USCIS received 167 comments during the public comment period for this rulemaking action. USCIS considered the comments received in the development of this final rule.

II. Summary of the Final Rule

The final rule adopts many of the requirements set forth in the proposed rule. The rationale for the proposed rule and the reasoning provided in the preamble to the proposed rule remain valid and USCIS adopts the reasoning in the preamble of the proposed rule in support of the promulgation of this final rule.

USCIS made several changes based on the comments received. The significant provisions of the final rule and changes from the NPRM are summarized below and discussed in Section III ``Responses to Public Comments on the Proposed Rule.''

In addition, for ease of reference, USCIS duplicated definitions where both the immigrant worker and nonimmigrant worker provisions used the same words or phrases. Therefore, definitions such as ``bona fide nonprofit religious organization in the United States,'' ``religious denomination,'' and ``minister'' are identical in both 8 CFR 204.5(m)(5) and 8 CFR 214.2(r)(3).

A. Petitioning and Attestation Requirements

The NPRM proposed to require that all aliens seeking religious worker statuswhether as special immigrants or nonimmigrantsmust have a sponsoring employer or organization submit a petition on the aliens' behalf. This final rule retains the petitioning requirement, but continues to allow an alien seeking special immigrant religious worker status to submit a petition (Form I360) on his or her behalf. New 8 CFR 204.5(m)(6). A nonimmigrant alien seeking R1 status cannot selfpetition, but must have an employer submit a petition (Form I129) on his or her behalf. 8 CFR 214.2(r)(7). By implementing the petition requirement, USCIS seeks to preserve the integrity of the program at the outset by denying the petition for fraud or other ineligibility factors. It also allows both USCIS and the petitioning religious employer to respond to derogatory information revealed by onsite inspections before the petition is denied.

In addition to filing the required form and associated petitioning fee, under this final rule, an authorized official of the petitioning employer must attest to a number of factors; including, but not limited to: (i) That the prospective employer is a bona fide nonprofit religious organization or a religious organization which is affiliated with the religious denomination and is exempt from taxation; (ii) the number of members of the prospective employer's organization, the number of aliens holding religious worker status (both special immigrant and nonimmigrant) and the number of petitions filed by the employer for such status within the preceding five years; (iii) the complete package of salaried or nonsalaried compensation being offered and a detailed description of the alien's proposed daily duties; and (iv) that an alien seeking special immigrant religious worker status will be employed at least 35 hours per week and an alien seeking nonimmigrant religious worker status will be employed for at least 20 hours per week. See e.g., new 8 CFR 204.5(m)(7); 214.2(r)(8). B. Denial, Revocation and Appeals Processes

This final rule adds a provision for a petitioner to appeal the denial of a nonimmigrant petition. New 8 CFR 214.2(r)(17). This final rule also adds a process for USCIS to revoke a nonimmigrant religious worker petition at any time, and a process for the petitioner to appeal a determination by USCIS to revoke the petition. New 8 CFR 214.2(r)(18) and (19). These appeal and revocation procedures have been added to the final rule, although they were not published for public comment in the proposed rule, to ensure consistency among the employmentbased nonimmigrant visas. The nonimmigrant visa classifications at 8 CFR 214.2(h), (l), (o), (p), and (q) provide appeal and revocation [[Page 72278]]
procedures similar to those added by this rule. Using the same standards for all employmentbased nonimmigrant visas will ensure a fair and uniform process. Furthermore, adding revocation procedures to the final rule will enable USCIS to take immediate action against nonimmigrants who submit fraudulent petitions or engage in fraudulent activities while in the United States. Implementation of these revocation procedures will safeguard the interests of petitioners as there is an appeal process for petitions revoked on notice and an appeal process for petitions that are denied.

C. IRS Determination Letter

USCIS also is retaining the requirement proposed in the NPRM that a petitioner must file a determination letter from the Internal Revenue Service (IRS) of the taxexempt status of the petitioning religious organization under Internal Revenue Code (IRC) 501(c)(3), 26 U.S.C. 501(c)(3). USCIS acknowledges that obtaining a determination letter from the IRS will require the organization to pay a user fee to IRS. If, however, the organization has already obtained a determination letter, those letters do not expire and the organization does not need to obtain a separate letter for purposes of this rule. An organization, therefore, will only need to pay a fee once to obtain the required determination letter.

