Special Immigrant and Nonimmigrant Religious Workers, 72276-72297 [E8-28225]

Agencies

• DEPARTMENT OF HOMELAND SECURITY
• U.S. Citizenship and Immigration Services

[Federal Register Volume 73, Number 229 (Wednesday, November 26, 2008)]
[Rules and Regulations]
[Pages 72276-72297]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-28225]



[[Page 72275]]

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Part VIII





Department of Homeland Security





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U.S. Citizenship and Immigration Services



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8 CFR Parts 204, 214 and 299



Special Immigrant and Nonimmigrant Religious Workers; Special Immigrant 
Nonminister Religious Worker Program Act; Final Rule and Notice

Federal Register / Vol. 73, No. 229 / Wednesday, November 26, 2008 / 
Rules and Regulations

[[Page 72276]]


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DEPARTMENT OF HOMELAND SECURITY

U.S. Citizenship and Immigration Services

8 CFR Parts 204, 214 and 299

[CIS No. 2302-05; DHS Docket No. USCIS-2005-0030]
RIN 1615-AA16


Special Immigrant and Nonimmigrant Religious Workers

AGENCY: U.S. Citizenship and Immigration Services, DHS.

ACTION: Final rule.

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SUMMARY: This final rule amends U.S. Citizenship and Immigration 
Services (USCIS) regulations to improve the Department of Homeland 
Security's (DHS's) ability to detect and deter fraud and other abuses 
in the religious worker program. This rule addresses concerns about the 
integrity of the religious worker program by requiring religious 
organizations seeking the admission to the United States of 
nonimmigrant religious workers to file formal petitions with USCIS on 
behalf of such workers. This rule also implements the Special Immigrant 
Nonminister Religious Worker Program Act requiring DHS to issue this 
final rule to eliminate or reduce fraud in regard to the granting of 
special immigrant status to nonminister religious workers. The rule 
emphasizes that USCIS will conduct inspections, evaluations, 
verifications, and compliance reviews of religious organizations to 
ensure the legitimacy of the petitioner and statements made in the 
petitions. This rule adds and amends definitions and evidentiary 
requirements for both religious organizations and religious workers. 
Finally, this rule amends how USCIS regulations reference the sunset 
date by which special immigrant religious workers, other than 
ministers, must immigrate or adjust status to permanent residence.

DATES: Effective date: This rule is effective November 26, 2008.

FOR FURTHER INFORMATION CONTACT: Emisa Tamanaha, Adjudications Officer, 
Business and Trade Services, Service Center Operations, U.S. 
Citizenship and Immigration Services, Department of Homeland Security, 
111 Massachusetts Avenue, NW., 3rd Floor, Washington, DC 20529, 
telephone (202) 272-1505.

SUPPLEMENTARY INFORMATION: 

List of Acronyms and Abbreviations

BFA--Benefit Fraud Assessment
DHS--Department of Homeland Security
FDNS--Fraud Detection and National Security
GAO--Government Accountability Office
ICE--U.S. Immigration and Customs Enforcement
INA--Immigration and Nationality Act
IRC--Internal Revenue Code of 1986
IRS--Internal Revenue Service
RFRA--Religious Freedom Restoration Act of 1993
USCIS--U.S. Citizenship and Immigration Services

I. Background

    The United States has a long history of allowing aliens into the 
United States for the purpose of performing religious work. Significant 
evidence indicates, however, that the current rules governing the 
immigration of religious workers do not adequately prevent individuals 
from seeking admission to the United States through fraud. USCIS is 
implementing requirements under this final rule to allow the Federal 
government, as well as religious organizations, to better detect and 
deter fraud or other abuses of the religious worker program without 
compromising the many contributions made by nonimmigrant and immigrant 
religious workers to religious organizations in the United States.
    Aliens may apply for religious worker status in the United States 
as either nonimmigrants or special immigrants under sections 
101(a)(15)(R) and (27)(C) of the Immigration and Naturalization Act 
(INA) and USCIS regulations. See 8 U.S.C. 1101(a)(15)(R) and (27)(C); 8 
CFR 204.5(m), 214.2(r). A nonimmigrant religious worker (R-1) may only 
be admitted to the United States for a period not to exceed five years. 
The spouse and any unmarried children under the age of 21 of a 
nonimmigrant granted R-1 status can be admitted to the United States as 
R-2 nonimmigrants in order to accompany, or follow to join, the 
principal R-1 alien. R-2 nonimmigrants, however, may not accept 
employment while in the United States under R-2 nonimmigrant status. 8 
CFR 214.2(r)(8).
    Aliens classified as special immigrant religious workers are 
eligible for admission to the United States as permanent residents. The 
spouse and any unmarried children under the age of 21 of a special 
immigrant religious worker also are eligible to apply for permanent 
residence by virtue of the worker's acquisition of permanent residence. 
INA section 101(a)(27)(C), 8 U.S.C. 1101(27)(C). However, to immigrate 
under the special immigrant religious worker category, aliens who are 
not ministers must have a petition approved on their behalf and either 
enter the United States as an immigrant or adjust their status to 
permanent residence while in the United States by no later than 
September 30, 2008. Section 101(a)(27)(C)(ii)(II) and (III) of the Act, 
8 U.S.C. 1101(a)(27)(C)(ii)(II) and (III). The sunset date, the final 
date by which special immigrant religious workers, other than 
ministers, must immigrate or adjust status to permanent residence only 
applies to special immigrant workers in a religious vocation or 
occupation; it does not apply to the nonimmigrant religious worker 
category or to special immigrant ministers.\1\
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    \1\ This sunset date, for special immigrant nonminister 
religious workers was initially implemented in 1990, has been 
extended four times. This provision expired on October 1, 2008. The 
Special Immigrant Nonminister Religious Worker Program Act, S. 3606, 
Public Law No. 110-391 (October 10, 2008) extends the program to 
March 6, 2009 contingent, in part, upon promulgation of this rule to 
``eliminate or reduce fraud related to the granting of special 
immigrant status'' to nonminister religious workers.
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    To qualify for religious worker status, the alien, whether a 
special immigrant or nonimmigrant, must have been a member of a 
religious denomination having a bona fide, non-profit religious 
organization in the United States. The applicant must have been a 
member of the religious denomination for at least two years preceding 
application for religious worker status. The alien also must plan to 
work as a minister of the denomination or in a religious occupation or 
vocation for a bona fide, non-profit religious organization (or a tax-
exempt affiliate of such an organization). Examples of persons working 
in religious occupations or vocations that may be eligible for 
religious worker visas currently include, but are not limited to, 
workers in religious hospitals or healthcare facilities, religious 
counselors, cantors, or missionaries. This group does not include 
maintenance workers, clerical workers or persons solely involved in 
fundraising.
    Under current USCIS regulations, special immigrants seeking 
religious-worker status must be sponsored by an employer who submits a 
petition on behalf of the alien. 8 CFR 214.2(r)(3). USCIS must approve 
the petition before the alien is granted special immigrant status.
    USCIS does not currently require, however, that a nonimmigrant 
living outside of the United States file a petition to obtain a 
religious worker visa (R-1). At present, an alien can initiate an R-1 
classification at a consular office overseas through application for an 
R-1 visa (without any prior approval of a petition by USCIS). In 
addition, aliens from Visa Waiver Program countries do

