Immigrant Petitions; Religious Workers

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 204

[INS No. 1436-94]

RIN 1115-AC71

Immigrant Petitions; Religious Workers

agency: Immigration and Naturalization Service, Justice.

action: Final rule.

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summary: This rule amends the Immigration and Naturalization Service

(Service) regulations by providing that all persons, other than

ministers, immigrating to the United States as religious workers must

immigrate or adjust status to permanent residence before October 1,

1997. This rule implements section 101(a)(27)(C)(ii) of the Immigration

and Nationality Act (Act) which provides that religious workers who

have 2 years of membership and experience in a religious occupation or

vocation qualify as special immigrant religious workers. By statute,

this immigrant category for religious workers expires on October 1,

1997. This rule codifies, in regulatory form, the October 1, 1997,

statutory deadline.

effective date: June 6, 1995.

for further information contact: Michael W. Straus, Senior

Adjudications Officer, Adjudications Division, Immigration and

Naturalization Service, 425 I Street, NW., Room 3214, Washington, DC

20536, telephone (202) 514-3228.

supplementary information: Section 151(a) of the Immigration Act of

1990 (IMMACT), Public Law 101-649, dated November 29, 1990, created a

new special immigrant category for religious workers and ministers by

amending section 101(a)(27)(C) of the Act. In order to qualify as a

minister, the applicant must be an ordained minister of a religious

denomination and have carried on the vocation of minister during the 2

years immediately preceding the application for admission. Section

101(a)(27)(C) of the Act also provided special immigrant status for

persons, other than ministers, who will work in a religious occupation

or vocation for a religious organization in a professional or other

capacity. Unlike the provision for ministers, which does not contain a

sunset provision, section 101(a)(27)(C)(ii) (II) and (III) of the Act,

as enacted by section 151(a) of IMMACT, provided that the other two

types of religious workers must ``seek to enter the United States * * *

before October 1, 1994.'' In October of 1994, the Immigration and

Nationality Technical Corrections Act (INTCA), Pub. L. 103-416,

extended the sunset date to October 1, 1997.

As originally promulgated, the regulations implementing IMMACT

provided that petitions for professional religious workers and other

religious workers must be filed on or before September 30, 1994. See 56

FR 60897-60913, dated November 29, 1991. The statute, however, requires

that immigrant religious workers (with the [[Page 29752]] exception of

ministers) actually enter the United States before October 1, 1994 (now

October 1, 1997). In other words, in order 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 before October 1, 1997.

For the sake of clarification, the Service published an interim

regulation in the Federal Register which amended 8 CFR 204.5(m)(1) to

provide specifically that aliens must obtain permanent resident status

through immigration or adjustment of status on or before September 30,

1994, to qualify under the special immigrant religious worker category.

See 59 FR 27228-29, dated May 26, 1994. The public was provided with a

30-day period, ending on June 27, 1994, to comment on the interim

regulation. The Service received one comment.

Discussion of the Comment

The commenter stated that the Service misinterpreted the term

``seek to enter the United States before October 1, 1994'' in section

101(a)(27)(C)(ii) (II) and (III) of the Act. The commenter contended

that the term ``seek to enter'' means that the religious worker

initiate the immigration process before October 1, 1994. The comment

urged the Service to allow special immigrant religious workers to meet

the cut-off date by filing a petition before October 1, 1994. In the

alternative, the commenter stated that the October 1, 1994, cut-off

date could be met by applying for an immigrant visa at a U.S. consulate

or by applying for adjustment of status under section 245 of the Act

before October 1, 1994.

The Service disagrees with the commenter's interpretation of the

statutory language. The language of section 101(a)(27)(C)(ii) of the

Act requires that a qualifying religious worker seek to enter the

United States before October 1, 1997. Section 101(a)(13) of the Act

provides that an `` `entry' means any coming of an alien into the

United States.'' Reading section 101(a)(27)(C)(ii) of the Act in

conjunction with section 101(a)(13) of the Act, it is clear that not

only must the religious worker apply for admission to the United States

as an immigrant before October 1, 1997, but he or she must actually

seek to ``come into,'' i.e., arrive in the United States with an

immigrant visa before October 1, 1997.

As stated in the preamble to the interim rule, a petition must be

filed with the Service to establish the alien's eligibility for special

immigrant status as a religious worker. See section 204(a)(1)(E) of the

Act. At this initial step, an alien is merely seeking to be found

classifiable under section 203(b)(4) of the Act. After the Service

approves a petition, the next step in this process is an application

for an immigrant visa at a U.S. consulate. See section 222 of the Act.

