In our previous blog post we began a discussion of key timing considerations for religious workers. Our next practice tip with regard to timing concerns the filing of immigrant I-360 petitions on behalf of religious workers.
Employers of foreign religious workers are encouraged to file I-360 immigrant petitions as soon as possible. There is a requirement that the religious worker must have been employed continuously in a religious occupation during the two years preceding the filing of the I-360. There is no requirement that such employment be in the U.S. pursuant to R-1 status. The employment could have been outside of the U.S. Additionally, working for a different employer does not break the continuity of such employment, so long as the person was employed in a religious occupation at all times during the two years. There are also some exceptions to the continuous employment requirement to allow for normal absences, such as for vacations, sabbaticals, and further religious training.
Prior to September of 2010, religious workers could file for adjustment of status together with the I-360 petition, which protected them from incurring unauthorized presence in the U.S., if they reached the R-1 five year cap. However, religious workers can no longer file adjustment with the I-360 petition. They must now wait until the I-360 is adjudicated, which can take up to a year, assuming that there is no request for evidence that would delay adjudication even more. As such, the I-360 should be filed at least a year in advance to avoid a lapse of status that could cause the adjustment of status to be denied. In order for an employment-based adjustment of status to be approved, the beneficiary must show that he or she maintained proper status while in the U.S. There is a limited exception under Section 245(k) of the Immigration and Nationality Act (INA), if the lapse of status did not exceed six months, but a lapse of status should never be encouraged.
Improper handling of religious worker applications can result in a religious worker becoming barred from adjusting status to a permanent resident. Therefore, it is very important for such cases to be evaluated by experienced immigration counsel early on in the process.