> Proposed Rule on Religious Worker Visa Classifications

organization or a bona fide organization which is affiliated with the religious denomination and is exempt from taxation in accordance with section 501(c)(3) of the Internal Revenue Code of 1986;

(ii) The number of members of the prospective employer's organization, the number and positions (with brief descriptions) of employees in the prospective employer's organization, the number of aliens holding R visa status currently employed or employed within the past five years by the prospective employer's organization, and the number of special immigrant religious worker and R visa petitions and applications filed by or on behalf of any aliens to be employed as ministers or religious workers for the prospective employer in the past five years;

(iii) The title of the position offered to the alien, the complete package of compensation being offered and a detailed description of the alien's proposed daily duties;

(iv) That the alien will be employed at least 35 hours per week and such services are needed on a full-time basis;

(v) The specific location(s) of the proposed employment;

(vi) That the alien has worked as a compensated, full-time religious worker for the two years immediately preceding the filing of the application and is otherwise qualified for the position offered;

(vii) That the alien has been a member of the denomination for at least two years immediately preceding the filing of the application;

(viii) That the alien will not be engaged in secular employment, and any compensation for religious work will be paid to the alien by the attesting employer;

(ix) That the prospective employer has the ability and intention to compensate the alien at a level at which the alien and accompanying family members will not become a public charge, and that funds to pay the alien's compensation do not include any monies obtained from the alien, excluding reasonable donations or tithing to the religious organization, and that the petitioner will notify USCIS of any changes to the alien's employment; and

(7) Evidence relating to the petitioning organization. A petition shall include the following initial evidence relating to the petitioning organization:

(i) A currently valid determination letter from the Internal Revenue Service (IRS) showing that the organization is exempt from taxation in accordance with section 501(c)(3) of the Internal Revenue Code of 1986, as a religious organization; or

(ii) For religious organizations that are recognized as tax exempt under a group tax exemption, a currently valid determination letter from the IRS establishing that the group is an organization as described in sections 509(a)(1) of the Internal Revenue Code of 1986, and that the group's tax exemption is in accordance with section 501(c)(3) of the Internal Revenue Code of 1986, as a religious organization; or

(iii) For a bona fide organization which is affiliated with the religious denomination, if the organization was granted a section 501(c)(3) exemption as something other than a religious organization:

(A) A currently valid determination letter from the IRS showing that the organization is exempt from taxation in accordance with section 501(c)(3) of the Internal Revenue Code of 1986, not necessarily as a religious organization;

(B) Documentation that establishes the religious nature and purpose of the organization, such as a copy of the organizing instrument of the organization that specifies the purposes of the organization;

(C) Organizational literature, such as brochures, calendars, flyers and other literature describing the religious purpose and nature of the activities of the organization;

(D) A Religious Denomination Certification. The Form I-360 contains a ``Religious Denomination Certification'' section which the petitioner must have the attesting religious organization complete, sign and date. The ``Religious Denomination Certification'' includes a statement certifying under penalty of perjury that the petitioning organization is affiliated with the religious denomination. The certification must be submitted by the petitioner along with the petition and attestation; and

(E) A currently valid determination letter from the IRS evidencing that the attesting organization is exempt from taxation in accordance with section 501(c)(3) of the Internal Revenue Code of 1986, as a religious organization.

(8) Evidence relating to the qualifications of a minister. If the alien is a minister, the petitioner must submit

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as initial evidence a copy of the alien's certificate of ordination or similar documents reflecting acceptance of the alien's qualifications as a minister in the religious denomination, as well as evidence that the alien has completed any course of prescribed theological education at an accredited theological institution normally required or recognized by that religious denomination, including transcripts, curriculum, and documentation that establishes that the theological institution is accredited by the denomination. For denominations that do not require a prescribed theological education, the petitioner must submit evidence of the denomination's requirements for ordination to minister, evidence of the duties allowed to be performed by virtue of ordination, evidence of the denomination's gradations of ordination, if any, and evidence of the alien's completion of the denomination's requirements for ordination.

(9) Evidence relating to the alien's prior employment. Initial evidence must include evidence of the alien's prior religious employment. If the alien was employed in the United States during the two years immediately preceding the filing of the application, the petitioner must submit the alien's W-2 wage statements, the employer's wage transmittal statements, and the transcripts of the alien's processed income tax returns for the preceding two years reflecting such work. If more than six months of such employment is not yet reflected in the documents such as W-2s, wage transmittal statements or income tax returns required to be completed or filed at the time of filing the petition, then pay stubs relating to payment for such employment shall also be presented for work not yet reflected in such documents. If the alien was employed outside the United States during such two years, the petitioner must submit comparable evidence of compensation and religious work. Aliens who have taken a vow of poverty or similar formal lifetime commitment to a religious way of life may submit evidence of such commitment in lieu of the above documentary requirements, but must also submit evidence of all financial support (including stipends, room and board, or other support) received in the preceding two years. Qualifying prior experience (that is, during the two years immediately preceding the petition or preceding any acceptable break in the continuity of the religious work) must have occurred after the age of 14, and, if acquired in the United States, must have been authorized under United States immigration law.

