• USCIS Changes Filing Requirements for Immigrant Foreign Religious Workers
  • December 28, 2010 | Author: Michael R. Lied
  • Law Firm: Howard & Howard Attorneys PLLC - Peoria Office
  •         Most immigrants obtain a visa at an appropriate U.S. consulate and enter the United States as immigrants.  In some cases, an alien may already be present in the United States.  If the alien makes the appropriate application, is otherwise eligible to receive a visa, and if a visa is immediately available, the alien may “adjust status” to permanent resident without leaving the United States and obtaining an immigrant visa at a U.S. consulate.  This is a valuable option since it may allow continued work authorization and avoids the need to send a family back to the country of origin to obtain immigrant visas.  Most family and work based immigrant visa petitions allow for simultaneous filing of the underlying visa petition together with the application to adjust status, but the rule has been different for special immigrant religious workers.

            Up to 5000 special immigrant visas may be granted to religious workers each year.  This visa is available for (1) ministers, (2) religious workers in a professional capacity in a religious vocation or occupation and (3) religious workers in a religious vocation or occupation as defined in the statute.

            The United States Citizenship and Immigration Services (“USCIS”) has taken the position that such religious workers must have an approved visa petition before they can file the application to adjustment status.

            Several foreign religious workers sued USCIS, arguing that USCIS should permit simultaneous filing of the adjustment of status petition together with the underlying visa petition.  A federal district court in Washington State entered a permanent injunction against the USCIS.  For a time, USCIS permitted concurrent filings.  However, the U.S. Court of Appeals in Ruiz-Diaz v. U.S., 618 F.3d 1055 (9th Cir. 2010) reversed, finding that a 2004 USCIS regulation, which continued to preclude concurrent filings for religious workers, was entitled to deference under Chevron U.S.A. Inc. v. National Resources Defense Council, Inc., 467 U.S. 837 (1984).

            Most recently, in response, on November 9, 2010, USCIS published an “Interim Memo for Comment,” which would revise the Adjudicator’s Field Manual in view of the Ninth Circuit’s decision.  The Interim Memo makes clear that, as of November 8, 2010, the Form I-360 Petition for the special immigrant religious worker classification may no longer be filed concurrently with Form I-485, the application to adjust status.  Instead, Form I-485, and related forms, may only be filed after the Form I-360 has been approved.  The policy memorandum may be accessed at www.uscis.gov and is designated PM-602-0010.