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CIS Regulations for Religious Worker Visas Invalid: 3rd Cir. Says

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By Casey C. Sullivan, Esq. on April 08, 2015 3:55 PM

The Citizenship and Immigration Service operated beyond its powers when it adopted regulations requiring that immigrants seeking a "special immigrant religious worker" visa to have done prerequisite work in the U.S. under lawful immigration status, the Third Circuit ruled Tuesday.

Under the Immigration and Nationality Act, non-citizens may obtain a "special immigrant religious worker" visa which allows religious workers, such as ministers, to to eventually obtain legal permanent residency. Before applying, immigrants must have completed two years of religious work. If that work was in the U.S., it must have been done while in the country lawfully, according to the invalidated CIS regulations. CIS had argued that requiring legal status for previous U.S. work simply makes sense in the broader immigration scheme, which prohibits employers from hiring unauthorized aliens. The Third, however, was unconvinced.

A Fourth Criteria?

Carlos Alencar and the Shalom Pentecostal Church brought suit after his application for a religious worker visa was rejected. CIS had denied his petition because the church had not shown that Alencar's religious work in the U.S. was completed while he was a legal immigrant. Alencar had been without a valid visa since 1995.

Alencar and the church sued over the denial of his petition. They argued that the regulation's requirement that prior work be done under "lawful status" was ultra vires -- beyond the powers afforded to CIS. The legislation which creates the religious worker preference states that to qualify, an immigrant must meet three criteria:

  1. membership in a bona fide religious denomination for two years
  2. intent to change immigration status solely for religious work
  3. at least two years of continuous religious work prior to applying.

Sharp-eyed scholars will notice that legal immigration status is not mentioned when discussing the visa's previous work requirement.

No Basis for Legal Status Requirement

The Third Circuit applied a simple Chevron analysis to determine if the regulatory addition of "lawful status" to the requirements of the act was valid. The statute defined religious workers as immigrants, meaning "every alien" regardless of status under the act, who had been "carrying on" religious work. Though the act did not define "carrying on," the court found that its ordinary meaning, to conduct business or a trade, was sufficient.

Nothing in the language required lawful status. CIS had argued that the religious worker visa must be read as part of the nation's broader immigration scheme. That system, for one, prohibits employers from hiring unauthorized aliens and requiring regulations to deter fraud in non-minister visa programs.

That argument "proves too much," emphasizing the exception Congress created with the religious worker visa program. Since the statute anticipated two years of prior work, it considered and did not disqualify work by residents without legal immigration status. Thus, there was no ambiguity for CIS to interpret. The agency was operating beyond its authority in tacking on a lawful status requirement.

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