D. USCIS OnSite Inspections

USCIS is retaining in this final rule the provision that USCIS may verify supporting evidence provided by a petitioner through any appropriate means, including an onsite inspection of the petitioning organization. 8 CFR 204.5(m)(1); 214.2(r)(12). Such inspections may include a tour of the organization's facilities, an interview with organization officials, review of selected organization records relating to the organization's compliance with immigration laws and regulations, and interviews with any other individuals or review of any other records that USCIS considers pertinent to the integrity of the organization.
E. Period of Initial Admission and Extension of Status for R1 Workers

Under the INA, nonimmigrant religious workers may be admitted to the United States for a period not to exceed five years. INA section 101(a)(15)(R), 8 U.S.C. 1101(a)(15)(R). USCIS's current regulations provide for an initial period of admission of three years for nonimmigrant religious workers, with the opportunity to petition for an extension of stay for two additional years. In the NPRM, USCIS proposed to change this to a oneyear initial period of admission and the opportunity to petition for two extensions of two years each. USCIS has changed this provision. Under this final rule, nonimmigrant religious workers may obtain an initial period of admission of up to 30 months and then may obtain one extension of religious worker status for up to 30 months, for a total of no more than 60 months (the fiveyear statutory maximum) lawful status in the United States as nonimmigrant religious workers. See 8 CFR 214.2(r)(4) as amended. As with the initial petition for nonimmigrant religious worker status, however, the employer must submit the petition for an extension of stay (Form I 129).

F. Compensation Requirements

USCIS also clarified in this final rule the compensation requirements for nonimmigrant and special immigrant petitions. With limited exceptions, the beneficiary of an initial petition for R1 nonimmigrant status must be compensated either by salaried or non salaried compensation, and the petitioner must provide verifiable evidence of such compensation. If there is to be no compensation, the petitioner must provide verifiable evidence that such noncompensated religious workers will be participating in an established, traditionally noncompensated, missionary program within the denomination, which is part of a broader international program of missionary work sponsored by the denomination. The petitioner must also provide verifiable evidence of how the aliens will be supported while participating in that program. Petitioners must submit verifiable evidence of past compensation or support for nonimmigrants with any extension of status request for such nonimmigrants. Special immigrant petitioners must submit verifiable evidence of: (1) How the petitioner intends to compensate the alien and (2) past compensation or support to demonstrate the required previous two years of religious work. See e.g., 8 CFR 204.5(m)(7)(xi), (xii) and (10), 214.2(r)(11).

G. SelfSupporting Nonimmigrant Aliens

The final rule places limits on the ability of uncompensated, self supporting nonimmigrant aliens to obtain status as nonimmigrant religious workers. USCIS regulations currently do not expressly prohibit the admission of uncompensated employees as R1 religious workers. In the NPRM, USCIS proposed to require that a nonimmigrant alien obtain a form of demonstrable compensationeither in salary or such inkind support as room and boardand proposed to prohibit R1 status for aliens who were not compensated by the organization or were selfsupporting. 72 FR at 20453. This final rule departs from the NPRM by continuing to allow the admission of some uncompensated nonimmigrant alien workers under the R1 visa classification, but restricts such admission to those workers who are part of an established program for temporary, uncompensated missionary work which is part of a broader international program of missionary work sponsored by the denomination. Given the great potential for fraud and abuse of the R1 program that arises from allowing the petitioning entity to be exempted from the general requirement that it compensate its R1 workers, it is reasonable to restrict sponsorship of selfsupporting R1 workers to the narrowest possible class of religious entities that might traditionally rely on such workers. Based on the comments received from the public, USCIS has determined that class to be the class of religious entities directing international missionary programs.

