Religious Worker Green Cards Severely Backlogged-What Are my Alternative Options?

Individuals who hold an R-1 (religious worker) visa are eligible to apply for permanent residency under the EB-4 (employment-based fourth preference) category pursuant to sponsorship from their employer.

Prior to March 2023, the EB-4 category was processing green card applications filed on or before July 22, 2022 for most countries. However, in March 2023, the priority dates retrogressed from July 2022 to September 1, 2018. This means that only those individuals who have an approved I-360 from on or before September 1, 2018 are eligible to apply for their permanent residence status. Because the fourth based preference category has retrogressed so substantially, many people are in need of alternative options to remain in status and continue to work in the United States.

Why did this retrogression happen?

Congress sets an annual limit on the number of green cards that can be issued each fiscal year and roughly 140,000 immigrant visas are issued for individuals in the employment-based categories. Of that 140,000, the EB-4 category receives roughly 7%. However, in addition to religious workers, there are many other types of visas that fall within the EB-4 category. We believe that the retrogression may be in part because of the high number of individuals applying under other EB-4 categories. However, we cannot say for certain since the Department of State nor USCIS has provided a clear answer on this.

What should I do if I am running out of time on my R-1 visa? 

If your R-1 visa is close to expiring and you do not yet have a filed or approved I-360, then you may  travel abroad to recapture time spent outside of the U.S. to continue to extend your R-1 visa. Per U.S. immigration law, you are allowed to spend 5 years in the U.S. on your R-1 visa. This means that if you took a 2-month long vacation, you should be able to recapture those 2 months towards your R-1 max out date. If you have already recaptured all your time on the R-1 visa, then you may need to consider alternative options, such as:

H-1B Cap Exempt

A cap exempt H-1B means that you do not have to enter the H-1B lottery. While there are a few reasons why a petition can be cap exempt, for our purposes we will highlight the following cap exempt options:

• An institution of higher education
• The employer is a nonprofit organization or entity related to, or affiliated with, an institution of higher education if it meets any one of the following:
  1. A nonprofit entity (can include hospitals and medical institutions) that is connected or associated with an institution of higher education
  2. Operated by an institution of higher education
  3. Attached to an institution of higher education as a member, branch, cooperative or subsidiary
  4. The non-profit has formal affiliation agreement with an institution of higher education that demonstrates an active working relationship between the two entities

In some cases, certain religions may have an affiliation with an institution of higher education or even with a hospital that is part of a university. If this applies to your religion, then you may be eligible to apply for an H-1B petition. This would then allow you to change your status from an R-1 to an H-1B, buying you additional time to remain in the United States until you are eligible to apply for a green card.

L-1

Another alternative may be to apply for an L-1 visa. The L-1 visa allows for intracompany transferees from abroad to come work in the United States. To be eligible, you must be working for the qualifying organization abroad for one continuous year within the three years immediately before your admission to the U.S.

For example, if there is a religious worker who worked for the Catholic church at a diocese abroad for at least one year within the preceding three years, the diocese in the United States may be eligible to apply for an L-1 for the individual if the employer can prove that there is an affiliation between the entities. While this option is typically utilized for profit companies rather than a religious organization, as long as the above is proven and the religious worker is in a specialized knowledge or managerial/executive position, this may also be an option.

               Switching to a different EB category

Another option may be to switch from the EB-4 category and instead obtain a green card through the PERM process under the EB-2 or EB-3 categories. While there are more stringent requirements for the PERM process, the time frame to obtain a green card may be faster, as the retrogression for both categories are either current or in some cases only has one year of retrogression.

If you are concerned about this extensive backlog for the employment based fourth preference category or you are within 1-2 years of your R-1 expiring, please feel free to reach out to our attorneys for assistance.