[[Page 72277]]

not have to obtain a visa to travel within the United States under 
Sec.  217 of the INA. Those visa-exempt aliens are admitted (assuming 
eligibility and admissibility) into the United States when they present 
themselves at a port of entry.
    In March 1999, the Government Accountability Office (GAO) 
identified incidents of fraud in the religious worker program. GAO, 
ISSUES CONCERNING THE RELIGIOUS WORKER VISA PROGRAM, Report GAO/NSIAD-
99-67 (March 26, 1999). The report stated that the fraud often involved 
false statements by petitioners about the length of time that the 
applicants were members of the religious organizations, the 
petitioners' qualifying work experience and the positions being filled. 
The report also noted problems with applicants making false statements 
about their qualifications and exact plans in the United States. In 
2005, USCIS's Office of Fraud Detection and National Security (FDNS) 
estimated that approximately one-third of applications and petitions 
filed for religious worker admission were fraudulent. FDNS found that a 
significant number of the fraudulent petitions identified had been 
filed on behalf of non-existent organizations. FDNS also found a 
significant number of petitions that contained material 
misrepresentations in the documentation submitted to establish 
eligibility.\2\
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    \2\ A summary of the USCIS FDNS Religious Worker Benefit Fraud 
Assessment was posted out the docket for this rulemaking action and 
can be found at https://www.regulations.gov or https://www.cis.gov.
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    To address these concerns and minimize, if not eliminate, the 
potential for fraud and abuse in the religious worker program, USCIS 
issued a notice of proposed rulemaking on April 25, 2007 (NPRM or 
proposed rule), proposing amendments to the religious worker program. 
72 FR 20442. Some of the changes proposed under the NPRM included:
     Requiring sponsoring employers to submit all petitions for 
religious worker status, rather than allowing the aliens to submit 
these petitions. Under the proposed petitioning process, USCIS would 
have the opportunity to verify the sponsoring employer and terms of 
employment before approving the petition.
     Providing notice of USCIS's intent to conduct on-site 
inspections as part of the petition approval process. This would allow 
USCIS to verify the legitimacy of the sponsoring employer and the terms 
of employment.
     Requiring that a religious worker (unless the alien has 
taken a vow of poverty or similar commitment) be compensated by the 
employer in the form of a salary or stipend, room and board or other 
support that can be reflected in verifiable Internal Revenue Service 
(IRS) documents.
     Adding or amending regulatory definitions to describe more 
clearly the regulatory requirements.
     Establishing additional evidentiary requirements for the 
petitioning employers and prospective religious workers.
     Adjusting the date by which special immigrant religious 
workers, other than ministers, must immigrate or adjust status to 
permanent residence. Congress extended this date to October 1, 2008, 
and the NPRM proposed to recognize this new date by referring to the 
relevant statutory provision.
    USCIS received 167 comments during the public comment period for 
this rulemaking action. USCIS considered the comments received in the 
development of this final rule.

II. Summary of the Final Rule

    The final rule adopts many of the requirements set forth in the 
proposed rule. The rationale for the proposed rule and the reasoning 
provided in the preamble to the proposed rule remain valid and USCIS 
adopts the reasoning in the preamble of the proposed rule in support of 
the promulgation of this final rule.
    USCIS made several changes based on the comments received. The 
significant provisions of the final rule and changes from the NPRM are 
summarized below and discussed in Section III ``Responses to Public 
Comments on the Proposed Rule.''
    In addition, for ease of reference, USCIS duplicated definitions 
where both the immigrant worker and nonimmigrant worker provisions used 
the same words or phrases. Therefore, definitions such as ``bona fide 
non-profit religious organization in the United States,'' ``religious 
denomination,'' and ``minister'' are identical in both 8 CFR 
204.5(m)(5) and 8 CFR 214.2(r)(3).

A. Petitioning and Attestation Requirements

    The NPRM proposed to require that all aliens seeking religious 
worker status--whether as special immigrants or nonimmigrants--must 
have a sponsoring employer or organization submit a petition on the 
aliens' behalf. This final rule retains the petitioning requirement, 
but continues to allow an alien seeking special immigrant religious 
worker status to submit a petition (Form I-360) on his or her behalf. 
New 8 CFR 204.5(m)(6). A nonimmigrant alien seeking R-1 status cannot 
self-petition, but must have an employer submit a petition (Form I-129) 
on his or her behalf. 8 CFR 214.2(r)(7). By implementing the petition 
requirement, USCIS seeks to preserve the integrity of the program at 
the outset by denying the petition for fraud or other ineligibility 
factors. It also allows both USCIS and the petitioning religious 
employer to respond to derogatory information revealed by on-site 
inspections before the petition is denied.
    In addition to filing the required form and associated petitioning 
fee, under this final rule, an authorized official of the petitioning 
employer must attest to a number of factors; including, but not limited 
to: (i) That the prospective employer is a bona fide non-profit 
religious organization or a religious organization which is affiliated 
with the religious denomination and is exempt from taxation; (ii) the 
number of members of the prospective employer's organization, the 
number of aliens holding religious worker status (both special 
immigrant and nonimmigrant) and the number of petitions filed by the 
employer for such status within the preceding five years; (iii) the 
complete package of salaried or non-salaried compensation being offered 
and a detailed description of the alien's proposed daily duties; and 
(iv) that an alien seeking special immigrant religious worker status 
will be employed at least 35 hours per week and an alien seeking 
nonimmigrant religious worker status will be employed for at least 20 
hours per week. See e.g., new 8 CFR 204.5(m)(7); 214.2(r)(8).

