U.S. Immigration Law for Religious Workers/Vocations

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  • Regulations 8 C.F.R. 214.2 (f) Spells out terms for maintaining status (enrollment levels, reporting changes in program, address, financial support) Defines scope of work permissions available
  • Immigrant intent is the #1 reason for F-1 visa denials. However, not all students will have a problem with this issue at the US consulate. Some individuals will be more likely to be scrutinized than others. Factors to consider is assessing whether or not someone needs to put together documentation showing ties to home country: Is it difficult to obtain tourist visas or F-1 or J-1 visas in student’s home country? Are a significant percentage of F or J visa applications denied by the U.S. consulate in that country? Are one or more members of the student’s immediate family (mother, father, brother, sister, spouse, or child) living in the U.S.? Factors to consider in assessing whether or not someone needs to put together documentation showing ties to home country: Are one or more of the student’s immediate relatives legal permanent residents of the United States? Is this the student’s first trip to the United States? If no, has the student recently returned from the U.S. after completing a degree or another teaching or research assignment? Has the student ever been denied a visa to come to the U.S.?
  • Their schools can extend and/or shorten their programs without formal filing of paperwork with Immigration.
  • Dignity of the human person - Every human life is sacred, created in the image of God, and therefore invaluable and worthy of protection and respect. It is not what persons do or what they have that gives them a claim on respect; being human establishes their dignity. The human person is always an end, never a means. Respect for human life – from conception to natural death – is the basis of a just society. The God-given dignity of each means that everybody is equally valued. The emphasis is on “human” and “equality.” Immigrants have equal dignity. The deaths of migrants trying to cross the U.S.-Mexico border simply to work is an extreme example of the denial of migrants’ dignity. Community and the Common Good - The common good is the sum total of the social conditions that allow us to reach our full human potential and to realize our human dignity. We have a duty to seek the common good and well-being of all. Governments exist to promote the common good. We are inextricably linked with migrants and newcomers. Government exists to provide the conditions that allow all to flourish. Rights and Responsibilities: Persons have a fundamental right to life, food, shelter, health care, education and employment. All have the right to participate in decisions that affect their lives. All have duties and responsibilities to respect the rights of others, and to work for the common good. Preferential Option for the Poor - The moral test of a society is how it treats its most vulnerable members. The poor have the most urgent moral claim on us. We are called to look at public policy decisions in terms of how they affect the poor. Putting the needs of the poor and vulnerable first furthers the common good. Dignity of Work - People have a right to decent and productive work, fair wages, private property and economic initiative. The economy exists to serve people, not the other way around. Work is more than a way to make a living; it is a way to participate in God’s creation. Solidarity - We are one human family. Our responsibilities to each other cross national, racial, economic and ideological lines. We are called to work globally for justice. We are our brothers’ and sisters’ keeper, wherever they live. Love of neighbor has global dimensions. Care for God’s Creation - The goods of the earth are gifts from God. We have a responsibility to care for these goods as stewards and trustees, not as mere consumers and users. We show our respect for the Creator by our stewardship of creation. Private property has a social mortgage. Subsidiarity - This principle deals with the responsibilities and limits of government and voluntary associations. It teaches that no higher level of organization should attempt to address a situation that can be handled efficiently and effectively at a lower level of organization by persons, individually or in groups.
  • U.S. Immigration Law for Religious Workers/Vocations

    1. 1. CENTER FOR RELIGIOUSIMMIGRATION AND PROTECTION PRESENTS U.S. Immigration Lawfor Religious Workers/Vocations Center for Migration Studies New York, New York December 12, 2012
    2. 2. Center for Religious Immigration & Protection We are immigration attorneys for the Catholic Legal Immigration Network, Inc. (CLINIC). We practice exclusively in the area of “religious” immigration law. We prepare cases for filing with the U.S.Citizenship & Immigration Service (USCIS), and represent over 170 Archdioceses, Dioceses, and Religious Communities.
