The R-1 Religious Visa

Coffee talk with Immigration Attorney Brian D. Lerner, A Professional Corporation on Immigration and Naturalization Law and specifics on how you can find solutions to immigration problems, visas, work-permits, deportation and other areas of immigration law. Find out about the R-1 Religious Worker Visa and how to come into the U.S. as a Priest, Rabbi or other type of Minister or a Religious Worker. Immigration Lawyer Brian D. Lerner explains this area of immigration law so that it is clear and in normal and plain English. The Law Offices of Brian D. Lerner is happy to give you a free 10 minute consultation at http://www.blerner.checkappointments.com/. Additionally, call us at 562-495-0554 or send a Skype to ‘briandlerner’.

The R-1 Visa for Preists, Rabbis and Religious Workers

The R-1 Religious Visa

 

 

Question: I am a priest. Can I get a visa to come to the U.S.?

 

Answer: Yes. You would have to fall under the definition of a minister and be petitioned as an R-1. A minister is defined as: (1) Fully authorized and trained in religious denomination to conduct religious worship and perform other duties usually performed by clergy of denomination;

(2) Is not a lay preacher or a person not authorized to perform clergy’s duties;

(3) Performs activities rationally related to being a minister; and

(4) Works solely as a minister in the U.S. which may include incidental administrative duties. May be part-time (20 hours per week)

  1. Deacons, practitioners of Christian Science and officers of the Salvation Army may be deemed ministers.

 

 

Question: I know somebody who is not a priest, but want to be petitioned in an R-1 capacity. Can this be done?

 

Answer: Yes, if you meet the requirements for a Religious Worker. This would be defined as:

(1) Member of a religious denomination for at least 2 years immediately preceding the time of application for admission that has a bona fide nonprofit religious organization in the U.S.;

(2) Must be coming to work at least in a part-time position (20 hours);

  1. Must be coming to perform a religious vocation or occupation in either a professional or nonprofessional capacity.

 

 

Question: What is considered a religious occupation?

 

Answer: The duties must primarily relate to: (i) a traditional religious function and be recognized as a religious occupation within the denomination; (ii) clearly involve inculcating or carrying out the religious creed and beliefs of the denomination; (iii) not include positions that are primarily administrative or support such as janitors, maintenance workers, clerical employees, fundraisers, person solely involved in solicitation of donations or similar positions but may include incidental administrative duties to religious functions; and (iv) not be solely for religious study or training for religious work, although a religious worker is not barred from such training or study.

 

Question: What is a religious vocation?

 

Answer: A form of lifetime commitment through vows, investitures, ceremonies or similar indicia to a religious way of life such as nuns, monks, and religious brothers and sisters. Distinguished from secular members of the denomination.

 

Question: What is considered a religious occupation?

 

Answer: The duties must primarily relate to: (i) a traditional religious function and be recognized as a religious occupation within the denomination; (ii) clearly involve inculcating or carrying out the religious creed and beliefs of the denomination; (iii) not include positions that are primarily administrative or support such as janitors, maintenance workers, clerical employees, fundraisers, person solely involved in solicitation of donations or similar positions but may include incidental administrative duties to religious functions; and (iv) not be solely for religious study or training for religious work, although a religious worker is not barred from such training or study.

 

Question: How do I get petitioned for an R-1?

 

Answer: The employer files the I-129 with attestation and supporting documentation. You cannot self-petition like special immigrants. Department of State no longer grants an R visa without an approved I-129. However, an approved petition is prima facie evidence of entitlement to R-1 status and a consular officer should refer cases to USCIS for reconsideration “sparingly.” Before requesting review of the I-129 by USCIS the consular officer “must have specific evidence of a requirement for automatic revocation, misrepresentation in the petition process, lack of qualification on the part of the beneficiary, or of previously unknown facts, which might alter USCIS’s finding…”

 

Answer: The employer must then file the attestation by authorized official of the religious organization showing that: (i) the employer is a bona fide nonprofit religious organization or affiliate of one and is tax exempt; (ii) the beneficiary has been a member of the denomination for at least 2 years and is otherwise qualified for the position; (iii) the number of members of the religious organization; (iv) the number of employees who work at the same location and a summary of their responsibilities. USCIS may request a list of all employees, their titles and duties and employment description; (v) number of R-1 or Special Immigrant visa or status holders employed within last 5 years; (vi) number of NIV and IV applications filed in last 5 years; (vii) title and detailed description of position offered; (viii) salaried or nonsalaried compensation in position; (ix) employment will be at least 20 hrs per week; (x) location of employment; and (x) applicant will not be engaged in secular employment.

