This is a subject that seems obvious but isn’t.   At first glance, you would say, a Special Immigrant R-ligious Worker is coming to work for the organization/ch-rch/m-ssion agency that petitioned for him.   But, at the same time, a person with a green card can work for anyone, can’t he?  So, what if you change your mind and decide you don’t want to work for the agency that petitioned for you?  What if you want a side job to earn a little extra money?   Isn’t that okay?   Well, maybe not.

The basic consideration here is that the petitioner has told the USCIS that you will be working only for the petitioning organization.   Then, when you apply for a green card, you are telling the USCIS or the consulate/embassy that you will be working for the petitioning agency.  If you show up and don’t work for them, and the USCIS decides to do a post-approval inspection — or if they look at your employment history at your citizenship interview, they could decide that you or the petitioner lied to them — a very serious problem in immigration.

What about side jobs?   Pretty much the same logic applies.   The petition includes a promise by the petitioner that the applicant will not “engage in secular employment”.   This is, basically, a promise by the petitioner that the employee will only work for him.    And, when you apply for the green card, you are promising to engage in employment under the terms of the petition.  So you, too, as the immigrant are binding yourself by that statement in the petition.

So, what are your options.     The first thing to remember is that you are promising to come and work for the petitioner, and only for the petitioner.   If that is not your intent, you really shouldn’t be looking at this process.   I recommend, if you can, to stay with the petitioner until you obtain your citizenship — which is five years.    This is not required, but it is the best if you can so that there is no question of your intent in coming to the US to work for the petitioner.

My main concern is that the person interviewing you for citizenship may give you a hassle if they feel that you didn’t really have the intent to work for the petitioner when you applied for your green card.  I have not had this be a problem for my clients, but I have heard of it happening.

However, staying for five or more years is not always practical or desirable.   Things happen throughout your life, goals change, circumstances change—sometimes very unexpectedly.  Sometimes you need to change your job, sometimes you want to change your job, sometimes you need extra money.

This is what I tell people.   If you can, stay at least two years.  I think that it is very unlikely that the USCIS will give you a hassle if, after two years, you decide that you want to change your job.   If you just need some extra money, and would like to work a second job, I recommend waiting at least one year, if possible, before starting a second job.   Again, this is just to avoid the appearance that you or the petitioner lied when you both said that you were coming to work as set forth in the petition.

If you need to leave the employer shortly after getting your green card, I strongly advise documenting your reasons.    Preferably, it should be something that came up after you obtained your green card — perhaps a death or illness in the family and you needed to care for someone, perhaps problems with your employer, perhaps you got sick or injured and couldn’t continue in the same job.   Getting a new job offer for more pay or a more interesting ministry somewhere else, is NOT, in my opinion, a good basis for leaving the petitioning organization.

I hope this is interesting and helpful.   Remember that this is not legal advice.  It is just a summary of certain aspects of immigration law which may or may not apply to your situation.   I encourage you to consult an attorney if you think any of this may apply to your situation.

Gunnar Armstrong

When do you petition for Special Immigrant R-ligious Worker Status?   That is a difficult question if the employee is in the U.S.   If the employee is outside of the U.S. you can file at any time after he has completed two years of membership and employment in your R-ligious denomination.    If is not so simple if he is in the U.S.

The main issue is the employment.   If the job applicant is in the U.S. in tourist or student status, you don’t want to say that he has been working the past two years — that would probably be a violation of status.   So, if they are in the U.S. you have to wait until they have two years of working experience in the denomination.   But that can be complicated too.

If they are now in R-1 or H-1b status, working for your denomination, you can apply once they have two years of work experience, including the time that they worked before coming to the US if that was also within the last two years.    However, proving foreign work can sometimes be difficult — it is much easier to prove U.S. employment.   Therefore, I often recommend waiting until they have had 2 years of U.S. employment before filing the Green Card petition.   But this also has complications.

