Immigration of Religious Workers: Background and Legislation

CRS Report for Congress
Received through the CRS W eb
Immigration o f Religious Workers:
Background and L egislation
RuthEllenWasem
Specialist i n Social Legislation
Domestic Social Policy Division
Summary
A p ro v i s i o n in immigration l aw that allows for t he admission of immigrants t o
perform religious work is scheduled to sunset o n S e p t e m ber 30, 2003. Although t he
provision has a broad b ase o f s upport, some have ex pressed concern t hat t he provision
is vulnerable t o fraud. The foreign religious worker m u s t be a m ember o f a religious
denomination t hat h as a bona fide nonprofit, religious organiz ation i n t he United S tates,
and m ust h ave b een i n t h e rel i gi ous vocat i on, professional work, or other religious work
continuously for at l east 2 years. Bills (H.R. 215 2 / S . 1 5 80) to ex tend the religious
worker provision through S eptember 30, 2008, have been introduced in both chambers.
The House passed H.R. 2152 on Septem ber 17, 2003. This report will be updated as
legi slative activity warrants.
Introduction
Permanent l egal immigration t o t he United S tates i s regulat ed by a s et of numerical
limits and s ys tems of preference cat egories delineat ed in the Immigration and Nationality
Act (INA), and employment-based immigration comprises one of the m ajor groups of the
preference c a t e g o r y s ys t em s . 1 Aliens who come t o t he United S tates t hrough t he
permanent l egal immigration cat egories are commonly known as l egal permanent
resi dent s (LP R s ). The fourt h cat egory o f t he em pl oym ent -based preference syst em i s
known as “special immigrants,” and the l argest number o f s pecial immigrants are
ministers of religion and religious workers. 2 Religious workers are treat ed separat e ly
from ministers of religion and are limited t o 5,000 immigrants annually. Accompanyi ng


1 T he l argest preference gr ouping is family-based immi gr ation. Other groupings i nclude diversity
and humanit arian a dmissions. For more information, see CRS Report RS20916, Immigration and
Naturalization Fundamentals,byRuthEllenWasem.
2 Ot her “special immi gr ants” i nclude certain employees of the U.S. government a broad, Panama
Canal employees, r etired employees of international organizations, certain aliens who served i n
the U.S. armed forces, and certain aliens declared a ward of a j uvenile court. INA §101(a)(27).
Congressional Research Service ˜ The Library of Congress

spouses and minor children o f ministers of religion and religious workers are included as
speci al immigrants.
Prior t o t he Immigrati o n A c t of 1990 (P.L. 101-649), ministers of religion were
admitted t o t h e U n ited S tates without numerical limits, and there was no separate
provision for religious workers. Religious workers immigrated t hrough one of the m ore
gen e ral cat egories of numerically-limited, em ployment-bas ed immigration t hat were i n
effect at that time. T he Immigration Act of 1990 amended t he INA t o redefine t he special
immigrant cat egory t o i nclude ministers of religion and religious workers, but contai ned
a “sunset”of t he provision for religious workers o n S eptember 30, 1994. It was
subsequently ex tended s evera l t i m es , m ost recently through S eptember 30, 2003. 3 The

1 9 90 Act al so creat ed a new nonimmigrant (i.e., temporary) visa for religious wo rk ers ,


com m onl y referred t o as t he R v i s a.4
Rel i gi ous Wor ker Defi ni ti ons
Defining what constitutes religious work is daunting given the t heological diversity
of religions, denominations, and faith traditi ons. The education, training, and ordination
requirements for ministers o f religion and religious workers vary greatly by religious
group. Under t he special immigrant provisions, t he INA d efines ministers of religion and
religious workers as follows:
(C) an i mmi gr ant, and t he immi gr ant ’ s s pouse and children i f accompanyi ng or
followi ng to j oin the i mmi gr ant, who —
(i) f or at least 2 years i mmediately precedin g t h e t i me of application f or
admission, has been a member of a religious denomination having a bona fide
nonprofit, religious organization i n t he United States;
(ii) seeks t o enter the United States —
(I) s olely f or the purpose of carrying on t he vocation of a mi nister of that
religious denomination,
(II) before October 1, 2003, in order t o work f or the orga n i z a t i o n a t t he
request of t h e organization i n a professional capacity in a r eligious vocation or
occupation,or
( III) b e f o r e Oc t obe r 1 , 2003, i n or de r t o wor k f or t he or ga ni za t i on ( or a
bona fide organization which is affiliated with the r eligious denomination a n d i s
exempt from t axation as an organization described in Section 501(c)(3) of t he Internal
Reve nue Code of 1986) at the r equest of the organization i n a religi o u s vo c a tion or
occupation;and
(iii) has been carrying on such a vocation, professional work, or other work5


continuously for at l east t he 2-year period described i n clause ( i);
3 Immi gr ation and Nationality T echnical Corrections Act of 1994 (P.L. 103-416), t he Religious
Workers Act of 1997 (P.L. 105-54), a nd the Religious Workers Act of 2000 (P.L. 106-409).
4 Religious workers on t he nonimmi gr ant R vi sas may be admitted f or up to 5 years.
5 INA §101(a)(27)(C); 8 U.S.C. 1101(a)(27)(C).