 

Question: Can my spouse and children come to the U.S. when I get my R-1?

 

Answer: Yes, they will receive an R-2. Subject to same time limits as principal, and also may obtain benefit of recapturing time out of U.S. However, they cannot accept employment. R-2s “are not required to demonstrate a residence abroad which they have no intention of abandoning.”

What do I have to be thankful for this year?

What do I have to be thankful for this year?

 

Question: I have been fighting for years to obtain residency and it seems like a never ending battle. I’m getting down and don’t really know if I want to continue. Any help?

 

Answer: Well, there have been some very good developments over the last year. First, there is DACA to allow people under 30 to apply to the ability to be able to stay here, work and go to school in two year increments. There has also been regulations issued (although not final yet) for the Stateside Waiver of Inadmissibility so that loved ones do not have to wait outside the United States for years while the government is deciding whether to grant or deny the waiver.

 

Also, President Obama has been re-elected. It seems now there are legislators and other parties now interested in coming forth with a comprehensive immigration bill. We will have to see on this if this is coming, but it does seem a considerably higher priority than in the prior administration.

 

We also have to look at what has happened in Connecticut with the shooting of all of those children. It was an absolute terrible and horrific incident. I know that the United States and the world pours their hearts out and sympathy to the families whose children were killed. It makes each and every one of us look at our own children and to become thankful that they are with us and that they are safe.

 

It also makes us realize that there does not seem to be any problems that we cannot eventually overcome. Thus, the fact that you have fought for years to obtain residency can be frustrating, but it is certainly doable. There is light at the end of the tunnel. During this Holiday Season, we should be very grateful for all that we have and all that has been given to us. There will always be struggles and adversity, but as you can see, it can be much, much worse.

 

We should take a step back from all of the daily struggles and problems we have and hug our loved ones and give thanks for what we have. As an Immigration Attorney, I will continue the fight for comprehensive immigration reform and I will continue to fight against injustice that is felt in the immigration world. Finally, while we are giving hugs to our loved ones and being thankful for everything we have, let’s send our prayers and sympathies to the families of the victims in Connecticut.

 

I would also like to take this opportunity to wish everyone a joyous and festive Holiday Season.

The Immigration Bond

The Immigration Bond

Question: My husband is in detention and deportation proceedings. Can he get out?

Answer: For noncitizens and their families, nothing is more important than the noncitizen’s release from jail. These concerns can sometimes seemingly dwarf the larger issues of removability and relief. Every day, or every second, of detention only serves to increase the anxiety, stress, and impatience of the detainee and his or her family. Some noncitizens are ineligible for bond, either as a matter of law or discretion. Others, at first glance, might seem ineligible for bond but, through creative and persistent lawyering, may one day secure their freedom. This would be through getting an immigration bond.

Question: When my husband was in criminal jail, they stated there was an immigration detainer or an immigration hold. What is this?

Answer: First, immigration detainers prolong the detention of many criminal defendants. A detained noncitizen facing criminal charges is more likely to plead guilty in hopes of getting out of jail. This “rush” to plead could have serious short and long-term immigration and criminal consequences. The immigration detainer remains widely misunderstood by the defense bar. It is a preliminary step in the removal process and does not mean that the noncitizen can or will be removed.

The detainer is a surprisingly feeble legal instrument. Most defense counsel would be surprised to learn that a detainer is a non-binding “request.” The applicable regulation provides that a detainer “serves to advise another law enforcement agency that the Department seeks custody of an alien presently in the custody of that agency, for the purpose of arresting and removing the alien.” The regulation provides that a “detainer is a request that such agency advise the Department, prior to release of the alien, in order for the Department to arrange to assume custody, in situations when gaining immediate physical custody is either impracticable or impossible.”

