A change in calculating the availability of immigrant numbers means some foreign national ministers who are in the United States on temporary R-1 religious worker visas and waiting in lines for green cards will have to wait even longer, it seems. Some may even have to leave their congregations.

Ministers entering the United States solely to work in the ministry for a bona fide non-profit religious organization fall into a specific green card category: employment-based fourth preference. The fourth preference category includes religious workers and minors in Special Immigrant Juvenile Status (SIJS).

For those who are already in the United States in temporary R status, applying for a green card is a two-step process:

• Filing a Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, with the Department of Homeland Security (DHS); and
• Filing a Form I-485 Adjustment of Status application when the individual’s priority date (established by filing the Form I-360) is “current.”

Until March 2023, the priority date in this category was February 1, 2022. In April 2023, DHS discovered it had been miscalculating the fourth preference category. DHS had separated individuals from El Salvador, Guatemala, and Honduras in their own fourth preference line because it had determined that those countries were using more than 7% of the immigrant visas in that category (which included the high-demand SIJS). As it turns out, those countries were not using more than 7% of all the available visas and therefore should have been included in the All Chargeability Areas Except Those Separately Listed, a.k.a., the Rest of the World (ROW) category. When the DHS moved the many individuals from the three North Central American countries who were in their own separate category into the ROW category, the “line” for others in the fourth preference ROW category retrogressed.

In March 2023, the priority date for individuals in the ROW fourth preference category was February 1, 2022. After the shift, that priority date retrogressed four years to September 1, 2018. As of November 1, 2023, the priority date will be January 1, 2019.

Individuals in temporary R status cannot stay in the United States for more than five years; thus, individuals who were close to becoming permanent residents may not be able to stay in the United States long enough to adjust status. One possible strategy for individuals in this situation is to leave the country, stay out for at least a year, and then try to return in R status. The problem with this option is that R status does not allow for dual intent. Therefore, individuals who have taken the first step in the green card process, filing a Form I-360, may not be able to obtain an R visa at a consulate abroad because they have evidenced their desire to become permanent residents. Individuals who were able to file both a Form I-360 and their Form I-485 (Application to Register Permanent Residence or Adjust Status) should be able to remain in the United States as pending adjustment applicants and should be able to continue working on the basis of the employment authorization documents they received through their I-485 applications even though they will have to wait to become permanent residents.

For those who have not filed adjustments and do not have enough time left, other visa options may be available. They would need to meet those eligibility requirements, which differ from the R visa category and potentially still face issues regarding intent if the particular visa category does not allow for dual intent. Jackson Lewis attorneys are available to discuss possible strategies.