How Do Religious Organizations and Workers Overcome Immigration Scrutiny From DHS?
February 27, 2019
The U.S. Constitution and laws provide significant protections for religious organizations and religious workers. However, the Department of Homeland Security’s attention to potential fraudulent immigration applications often place obstacles in their way that can infringe those rights. Often the Government insists on conducting a detailed investigation that can considerably delay an immigration benefit, including authorization to begin a religious ministry or other religious activity.
The USCIS may verify supporting evidence provided by a petitioner through an on-site inspection of the petitioning organization. Such inspections may include a tour of the organization’s facilities, an interview with organization officials, review of selected organization records relating to the organization’s compliance with immigration laws and regulations, and interviews with any other individuals or review of any other records that USCIS considers pertinent to the integrity of the organization. Practitioners should advise clients that it isn’t possible to accurately predict how long USCIS will take for a site visit.
We have seen a wide variation of USCIS actions, from waiving a site visit altogether to taking from several weeks after filing the petition to more than a year. For R-1 petitions, it may be advisable to file a Form I-901 premium processing request, even if no prior site visit was done. If USCIS rejects the I-901, it will return the form and filing fee.
USCIS can expedite both I-360’s, for which there is no premium processing, and I-129s. There must be: severe financial loss to company or person; emergency situation; humanitarian reasons; nonprofit organization whose request is in furtherance of the cultural and social interests of the United States; Department of Defense or national interest situation (these particular expedite requests must come from an official U.S. government entity and state that delay will be detrimental to the government.); USCIS error; or compelling interest of USCIS.
In addition to the USCIS’s expedition criteria, you can also explain how the site visit delay is unlawfully burdening religious exercise. In issuing the final religious worker regulations, USCIS stated: “A petitioner’s rights under [the Religious Freedom Restoration Act, or RFRA] are not impaired unless the organization can establish that a specific provision of the rule imposes a significant burden on the organization’s religious beliefs or exercise. An organization or individual who believes that the RFRA may require specific relief from any provision of this regulation may assert such a claim at the time they petition for benefits under the regulation.
You can request an expedite by calling the USCIS Contact Center at 1- 800-375-5283. A customer service representative will take the reasons for the expedite request and convey it to the USCIS Service Center adjudicator who has the file. If the officer decides to expedite the adjudication, he or she will either do so or contact you to request documents supporting the request.
You may also make a case status inquiry online here. Sometimes inquiries made by a congressional representative can be helpful where attorney requests have been ineffective. Additionally, you may request for assistance from the USCIS Ombudsman’s office.
In cases where USCIS unduly delays an adjudication and denies an expedite request, or waiting for the site visit substantially burdens your religious exercise, you may consider filing an federal district court action in the nature of mandamus, including arguments as to why the delay is unreasonable and how it imposes a substantial burden on religious exercise in violation of the mandamus statute, the Administrative Procedure Act (APA) and RFRA . See here.
The travel ban upheld by the Supreme Court in Trump v. Hawaii contains restrictions that differ by country. Under the current travel ban, both nonimmigrant and special immigrant ministers and other religious workers from Iran, Libya, Somalia, Syria, Yemen, and, in theory North Korea, could be ineligible to receive visas to travel to the U.S. The ban on Venezuela is currently applicable only to government officials. We will need to keep aware of any changes or expansions to the travel ban.
The EB-4 special immigrant category for non-ministers has been subject to a periodic sunset since the category was created in 1990. The current category is due to expire on September 30, 2019. USCIS must receive I-360 petitions and I-485 by that date or they will be rejected. I-360 petitions pending for non-ministers after that date will be held in abeyance until Congress further extends the category.
Another threat to the EB-4 category is country-specific visa limitations and over-subscriptions. It is very important to check the current month’s Visa Bulletin to make sure that the I-360 priority date is within any visa availability cut-off date. Currently there are backlogs in the category for religious workers from El Salvador, Honduras, and Guatemala, and Mexico.
The attorneys at Scott D. Pollock & Associates, P.C. have extensive experience with religious immigration cases.