On Tuesday, February 25, James Forrest and Kelly Rourke hosted a complimentary live webinar, Top Immigration-Related Legal Issues for Faith-Based Organizations. Their discussion sought to answer some of the most recent frequently asked questions, providing faith-based organizations with background, insights, and next steps. The following discussion has been edited for length and clarity. Watch the full recording here.
*The following information provided is for general informational purposes only and is not intended to be legal advice. While we strive to ensure the accuracy and timeliness of the information, laws and regulations are subject to change. We recommend contacting your Michael Best attorney for advice specific to your situation.
In the first few hours of the Trump Administration, several Executive Orders were signed targeting the immigration system in the U.S. These orders left many religious and faith-based organizations wondering what next steps they could take and how to safeguard their staff and mission.
The Typical U.S. Immigration Path for Religious Workers
Often, religious workers attend college or university in the U.S. under F-1 student status and then transition to R-1 status. R-1 is the most prevalent temporary status for religious workers in the U.S. and is available for 60 months or five years. To obtain an R-1 visa, the following requirements must be met:
R-1 requirement one: Employer must fall into one of three categories
- A non-profit religious organization in the U.S. such as a church that is designated as a religious organization by the IRS
- A religious organization that is authorized by an umbrella organization to use its group tax exemption
- A nonprofit organization affiliated with a religious denomination in the U.S.
R-1 requirement two: Employee must qualify as a religious worker, this includes
- Ministers
- Religious vocation individuals such as nuns, monks, religious brothers and sisters
- Individuals with a religious occupation
The religious occupation category requires the individual to hold a position that furthers the mission.
R-1 requirement three: Employee must be a member of the same type of religious denomination and meet the job requirements
The individual must be a member of the same religious denomination as the employer for at least two years. The religious worker must also qualify for the role per the employer’s job requirements.
Family members of R-1 individuals, dependent spouses, and children could qualify to hold R-2 status. One big challenge is that when children turn 21, they are no longer allowed to accompany their parents through the U.S. immigration system.
I-360 Green Card Process
R-1 is a typical temporary status for religious workers. The typical green card process is the I-360 process. Obtaining this status is becoming increasingly difficult.
Key challenge: Extended wait times
The estimated wait time for a religious worker awaiting green card status is 10-15 years. R-1 status is available only for 5 years at a time. Keeping foreign nationals and their family members in temporary or non-immigrant status while the green card process is pending is almost impossible.
Potential solutions:
- Advocate to reduce the time an individual needs to leave the U.S. before applying for another five-year R-1 visa. Right now, individuals need to live outside the U.S. for one year, some want the time requirement shortened to 30 days.
- Advocate for an increase in the amount of stay for an R-1 visa to more than five years once the green card process is started.
- Advocate for an increase in the annual number of green cards available.
Alternative U.S. Immigration Strategies: H-1B
The H-1B visa is available to individuals who hold specialty occupations. The greatest benefit here is the H-1B is available for six years. Someone could hold R-1 status for five years and then transition to the H-1B for another six years and then extend their H-1B status while their green card is pending. But even this path comes with hurdles.
H-1B challenge one: Prevailing wages
Unfortunately, H-1B requires that the employer pay something called prevailing wages, or the average hourly wage paid to someone in a specific job classification or role. These costs are often too high for a religious or non-profit organization to cover.
H-1B challenge two: Legal fees and cost
When it comes to paying for the H-1B visa, it is the employer, not the foreign national, who must pay for all the legal fees and costs associated with sponsorship.
H1-B challenge three: Obtaining the status
Even if the employer is willing to sponsor, the individual qualifies, and there are no prevailing wage issues, USCIS can only approve 85,000 new H-1B visas each year. Of the 85,000 available visas, 20,000 are reserved for individuals with a master’s degree from a U.S. college or university.
Alternative U.S. Immigration Strategies: The PERM-based Labor Certification Process
While the PERM-based labor certification process to obtain a green card is faster (roughly 5-7 years), it is also much more complex, and much more expensive.
As part of the first step in the process, the employer must test the local labor market through extensive recruitment. Testing whether there are any U.S. workers available and interested in the position. A qualified U.S. worker would cause the PERM process to stop.
If you make it through the labor test market successfully, you then file the PERM application online with the Department of Labor.
Current International Travel Trends and Visa Processing
R-1 is not considered dual intent, meaning individuals who hold R-1 status should not have the intention of remaining in the U.S. long term. If a foreign national holding an R-1 status travels outside the U.S., they must apply for a visa at a U.S. consulate abroad. There is a significant risk of R-1 denial if the individual cannot show sufficient ties to their home country.
We encourage organizations to recommend their R-1 staff hold on all nonessential travel outside the U.S. The following challenges make travel extremely risky.
Key challenge: Visa scrutiny
We’ve seen recent increases in scrutiny at U.S. consulates for all visa categories, including H-1B. And H-1B is dual intent. These recent increases in scrutiny are concerning. We do anticipate continued and additional scrutiny, increased appointment delays, and potentially even travel bans in the coming weeks and months from what we’ve been hearing.
Maintaining I-9 Compliance
Preparing for Immigration Enforcement and I-9 Compliance
Key tips
- Keep your I-9 forms in one place for ease of access
- If you are served with a notice of ICE inspection, contact legal counsel
- Conduct regular audits, ICE has a great online guide
- Have a third party, such as Michael Best, conduct an internal audit every two years
- Track re-verification dates
- Train anyone who is completing I-9 forms on best practices
- Consider using E-Verify to ensure your employees are presenting valid documents
What your organization can do if ICE visits
- You need to develop a written policy that your staff and volunteers can refer to
- Designate a representative from your organization to handle the ICE visit
- If the designated representative is not readily available, call your attorney
- Have someone, preferably two, from the organization accompany the ICE agent at all times
- For places of worship, clearly define your public versus private areas within the places of worship, you can do this with signage or even physical barriers
What you can do now
- Review your list of foreign national workers and develop long-term immigration strategies as needed
- Advise your foreign national workers about the risks of international travel and visa processing
- Create a reminder system, alerting foreign nationals about future immigration expirations
- Consider conducting regular internal I-9 audits and 3rd party audits
- Train your HR and hiring personnel on employment authorization and immigration rules
- Develop a policy for dealing with visits by government agents
- Determine what type of support your organization will provide to the immigrant community
For more information, or to discuss how these changes may impact your business, please contact our team.