Although I am not a religious person, I have long felt that the clergy, and other religious workers, were unlikely to break the law.
I still think that way, even though the administration has managed to put the spotlight on a small group of law-breaking clergy in its efforts to expand amnesty as far as it can. As you can imagine, these illegal aliens will be granted green cards, despite their records.
One of the smaller tides of immigrants consists of ministers, other church workers, and their families. They are covered under a special provision in the immigration law and are classified in the fourth preference of employment-based immigrants, EB-4 for short. The program is not used much by the mainstream Protestant, Catholic, and Jewish denominations; most of its participants are among minor denominations, including some cults.
There is also a nonimmigrant category for these workers; they get R-1 visas, and their families get R-2s. They can come to the United States if invited by a religious entity and, after two years of religious work they can — if otherwise qualified — convert to green card status.
The vast majority of EB-4 immigrants are not newcomers; they adjust to green card status from some other immigration status, such as R-1.
As part of its broader program of expanding immigration wherever possible, the Department of Homeland Security published a new policy memorandum earlier this month saying that the agency would no longer insist that the two years of religious work must be done while the alien was in legal status. Congress had nothing to do with this decision; it is purely administrative.
The agency said that the U.S. Court of Appeals for the Third Circuit, in Shalom Pentecostal Church v. Acting Secretary DHS, 783 F.3d 156 (3d Cir. 2015), had ruled that legal status while doing the required two years of religious work was not needed. Instead of either appealing the case, or ignoring that finding outside the Third Circuit, two perfectly legitimate moves, DHS changed its own rules.
Thus there is now a specialized amnesty — a full-fledged green card — for clergy and other religious workers who have the two years of religious employment, even though all or part of it was done while in illegal status. Their families will also get the same treatment.
This is a much more significant set of benefits than what is being offered to the DACA aliens; the benefits are permanent and comprehensive. Further, given that these are fourth preference EB-4 immigrants, there is no waiting and no effective numerical ceilings governing these aliens. (The fourth preference gets 7.1 percent of the employment-based immigrants, but that is not a numerical ceiling that ever is reached, unlike so many other ceilings that are over-subscribed.)
Hearing about the new policy memorandum reminded me of the extent to which religious visas had been misused in the recent past. As we reported five years ago, three different watchdog agencies found extensive abuse in the program, with two of them setting the rate of invalid visas at 30 percent to 33 percent of the total. The critics were GAO, the Social Security Administration, and an arm of the agency handling the program, USCIS.
They reported that many non-religious workers were admitted under that category, that some of the "churches" did not exist, that many of the "churches" could not produce tax-exempt documentation, that some of the workers were doing totally non-religious activities, such as that of a janitor, and the like. As a result, DHS began to scrutinize the applications more carefully, and the flow of both immigrant and nonimmigrant workers began to fall, as the table below indicates.
| Subcategories | 2009 | 2010 | 2011 | 2012 | 2013 |
| Immigrants | |||||
| Ministers | 2,163 | 2,084 | 996 | 1,194 | 857 |
| Their Families | 1,829 | 2,311 | 1,287 | 1,273 | 937 |
| Totals | 3,992 | 4,395 | 2,283 | 2,467 | 1,794 |
| Other Religious Workers | 1,770 | 1,744 | 648 | 885 | 535 |
| Their Families | 1,544 | 1,432 | 586 | 745 | 680 |
| Totals | 3,334 | 3,176 | 1,234 | 1,630 | 1,215 |
| Total Immigrants | 7,326 | 7,511 | 3,517 | 4,097 | 3,009 |
| Nonimmigrants | |||||
| Religious Workers and Ministers | 17,362 | 21,043 | 19,683 | 15,906 | 14,191 |
| Their Families | 4,481 | 7,966 | 5,682 | 4,738 | 4,337 |
| Total Nonimmigrants | 21,843 | 29,009 | 27,649 | 20,644 | 18,528 |
Note: Compiled by the Center for Immigration Studies from 2009 to 2013 Yearbooks of Immigration Statistics, U.S. Department of Homeland Security, Washington, D.C., Tables 7 and 25. In most years, more than 90 percent of the immigrant totals were adjustments of aliens already in the United States, as opposed to new admissions from abroad. These adjustees were, presumably, largely drawn from those in the nonimmigrant religious worker category.
The table above also raises an interesting question: If all those in the nonimmigrant category can convert to green card status, and there is no effective ceiling on the number of adjustments, why are there three to six times as many nonimmigrants as immigrants? It suggests to me that some to many of the nonimmigrants in this category ultimately drifted into illegal status.
Will the new ruling increase the numbers of green cards issued to religious workers? Perhaps, but not, I suspect, significantly. I reviewed a 50 percent sampling of the 2015 decisions of the Office of Administrative Appeals regarding appeals from denials of green cards to clergy and other religious workers and found that in no instance was a green card denied solely because of illegal presence. In most of the cases, the applications were flawed in a number of ways, any one of which could lead to a denial. Typically, the church employing the alien in question could not show that the worker had actually performed the two years of continuous religious work without regard to his or her migration status; and there were other fatal problems with the application as well.
I think that the new memorandum is a bit of showboating, in which the department demonstrates that church workers are being protected from the nasty old immigration system, despite the fact that the numbers will not be very large.
It is similar to the administration's trumpeting of the provisions in the DACA program, one of which grants temporary legal status to illegal aliens in the military — despite the fact that there are few illegals in the armed forces, and if they are there, they can apply for much better benefits than those provided by DACA, as reported in an earlier posting.