B. Denial, Revocation and Appeals Processes

    This final rule adds a provision for a petitioner to appeal the 
denial of a nonimmigrant petition. New 8 CFR 214.2(r)(17). This final 
rule also adds a process for USCIS to revoke a nonimmigrant religious 
worker petition at any time, and a process for the petitioner to appeal 
a determination by USCIS to revoke the petition. New 8 CFR 214.2(r)(18) 
and (19). These appeal and revocation procedures have been added to the 
final rule, although they were not published for public comment in the 
proposed rule, to ensure consistency among the employment-based 
nonimmigrant visas. The nonimmigrant visa classifications at 8 CFR 
214.2(h), (l), (o), (p), and (q) provide appeal and revocation

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procedures similar to those added by this rule. Using the same 
standards for all employment-based nonimmigrant visas will ensure a 
fair and uniform process. Furthermore, adding revocation procedures to 
the final rule will enable USCIS to take immediate action against 
nonimmigrants who submit fraudulent petitions or engage in fraudulent 
activities while in the United States. Implementation of these 
revocation procedures will safeguard the interests of petitioners as 
there is an appeal process for petitions revoked on notice and an 
appeal process for petitions that are denied.

C. IRS Determination Letter

    USCIS also is retaining the requirement proposed in the NPRM that a 
petitioner must file a determination letter from the Internal Revenue 
Service (IRS) of the tax-exempt status of the petitioning religious 
organization under Internal Revenue Code (IRC) 501(c)(3), 26 U.S.C. 
501(c)(3). USCIS acknowledges that obtaining a determination letter 
from the IRS will require the organization to pay a user fee to IRS. 
If, however, the organization has already obtained a determination 
letter, those letters do not expire and the organization does not need 
to obtain a separate letter for purposes of this rule. An organization, 
therefore, will only need to pay a fee once to obtain the required 
determination letter.

D. USCIS On-Site Inspections

    USCIS is retaining in this final rule the provision that USCIS may 
verify supporting evidence provided by a petitioner through any 
appropriate means, including an on-site inspection of the petitioning 
organization. 8 CFR 204.5(m)(1); 214.2(r)(12). 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.

E. Period of Initial Admission and Extension of Status for R-1 Workers

    Under the INA, nonimmigrant religious workers may be admitted to 
the United States for a period not to exceed five years. INA section 
101(a)(15)(R), 8 U.S.C. 1101(a)(15)(R). USCIS's current regulations 
provide for an initial period of admission of three years for 
nonimmigrant religious workers, with the opportunity to petition for an 
extension of stay for two additional years. In the NPRM, USCIS proposed 
to change this to a one-year initial period of admission and the 
opportunity to petition for two extensions of two years each. USCIS has 
changed this provision. Under this final rule, nonimmigrant religious 
workers may obtain an initial period of admission of up to 30 months 
and then may obtain one extension of religious worker status for up to 
30 months, for a total of no more than 60 months (the five-year 
statutory maximum) lawful status in the United States as nonimmigrant 
religious workers. See 8 CFR 214.2(r)(4) as amended. As with the 
initial petition for nonimmigrant religious worker status, however, the 
employer must submit the petition for an extension of stay (Form I-
129).

F. Compensation Requirements

    USCIS also clarified in this final rule the compensation 
requirements for nonimmigrant and special immigrant petitions. With 
limited exceptions, the beneficiary of an initial petition for R-1 
nonimmigrant status must be compensated either by salaried or non-
salaried compensation, and the petitioner must provide verifiable 
evidence of such compensation. If there is to be no compensation, the 
petitioner must provide verifiable evidence that such non-compensated 
religious workers will be participating in an established, 
traditionally non-compensated, missionary program within the 
denomination, which is part of a broader international program of 
missionary work sponsored by the denomination. The petitioner must also 
provide verifiable evidence of how the aliens will be supported while 
participating in that program. Petitioners must submit verifiable 
evidence of past compensation or support for nonimmigrants with any 
extension of status request for such nonimmigrants. Special immigrant 
petitioners must submit verifiable evidence of: (1) How the petitioner 
intends to compensate the alien and (2) past compensation or support to 
demonstrate the required previous two years of religious work. See 
e.g., 8 CFR 204.5(m)(7)(xi), (xii) and (10), 214.2(r)(11).

G. Self-Supporting Nonimmigrant Aliens

    The final rule places limits on the ability of uncompensated, self-
supporting nonimmigrant aliens to obtain status as nonimmigrant 
religious workers. USCIS regulations currently do not expressly 
prohibit the admission of uncompensated employees as R-1 religious 
workers. In the NPRM, USCIS proposed to require that a nonimmigrant 
alien obtain a form of demonstrable compensation--either in salary or 
such in-kind support as room and board--and proposed to prohibit R-1 
status for aliens who were not compensated by the organization or were 
self-supporting. 72 FR at 20453. This final rule departs from the NPRM 
by continuing to allow the admission of some uncompensated nonimmigrant 
alien workers under the R-1 visa classification, but restricts such 
admission to those workers who are part of an established program for 
temporary, uncompensated missionary work which is part of a broader 
international program of missionary work sponsored by the denomination. 
Given the great potential for fraud and abuse of the R-1 program that 
arises from allowing the petitioning entity to be exempted from the 
general requirement that it compensate its R-1 workers, it is 
reasonable to restrict sponsorship of self-supporting R-1 workers to 
the narrowest possible class of religious entities that might 
traditionally rely on such workers. Based on the comments received from 
the public, USCIS has determined that class to be the class of 
religious entities directing international missionary programs.
    This final rule defines an established program for temporary, 
uncompensated missionary work to be a missionary program in which: (1) 
Foreign workers, whether compensated or uncompensated, have previously 
participated in R-1 status; (2) missionary workers are traditionally 
uncompensated; (3) the organization provides formal training for 
missionaries; and (4) participation in such missionary work is an 
established element of religious development in that denomination. See 
new 8 CFR 214.2(r)(11)(ii). The purpose of the rule is to detect and 
deter fraud and other abuses in this program. Allowing new missionary 
entities, who have never undergone a site visit and the other 
protections the R-1 program affords DHS, to petition for self-
supporting R-1 workers poses an unacceptable risk. Significantly, as 
discussed below, self-supporting missionary workers who are not 
beneficiaries of a petition filed by an entity with an established 
missionary program, and thus are not eligible for admission to the 
United States as R-1 nonimmigrant religious workers, may still pursue 
admission in the B-1 classification. 8 CFR 214.2(b)(1). See also 9 FAM 
41.31 N9.1.
    In such cases, the petitioner must submit evidence, such as books, 
articles, brochures or similar documents, demonstrating that the 
organization has an established program for

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uncompensated missionary work and that the denomination maintains 
missionary programs both in the United States and abroad. Furthermore, 
the books, articles, brochures or other documents must describe the 
religious duties associated with the traditionally uncompensated 
missionary work. The evidence must include specific documentation of 
the alien's acceptance into the program and set forth any 
responsibilities the alien will assume while participating in the 
program. The evidence should also include copies of the alien's foreign 
and/or U.S. bank records with English translations, as appropriate, for 
the two-year period preceding the filing of the petition, alien's bank 
records, budgets documenting the sources of self-support (e.g. personal 
or family savings, room and board with host families in the United 
States, donations from the denomination's churches), or other 
verifiable evidence acceptable to USCIS. All evidence submitted to 
USCIS is handled in accordance with the Privacy Act and FOIA. To deter 
fraud, USCIS may refer determinations of whether such a program is 
self-supporting or taxable income to the Internal Revenue Service.

