USCIS no Longer to Deny Religious Worker I-360 Visa Petitions Based on Lawful Status Requirements

On July 5, 2015, and in the wake of the U.S. Court of Appeals for the Third Circuit’s April 7, 2015, decision in Shalom Pentecostal Church v. Acting Secretary DHS, the U.S. Citizenship and Immigration Services (USCIS) issued a Policy Memorandum (PM) on the subject of qualifying U.S. work experience for special immigrant religious workers.

By way of background, the Immigration and Nationality Act (INA) enables a foreign national to obtain a visa as a special immigrant religious worker if the individual meets certain criteria including, among others, the foreign national has been “carrying on” religious work for at least two years preceding the filing of the I-360 visa petition.

In 2008, USCIS – as the Federal Agency empowered to implement this provision of the INA through   regulations – amended its regulations at 8 CFR 204.5(m) to require the religious work carried on by foreign nationals to have occurred continuously for at least the two year period immediately before filing an I-360 visa petition either abroad or in lawful immigration status if in the United States.

In so amending the regulations, USCIS essentially interpreted the “carrying on” provision of the INA statute to mean qualifying work (if gained in the U.S.) must be accomplished while the foreign national is in lawful status.   

Although the foreign national in the Shalom Pentecostal Church case engaged in otherwise qualifying religious work in the U.S. during the two years before his I-360 petition was filed – USCIS denied his petition under the above regulations because he did so without lawful status.

However, the Circuit Court in Shalom Pentecostal held USCIS improperly denied the petition because the regulations at 8 CFR 204.5(m) requiring lawful status for qualifying U.S. religious work constitute an impermissible interpretation of the term/phrase “carrying on” as used in the controlling INA statute, and, therefore, went beyond USCIS’ authority under the law.

The Court found significant the controlling INA statute (itself) did not specifically state the two years of qualifying U.S. religious employment be carried out while the foreign national was in lawful status. The Court reasoned the fact Congress expressly specified “lawful status” in other INA statutes as an operative term was evidence of congressional intent to omit the requirement in the INA statute at issue thereby purposely creating an exception for special immigrant religious workers.    

In acquiescing to the Shalom Pentecostal decision, USCIS states in the July 5 PM that it will no longer deny special immigrant religious worker petitions based on the lawful status requirements at 8 CFR 204.5(m). The USCIS further advises the PM applies to all currently pending I-360 petitions for special immigrant religious worker status and to new petitions filed on or after July 5, 2015 – the date of the Policy Memorandum.     

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