Immigration Lawyers Toolbox® Magazine
Avoiding and Responding to R-1 Nonimmigrant Religious Worker Requests for Evidence SCOTT ANDREW FULKS, ESQ.
As with most USCIS petitions Petitioner’s Pro(ered Position
Scott Andrew Fulks, Esq. DeckertLaw.com scott@deckertlawfirm.com
during COVID, processing times for R-1 petitions reached all-time highs during 2020 and 2021. More recently, the religious worker nonimmigrant category has decreased, yet long processing times remain. Religious communities often require the beneficiary’s services immediately, but frequently this is impossible. Since most religious petitioners remain ineligible for premium processing under current USCIS policies1, avoiding Requests for Evidence (RFE) is crucial to keeping processing times at a minimum2. Those handling R-1 petitions for faith-based organizations should reexamine the initial evidence submitted relating to the following four items
1 Requests for premium processing will only be accepted if the petitioner has previously filed an R-1 petition and completed a successful on-site inspection by the Fraud and Detection National Security Directorate. 2 Total avoidance of R-1 RFEs may be an elusive feat. A recent informal survey of the AILA members of the Religious Workers Interest Group conducted by the author revealed that seasoned R-1 practitioners receive RFEs in nearly 30% of their cases filed under Premium Processing and in 40% of their non-premium processing cases.
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The R-1 regulations provide for three kinds of R-1 positions: ministers, religious occupations, and religious vocations. 8 C.F.R. § 214.2(r). While practitioners can expect RFEs related to all three categories, they can expect significant pushback from the California Service Center (CSC) related to religious occupations because of the flexible nature of the position. Eligible positions could include not only ministry coordinators, broadcasters, and missionaries but also translators, cantors, and private school teachers. A religious occupation must be primarily related to a traditional religious function, carry out the religious creed of the community, and not be primarily administrative in its functions. Vital to avoiding an RFE is the inclusion of the following documents: 1. A detailed job description highlighting the religious component of each duty and validating the administrative elements of the job as incidental to the former. 2. A weekly schedule cataloging the duration and kinds of functions that carry out the creed of the community.