H. Definition of ``Religious Occupation''

    The final rule also removes the examples of employment positions 
from the proposed definition of ``religious occupation.'' The listed 
employment positions were only examples, but commenters appeared to 
believe that the examples represented an exhaustive or biased list of 
employment positions that were eligible for religious worker status and 
that the list was tailored only to Judeo-Christian organizations. USCIS 
has removed those examples to eliminate confusion.\3\ The final rule, 
however, clarifies that religious organizations must submit evidence 
identifying religious occupations that are specific to that 
denomination. Additionally, the petitioning organization must submit 
evidence demonstrating that an alien's proposed duties meet the 
religious occupation's requirements.
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    \3\ The examples provided for ``religious vocation'' however 
remain in 8 CFR 204.5(m)(5) and 214.2(r)(3).
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    USCIS also has made changes in the final rule to improve its 
clarity and readability. For example, all definitions are included in 
both 8 CFR 204.5(m) and 214.2(r).

III. Public Comments on the Proposed Rule

    USCIS provided a 60-day comment period for the proposed rule that 
ended on June 25, 2007. USCIS subsequently re-opened the comment period 
for an additional 15 days, from November 1, 2007, to November 16, 2007. 
See 72 FR 61821 (Nov. 1, 2007). In drafting the final rule, USCIS 
considered all comments received during the entire comment period.
    USCIS received 167 comments during the comment period. USCIS 
received comments from a broad spectrum of individuals and 
organizations, including religion-based refugee and immigrant services 
and advocacy organizations, religious groups of varying denominations, 
public policy and advocacy groups with religious affiliations, and 
individuals. Many commenters addressed multiple issues. Many comments 
provided variations on the same substantive issues or were identical in 
content to others.
    USCIS considered the comments received during the comment period 
and all other materials contained in the docket in preparing this final 
rule. All comments may be reviewed at the Federal Docket Management 
System (FDMS) at https://www.regulations.gov, docket number USCIS-2005-
0030.

A. General Comments

    Commenters strongly supported the increased efforts to combat fraud 
in the religious worker categories. Many commenters, however, disagreed 
with the proposed methods to combat such fraud. Some comments 
criticized the USCIS Benefit Fraud Assessment's (BFA) methodology and 
findings of fraud in the religious worker category. Many commenters 
supported on-site inspections as a way of eliminating fraud; however, 
commenters were concerned that on-site inspections might be too 
intrusive or might be required for each petition.
    A substantial number of commenters addressed the definitions in the 
proposed regulation, including the definitions of ``religious 
occupation,'' ``religious vocation,'' ``minister,'' and ``religious 
denomination.'' Some of these commenters suggested that a number of 
definitions were too narrow, because, in the opinion of the commenters, 
they only contemplated workers who are members of Judeo-Christian 
denominations. Many commenters argued that the initial evidence, 
attestation, compensation, and tax documentation requirements were too 
stringent. Commenters objected to the new requirement that petitions be 
filed on behalf of all nonimmigrant as well as special immigrant 
religious workers. The commenters frequently disagreed with the 
proposal to change the lengths of the initial period of stay and 
renewal periods for nonimmigrant religious worker visas. Several 
commenters suggested that elements of the proposed rule violated 
constitutional principles. The specific substantive comments organized 
by subject area are summarized below.

B. Definitions

    The applicable definitions for applicants and petitioners for 
religious worker classification are set forth in 8 CFR 204.5(m)(5) and 
214.2(r)(3). The final rule adds several definitions, and expands or 
clarifies others. The amendments and additions discussed below, unless 
otherwise noted, apply to both nonimmigrants and immigrants. In the 
proposed rule, the definitions were found in the immigrant section, 
with only a cross reference in the nonimmigrant section. However for 
ease of reference, the entire set of definitions is now included in 
both 8 CFR 204.5(m)(5) and 8 CFR 214.2(r)(3).
1. Bona Fide Non-Profit Religious Organization
    Several commenters objected to the proposed requirement that 
petitioners must file a determination letter from the IRS of tax-exempt 
status under IRC section 501(c)(3), 26 U.S.C. 501(c)(3), with every 
petition. Commenters pointed out that the IRS does not require churches 
to request a determination letter to qualify for tax-exempt status. A 
designation that an organization is a ``church'' is sufficient to 
qualify for tax-exempt status. Although some churches choose to request 
a formal IRC section 501(c)(3) determination, they are not required to 
do so. In addition, several comments stated that many churches cannot 
afford to pay the fees associated with requesting an IRC section 
501(c)(3) determination letter.
    Many commenters requested clarification of the proposed rule's 
requirement that a petitioner submit a currently valid IRS 
determination letter, pointing out that an exemption letter does not 
expire. One denomination asked that the final regulation specifically 
state that organizations classified as tax-exempt under IRC section 
501(d), 26 U.S.C. 501(d), may qualify as bona fide organizations.
    USCIS recognizes that the IRS does not require all churches to 
apply for a tax-exempt status determination letter, but has 
nevertheless retained that

[[Page 72280]]