(10) Audits, inspections, assessment, verification, spot checks, and site visits. The supporting evidence submitted may be verified by USCIS through any means determined appropriate by USCIS, up to and including an on-site inspection of the petitioning organization. The inspection may include a tour of the organization's facilities, an interview with the organization's officials, a review of selected organization records relating to compliance with immigration laws and regulations, and an interview with any other individuals or review of any other records that the USCIS considers pertinent to the integrity of the organization. An inspection may include the organization headquarters, or satellite locations, or the work locations planned for the applicable employee. If USCIS decides to conduct a pre-approval inspection, satisfactory completion of such inspection will be a condition for approval of any petition.

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PART 214--NONIMMIGRANT CLASSES

3. The authority citation for part 214 continues to read as follows:

Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1185 (pursuant to E.O. 13323, 69 FR 241, 3 CFR, 2003 Comp., p. 278), 1186a, 1187, 1221, 1281, 1282, 1301-1305, 1372, 1379, 1731-32; section 643, Pub. L. 104-208, 110 Stat. 3009-708; section 141 of the Compacts of Free Association with the Federated States of Micronesia and the Republic of the Marshall Islands, and with the Government of Palau, 48 U.S.C. 1901 note, and 1931 note, respectively, 8 CFR part 2.

4. Section 214.2 is amended by revising paragraph (r) to read as follows:

Sec. 214.2 Special requirements for admission, extension, and maintenance of status.

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(r) Religious workers--(1) General. Under section 101(a)(15)(R) of the Act, an alien who, for at least the two years immediately preceding the time of application for admission, has been a member of a religious denomination having a bona fide nonprofit religious organization in the United States, may be admitted temporarily to the United States to carry on the activities of a religious worker for a period not to exceed five years. The alien must be coming to or remaining in the United States solely for one of the following purposes:

(i) As an employee of a religious organization within the denomination, or of a bona fide organization which is affiliated with the religious denomination, at the request of the organization;

(ii) To carry on the vocation of a minister of the religious denomination; or

(iii) To work in a religious vocation or occupation.

(2) An alien may work for more than one qualifying employer as long as each qualifying employer submits the Form I-129 and R Classification Supplement, and, where applicable, accompanying documentation, submitted either in a single petition or through an additional petition.

(3) Definitions. As used in this paragraph (r), as applicable to the proposed employment and to the membership in the two years preceding the filing of the petition, the definitions of terms set forth at 8 CFR 204.5(m)(1), concerning immigrant religious workers, shall apply to nonimmigrant religious workers.

(4) Requirements for admission/change of status; time limits--(i) Principal applicant. If otherwise admissible, an alien who meets the requirements of section 101(a)(15)(R) of the Act may be admitted as an R-1 alien or changed to R-1 status for an initial period of up to one year from date of initial admission. If visa-exempt, the alien must present the original Notice of Action, Form I-797 approval notice (not a copy), at the port of entry.

(ii) Spouse and children. The spouse and children of an R-1 alien who are accompanying or following to join the principal may be accorded R-2 status and admitted or have their R-2 status extended for the same period of time and subject to the same limits as the principal, regardless of the time such spouse and children may have spent in the United States in R-2 status. Neither the spouse nor children may accept employment while in the United States in R-2 status.

(iii) Extension of stay or readmission. An R-1 alien who is maintaining status or is seeking readmission and who satisfies the eligibility requirements of this section may be granted an extension of R-1 stay or readmission in R-1 status for the validity period of the petition, up to 2 years, provided the total period of time spent in R-1 status does not exceed a maximum of five years. A petition for an extension of R-1 status must be filed by the United States employer on Form I-129, Petition for a Nonimmigrant Worker, along with the R Classification Supplement containing the attestation, the fee specified in 8 CFR 103.7(b)(1), and the supporting evidence, at the appropriate USCIS service center.