    3. 3. COMMON SCENARIOS FROM VOCATION DIRECTORS•Candidate is unlawfully present•Candidate is outside the U.S.•Candidate is in the U.S. in anotherstatus
    4. 4. Today’s Topics• New Development -Deferred Action for Childhood Arrivals (DACA)• Basic Immigration Terms• Non-immigrant -R-1 Eligibility/Process• Other Options B-1 – Eligibility and Process F-1 – Eligibility and Process• Immigrant – Legal Permanent Resident
    5. 5. DACA• Help for undocumented young men and women• A new plan for young people who entered the U.S. before 16 years of age• Work authorization for two years• Written assurance that they will not be deported for a two-year period
    6. 6. Eligibility• Must be physically in U.S. by June 15, 2012• Continuously resided the U.S. for five years by June 15, 2012 (since June 15, 2007)• Entered the U.S. before 16 years old• Be under age 31 when filing 6
    7. 7. Eligibility• Currently in school, or graduated from high school, or has a GED certificate• Not convicted of a felony, three or more misdemeanors, or significant misdemeanor 7
    8. 8. Limitations• Currently does not lead to permanent resident status• No benefits for family members• DACA can be terminated• Could lead to enforcement action for fraud and security reasons 8
    9. 9. Risks• Prior criminal activity, gang affiliations, serious juvenile offenses or prior unlawful re-entry after deportation could be grounds for denial.• Fraud or false claim to U.S. citizenship could affect future eligibility for immigration benefits. 9
    10. 10. DACA Application Process • Form I-821D – DACA Application • Form I-765 – Employment Authorization Application • Form I-765 WS – Economic Necessary application • $465 fee • Documentation proving eligiblity 10
    11. 11. Important Resources• http://cliniclegal.org/resources/deferred-ac• http://www.uscis.gov• Religious Immigration Section will be taking cases in November. RIS@cliniclegal.org 11
    12. 12. BASIC IMMIGRATION TERMS Status Nonimmigrant Visa Immigrant Status Immigrant Nonimmigrant Undocumented or unlawfully presentThese concepts are thebuilding blocks ofimmigration law
    13. 13. Who is a Nonimmigrant?A nonimmigrant• is admitted to the U.S. for a temporary period of time;• is limited in length of time in the U.S;• is limited in activities s/he can do in the U.S.
    14. 14. COMMON NONIMMIGRANTSB1/B2 – Business Visitor/TouristF-1 – StudentH-1B – Professional OccupationR-1 – Religious Worker
    15. 15. What is a Visa?A visa• is issued by U.S. Consulate (Department of State);• is the key to entering U.S.;• shows the last date on which an individual may apply to enter the U.S.
    16. 16. R-1 Nonimmigrant VisaAVisa Type is B“R” for Regular Visa class isversus “D” for “R-1” for R-Diplomatic 1 Religious Worker. C The visaG expiration date is“M” is for “Multiple the last date onEntries which an individual may apply to enter the F D Visa Number U.S (see “PED” – Petition Visa Issue Date (in red) E Expiration Date is the same. Petitioner and I- 129 Receipt #
    17. 17. What is Status?Status• is granted on admission to the U.S. by an Immigration inspector at the port of entry or by extension by USCIS;• is the period of time an individual is authorized to stay in the U.S.• is shown on I-94 card
    18. 18. I-94 Arrival/Departure Record at Border I-94 Number Port of Entry – “SFR” San Francisco, CA Admitted to the U.S. on July 29, 2010 SFR R-1 classification based on R-1 nonimmigrant visa. R-1 STATUS (period of authorized stay) expires September 11, 2012 (compare to VISA expiration date and PED). 18
    19. 19. I-129 Approval Notice:Form I-797 “A” from USCIS 19
    20. 20. I-129 Approval Notice: Form I-797 “A” I-94 Card – for change and/or extension of R-1 “STATUS” 20
    21. 21. Who is an Immigrant?An immigrant• Is admitted to the U.S. without restriction as to length of stay, i.e., is arriving to stay permanently.• Also called “green card” holder, LPR.• Can do everything a U.S. citizen can do except vote in state and federal elections.
