Religious workers may apply for green cards to work in the USA permanently by filing an I-360 petition, and then after the I-360 is approved, filing an I-485, Adjustment of Status petition or applying for an immigrant visa at the consulate if their I-360 priority date is current.
The reason why the concept of a “priority date” exists is because the USA gives out a limited number of green cards each year for various immigration categories. Religious workers fall under the Employment-Based 4th Preference Category (EB-4), along with other types of immigrants such as Special Immigrant Juveniles (SIJ) who are children who were abused/abandoned. Only 10,000 EB-4 visas may be issued each year. When demand is higher than the number of available visas (10,000 per year), a backlog emerges. Filing an immigrant petition (such as the I-360) establishes a priority date, which puts the beneficiary “in line” for a green card under their visa category. In addition to the overall quota for the entire category, U.S. immigration law established a per-country limitation of 7%. This means that beneficiaries born in a particular country cannot receive more than 7% of the visas for that category, creating special backlogs based on country of birth.
Up until March of 2023, the Department of State followed the per-country limitation, which meant that certain countries had to wait a few years for EB-4 green cards (e.g. Mexico, El Salvador, Guatemala, Honduras), while the rest of the world had to wait significantly less time (just a few months or none at all). Starting in April of 2023, the Department of State changed its interpretation of the law and decided to do away with per-country quotas for EB-4, and instead group them all together. This means that those born in the previously backlogged countries of Mexico, El Salvador, Guatemala, Honduras will wait slightly less, but everyone else in the EB-4 category will wait substantially more.
The visas are processed on a first come first served basis, based on the priority date. There is currently a backlog of at least an estimated 40,000 SIJ visas and an unknown number of religious worker visas (though much less in comparison to SIJ cases). This change in the law is good news for SIJ visas because they will process faster, however this is very bad news for religious workers, who will now have a 4-5 year, or longer, wait to receive a green card after I-360 approval for the foreseeable future.
The Department of State issues a Visa Bulletin each month with cutoffs for each category. This tells us which visa categories are eligible to apply for Adjustment of Status or an immigrant visa at the consulate that month based on the priority date. Priority dates are “current” (and therefore eligible for Adjustment of Status filing) when they are earlier than the date listed for the category on the Visa Bulletin.
The Visa Bulletin for April 2023 came out recently and the priority date for the EB-4 visa category has retrogressed to October 1, 2018 for all countries. For EB-4 in April of 2023, I-360 priority dates before October 1, 2018 are current and those with priority dates after October 1, 2018 are no longer current. This means that an I-360 must have been filed prior to October 1, 2018 for the religious worker to be able to apply for adjustment of status in April.
Starting in April, new I-360s filed for religious workers will likely not be eligible to file Adjustment of Status or immigrant visa applications for the next 4-5 years, or longer as the backlog grows. Pending Adjustment of Status and immigrant visa applications filed for religious workers will be delayed, with processing times depending on priority date. This creates an existential issue to the religious worker visa program because the R-1 nonimmigrant visa for religious workers is limited to 5 years. With a current backlog of 4-5 years and likely to grow substantially, this means that virtually no religious workers will be able to transition directly from the R-1 visa to a green card unless there is intervention from Congress.
Religious organizations employing foreign national ministers and religious workers have a few other options moving forward:
- File the Adjustment of Status application in the month of March, if you have an approved I-360 petition for your religious worker with a priority date before March 1, 2022. The green card may still take 4-5 years, or more, to process, but the religious worker will be permitted to remain in the United States and receive a work permit while the petition is pending.
- File an I-360 for a religious worker, if eligible, as soon as possible to lock in a priority date. Although the backlog is currently 4-5 years, it may change in the future.
- As an alternative to the I-360 process described above, take advantage of the immigration process for other employment-based, secular categories. This requires starting the PERM process for a religious worker for an EB-3 green card, if eligible. For the EB-3 category, the job must require at least two years of experience or training and the employer must comply with prevailing wage regulations.
- Apply for an R-1 visa if the I-360 was being done for a religious worker who is abroad. The R-1 is only valid for 5 years total, however, it allows your religious worker to live and work in the USA during those 5 years.
- Apply for a cap-exempt H-1B visa, if eligible. The H-1B is valid for 3 years with an extension for another 3 years and potentially beyond that if the aforementioned PERM process is begun by a certain time. Cap exemption requires an affiliation with an institution of higher education. In addition, the H-1B position must require a bachelor’s degree or higher and must comply with prevailing wage regulations.
If you have questions about any of the above or are interested discussing visa options for your religious organization, schedule a consultation with us. We expect to see federal litigation and maybe even Congressional action on this topic, so stay tuned!