Here's an Arm of USCIS That's Tough on Disputed R-1 (Religious) Visas

By David North on August 14, 2011

We have noted in an earlier blog how secretive USCIS is with its decisions about R-1 (nonimmigrant religious worker) visas.

Recently in an FOIA request that produced data on yes/no decisions on every other classification of petitions for nonimmigrant workers, there was no information on what USCIS did with the R-1 requests. I think that was deliberate, as noted in another blog.

But whether or not the USCIS, and its semi-judicial administrative review panel, the Administrative Appeals Office (AAO), have strange ideas about privacy in its cases, the latter has a strong record for rejecting questionable R-1 appeals.

This statement is not inspired by any USCIS press release, it is based on my case-by-case review of the latest AAO decisions made on requests for the extension of R-1 visa status. The most recent published decisions are for the period January 1 through August 27, 2010 – AAO does not rush to publish its judgments.

There were 45 of them, and I read them all. They can be found here.

In every instance a religious organization wanted to extend the R-1 visa for an alien who was, or was alleged to be, working for it. In every case the USCIS staff at the California Service Center (a mail-order decision factory that sees lots of paper but no aliens) decided to reject the application. And in every case the religious organization appealed to AAO.

In 34 of the 45 cases the religious organization and the alien lost; in eight others the results were blurred; and in only three cases did AAO overrule the Service Center and order the extension of the visa. Within the 34 cases there were 28 negative decisions based on substance, two on procedural matters, and there were four withdrawals.

The blurred decisions (my term, not that of AAO) included six remands back to the Service Center to straighten out the files in cases that AAO would neither accept nor reject in their current form, and two moot cases (the alien had already secured green card status in some other way.)

I got two strong impressions from reading these files:

  • One, that the appeals agency largely supported negative decisions of the staff, and

  • Two, that there were a lot of both inept and fraudulent applications.

Of course, I did not see the presumably numerous decisions in favor of the aliens, nor did I see what must be a really grim collection of files, those that were denied at the staff level, and were so weak that the sponsors decided not to appeal.

My earlier conclusion that it is not the mainstream Protestant, Catholic, and Jewish institutions that abuse the program was again confirmed, while some applicants were just noted as "churches" most were identified by denomination. There were no Catholic cases in the group of 45, only one Jewish one (a Conservative synagogue) and only three mainline Protestant cases, one Methodist, one Baptist, and one Presbyterian.

The only Eastern Orthodox case, that for a "women's monastery" was one of the three that were granted by AAO. The other two grants went to what appears to be a major mosque in Michigan and to what sounded like an evangelical mega-church. In the later instance, the church wanted to extend the stay of an R-1 "Director of Media Ministry" (i.e., the church publicist); the California Service Center did not regard this as a religious occupation, but the AAO did. Interesting.

The rejected cases were mostly from splinter Christian groups, but there were also several mosques, and at least one Sikh, and one Buddhist, entity.

The cases that failed were denied for a series of reasons; in some cases an on-site investigation indicated that no church existed; in others it was not clear that the alien had actually worked for the church in question; in some others the AAO found that the alien really was not a religious worker at all. In some there was no indication of the required IRS letter saying it was a nonprofit organization, and in still others the problem was that the organization's finances were not sufficient to pay the (usually modest) salaries promised.

Generally there was a lack of application quality in the rejected ones, whether a lawyer was involved in the case, as they usually were, or not. I felt for the USCIS officers who had to struggle with this mass of often messy paper.

More significantly, organizations that cannot meet the detailed requirements of the laws and regulations should not be rewarded with low-wage alien workers, and, in most of the cases studied, the laws won and the marginal entities lost. That is the way it should be, and no one should encourage USCIS to do any more "streamlining" of its operations.

The R-1 applications are of special interest because a couple of years ago three different federal agencies – the GAO, the Inspector General at USCIS, and the Social Security Administration – had all, separately, issued reports on the high incidence of fraud in the program, with fraud percentages of more than 30 percent being reported. (Citations to all three of these reports can be found in this blog.)

Since these damning reports USCIS has been more careful with these applications, taking such basic steps as setting in motion site visits to make sure that there is a religious institution at the listed address, and insisting that the church, not the alien, must file the application.