After the consulate issues an immigrant visa, the alien must present

himself or herself at a Port-of-Entry and apply to enter the United

States. See section 221(e) of the Act. It is only at this step in the

process that the alien is deemed to be seeking to enter the United

States as a special immigrant. Further, it is only when the alien is

actually admitted to the United States that he or she affects an

``entry.'' The term ``seek to enter before October 1, 1997,''

therefore, refers only to an alien who is applying for admission to the

United States as an immigrant before that date.

This reading of section 101(a)(27)(C) of the Act is consistent with

the statutory scheme of the Act. Congress, by using the language ``seek

to enter before October 1, 1997,'' evidenced its intent to establish

the cut-off date as the time the alien actually enters the United

States as an immigrant. Had Congress intended to set the cut-off date

as the date a petition was filed with the Service on behalf of the

alien religious worker or the date the alien applied for adjustment of

status, it would have specifically provided so. Throughout the Act,

Congress has enacted provisions using cut-off dates based on the time

of application for permanent residence rather than entry. For example,

the special immigrant category for certain employees of international

organizations and their families requires applicants to apply for an

immigrant visa or adjustment of status before a certain date. See

section 101(a)(27)(I) of the Act. In addition, the Chinese Student

Protection Act of 1992, Pub. L. 102-404, provides that a qualified

alien must apply for adjustment of status during a 1-year application

period, beginning July 1, 1993. See also section 2(d) of the

Immigration Nursing Relief Act of 1989, Pub. L. 101-238.

This interpretation, and consequently the interim rule, is

consistent with the Department of State regulation which provides that

an immigrant visa issued on behalf of a special immigrant religious

worker, other than a minister, shall be valid no later than September

30, 1994. See 22 CFR 42.32(d)(1)(ii). The Service notes that, although

the Department of State's regulation erroneously makes reference to a

``religious worker'' as defined in 8 CFR 204.5(l), rather than 8 CFR

204.5(m), it is clear that this provision can only refer to an alien

described in section 101(a)(27)(C) of the Act, other than a minister of

religion.

Since the sole amendment to section 101(a)(27)(C)(ii) of the Act

made by the INTCA was the extension of the sunset date to October 1,

1997, the final regulation will provide that religious workers, other

than ministers, must obtain permanent resident status through

immigration or adjustment of status before October 1, 1997, in order to

immigrate as special immigrant religious workers.

Regulatory Flexibility Act

The Commissioner of the Immigration and Naturalization Service, in

accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has

reviewed this regulation, and by approving it, certifies that this rule

will not have a significant economic impact on a substantial number of

small entities. This rule merely clarifies a statutory deadline for a

limited number of aliens to become special immigrant religious workers.

Executive Order 12866

This rule is not considered by the Department of Justice,

Immigration and Naturalization Service to be a ``significant regulatory

action'' under Executive Order 12866, section 3(f), Regulatory Planning

and Review, and the Office of Management and Budget has waived its

review process under section 6(a)(3)(A).

Executive Order 12612

The regulation will not have substantial direct effects on the

States, on the relationship between the National Government and the

States, or on the distribution of power and responsibilities among the

various levels of government. Therefore, in accordance with Executive

Order 12612, it is determined that this rule does not have sufficient

federalism implications to warrant the preparation of a Federalism

Assessment.

Executive Order 12606

The Commissioner of the Immigration and Naturalization Service

certifies that she has addressed this rule in light of the criteria in

Executive Order 12606 and has determined that it will have no effect on

family well-being.

List of Subjects in 8 CFR Part 204

Administrative practice and procedure, Aliens, Employment,

Immigration, Petitions.

Accordingly, the interim rule amending 8 CFR part 204 which was

[[Page 29753]] published at 59 FR 27228-27229 on May 26, 1994, is

adopted as a final rule with the following change:

PART 204--IMMIGRANT PETITIONS

1. The authority citation for part 204 continues to read as

follows:

Authority: 8 U.S.C. 1101, 1103, 1151, 1153, 1154, 1182, 1186a,

1255; 8 CFR part 2.

Sec. 204.5 [Amended]

2. In Sec. 204.5, paragraph (m)(1) is amended in the last sentence

by revising the entry for the year ``1994'' to read: ``1997''.

Dated: May 8, 1995.

Doris Meissner,

Commissioner, Immigration and Naturalization Service.

[FR Doc. 95-13805 Filed 6-5-95; 8:45 am]

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