The fourth employment based immigrant category is for special immigrants. There are several different subcategories within the fourth preference and not all of them obtain a green card through employment. The most common special immigrant is the religious worker. Special immigrant religious workers will obtain a green card through employment. A permanent, full-time job offer is required but a labor certification is not. Each year there is a limit of 5,000 visas available to special immigrant religious workers.
How does one qualify as a special immigrant religious worker?
To qualify as a special immigrant religious worker, the alien:
Must have been a member of the religious denomination for at least 2 years immediately preceding the time of application;
Must be seeking to enter the U.S. solely to work as a minister or religious vocation or occupation which relates to traditional religious functions; and
Must have worked in such vocation, professional work or other work continuously for at least a 2 year period (voluntary service does not meet this requirement). The work must be continuous, but need not be full-time. It does not matter if the work was in or outside of the U.S.
Qualifying Religious Organization
The religious worker must work for a bona fide, non-profit, religious organization or a bona fide organization which is affiliated with the religious denomination. A bona fide, non-profit, religious organization is defined as an Internal Revenue Code 501(c)(3) organization as it relates to religious organizations. The organization does not need to have ever sought tax exempt status, but need only prove that it is eligible for such status. A bona fide organization which is affiliated with a religious denomination is one closely associated with the religious denomination. It must also be eligible for tax exempt status under the Internal Revenue Code.
A religious denomination is defined as “a religious group or community of believers having some form of ecclesiastical government, a creed or statement of faith, some form of worship, a formal or informal code of doctrine and discipline, religious services and ceremonies, established places or religious worship, religious congregations, or comparable indication of a bona fide religious denomination."
Qualifying Religious Occupations
There are three classes of religious workers – ministers, professionals and other workers in religious vocations.
Ministers are people authorized by a recognized religious denomination to conduct religious worship services and to perform other duties usually performed by authorized members of the clergy. It does not include lay persons who participate in services. A minister must be ordained to conduct religious worship and perform other duties performed by an ordained pastor/clergyman.
Professionals are those working in a religious vocation or occupation for which the minimum of a Bachelor‘s degree (or foreign equivalent) is required. A religious occupation is an activity which relates to traditional religious functions such as liturgical workers, religious instructors or counselors. It does not include support staff such as clerks or maintenance workers. The U.S.C.I.S. is now requiring that a person in a religious occupation must also have formal training established by the governing body of the denomination.
A religious vocation is a calling to religious life with a demonstrable commitment to that life such as taking vows. Typical in this category would be monks, nuns and religious brothers and sisters.
Filing the Petition
The petition is filed on Form I-360 with the appropriate USCIS Regional Service Center. The petition packet must include evidence that the petitioner is a qualifying religious organization. Normally, the petitioner will submit a copy of the letter form the Internal Revenue Service recognizing their 501(c)(3) tax exempt status. Organizations who have not sought tax exempt status will have to submit documents to show that it is eligible for tax exempt status under Internal Revenue Code Section 501(c)(3). If the alien is to work with an affiliated organization, the employer letter must show the affiliation, and the application must include evidence of the organization‘s tax exempt status.
The petitioner must also submit a detailed letter which explains that the Petitioner is a qualifying religious organization; describes how the alien meets all of the requirements for special immigrant religious worker status; contains a list of the job duties to be performed; confirms that the job offer is permanent and full-time. The letter should also include details about how the religious worker will be paid and evidence confirming the petitioner’s ability to pay should be submitted with the petition packet.
The petition packet must also include evidence that the alien has been a member of the religious denomination for the two years immediately preceding the filing of the petition and evidence that the alien has worked in the vocation, professional work or other work continuously for at least a two year period. If the two years were worked for a different organization than the one petitioning, both organizations must share a common religious doctrine and evidence of this must be submitted.
The petition packet must also include evidence that the alien is ordained or authorized to act as a minister. If the petition is for a professional, evidence that the alien possesses a U.S. bachelor’s degree or its foreign equivalent must be submitted. For workers in religious vocations, evidence that the alien is qualified for that work must be submitted.
Once the I-360 visa petition is approved, the alien and his/her spouse and children under 21 years of age may apply for their immigrant visas either through adjustment of status in the United States or through consular processing at a U.S. Consulate outside of the United States.