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R - Religious Visa

In what has been described as a moment of "spiritual enlightenment," Congress created the R nonimmigrant visa category for religious workers. The R nonimmigrant religious worker visa category is for:

an alien, and the spouse and children of the alien if accompanying or following to join the alien who (i) for the two years immediately preceding the time of application for admission, has been a member of a religious denomination having a bona fide nonprofit, religious organization in the United States; and (ii) seeks to enter the United States for a period not to exceed 5 years to perform the work described in subclause (I), (II), or (III) or paragraph (27)(c)(ii) [which is work in a religious vocation or occupation]. INA Section 101(a)(15)(R), 8 USC 1101(a)(15)(R).

Created under the Immigration Act of 1990, the R nonimmigrant visa category provides a specific nonimmigrant visa category for temporary religious workers who, prior to 1990, had to enter the United States under B-1, H-1B, H-3, J-1 or L-1 visa categories. The problem with the foregoing temporary visas was that the realities of the transfers of temporary religious workers did not always fit the categories. For religious worker clients, immigration practitioners were trying to "force a round peg into the square hole."

For example, the B visa may not have afforded the religious worker a sufficient duration of stay. The H-1B category may not have been applicable, because the temporary religious worker, may not have been a professional serving in a specialty occupation. The H-3 may not have been applicable to the temporary religious worker since that category requires formal training and excludes productive work which is not incidental to the training.

The R nonimmigrant visa category provided a distinct visa category for ministers of religion, professional workers serving in religious vocations and occupations and for other religious workers who are employed by religious, non-profit organizations or related tax-exempt entities as defined by section 501(c)(3) of the Internal Revenue Code.

To qualify for the R nonimmigrant visa category, the foreign national must have been a member of the religious denomination in the United States for two (2) - years preceding the petition. The foreign national must be coming to the United States to carry on the vocation of minister of religion, work at the organization's request in a religious vocation or occupation in a professional capacity or work for such qualifying organization in a religious vocation or religious occupation.

The extent to which a particular position is a "religious vocation" or "religious occupation" that serves a "traditional religious function" within an organization is expanded upon in the regulations. However, for the creative practitioner, the regulations should be viewed merely as guidelines and not as mandates.

The R nonimmigrant visa category has an immigrant visa counterpart in the employment-based fourth preference category discussed below). Generally, the standards for the nonimmigrant R visa and the fourth preference immigrant visa are similar. However, to obtain the fourth preference immigrant visa for a religious worker, the individual must have served as a member of the qualifying religious organization and in the particular religious vocation or occupation for two (2) - years immediately preceding the filing of the petition with the USCIS. Derivative R nonimmigrant visa beneficiaries are also accorded R visa status.

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