    22. 22. Sample Permanent Residence Card
    23. 23. Undocumented IndividualA person who• entered the U.S. without documents, or stayed beyond expiration date on I-94 card• cannot regularize immigration status• subject to removal• bars to re-entry
    24. 24. UNDOCUMENTED AND UNLAWFULLY PRESENTBarred from U.S. for 3 years – if unlawfullypresent more than 6 months, but less thana year.Barred from U.S. for 10 years – ifunlawfullly present for more than one year.Can be subject to removal proceedingsDACA may help
    25. 25. R-1 – Religious Visa• The R-1 Religious Worker category is an EMPLOYMENT- BASED nonimmigrant category.• Think in terms of job – must show compensation and qualification for the position on the I-129 petition 25
    26. 26. Overview of R-1 ProcessTwo-step process: 1. Sponsor files an I-129 petition in the U.S. and the I-129 petition must be approved 2. Beneficiary applies for R-1 Visa at U.S. consulate abroad and is interviewed
    27. 27. Overview of R-1 Process •Admission period: 2.5 years •Can be extended for another 2.5 years •Extensive Documentation •Attestation Requirements •Site Visits
    28. 28. I-129s for R-1 Religious Workers: The R-1 Process:1. Sponsor files I-129 Petition in U.S. (with USCIS)2. I-129 Petition is approved.3. Beneficiary applies for R-1 Visa at U.S. consulate and is interviewed.4. R-1 Visa is granted/approved.5. Religious Worker enters U.S. with R- 1 Visa and is granted R-1 Status
    29. 29. Basic Requirements• Member of denomination for two (2) years• Denomination has a nonprofit, federally tax-exempt religious organization in the U.S.• Coming to U.S. to work at least 20 hours per week• May be in US for a temporary period of time -- not more than five (5) years
    30. 30. Basic RequirementsMust fit into one of three (3) categories:1.minister (clergy)2.religious vocation (vowed religious sisters and brothers)3.religious occupation (those in formation, lay ministers and other lay religious workers)
    31. 31. 1. Minister/Priest Requires: • Individual authorized by a recognized denomination to conduct religious worship and perform other duties traditionally reserved for the clergy. • Must be fully trained according to the denomination’s standards.
    32. 32. 2. Religious Vocation • formal lifetime commitment • demonstrated by vows or other ceremonies; and • evidence of a traditional established class different from secular members.
    33. 33. 3. Religious Occupation • primarily relates to traditional religious function and • recognized as a religious occupation within the denomination [and] • primarily related to, and clearly involves carrying out the religious belief or creed of the denomination.
    34. 34. What about Candidates?• Look at definition of religious occupation• Focus on “work” in terms of prayer and ministry• Mention study as only incidental to their primary traditional religious function
    35. 35. Possible Documentation forReligious Occupation Category• Refer to canon law showing that being in formation is a recognized religious occupation within the church• Refer to history of religious order showing novices and postulants are participating in a traditional religious function• Refer to other writings of the church on the role of formation• Show daily schedule of prayer and ministry involving carrying out Catholic creed
    36. 36. Sponsor files I-129 Petition• Form I-129 – all I-129 Petitions are filed at the USCIS California Service Center (Fee $325)• Form is 13 pages long (with “R” Supplement) with questions about sponsor and beneficiary• “R” Supplement contains Attestation Section requiring very specific, detailed information• A duplicate copy must be sent with the application to ensure consular notification abroad (from Kentucky Consular Center) 36
    37. 37. Extensive DocumentationI-129 Petition requires extensivedocumentation to prove elementsand category.NOTE: English translations must be provided for all foreign language documents.