(iv) Limitation on total stay. An alien who has spent five years in the United

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States under section 101(a)(15)(R) of the Act may not be readmitted to, or receive extension of stay in, the United States under the R visa classification unless the alien has resided abroad and been physically present outside the United States for the immediate prior year. The limitations in this paragraph shall not apply to R-1 aliens who did not reside continually in the United States and whose employment in the United States was seasonal or intermittent or was for an aggregate of six months or less per year. In addition, the limitations shall not apply to aliens who reside abroad and regularly commute to the United States to engage in part-time employment. To qualify for this exception, the petitioner and the alien must provide clear and convincing proof that the alien qualifies for such an exception. Such proof shall consist of evidence such as arrival and departure records, transcripts of processed income tax returns, and records of employment abroad. The primary purpose of the spouse or child must be to join or accompany the principal R-1 alien in the United States. USCIS may limit, deny or revoke on notice any stay for an R-2 that is not primarily intended for this purpose or is intended to evade the normal requirements of the nonimmigrant classification that otherwise would apply when the principal alien is absent from the United States.

(5) Jurisdiction and procedures for obtaining R-1 status. A petitioner seeking to classify an alien as a religious worker, by initial petition or by change of status, shall file a petition on Form I-129, Petition for a Nonimmigrant Worker, along with the R Classification Supplement containing the attestation, the fee specified in 8 CFR 103.7(b)(1), and supporting evidence, at the appropriate USCIS service center. The Form I-129, Petition for a Nonimmigrant Worker, must be submitted by the employer in the United States seeking to employ the religious worker.

(6) Attestation. The Form I-129, Petition for a Nonimmigrant Worker, contains an attestation section in the R Classification Supplement, which the authorized official of the prospective employer must complete, sign and date. The term ``prospective employer'' refers to the organization or institution where the alien will be performing the proffered duties. The attestation includes a statement which certifies under penalty of perjury that the contents of the attestation are true and correct to the best of his or her knowledge. This attestation must be submitted by the prospective employer along with the petition. In the Form I-129 R Classification Supplement, the prospective employer must specifically attest to the following:

(i) That the prospective employer is a bona fide non-profit religious organization or a bona fide organization which is affiliated with the religious denomination and is exempt from taxation in accordance with section 501(c)(3) of the Internal Revenue Code of 1986;

(ii) The number of members of the prospective employer's organization, the number and positions (with brief descriptions) of employees in the prospective employer's organization, the number of aliens holding R visa status currently employed or employed within the past five years by the prospective employer's organization, and the number of special immigrant religious worker and R visa petitions and applications filed by or on behalf of any aliens to be employed as ministers or religious workers for the prospective employer in the past five years;

(iii) The title of the position offered to the alien, the complete package of compensation being offered and a detailed description of the alien's proposed daily duties;

(iv) That the position that the alien is being offered requires at least 20 hours per week of compensated service;

(v) The specific location(s) of the proposed employment and that the alien is otherwise qualified for the position offered;

(vi) That the alien has been a member of the denomination for at least 2 years;

(vii) That, if the position is not a religious vocation, the alien will not be engaged in secular employment, and any compensation for religious work will be paid to the alien by the attesting employer,

(viii) That the prospective employer has the ability and intention to compensate and otherwise support (through housing, for example) the alien at a level at which the alien and accompanying family members will not become public charges, and that funds to pay the alien's compensation do not include any monies obtained from the alien, excluding reasonable donations or tithing to the religious organization; and

(ix) That the petitioner will notify USCIS of any changes to the alien's employment and reapply by filing a new Form I-129 on behalf of the alien within 60 days of the occurrence of any change.

(7) Evidence relating to the petitioning organization. The petitioner must submit the following initial evidence relating to the petitioning organization:

(i) A currently valid determination letter from the Internal Revenue Service (IRS) showing that the organization is exempt from taxation in accordance with section 501(c)(3) of the Internal Revenue Code of 1986, as a religious organization; or

(ii) For religious organizations that are recognized as tax exempt under a group tax exemption, a currently valid determination letter from the IRS establishing that the group is an organization as described in sections 509(a)(1) of the Internal Revenue Code of 1986 or subsequent amendment, and that the group's tax exemption is in accordance with section 501(c)(3) of the Internal Revenue Code of 1986, as a religious organization; or

(iii) For a bona fide organization which is affiliated with the religious denomination, if the organization was granted a section 501(c)(3) exemption as something other than a religious organization:

(A) A currently valid determination letter from the IRS showing that the organization is exempt from taxation in accordance with section 501(c)(3) of the Internal Revenue Code of 1986, (not necessarily as a religious organization),

(B) Documentation that establishes the religious nature and purpose of the organization, such as a copy of the organizing instrument of the organization that specifies the purposes of the organization,

(C) Organizational literature, such as brochures, calendars, flyers and other literature describing the religious purpose and nature of the activities of the organization, and

(D) A Religious Denomination Certification. The Form I-129 contains a ``Religious Denomination Certification'' section which the petitioner must have the attesting religious organization complete, sign and date. The ``Religious Denomination Certification'' includes a statement certifying under penalty of perjury that the petitioning organization is affiliated with the religious denomination. The certification must be submitted by the petitioner along with the petition and attestation.

