On July 5, 2015, USCIS issued an important Policy Memorandum acquiescing to the U.S. Court of Appeals for the Third Circuit decision in Shalom Pentecostal, stating that USCIS will no longer require a beneficiary to have held lawful U.S. immigration status or employment authorization while he/she acquired qualifying 2-year religious work experience in the U.S. prior to filing the I-360 special immigrant religious worker visa petition. The Policy Memorandum was issued to USCIS adjudicators nationwide and applies to all pending special immigrant religious worker petitions as well as new petitions filed on or after July 5, 2015. The Memorandum is in effect until new regulations are enacted by DHS.
This Memorandum follows a significant decision issued on April 7, 2015, in which the Third Circuit in Shalom Pentecostal Church v. Acting Secretary DHS, 783 F. 3d 156 (3d Circ. 2015), found the lawful immigration status requirements in 8 CFR 204.5(m)(4) and (11) inconsistent with the clear and unambiguous intent of Congress as evidenced in the plain language of the statute at 8 U.S.C. 1101(a)(27)(C), and therefore beyond DHS’s legal authority to mandate (ultra vires). As a result of the decision, USCIS is unable to apply the legal status requirements of 8 CFR 204.5(m)(4) and (11) to cases arising in the Third Circuit, and with additional federal courts reaching the same outcome, USCIS decided in July to acquiesce to the finding in Shalom Pentecostal in order to “promote consistent adjudications and a nationally uniform immigration policy.”
Although a beneficiary of the special immigrant religious worker visa petition is no longer precluded from eligibility for the I-360 visa with qualifying religious work experience acquired in the U.S. without lawful status or employment authorization, the beneficiary must, nonetheless, meet eligibility requirements of section 245 of the Immigration and Nationality Act to successfully adjust status to permanent resident. If you would like a consultation regarding your eligibility for the special immigrant religious worker visa, please contact us to speak with our experienced attorneys.
Please consult an attorney for advice about your individual situation. The information provided on this site is not legal advice, nor is it intended to be. You are welcome to get in touch with our law firm by electronic mail, letters, or phone calls. Contacting us does not create an attorney-client relationship. Until an attorney-client relationship is established, please withhold from sending any confidential information.