    38. 38. I-129 Petition Processing Times• Regular Processing: Current processing time at USCIS is 5 months – must plan ahead! USCIS fee of $325.• Premium Processing: 15 days or less with additional fee of $1225 (or fee returned) – but only available for religious organizations that have had successful site inspection at location where beneficiary will be employed 38
    39. 39. What is a Site Visit?• Officer visits – with or without notification• Location – petitioner AND beneficiary work address• Now more focus on beneficiary’s address• Officer may ask to see ANY documents or records• Officer may take photos• Officer may make return visit 39
    40. 40. Prepare for Site Visits• Assign designated person to respond to officer• Keep records of immigration documents• Know what the individual is doing• Keep religious organization’s documents• Be cooperative
    41. 41. I-129 Approved – Now What? • I-129 Approval Notice is received by employer. It is not a VISA • Notify the foreign born individual • Make plans for individual to apply for a visa • Individual interview at U.S. Consulate abroad
    42. 42. Applying for R -1 Visa • Visit the appropriate Consulate’s website and review the requirements: www.usembassy.gov • Review the visa wait times for planning purposes http://travel.state.gov/visa/temp/wa • Check fees and reciprocity requirements: http://travel.state.gov/visa/fee/ fees 42
    43. 43. R-1 Visa: Required Documents• Original Notice of Action - Form I-797 (I-129 approval notice)• Receipt from Online Nonimmigrant Visa Electronic Application, Form DS-160• Sponsor Letter• Proof of employer’s tax-exempt status• One (1) 2 x 2 inch photograph• Receipt for payment of $190 application fee• Passport Valid for at least 6 months 43
    44. 44. Preparing for Visa Interview• Answer all questions honestly on all forms (prior arrests, convictions, or past immigration problems)• Read and understand the I- 129 petition filed by your sponsor• Articulate purpose of stay in the U.S. and that it is temporary
    45. 45. Possible Delays in Visa Issuance• Erroneous denials based on lack of adequate ties abroad, lack of experience, misunderstanding of categories of religious workers• Administrative Reviews (security check, name check, etc.)• Petition approval is somehow not verified by the Department of States Petition Information Management Service (PIMS).
    46. 46. R-1 Visa is Granted/Approved• Passport returned with R-1 Visa• R-1 Visa validity dates vary according to the approved petition validity dates• A Visa does NOT automatically guarantee admission into the U.S.
    47. 47. Admission to US• Show passport, visa, and I-129 petition approval notice to CBP Officer.• R-1 Admission: Admitted for up to 30 months (2.5 years)• Make sure the I-94 card has symbol “R- 1” and the expiration date is at least 30 months (2.5 years) or to the expiration date of I-129 petition.
    48. 48. Canadians• Canadians are visa exempt• Canadians entering in R-1 status for the first time must have approved I-129 petition before requesting R-1 status at the border 48
    49. 49. Finally in the U.S.!Now what do we do??? 49
    50. 50. MAINTAIN STATUS•Do only what authorized to do•Remain in the U.S. only forauthorized period•Leave the U.S. when statusexpires•Seek change of status orextension before current statusexpires
    51. 51. Why Maintain R-1 Status? • Preserve opportunity for future immigration benefits • Preserve eligibility for extension of R-1 status • Preserve eligibility for permanent residence • Avoid Removal from U.S. 51
    52. 52. Overstays (3/10 Year Bar)• If you overstay on your R-1 status (stay beyond the date on I-94 card) you accrue UNLAWFUL PRESENCE and cannot file for an extension.• If you accrue over 6 months of unlawful presence you are subject to the 3 year bar.• If you overstay over 1 year, you are subject to the 10 year bar. 52
    53. 53. SPONSOR’S RESPONSIBILITY•Support and maintain the individual•Assist the individual in maintainingimmigration status by monitoringdocuments, expiration dates, andactivities•Report dismissal or departure toUSCIS
    54. 54. NOTIFICATION REQUIREMENTNotify USCIS within 14 days when a person in R-1status is no longer with the Diocese or is workingless than the required number of hoursInclude the following information: Reason for notification or late notification; USCIS receipt number of approved R-1 petition; Diocesan name, address, and phone; R-1 beneficiary information (name, date of birth, country of birth, last known physical address and phone).