(E) A currently valid determination IRS letter evidencing that the attesting organization is exempt from taxation in accordance with section 501(c)(3) of the Internal Revenue Code of 1986, as a religious organization.

(8) Evidence relating to the qualifications of a minister. If the alien is a minister, the petitioner must submit as initial evidence a copy of the alien's certificate of ordination or similar documents reflecting acceptance of the alien's qualifications as a minister in the religious denomination, as well as evidence that the alien has completed any course of prescribed theological

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education at an accredited theological institution normally required or recognized by that religious denomination, including transcripts, curriculum, and documentation which establishes that the theological education is accredited by the denomination. For denominations that do not require a prescribed theological education, the petitioner must submit evidence of the denomination's requirements for ordination to minister, evidence of the duties allowed to be performed by virtue of ordination, evidence of the denomination's gradations of ordination, if any, and evidence of the alien's completion of the denomination's requirements for ordination.

(9) Change or addition of employers; employer obligations. An alien admitted in the R-1 classification shall engage only in employment that is consistent with the approved petition, the attestation contained in the supplement and supporting documents submitted to USCIS. A different or additional employer seeking to employ the alien must obtain prior approval of such employment through the filing of an additional Form I- 129, Petition for a Nonimmigrant Worker, with the R Classification Supplement, supporting documents and the appropriate fee. Any compensated work for an unauthorized religious organization will constitute a failure to maintain status within the meaning of section 237(a)(1)(C)(i) of the Act. When an alien who has obtained R-1 classification is working less than the required number of hours or has been released from or has otherwise terminated employment before the expiration of a period of authorized R-1 stay, the employer through whom R-1 classification has been obtained must notify DHS within 7 days of such release or termination, using reporting procedures set forth in the instructions to Form I-129, Petition for a Nonimmigrant Worker, which can be found on the USCIS Internet Web site at http://www.uscis.gov .

(10) Evidence of previous R-1 employment. Any request for R-1 status, admission beyond the first year of R-1 status, or any period of extension of stay, must include initial evidence of the previous R-1 employment in the form of the alien's W-2 wage statements, the employer's wage transmittal statements, and transcripts of the alien's processed income tax returns for any preceding period spent in the United States in R-1 status. For any period of such employment not yet reflected in the documents such as W-2s, wage transmittal statements or income tax returns required to be completed or filed at the time of filing the petition, then pay stubs relating to payment for such employment shall be presented for work not yet reflected in such documents. Aliens who have taken a vow of poverty or similar formal lifetime commitment to a religious way of life may submit evidence of such commitment in lieu of the above documentary requirements, but must also submit evidence of all financial support (including stipends, room and board, or other support) received while in R-1 status.

(11) Nonimmigrant intent. The filing or approval of a permanent labor certification or the filing of a preference petition for an alien shall not be a basis for denying an R petition, a request to extend such a petition, or the alien's application for admission, change of status, or extension of stay. The alien may legitimately 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 become a permanent resident of the United States.

(12) Audits, inspections, assessment, verification, spot checks, and site visits. The supporting evidence submitted may be verified by USCIS through any means determined appropriate by USCIS, up to and including an on-site inspection of the petitioning organization. The inspection may include a tour of the organization's facilities, an interview with the organization's officials, a review of selected organization records relating to compliance with immigration laws and regulations, and an interview with any other individuals or review of any other records that the USCIS considers pertinent to the integrity of the organization. An inspection may include the organization headquarters, or satellite locations, or the work locations planned for the applicable employee. If USCIS decides to conduct a pre-approval inspection, satisfactory completion of such inspection will be a condition for approval of any petition.

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PART 299--IMMIGRANT FORMS

5. The authority citation for part 299 continues to read as follows:

Authority: 8 U.S.C. 1101 and note, 1103; 8 CFR part 2.

6. Section 299.1 is amended in the table by revising the entries for Forms ``I-129'' and ``I-360'', to read as follows:

Sec. 299.1 Prescribed forms.

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(SEE PDF VERSION FOR TABLE)

7. Section 299.5 is amended in the table, by revising the entries for Forms ``I-129'' and ``I-360'', to read as follows:

Sec. 299.5 Display of control numbers.

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(SEE PDF VERSION FOR TABLE)

Dated: April 16, 2007.
Michael Chertoff,
Secretary.
[FR Doc. E7-7743 Filed 4-24-07; 8:45 am]

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