requirement in this final rule. See Internal Revenue Service, Tax Guide 
for Churches and Religious Organizations: Benefits and Responsibilities 
under the Federal Tax Law (IRS pub. no. 1828, Rev. Sept. 2006). A 
requirement that petitioning churches submit a tax determination letter 
is a valuable fraud deterrent. An IRS determination letter represents 
verifiable documentation that the petitioner is a bona fide tax-exempt 
organization or part of a group exemption. Whether an organization 
qualifies for exemption from federal income taxation provides a 
simplified test of that organization's non-profit status.
    Requiring submission of a determination letter will also benefit 
petitioning religious organizations. A determination letter provides a 
petitioning organization with the opportunity to submit exceptionally 
clear evidence that it is a bona fide organization.
    USCIS recognizes that some religious groups and churches may be 
classified as tax-exempt under IRC section 501(d), 26 U.S.C. 501(d). 
Unlike an IRC section 501(c)(3), 26 U.S.C. 501(c)(3), tax determination 
letter, however, an IRC section 501(d) tax-exempt determination does 
not establish the non-profit status of a religious organization or 
church. The INA requires that the petitioning religious organization be 
a bona fide non-profit organization. INA sections 101(a)(15)(R) and 
(27)(C)(ii)(III), 8 U.S.C. 1101(a)(15)(R) and (27)(C)(ii)(III). USCIS 
further understands that some churches could ``engage in business for 
the common benefit of the members,'' and their members obtain pro rata 
shares of these funds, which may render the church ineligible for IRC 
section 501(c)(3) tax-exempt status. As discussed elsewhere, the R-1 
status is not exclusive and religious workers may be admitted under 
other provisions of the INA. However, given the high incidence of fraud 
found in the religious worker program, which was found to be tied to 
the validity of the organization itself, an organization must apply for 
and receive an IRC section 501(c)(3) determination letter to 
demonstrate non-profit status if that organization wishes to utilize 
either the R-1 nonimmigrant or the special immigrant religious worker 
program. If an IRC section 501(d) exempt organization cannot qualify 
for IRC section 501(c)(3) status, and is thus unable to petition on 
behalf of nonimmigrant religious workers under the R-1 classification, 
other nonimmigrant visa categories may be appropriate for that 
organization's purposes, such as the nonimmigrant B-1 category.
    USCIS acknowledges that obtaining a determination letter from the 
IRS will require the payment of a user fee to the IRS, as discussed in 
the proposed rule, if the organization does not possess its original 
determination letter. 72 FR at 20449. USCIS has, however, confirmed 
with the IRS that determination letters do not expire. Therefore, an 
organization will need to pay a fee only once to obtain a determination 
letter. Although USCIS will accept determination letters of any date, 
USCIS may request evidence or confirm that the exemption is still 
valid. For example, if the address on the letter differs from the 
address given in the petition, an explanation should be provided. USCIS 
has retained the reference to ``currently valid'' determination letters 
in the rule text to emphasize that a letter revoked by the IRS cannot 
be used to meet the definition of tax-exempt organization under the 
INA. USCIS will routinely examine the publicly available tax 
documentation for the petitioning organization to determine the ability 
of the organization to provide support, will consult with the IRS on 
whether any petitioning organization is validly exempt from taxation 
under IRC section 501(c)(3), 26 U.S.C. 501(c)(3), and may refer to IRS 
Publication 78, Cumulative List of Organizations, to verify whether the 
determination letter is current.
    USCIS will routinely consult with the IRS on whether any 
petitioning organization is validly exempt from taxation under IRC 
section 501(c)(3), 26 U.S.C. 501(c)(3), and may refer to IRS 
Publication 78, Cumulative List of Organizations, to verify whether the 
determination letter is current. Although existing regulations permit 
applicants to submit material to USCIS regarding an applicant's non-
profit status, the Department of Homeland Security (DHS) has determined 
that anti-fraud efforts, economy, and efficiency warrant the use of the 
formal IRS determinations, rather than an independent determination by 
USCIS. The IRS routinely makes decisions concerning the non-profit 
nature of organizations seeking tax-exempt status. Furthermore, INA 
sections 101(a)(15)(R) and (27)(C)(ii)(III), 8 U.S.C. 1101(a)(15)(R) 
and (27)(C)(ii)(III) use specific terminology that indicates the IRS is 
an appropriate agency to make determinations as to whether an 
organization is qualified to apply for religious worker visa benefits.
2. Ministers
    The proposed regulation defined a ``minister'' as ``an individual 
duly authorized by a religious denomination, and fully trained 
according to the denomination's standards, to conduct religious worship 
and to perform other duties usually performed by authorized members of 
the clergy of that denomination.'' Several commenters asserted that the 
proposed definition of ``minister'' was too narrow. The proposed rule 
also required specific evidence of ordination and training the minister 
had received. Several commenters interpreted the new definition as 
requiring ministers to have completed their training at a seminary or 
similar institution. Additionally, those commenters stated that not all 
religions require a formal theological education at an accredited 
theological institution. Other comments suggested that the concept of 
``fully trained'' when referring to a minister's training is too vague 
in the context of a religion that has many levels of training for its 
ministers.
    USCIS did not intend the definition of ``minister'' to require a 
uniform type of training that all denominations would have to provide 
their ministers. In the preamble to the proposed rule, USCIS 
acknowledged that some denominations do not require a particular level 
of formal academic training or experience. See 72 FR at 20445. 
Additionally, the proposed rule recognized that training varies among 
denominations and, for that reason, the question of whether a minister 
has met the denomination's training standards is resolved by reference 
to that denomination's own standards. The rule permits a petitioning 
organization to submit evidence of the individual denomination's 
requirements for ordination to minister, the duties allowed to be 
performed by virtue of ordination, and the denomination's levels of 
ordination, if any. The definition of ``minister'' set forth in the 
proposed rule is retained in the final rule.
3. Religious Denomination
    Many commenters criticized the proposed definition of ``religious 
denomination'' because it required a denomination to have an 
``ecclesiastical government.'' Commenters interpreted this definition 
as potentially excluding denominations whose member religious 
organizations share a common creed but lack a common organizational 
structure or governing hierarchy. The commenters feared that, as a 
result, religious organizations without a central government would be 
unable to hire workers from abroad. However, as explained in the 
preamble to the proposed rule, the definition of ``religious 
denomination'' does not

[[Page 72281]]