    55. 55. Recordkeeping• Make copies of passport, Visa, all I-94• cards.• Keep track of important dates – expiration dates of passport, visa, I-94, and initial entry into U.S. 55
    56. 56. CHANGE OF ADDRESS•All non-U.S. citizens must notifyUSCIS of a new address•Form AR-11•Must be done within 10 days•Can be done online at:www.uscis.gov
    57. 57. Other Options 57
    58. 58. B-1/B-2 Visitor VisaThe B-1/B-2 visa is a nonimmigrant visa for a temporary visit.It can also be used for religious activity. 58
    59. 59. B-1/B-2 Visitor VisaFactors to be considered:• Residence in a foreign country, which they do not intend to abandon;• Intention to enter the US for a period of specifically limited duration; and• Purpose is to engage in legitimate activities relating to business or pleasure. 59
    60. 60. B-1 Visas – Religious Activities• Ministers on Evangelical Tour (X)• Ministers of Religion Exchanging Pulpits (X)• Missionary Work• Members of religious denominations, whether ordained or not, entering the U.S. temporarily for the sole purpose of performing missionary work on behalf of a denomination, so long as the work does or involve selling of articles or the solicitation or acceptance of donations and provided the minister will receive no salary or remuneration from U.S. sources other than allowance or other reimbursement for expenses incidental to the temporary stay. 60
    61. 61. Missionary Work• Missionary work may include religious instruction, aid to the elderly and needy, proselytizing, etc.• Incidental expenses may not exceed reasonable travel expenses and living expenses (room and board, services) 9 FAM 41.31 N9. 1-3, N11.1 61
    62. 62. Religious Activities• Applicants Unable to Qualify for R Status “In cases where an applicant is coming to perform voluntary services for a religious organization, and does not qualify for R status, the B-1 status remains an option … even if he or she intends to stay a year or more in the United States.” 9 FAM 41.31 N9.1-4 62
    63. 63. Qualifying for a B Visa• The presumption in the law is that every visitor visa applicant is an intending immigrant.• Applicants must overcome this presumption by demonstrating --the purpose of their trip qualifies for a B visa --plan to remain only for a specific, limited time --evidence of funds to cover expenses in U.S. --evidence of compelling social and economic ties in home country that will ensure their return 63
    64. 64. Applying for a B Visa• Apply at the U.S. Consulate. www.usembassy.gov• Apply Early at least 45 to 60 days before needed arrival date• Check State Department web site: “Visa Wait Times - for Interview Appointments and Processing” http://travel.state.gov/visa/temp/wait/wait_4638.html• Fee for B Visa: $160• Reciprocity Fee: Depends on Country 64
    65. 65. F-1 Student Visas For Seminarians engaged in full-time study 65
    66. 66. F-1 Student Eligibility• Full-time student• At Immigration–approved educational institution• Diocese will cover costs• Must show non-immigrant intent• Admitted for D/S (duration of status)• Cannot enter the U.S. more than 30 days prior to start of academic program
    67. 67. Ways to Obtain F-1 Status• If outside the U.S., apply for the F-1 at the U.S. Consulate, includes interview.• If in U.S. and changing status, work through school, and file for a change of status to F-1 with USCIS. No interview.• If in the U.S. in F-1 status, and transferring to a seminary, must be accepted at the new school and notify current school of transfer.
