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