require a hierarchical governing structure. 72 FR at 20445. USCIS is 
aware that some denominations officially shun such structures. The 
focus of the regulation is, instead, on the commonality of the faith 
and internal organization of the denomination. Thus, an individual 
church that shares a common creed with other churches, but which does 
not share a common organizational structure or governing hierarchy with 
such other churches, can satisfy the ``ecclesiastical government'' 
requirement of the ``religious denomination'' definition by submitting 
a description of its own internal governing or organizational 
structure. Minor changes were made to the definition as set forth in 
the proposed rule for clarity and the provision regarding group tax-
exemptions was moved to the definition of tax-exempt organization where 
it is more germane.
4. Religious Occupation
    The proposed rule provided examples of qualifying religious 
occupations. Many commenters stated that the list of example 
occupations was too narrow and that the examples applied only to Judeo-
Christian religions. Those commenters suggested broadening the examples 
to account for religions other than Judeo-Christian faiths.
    USCIS acknowledges the commenters' concerns regarding the examples. 
The list was neither exhaustive nor more than exemplary. USCIS has, 
however, removed the list of examples because it created confusion 
about the scope of the definition of ``religious occupation.'' The list 
was only illustrative and not necessary to the rule. As discussed in 
the original rules implementing the religious worker categories, and in 
the proposed rule, the list was derived from the legislative history. 
See 72 FR at 20446.
    When adjudicating petitions, USCIS will rely on the general 
definition of a ``religious occupation.'' Petitioners must demonstrate 
that the occupation relates primarily to a traditional religious 
function that is recognized as a religious occupation within the 
denomination.
    A significant number of commenters opposed the inclusion of all 
administrative positions in the list of positions that may not be found 
to be religious occupations. The comments stated that, unlike secular 
administrators, religious administrators exercise religious leadership 
and policymaking duties that may directly affect the practices of the 
denomination. USCIS generally agrees with the commenters; thus, this 
rule does not disqualify all administrative positions, but only those 
positions that are primarily administrative. Under the rule, a position 
including limited administrative duties may qualify as a religious 
occupation, provided such duties are incidental to substantive, 
traditionally religious functions.
    One commenter was concerned that the proposed regulation excludes 
``those who sell literature'' as a qualifying religious occupation 
because distribution of literature can be an inherently religious 
activity. The notion of canvassing, including selling literature, has a 
long history in the United States and USCIS acknowledges that history. 
USCIS does not agree, however, that selling literature alone is a basis 
for admission of an alien to the United States as a religious worker, 
but has removed ``those who sell literature'' from the list of excluded 
occupations as well as the other non-qualifying examples. Fundraising 
is prohibited from qualifying as a religious occupation, but whether a 
position that involves selling literature may qualify as a religious 
occupation will depend on the evidence submitted.
    USCIS does not intend to limit legitimate religious vocations under 
this final rule, and USCIS will consider all of the relevant law in 
making such determinations. In this final rule, USCIS is establishing 
requirements for determining whether any religious organization may 
seek the admission of an alien into the United States for religious 
vocation and other related purposes under a specific visa 
classification. These regulations are designed to establish the bona 
fide nature of the organization and the occupation under the statute, 
and the petitioning organization is responsible for establishing facts 
supporting its application. Moreover, the petitioning organization is 
responsible for establishing that the specific occupation requires 
specific actions as a part of the beliefs of that organization, and 
that those evidentiary elements must lead USCIS to conclude that any 
limitation in the regulation could not be applied to the applicant in 
light of constitutional or statutory limitations.
5. Religious Vocation
    The proposed regulation defined ``religious vocation'' as ``a 
formal lifetime commitment to a religious way of life.'' Several 
commenters objected to the lifetime requirement, stating that religious 
vocations in many religious denominations do not require a lifetime 
commitment. Thus, some commenters concluded that employees who will 
practice a religious way of life during their proposed period of stay 
in the United States, but who do not necessarily make a lifetime 
commitment to such a life, such as missionaries or novitiates, could 
not qualify as religious workers. Additionally, the commenters 
interpreted the proposed definition of ``religious occupation'' as 
requiring employees to receive traditional salaries, thus excluding 
employees who receive non-salaried compensation such as room and board. 
The commenters also interpreted the ``religious occupation'' and 
``vocation'' definitions as excluding nonimmigrants who rely on self-
support. Due to the confusion over the proposed definitions of both 
``religious vocation'' and ``religious occupation,'' some commenters 
concluded that certain types of religious workers would not be able to 
qualify for visas as they would not be covered by either of the 
proposed definitions.
    USCIS will retain the definition of ``religious vocation'' as 
stated in the proposed rule; however, as explained in detail below, 
clarifications in the compensation requirements for all nonimmigrant 
religious workers were made in response to commenters' concerns. USCIS 
clarifies that, under certain circumstances, non-salaried support may 
qualify as compensation. Additionally, USCIS clarifies that under 
certain circumstances, as explained in detail below, nonimmigrant 
beneficiaries who will be self-supporting may qualify for admission 
under the ``occupation'' or ``religious vocation'' definitions.
    Missionaries and novitiates who cannot be classified as religious 
workers coming to the United States to perform a religious vocation 
because vocations in their denomination do not require a lifetime 
commitment should nevertheless be able to qualify as religious workers 
under the ``religious occupation'' definition.

C. Compensation Requirements

    USCIS proposed to add a requirement that the alien's work, under 
both the immigrant and nonimmigrant programs, be compensated by the 
employer. Specifically, the rule proposed amending the definition of 
``religious occupation'' to require that an occupation be 
``traditionally recognized as a compensated occupation within the 
denomination.'' Commenters were concerned that the proposed rule would 
exclude many religious workers who do not receive salaried 
compensation, but may receive stipends, room, board, or medical care, 
or who may rely on other resources such as personal savings, rather 
than salaried or non-salaried compensation.
    In response to the commenters' concerns, USCIS is clarifying that

[[Page 72282]]

compensation can include either salaried or non-salaried compensation. 
Under the Internal Revenue Code, non-salaried support, such as 
stipends, room, board, or medical care, qualifies as taxable 
compensation unless specifically excluded. See IRC section 119, 26 
U.S.C. 119; 26 CFR 1.119-1 (exclusion for lodging provided for 
convenience of employer). The IRS applies special rules for housing, 
for example, to members of the clergy. Under these rules, clergy do not 
include in income the rental value of a home (including utilities) or a 
designated housing allowance provided to clergy as part of their pay. 
The home or allowance must be provided as compensation for services as 
an ordained, licensed, or commissioned minister. The rental value of 
the home or the housing allowance must be included as earnings from 
self-employment on Schedule SE (Form 1040) if the clergy is subject to 
the self-employment tax. See generally Internal Revenue Service, Social 
Security and Other Information for Members of the Clergy and Religious 
Workers, Publication 517.
    Commenters objected to being required to submit tax documents to 
demonstrate non-salaried compensation.
    USCIS intends to apply the documentation and determinations made by 
the IRS and the basis for making those determinations as closely as 
possible. USCIS does not possess the expertise to make determinations 
of tax-exempt status or the fine points of gross and adjusted income. 
The comments have not provided a basis for USCIS to make these 
determinations without a record based on the application of the 
existing tax laws to both organizations and individuals.
    Several commenters stated that the proposed compensation 
requirement would exclude programs that traditionally utilized only 
self-supporting religious workers from participating in the R-1 visa 
program. The comments noted that religious workers who are self-
supporting receive neither salaried nor non-salaried compensation; 
instead, they may rely on a combination of resources such as personal 
or family savings, room and board with host families in the United 
States, and donations from the denomination's local churches. 
Additionally, the comments noted that self-supporting religious workers 
are currently admitted under the R-1 visa program. In response, the 
final rule will continue to allow these aliens to be admitted under the 
R-1 visa classification. USCIS will, however, to preserve its ability 
to prevent fraud, permit self-supporting religious workers only under 
very limited circumstances, and, consistent with other provisions of 
the final rule, require specific types of documentation.
    The change provides that if the nonimmigrant alien will be self-
supporting, the petitioner must submit documentation establishing that 
the position the alien will hold is part of an established program for 
temporary, uncompensated missionary work within the organization, which 
is part of a broader, international program of missionary work 
sponsored by the denomination.
    USCIS again notes that the religious worker visas are not the 
exclusive means by which an alien may be admitted to the United States 
to perform self-supported religious work, including missionary work. 
Current regulations specifically provide for the admission of 
missionaries under the general visitor for business visa:

    Any B-1 visitor for business or B-2 visitor for pleasure may be 
admitted for not more than one year and may be granted extensions of 
temporary stay in increments of not more than six months each, 
except that alien members of a religious denomination coming 
temporarily and solely to do missionary work in behalf of a 
religious denomination may be granted extensions of not more than 
one year each, provided that such work does not involve the selling 
of articles or the solicitation or acceptance of donations.