    68. 68. F-1 Process• School issues I-20• Diocese pays SEVIS (Student Exchange Visitor Information System) fee• Student files F-1 application at U.S. Consulate or• Student is in the U.S. and files I-539 application for change of status at USCIS
    69. 69. Applying for an F-1 Visa• Visit the appropriate Consulate’s website and review the requirements: www.usembassy.gov• Review the visa wait times for planning purposes: http://travel.state.gov/visa/temp/wait/wait_4638.html• Check fees and reciprocity requirements: http://travel.state.gov/visa/fee/fees_1341. html 69
    70. 70. Denial of an F-1 Visa: Immigrant Intent U.S. consular officers automatically assume that an applicant has immigrant intent and students must overcome this presumption that they intend to staty permanently in the U.S.before they can be issued F-1 visas. 70
    71. 71. Duration of Status (D/S Students in F-1 status are admitted for the duration of their academic program. Their I-94 cards should have “D/S” rather than a specific ending date. 71
    72. 72. Admittance Stamps for F-1 Status 72
    73. 73. The Grace PeriodF-1 students are allowed a 60-day graceperiod at the conclusion of their programof study. This is an additional time thatthey can legally remain in the U.S.following the conclusion of their studies. 73
    74. 74. The Grace Period Length ofManner in Which Program Ends Grace PeriodStudent finishes academic program 60 daysStudent completes optional practicaltraining 60 daysStudent withdraws from course of studywith permission of DSO but does not 15 daystransfer to another schoolStudent withdraws without prior DSOapproval 0 days 74
    75. 75. Permanent Residence Process 75
    76. 76. Introduction to Permanent Residence• Two-part process: I-360 Petition + I- 485 Application = Permanent Residence Card• Requires a sponsor (the employer)• Permanent Residence is not Citizenship – can be lost 76
    77. 77. Permanent ResidenceRemember:• R-1 nonimmigrants can remain in the U.S. for up to 5 years.• Not everyone wants or needs to become a permanent resident.• The person who wants to become a permanent resident must intend to reside in the U.S. permanently. 77
    78. 78. I-360 Basic Requirements (Similar to R-1)• Two (2) years membership in religious denomination.• Religious denomination is a nonprofit, tax-exempt 501(c)(3) religious organization in the U.S.• Be coming to the U.S. to work in a full-time (average of at least 35 hours per week) compensated position in one of the following: • Solely in the vocation of a minister of that religious denomination • A religious vocation, or • A religious occupation 78
    79. 79. Other I-360 Petition RequirementsTwo additional requirements:• Two (2) Years Continuous Experience in “lawful immigration status”• Two (2) Years must be in full-time work (35 hours a week) 79
    80. 80. Maintaining Status while I-360 PendingIMPORTANT:• Current Processing Time at USCIS for I- 360 petition is 5 months• Individual must continue to maintain R-1 status while I-360 is pending. Filing the I- 360 application does not give lawful status in the U.S. 80
    81. 81. Filing for Permanent Resident Card Adjustment of Status (I-485): • Step 1: File I-360 petition with USCIS and get approval • Step 2: Apply for an adjustment of one’s status to permanent resident inside the U.S.by filing the I-485 application with USCIS
    82. 82. Adjustment of StatusUSCIS Forms:  G-28  I-485  G-325A  I-765 (employment authorization document)  I-131 (travel document) 82
    83. 83. Required Documents• Medical Exam• Six (6) Photographs• Birth Certificate• Copies of All Passports and I-94s• I-360 Approval Notice• Employment Letter• Filing Fee (currently $1,070) 83
    84. 84. Traveling while I-485 PendingIf filed an I-485 application for permanentresidence:•You must have your travel permit fromUSCIS (advance parole) before taking atrip abroadOR you abandon yourI-485 application! 84
    85. 85. Sample LPR Card 85
    86. 86. Once a Permanent Resident . . .• Allowed to do everything U.S. born citizen can do except vote in state and federal elections• Admitted without limit as to length of stay, but must renew card every ten (10) years• Required to maintain the permanence of the residence in the U.S. (limits on living abroad)• Vulnerable to losing permanent resident status and removal from the U.S. depending on whether individual commits a crime, the type of crime committed, and its legal consequences. 86
    87. 87. Re-Entry Permit• Allows a permanent resident to stay abroad for more than one year without jeopardizing permanent resident status• Form I-131 must be filed first in the U.S. and attend biometrics appointment before leaving the US• Re-entry permit can be picked up at a consulate abroad or sent to a U.S. address• Valid for 2 years and may reapply for another 2 years• Must show the re-entry permit when coming back to the United States 87
    88. 88. Change of Address• All non-U.S. citizens must notify USCIS when they move to a new address• Form AR-11 Change of Address Form• Must be done within 10 days of Moving• Can be done online at: www.uscis.gov 88
    89. 89. Center for ReligiousImmigration and Protection We provide legal services forforeign born religious workers Phone: 202-756-5549Email: RIS@cliniclegal.org 89

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