The regulations further define religious occupation as “an activity which rel at es to
a t raditional religious function.”6 The nonimmigrant R visa cat egory of religious workers
holds to the s ame d efinitions; al i e n s o n R v isas are not, however, h eld t o t he 2-year
ex perience requirement. R eligious worker s are not subject to the l abor certification
requirements t hat m any other em ployment-bas ed immigrants m ust m eet .7
The INA is silent on what constitutes a religious denomination, but the regulations
offer t he following definition:
Religious denomination means a religious gr oup or communi t y o f believe rs havi ng
some form of ecclesiastical government, a creed or statement of f aith, s ome f orm of
worship, a f orma l or i nforma l c ode of doctrine and discipline, religious services and
ceremonies, established places of religious worship, religious congregations, or
comparable indica of a bona fide religious denomination. For t he purposes of this
definition, an inter d e n ominational r eligious organization which is exempt from
ta xation pursuant t o §501(c)(3) of t he Internal Reve nue Code will be treated as a8
religious denomination.
The U.S. C itizenship and Immigration S ervices Bureau in the Department of
Homeland Security (DHS) i s t he lead agency for immigrant admissions.9
Tr ends i n Admi ssi ons
In t he wider sweep of legal immigration t o t he United S tates, religious workers
represent a tiny fraction o f t he annual flow — 0 .3% of the 1,063,732 immigrants i n
FY2002. While the number o f nonimmigrant R v isas issued since FY1992 (first year the
category was available) ex ceeds t hat o f t he pe rmanent admissions, i t likewise constitutes
a s mall portion of all nonimmigrants admitted. The i s s u ances of R visas has m oved
steadily upward, but the l evels o f admission fo r p ermanent religious workers h as varied
since FY1992 (Fi gure 1 ).
Most religious workers who become LP Rs are not arriving from abroad; rather they
are adjusting s tatus after they have lived in the United S tates. In FY2002, only 389 of the
3,127 religious workers and their families arrived from abroad, while 87.6% adjusted to
LP R s tatus as religious workers i n t he United S tates. It is likel y t hat m ost of t hose who
adj u st ed st at us had ent ered on R v i s as as t em porary rel i gi ous workers.


6 The r egulations elaborate: “(E) xamples i nclude but are not limited t o liturgical wo r ke r s ,
religious instructors, religious counselors, cantors, catechists, workers in religious hospitals or
religious health care f acilities, mi ssionaries, r eligious translators, or religious broadcasters. T he
gr oup does not include j a nitors, maintenance workers, c l e r ks , f und raisers, or persons solely
involved in the s olicitation of donations.” 8 C.F.R. §204.5(m)(2).
7 Labor certification provi sions are aimed at ensu ring that f o r e i gn w orkers do not displace or
a dve rsely a ffect working c onditions of U.S. workers. For a full discussion, see: CRS Rep o r t
RS21520, Labor Ce rtification f or Permanent Immi grant Admi ssions ,byRuthEllenWasem.
8 8 C.F.R. §204.5(m)(2). For a discussion of the t ax exempt status, s ee: CRS Report RL31545,
Congressional Protection of Religious Liberty , by Louis Fisher, p. 47-48.
9 Ot her agencies with primary r esponsibility for i mmi gr ation f unctions are t he Bureau of Customs
and Border Protection and the Bureau of Immi gr ation a nd Customs Enforcement, both i n DHS,
and t he Bureau of Consular Affairs i n t he Departme nt of State.

Figure 1 . Temporary a nd Permanent Admission
of Foreign Religious W orkers
Thousands
14
Pe rmanent Temporary
12
10
8
6
4
2
0
1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002
FiscalYear
So urce: CRS presen tatio n o f d ata from the Report o f the Visa Office, Bu reau of Consular Affairs, an d
th e Statistical Yearbook of th e former Immigratio n and Natu ralizatio n Service. Data in cludes foreign
wo r ker s a n d acco mp an yin g f a mily me mb er s.
Legislation
Bills (H .R. 2152/S. 1580) to ex tend the religious worker provision through
September 30, 2008, have been introduced in both chambers. Congressman Barney Frank
introduced H.R. 2152 on May 19, 2003. The House J udiciary C ommittee o rdered H.R.

2152 reported o n S eptember 10, 2003, and t he House p assed H.R. 2152 on September 17,


2003. Senate Committee on t he J udiciary C hairman Orrin Hatch introduced a b ill similar
to H.R. 2152, the R eligious W o rker Act o f 2003 (S. 1580), o n S eptember 3, 2003.
Although t he ex tension o f t he religious wo rker provision has a broad b ase o f s upport,
efforts t o m ake i t a permanent immigration category h ave not s u cceeded. S ome h ave
criticized the religious worker provision as vulnerable to fraud. A few have expressed
fear that it may be an avenue for religious ex tremists to enter t he United S tates. Others,
however, point out that the INA has p rovisions to gu ard against visa fraud and t o ex clude
from admission ali e n s w h o m ay threaten public safety or national s ecurity, and who
commit fraud to enter t he United S tates.10


10 For a full discussion of the gr ounds of i n admissibility, see CRS Report RL31215, Vi sa
Issuances: Policy, Issues, and Legislation ,byRuthEllenWasem.