Usually, my clients don’t get two years of U.S. employment experience until they have completed two years of R-1 service.    If they file for the Green Card at that point, they will need to renew their R-1 while they are waiting for the Green Card petition to be processed.   If you recall, filing the Green Card petition will not allow them to continue to stay in the U.S. and to work without extending their R-1 status.   It probably is fine to renew the R-1 petition after you file the Green Card petition.  However, the R-1 is a temporary non-immigrant petition.  Normally, you are not allowed to have immigrant intent when you file a non-immigrant petition.   There is some leeway with an R petition — they are not normally strict on this rule, but I prefer not to assume that they won’t give you problems regarding immigrant intent.   They are giving trouble at the consulates — the USCIS might decide to do that too.  I have filed R-1 petitions after I have filed green card petitions, but I prefer not to if it is possible.

So, my recommendation is to not file the green card petition until you have filed the R-1 extension and gotten it approved.  Then I prefer to wait at least 90 days after that point before filing the green card petition.  That way there is less chance that anyone will give you trouble about what type of intent (immigrant or non-immigrant) you had when you filed the R-1.   On the other hand, you need to keep your eyes out for trouble from the other end.

You also need to be counting backwards when you are considering the timeline for filing a green card petition.   You need to have enough time left on your R-1 to stay and work throughout the time that it takes you to get the R-1 filed and then to file the application for Adjustment of Status.   It is only when you have filed the application for Adjustment of Status that you can stay if your R-1 expires.    But there is more to consider.  You will be requesting employment authorization as part of filing for Adjustment of Status — but that will take anywhere from four to eight months to be approved.  If your R-1 runs out before your employment authorization is approved, you will have to stop working until you get the employment authorization approval.

So, what kind of timeline are we looking at?   You want to file three months after your R-1 extension is approved, but, at a minimum, a year before your R-1 will expire, or, if you want to keep working, at least 18 months before your R-1 will expire.  If your R-1 extension is not approved in time for that, you have two options.   The first is filing the Green Card petition three months after the R-1 extension is granted and hope that everything is approved in time to allow you to not have to stop working.   Or you can risk filing before the R-1 extension is approved.  That is not something that I generally recommend, but it will probably be okay.

I hope this is interesting and helpful.   Remember that this is not legal advice.  It is just a summary of certain aspects of immigration law which may or may not apply to your situation.   I encourage you to consult an attorney if you think any of this may apply to your situation.

Gunnar Armstrong

Two weeks ago, I wrote out the requirements to petition for a Special Immigrant R-ligious Worker.   Now I will describe the petitioning process. It is a very complex process.  I strongly recommend hiring an attorney to help you — there are a lot of aspects which seem obvious but are not.  For the R-1, only the employer can petition; but with the immigrant petition, either the alien or the employer can petition.   But, since it is an employment petition, even if the alien does the petition, the employer needs to sign on.  For the rest of this posting I will write as if the employer is the petitioner.   If something is different for a self-petitioner, I will point that out.

You start with the I-360 Petition.   The I-360 petition is designed to support a variety of types of Special Immigrant visas.   The first section of the form will relate to almost all of the visas.  The petitioner (employer or the self-petitioner) fills out the first part.  Then the second part has information about the alien.  Then, the form has various parts that are specific to the various types of visas.   You will only fill out the part relating to the R-ligious Worker Visa.

Then you will need supporting documentation.    You need documentation establishing that you qualify as a petitioner.  This would involve establishing that you exist, that you have a r*ligious purpose and function, that you have a need to hire a worker, and that you have the income and ability to pay the offered wage.    Organizational documents, deeds and leases, IRS tax exemption documentation, website pages, brochures, pictures of the ministry and the location, membership lists, IRS Form 990, budgets and income/expense statements are all examples of useful documentation.

The second area where you will need documentation is to show that the job is a r*ligious job.   Job descriptions, a letter from the employer, denominational documents describing the position, and a sample weekly schedule are examples of relevant documents for this issue.