8 CFR 214.2(b)(1). See also 9 FAM 41.31 N9.1. Therefore, self-
supporting religious workers who are not eligible for admission to the 
United States as R-1 nonimmigrant religious workers may pursue 
admission in the B-1 classification.

D. Petitioning Requirements

    The proposed rule introduced the new requirement that a petitioner 
must file a petition on the alien's behalf with USCIS before the 
Department of State (DOS) will issue a nonimmigrant visa to the alien. 
Previously, aliens seeking nonimmigrant religious worker status could 
apply directly to USCIS or, from out of the country, through the DOS. 
Many commenters questioned whether USCIS has the statutory authority to 
require religious organizations to file petitions for nonimmigrants. 
While nothing in the INA specifically states that a petition is 
required for nonimmigrant religious workers, nothing prohibits it. In 
addition, the Secretary of Homeland Security has the general authority 
to promulgate regulations to implement the immigration laws, INA 
section 103(a)(1), 8 U.S.C. 1103(a)(1), and must specifically, under 
INA section 214(a), 8 U.S.C. 1184(a), prescribe by regulation the time 
and under what conditions a nonimmigrant may be admitted to the United 
States. Congress has found it reasonable to implement a petition 
requirement in other nonimmigrant programs. USCIS is implementing the 
petition requirement for nonimmigrant religious workers as a way to 
determine that a minister will be admitted to the United States to work 
for a specific denomination and that other religious workers will be 
admitted to work for a specific religious organization at the request 
of that organization. Requiring a petition for every nonimmigrant will 
also deter fraud and allow USCIS to detect fraud earlier in the 
process. Therefore, the final rule retains the nonimmigrant petition 
requirement.
    This final rule also includes a provision for a petitioner to 
appeal a determination by USCIS to deny a petition. See 8 CFR 
214.2(r)(17). USCIS also is establishing a process for USCIS to revoke 
a petition once granted, and for the petitioner to appeal a revocation 
decision. 8 CFR 214.2(r)(18) and (19).
    Numerous commenters stated that, for various reasons, the new 
petitioning requirement would delay nonimmigrant visa approvals. 
Commenters also said that the Department of State (DOS) has substantial 
expertise adjudicating religious worker visas; consequently, religious 
worker visas are promptly processed (a result lauded by the 
commenters), while still identifying potential fraud. Some commenters 
suggested that, if petitions are required for all religious workers, 
the final rule should limit the amount of time that USCIS takes to 
process the petitions. Additionally, several commenters recommended 
that to speed processing of petitions, USCIS should pre-certify 
religious organizations as valid employers.
    USCIS acknowledges the concerns of commenters that requiring a 
petition for all religious workers could delay issuing a visa. However, 
the petition requirement is essential to preventing fraud in the 
religious worker program. While DOS consular officers do have 
experience with nonimmigrant religious workers, they are not in a 
position to determine the bona fides of a religious organization 
located in the United States. Requiring an approved petition will 
assist consular officers in making a decision on religious worker 
nonimmigrant visa applications. Furthermore, at this time, the USCIS 
California Service Center is processing all religious nonimmigrant and 
immigrant religious worker petitions. This specialization promotes 
expertise

[[Page 72283]]

that leads to prompt processing of religious worker petitions.
    Several commenters asked USCIS to establish a blanket approval or 
pre-certification program for religious organizations. USCIS 
understands the commenters' concerns. A pre-certification process could 
benefit religious organizations and USCIS, by reducing the petitioning 
burden on bona fide non-profit religious organizations. However, the 
proposed rule did not include a blanket approval or pre-certification 
program. USCIS must carefully evaluate how such a process would work, 
establish criteria that a religious organization would have to meet, 
determine a pre-certification validity period, and promulgate 
regulations governing requirements to be pre-certified. An agency is 
not required to adopt a final rule that is identical to the proposed 
rule and in fact agencies are encouraged to modify proposed rules as a 
result of the comments they receive. However, final rules ultimately 
adopted can only include those changes that the interested public could 
view as logical based on what was proposed. In this case, USCIS does 
not believe that the proposed rule provided sufficient notice that the 
final rule may contain pre-certification requirements and will thus not 
adopt the commenters' suggestion. USCIS will consider approaches to 
addressing the issues presented by the comments, including a possible 
future rulemaking to provide for a pre-certification process. The final 
rule does not preclude USCIS from considering the history of an 
organization's petitions in determining whether to grant a specific 
petition, and USCIS may consider that history in each individualized 
consideration.

E. On-Site Inspections

    Several commenters supported on-site inspections that are tailored 
to detect fraud, but do not intrude on religious organizations' 
privacy. However, a number of commenters questioned on-site inspection 
procedures, requirements, and potential consequences. The comments 
stated that the regulations should establish deadlines for USCIS to 
complete on-site inspections; otherwise, petition processing backlogs 
could result. Other comments said the results of site inspections 
should be reviewable. Some argued that the proposed rule provided no 
guidelines regarding the scope of on-site inspections. The undefined 
scope, according to some comments, might encourage overzealousness by 
USCIS or lead to denials solely based on the results of an on-site 
inspection. Commenters objected to the prospect of unannounced site 
inspections.
    USCIS, like all Federal agencies, must carry out administrative 
activities that ensure the integrity of the benefit programs it 
administers. On-site inspections are a useful tool to verify the 
legitimacy of information contained in applications and petitions, the 
continued eligibility for a benefit, and the legitimacy of petitioners. 
Therefore, this rule does not modify the proposed regulations 
pertaining to on-site inspections. If an on-site inspection yields 
derogatory information not known to the petitioner, USCIS will issue a 
Notice of Intent to Deny (NOID) the petition. See 8 CFR 103.2(b)(16). 
The petitioner may then submit additional documentation that may rebut 
the derogatory evidence. In addition, a denial of a petition may be 
appealed to the USCIS Administrative Appeals Office. See 8 CFR 
204.5(n)(2) and 214.2(r)(13).
    USCIS acknowledges that processing delays occurred when USCIS 
inaugurated the on-site inspection program. As USCIS has gained 
experience with the program, however, delays have decreased. Additional 
resources, including personnel, have been dedicated to the program and 
process improvements. USCIS intends to commit more resources and 
personnel to the program in the near future. To determine the status of 
a petition, petitioners may consult the USCIS Web site or contact the 
National Customer Service Center to obtain the status of petitions. If 
the National Customer Service Center cannot provide an answer, the 
inquiry will be referred to the California Service Center customer 
service division.
    The proposed rule and the final rule use a list of different terms 
to describe the on-site inspections. The list was revised in the final 
rule to include more commonly used terms such as compliance review. The 
intent is not to assign one specific name, but to give notice to 
petitioners that such reviews may be part of the religious worker 
program.
    To allay commenters' concerns about possible abuse of the on-site 
inspection process, USCIS will establish additional communications 
processes for petitioners to report alleged abuses. Information 
regarding this will be posted on the USCIS Web site. Waste, fraud, and 
abuse should also be reported to the DHS Inspector General.

