not sufficient for purposes of R visa issuance.  Only PIMS provides the evidence forming the basis for R visa issuance.

d. A valid Form I-797 must include the date of the notice, the name of the petitioner, the name of the beneficiary, the petition/receipt number, the expiration date of the petition, and the name, address, and telephone number of the approving DHS office.  The paper Form I-797 is an unsigned computer-generated form.  Both confirmation of the information contained in the Form I-797 and initiation of adjudication process may be accomplished through PIMS.  In the event PIMS does not yet contain the record, send an e-mail to PIMS@state.gov.  KCC’s Fraud Prevention Unit (FPU) 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.  You may not authorize a petition-based NIV without verification of petition approval through PIMS.

9 FAM 402.16-6  214(b) refusals and R Nonimmigrants

(CT:VISA-815;   06-03-2019)

a. An R applicant is presumed to be an immigrant until he or she establishes to your satisfaction that he or she is 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 he or she does not intend to abandon. 

b. 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 immigrant visa preference petition may not be the sole basis for denial of R status.  The alien may come to the United States for a temporary period as an R nonimmigrant and depart voluntarily at the end of his or her authorized stay and, at the same time lawfully seek to be become a permanent resident of the United States. 

c.  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, or if he or she fails to establish the qualifications necessary for the religious vocation in which he or she intends to engage in the United States.

9 FAM 402.16-7  Classification Criteria

(CT:VISA-1;   11-18-2015)

The criteria for classification of a nonimmigrant R religious worker are:

(1)  The alien 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)  The religious denomination and its affiliate, if applicable, are exempt from taxation (see 9 FAM 402.16-8 below);

(3)  The alien has been a member of the organization for two years immediately preceding application for admission (see 9 FAM 402.16-9 below);

(4)  The alien is coming to the United States to work at least in a part time position (average of at least 20 hours per week);

(5)  The alien 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)  The alien is coming to or remaining in the United States at the request of the petitioner to work for the petitioner;

(7)  The alien will not work in the United States in any capacity not approved in a DHS-approved petition;

(8)  For R-2 visas, the alien 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)  If the alien has previously spent five years in this classification, he or she 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  Religious Denominations, Organizations, and Affiliated Organizations

(CT:VISA-1;   11-18-2015)

a. 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)  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)  Possesses a currently valid determination letter from the Internal Revenue Service (IRS) confirming tax exempt status.

b. 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.  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)  A recognized common creed or statement of faith shared among its members;

(2)  A common form of worship;

(3)  A common formal code of doctrine and discipline;

(4)  Common religious services and ceremonies;

(5)  Common established places of religious worship or religious congregations; or

(6)  Comparable indicia of a bona fide religious denomination.

9 FAM 402.16-9  Member of Religious Denomination

(CT:VISA-188;   09-28-2016)

The alien must establish that for two years immediately preceding the time of application for admission, he or she has been a member of the same religious denomination as the U.S. religious organization where the alien will work.

9 FAM 402.16-10  Ministers of Religion

(CT:VISA-1;   11-18-2015)

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  Other Religious Workers

(CT:VISA-188;   09-28-2016)

In addition to ministers, aliens 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)  Religious Vocations

(CT:VISA-1;   11-18-2015)

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 alien 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)  Religious Occupations

(CT:VISA-1;   11-18-2015)

a. Religious occupation means an occupation that meets all of the following requirements:

(1)  The duties must primarily relate to a traditional religious function and be recognized as a religious occupation within the denomination;

(2)  The duties must be primarily related to, and must clearly involve, inculcating or carrying out the religious creed and beliefs of the denomination;

(3)  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)  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. 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 particular 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 alien must further establish that his or her prospective activity relates primarily, if not exclusively, to matters of the spirit as they apply to his or her 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)  Religious Training

(CT:VISA-1;   11-18-2015)

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 alien is coming to the United States for training or to perform in a religious occupation.  However, an alien 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  B Visas for Certain Religious Activity

(CT:VISA-1;   11-18-2015)

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 alien 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 alien will be paid a salary from a U.S. source, B classification may not be used, and the alien must qualify for R-1 or some other work visa.

9 FAM 402.16-13  Spouse and Children

(CT:VISA-1;   11-18-2015)

a. 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 alien if they are accompanying or following-to-join him or her in the United States.  R-2 nonimmigrants are not required to demonstrate a residence abroad which they have no intention of abandoning.

b. Employment Prohibited:  Aliens in R-2 status are not authorized to accept employment.  You must take this into account in evaluating whether family members have furnished adequate evidence of their support while in the United States.  R-2 nonimmigrants are permitted to study during their stay in the United States.

9 FAM 402.16-14  Validity of R Visas

9 FAM 402.16-14(A)  Visa Validity Determined by Petition

(CT:VISA-1;   11-18-2015)

a. The validity of an R visa may not exceed the period of validity of a petition approved to accord R status or the period for which the alien’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 period of reciprocity is less than the validity period of the approved petition or extension of stay, the period permitted by the reciprocity schedule prevails.  If the alien's prior visa and petition have expired, the alien is not eligible to receive a new visa until the pending petition has been approved.

b. 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.  While there is no change of employers or gap in authorized status allowed for an alien in R-1 status, an alien 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 of time covered by the two petitions.

9 FAM 402.16-14(B)  Maximum Validity of R Status

(CT:VISA-1;   11-18-2015)

Generally, five years is the maximum allowable period of stay that will be granted to an R visa holder by DHS.  After five years the alien must reside and be physically present outside of the United States for one year in order 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 aliens who reside abroad and regularly commute to the United States to engage in part-time employment.

9 FAM 402.16-15  Annotating R Visas

(CT:VISA-419;   07-28-2017)

You must annotate the name and location of the religious denomination or affiliate for which the alien will be providing services, as well as the petition number, on the visa. Follow the standard operating procedures for annotating visas. See 9 FAM 403.9-5(E).

9 FAM 402.16-16  Admission, Extension of stay, and Readmission

(CT:VISA-885;   07-08-2019)

a. R-1 aliens will normally be admitted for an initial period 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 the Department of Homeland Security (DHS).  An R-1 alien may be granted an extension of R-1 stay or readmission in R-1 status for the validity period of the petition, provided the total period of time spent in the United States does not exceed a maximum of five years.

b. An alien who has spent five years in the United States in R status as described in 9 FAM 402.16-14(B) may not be issued a visa or be readmitted to the United States as an R nonimmigrant unless he or she has resided and been physically present outside the United States for the immediate prior year, except for brief visits for business or pleasure.  Such visits do not end the period during which an alien is considered to have resided and been physically present 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  Change of Employers

(CT:VISA-1;   11-18-2015)

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 DHS Service Center, along with evidence that the alien will continue to qualify as a religious worker.

 

 

UNCLASSIFIED (U)