You will need to show that the job applicant qualifies for the position and the status.   First off, you will need to show that he has been a member of the r*ligious denomination for the past two years.   Membership rolls, letters from prior churches, baptism certificates can all be helpful here.  Next, depending on the requirements of the position, you may need a resume, college transcripts and diplomas, and letters from previous employers.  If the applicant is currently here in R-1 status, you will want to include tax returns and W-2 forms and pay records.

You will also need to show that the alien has been employed full time in the r*ligious denomination for the past two years.   If he has been an R-1 for the past two years, this will be easy.  If he was employed or self-employed abroad, it will be more difficult.   Anything that you can get to prove that he was working full time will be useful.

A couple of other points to remember.   The check for the filing fees should come from the employer if possible.   It is best if the employer pays for the attorney and pays the filing fee.   There is no specific prohibition (at least no written prohibition) on the alien paying both the attorney fees and the filing fee, but I recommend against it if possible.  They will sometimes ask who paid the filing fee (and maybe who paid the attorneys fee) if they do a site visit.   Now, it shouldn’t be a problem if the alien pays the filing and attorney fees if the alien is the petitioner.   I have never done a petition where the alien is the petitioner, so I can’t say for sure — in my experience, the USCIS in not always logical in their conclusions.

It generally takes five to six months to a year to get a petition for a Special Immigrant R-ligious Worker approved.  Once the petition is approved, the USCIS will send the approval notice to the petitioner.

If the petitioner is in the United States and is qualified to file for Adjustment of Status, then he can proceed to the next step in the process.   If the petitioner is overseas, he will need to start the process of applying for a visa at the consulate covering the area where he is residing.

I hope this is interesting and helpful.   Remember that this is not legal advice.  It is just a summary of certain aspects of immigration law which may or may not apply to your situation.   I encourage you to consult an attorney if you think any of this may apply to your situation.

Gunnar Armstrong

Obtaining Special Immigrant R-ligious Worker status is a two-step process.  The first step is an I-360 petition.   That is filed with the USCIS and will take anywhere from 6 to ten months, or more to be approved.   Filing this petition does not give you permission to stay in the United States and wait for its approval, and it most certainly doesn’t give you permission to work while you are waiting.   If you already have valid status from a non-immigrant employment visa – like an R-1, you can continue to work and travel, but, once your R-1 status ends, you can no longer work and must leave the U.S. and wait overseas for the I-360 to be approved.  Once the I-360 is approved, then it is time to start the second step — the application for an immigrant visa (or, if you are already in the US, the application for a green card).

If you are still in the U.S. in legal status when the I-360 is approved, you can file the Application for Adjustment of status.  This process will take about a year, but sometimes as long as 18 months or more.  Once you file, you are allowed to stay here in the U.S. while you are waiting for the green card to be approved.  The rules regarding when you can work and travel are somewhat complex and will be addressed in a couple of weeks.  But, for now, suffice it to say that under certain circumstances you will be able to work or travel, but sometimes you will not be able to work or travel.

I wrote above that if your non-immigrant employment status should end before your I-360 is approved, you need to leave the US.   That is accurate and that is what I recommend.   However, I will add that if you do stay illegally, as long as your total illegal stay and illegal employment lasts less than 180 days (including any prior illegal time), the USCIS will allow you to still file for adjustment of status and will generally not hold the illegal time against you.

Now, if when the I-360 is approved you have already left the US, or if you were never here, you will need to complete consular processing.  That means that you will file for an immigrant visa at the U.S. consulate (or embassy) overseeing the location where you live.  This whole process can take as little as two or three months — but it can easily stretch out to six months or more.  But, once you pass your interview, you get your visa and can then come to the U.S.   Once you pass customs, you become a lawful permanent resident, and they will mail you your green card.

Of course, you must remember that you received this green card to enable you to work for the petitioning employer.   If you do not go to work for him, it could raise questions about your intent to actually carry through with what you said you intended to do — and that could cause you trouble down the line — especially when you apply for citizenship.

I hope this is interesting and helpful. Remember that this is not legal advice. It is just a summary of certain aspects of immigration law which may or may not apply to your situation. I encourage you to consult an attorney if you think any of this may apply to your situation.

Gunnar Armstrong