By Miguel A. Naranjo, RIS Section Director
On July 5, 2015, the U.S. Citizenship and Immigration Service (USCIS) issued a policy memo declaring that the “lawful status” requirements of the immigrant regulations for religious workers would no longer be considered when adjudicating the I-360 immigrant petition. In addition, USCIS will amend Title 8 CFR Sec. 204.5(m)(4) and (11) and remove the lawful status requirements from the immigrant regulations for religious workers. Prior to this change, to be eligible for permanent residence a religious worker needed to demonstrate that he/she had at least two years of experience (as a religious worker) and if that experience was gained in the U.S., the religious worker must have shown that he/she maintained lawful status (and work authorization) during that time. With this announcement, the lawful status requirement is eliminated and USCIS will not deny religious worker I-360 petitions on this basis.
The lawful status requirements were first added to the regulations by USCIS in 2008 when the religious worker immigration program was undergoing major changes. At that time, we immediately realized the potential problem this addition would create for religious workers seeking permanent residence. We questioned the authority USCIS believed it had to change the prior immigrant regulations in such a significant way without any directive or consent from Congress. No other employment-based immigration category has any similar requirements and we believed that religious workers were being treated unfairly as compared to other employment-based groups.
Fortunately, we were not alone in this belief and other immigration practitioners began to challenge USCIS on this issue. On April 7, 2015, the Third Circuit Court of Appeals in Shalom Pentecostal Church v. Acting Secretary DHS, 783 F.3d 156 (3d Cir. 2015) found that USCIS went beyond its legal authority (ultra vires) when it added the lawful status requirements to the immigrant regulations for religious workers. The court found the immigration statute on special immigrant religious workers was clear and unambiguous and that the changed regulations were inconsistent with the statute. As a result of this decision and other similar challenges, USCIS issued this policy change eliminating the lawful status requirements.
Effective immediately, a religious worker who has any period of unlawful status and unauthorized work may be eligible to apply for permanent residence despite having these violations. This new policy, however, is limited to the I-360 immigrant petition only and does not address the impact such violations may have at the adjustment of status stage (I-485 application) of the permanent residence process. So while this change is a benefit for religious workers, there still may be issues related to immigration status which might prevent the religious worker from being granted permanent residence. It is important to thoroughly review issues of unlawful status before beginning the permanent residence process in order to assess whether the religious worker would ultimately be able to gain permanent residence under this program. If you have questions about this new policy, please contact your RIS Attorney directly or RIS Section Director Miguel A. Naranjo.