F. Religious Freedom Restoration Act of 1993 (RFRA)

    Commenters asserted that the proposed regulation would violate the 
First Amendment, Const. of the United States, Amdt. I (1791), and the 
Religious Freedom Restoration Act of 1993, Public Law 103-141, sec. 3, 
107 Stat. 1488 (Nov. 16, 1993) (RFRA), found at 42 U.S.C. 2000bb-1, by 
placing a substantial burden on a religion that is not in the 
furtherance of a compelling government interest, or at least not 
furthered by the least restrictive means. Some commenters stated that 
preventing fraud was commendable but that a compelling government 
interest has not been established. Several commenters said that filing 
petitions for nonimmigrants or having to request an extension of status 
after only one year would place undue financial and paperwork burdens 
on religions. Additionally, the commenters stated that the proposed 
definitions of religious occupation and religious vocation prohibited 
their denominations from utilizing the program.
    USCIS disagrees with the specific notion that the final rule 
violates the RFRA. The RFRA provides:

    Government shall not substantially burden a person's exercise of 
religion even if the burden results from a rule of general 
applicability, except * * * if it demonstrates that application of 
the burden to the person--
    (1) is in furtherance of a compelling governmental interest; and
    (2) is the least restrictive means of furthering that compelling 
governmental interest.

Public Law 103-141, sec. 3, 42 U.S.C. 2000bb-1. The final rule is 
intended to permit religious organizations to petition for admission of 
religious workers under restrictions that have less than a substantial 
impact on the individual's or an organization's exercise of religion. A 
petitioner's rights under 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. 
Further, this rule is not the sole means by which an organization or 
individual may obtain admission to the United States for religious 
purposes, and DHS believes that the regulation, and other provisions of 
the INA and implementing regulations, can be administered within the 
confines of the RFRA. 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.
    Nor does this final rule impose a ``categorical bar'' to any 
religious organization's petition for a visa or alien's application for 
admission.

[[Page 72284]]

Instead, the rule sets forth the evidentiary standards by which USCIS 
will adjudicate nonimmigrant and immigrant petitions.
    USCIS also does not believe that the new requirements will reduce 
the diversity or types of religious organizations that practice in the 
United States or the types of religious workers whom religious 
organizations could hire. Changes have been made so that the final 
definitions of ``religious occupation,'' ``religious vocation,'' 
``minister,'' and ``denomination'' will not prevent religious 
organizations from using the religious worker program as some 
commenters claimed. Additionally, rather than the proposed one year 
initial period of admission and two extensions of two years each, the 
final rule permits up to 30 months for the initial period of admission 
and one extension of up 30 months. Therefore, the final rule imposes a 
much smaller financial and paperwork burden on petitioners than the 
proposed rule.
    Eradicating fraud where fraud has been determined to exist in one-
third of nonimmigrant visa petitions, as discussed in the proposed 
rule, is a compelling government interest to ensure the integrity of 
the immigration process as well as for the protection of national 
security. See 72 FR at 20442. Therefore, the final rule retains the 
requirements that a religious organization file a petition for each 
religious worker and submit an IRS determination letter establishing 
the organization's tax-exempt status. Additionally, USCIS will maintain 
the discretion to conduct on-site inspections as USCIS believes they 
are the most effective and least restrictive means of combating fraud 
in the religious worker program.
    USCIS will consider all of the factual evidence presented in 
support of a petition for a religious worker under the provisions of 
the rule. After reviewing the comments and the applicable law, however, 
USCIS does not believe that the evidentiary requirements of the rule 
constitute a violation of the RFRA.

G. Concurrent Filing

    Some commenters suggested that the final regulation provide an 
option for special immigrant religious workers to concurrently file 
Form I-360, Petition for Amerasian, Widow(er) or Special Immigrant, and 
Form I-485, Application to Register Permanent Residence or Adjust 
Status. The commenters asserted that concurrent filing would speed up 
the process of granting permanent residence to religious workers. One 
commenter requested that concurrent filing not be permitted.
    The comments seeking to allow concurrent filing have not been 
adopted. The Department is under a statutory mandate pursuant to the 
Special Immigrant Nonminister Religious Worker Program Act, S. 3606, 
Public Law No. 110-391 (October 10, 2008), to issue this final rule 
``to eliminate or reduce fraud'' in regard to the granting of special 
immigrant status to nonminister religious workers. The bar to 
concurrent filing is a valuable fraud deterrent in the entire special 
immigrant religious worker program. Prohibiting concurrent filing of 
the visa petition and adjustment of status application for special 
immigrant religious workers dissuades the filing of fraudulent 
petitions by or for ineligible and/or inadmissible aliens who might 
otherwise gain valuable benefits such as employment authorization while 
an immigrant petition is pending. For this reason, the Department 
believes that not allowing concurrent filing in this arena is necessary 
to protect the integrity of the religious worker program for eligible, 
bona fide religious organizations and their eligible employees.
    Concurrent filing was implemented as an accommodation for business 
petitioners and to add efficiency to processing large backlogs for Form 
I-140, Immigrant Petition for Alien Worker, that adversely impacted, 
among others, aliens wishing to adjust their status in the United 
States who could not file Form I-485 until the Form I-140 was approved. 
67 FR 49561 (July 31, 2002). The policy decision to allow concurrent 
filing for Forms I-140 was based on research into business employment-
based visa programs of the United States. The research showed that 
recruiters found that many talented employees worldwide were 
increasingly unwilling to tolerate the long waits and uncertainty 
entailed in immigrating to the United States. When professional workers 
encounter long delays, United States employers are at a disadvantage 
because foreign job