The regulation derives its authority from the Immigration and Nationality Act “pursuant to sections 236 and 287 of the Act and this chapter 1.” The statutory language limits detainers to controlled substance violations. There are also due process concerns when an administrative agency unilaterally prolongs detention without statutory authority or legal standards.

Question: What options exist for someone with a detainer?

Answer: Many federal noncitizen defendants do not receive the benefit of pretrial release. The conventional wisdom among federal defense counsel is that an immigration detainer prevents release and renders any pretrial release futile since the noncitizen will remain detained. Federal law provides a specific mechanism to address detention of noncitizens, and in fact, requires that a noncitizen defendant be treated like any other defendant.

Question: How long can the State facility hold you while the detainer is pending?

Answer: ICE has 48 hours, excluding Saturdays, Sundays, and holidays, to take custody of a noncitizen upon his or her release from criminal custody. If ICE fails to do so, the custody becomes unlawful and the noncitizen can challenge the detention by filing a petition for writ of habeas corpus. If the custodian is a state or local official, the petition will have to be filed in state court pursuant to state procedures.

Question: When my husband was transferred to immigration detention, I did not know where he was. How could I find out?

Answer: If you know his country of birth and name or alien number, you can use ICE’s Online Detainee Locator System at https://locator.ice.gov/odls/homePage.do. If he is housed in a state or local jail, another useful online service is www.vinelink.com.

Question: Some people have said that there is mandatory detention and that some people will not qualify for bond. Can you elaborate and explain?

Answer: Three primary classes of noncitizens are ineligible for bond: (1) certain criminals and terrorists ; (2) “arriving aliens”; and (3) individuals with administratively final orders of removal. For the criminal activity, those who are inadmissible for criminal activity pursuant to INA §212(a)(2);

those who are deportable for committing one crime of moral turpitude if the sentence included a term of imprisonment of a year or more; multiple crimes of moral turpitude; aggravated felonies; controlled substance offenses ; certain firearms offenses , or certain espionage and sabotage crimes or those who are inadmissible or deportable for terrorist activities. 26

Mandatory detention only applies to those who were last released from criminal custody after the expiration of the Transition Period Custody Rules (TPCR) on October 8, 1998.

Question: If the person is under mandatory detention, can the Immigration Judge release him?

Answer: No. However, although the Immigration Judge lacks jurisdiction to release noncitizens subject to mandatory detention, they do retain jurisdiction to determine whether the person is properly included in the mandatory detention provisions. Noncitizens can challenge the mandatory detention classification by requesting a Joseph hearing. In a Joseph hearing, the noncitizen bears the burden of establishing that it is substantially unlikely that the charge of removability, triggering mandatory detention, will be upheld. If the Immigration Judge agrees, the judge will entertain a bond hearing immediately.

Thus, even though ICE may claim there is mandatory detention, creative lawyering may be able to show the person in detention is not under mandatory detention.

Question: If he is not under mandatory detention, what happens?

Answer: First, ICE will set a bond. Usually it is much higher than the Immigration Judge will set. Therefore, if you cannot pay what ICE is requesting, he should stay in detention for another few days until the first court hearing. There, a bond redetermination hearing will be conducted and most of the time the Immigration Judge will give a bond 5 to 10 times less than what was issued by ICE.

Question: What do you have to show in a bond redetermination hearing?

Answer: You should show the person in detention is not a flight risk and that he has every intention of going to his hearings. Next, show that he will not be a danger to society if he is bonded out.

Question: When the bond is set, what do I do?

Answer: You will go to the designated deportation department at Immigration, pay the bond and get the receipt. Then you will bring that to the detention facility and he will be released and the case should be transferred to a non-detained calendar.

Question: Will I ever get the money back?

Answer: Yes, you will get it back if he goes to all his hearings. If he does not goto a hearing, you just gave Immigration a present.

Bond Hearings and How to Win them and get the lowest Bond

Adjustment of Status and how to get the Green Card

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