This final rule defines an established program for temporary, uncompensated missionary work to be a missionary program in which: (1) Foreign workers, whether compensated or uncompensated, have previously participated in R1 status; (2) missionary workers are traditionally uncompensated; (3) the organization provides formal training for missionaries; and (4) participation in such missionary work is an established element of religious development in that denomination. See new 8 CFR 214.2(r)(11)(ii). The purpose of the rule is to detect and deter fraud and other abuses in this program. Allowing new missionary entities, who have never undergone a site visit and the other protections the R1 program affords DHS, to petition for self supporting R1 workers poses an unacceptable risk. Significantly, as discussed below, selfsupporting missionary workers who are not beneficiaries of a petition filed by an entity with an established missionary program, and thus are not eligible for admission to the United States as R1 nonimmigrant religious workers, may still pursue admission in the B1 classification. 8 CFR 214.2(b)(1). See also 9 FAM 41.31 N9.1.

In such cases, the petitioner must submit evidence, such as books, articles, brochures or similar documents, demonstrating that the organization has an established program for
[[Page 72279]]
uncompensated missionary work and that the denomination maintains missionary programs both in the United States and abroad. Furthermore, the books, articles, brochures or other documents must describe the religious duties associated with the traditionally uncompensated missionary work. The evidence must include specific documentation of the alien's acceptance into the program and set forth any
responsibilities the alien will assume while participating in the program. The evidence should also include copies of the alien's foreign and/or U.S. bank records with English translations, as appropriate, for the twoyear period preceding the filing of the petition, alien's bank records, budgets documenting the sources of selfsupport (e.g. personal or family savings, room and board with host families in the United States, donations from the denomination's churches), or other verifiable evidence acceptable to USCIS. All evidence submitted to USCIS is handled in accordance with the Privacy Act and FOIA. To deter fraud, USCIS may refer determinations of whether such a program is selfsupporting or taxable income to the Internal Revenue Service. H. Definition of ``Religious Occupation''

The final rule also removes the examples of employment positions from the proposed definition of ``religious occupation.'' The listed employment positions were only examples, but commenters appeared to believe that the examples represented an exhaustive or biased list of employment positions that were eligible for religious worker status and that the list was tailored only to JudeoChristian organizations. USCIS has removed those examples to eliminate confusion.\3\ The final rule, however, clarifies that religious organizations must submit evidence identifying religious occupations that are specific to that denomination. Additionally, the petitioning organization must submit evidence demonstrating that an alien's proposed duties meet the religious occupation's requirements.
\3\ The examples provided for ``religious vocation'' however remain in 8 CFR 204.5(m)(5) and 214.2(r)(3).

USCIS also has made changes in the final rule to improve its clarity and readability. For example, all definitions are included in both 8 CFR 204.5(m) and 214.2(r).

III. Public Comments on the Proposed Rule

USCIS provided a 60day comment period for the proposed rule that ended on June 25, 2007. USCIS subsequently reopened the comment period for an additional 15 days, from November 1, 2007, to November 16, 2007. See 72 FR 61821 (Nov. 1, 2007). In drafting the final rule, USCIS considered all comments received during the entire comment period.

USCIS received 167 comments during the comment period. USCIS received comments from a broad spectrum of individuals and organizations, including religionbased refugee and immigrant services and advocacy organizations, religious groups of varying denominations, public policy and advocacy groups with religious affiliations, and individuals. Many commenters addressed multiple issues. Many comments provided variations on the same substantive issues or were identical in content to others.

USCIS considered the comments received during the comment period and all other materials contained in the docket in preparing this final rule. All comments may be reviewed at the Federal Docket Management System (FDMS) at http://www.regulations.gov, docket number USCIS2005 0030.

A. General Comments

Commenters strongly supported the increased efforts to combat fraud in the religious worker categories. Many commenters, however, disagreed with the proposed methods to combat such fraud. Some comments criticized the USCIS Benefit Fraud Assessment's (BFA) methodology and findings of fraud in the religious worker category. Many commenters supported onsite inspections as a way of eliminating fraud; however, commenters were concerned that onsite inspections might be too intrusive or might be required for each petition.

A substantial number of commenters addressed the definitions in the proposed regulation, including the definitions of ``religious occupation,'' ``religious vocation,'' ``minister,'' and ``religious denomination.'' Some of these commenters suggested that a number of definitions were too narrow, because, in the opinion of the commenters, they only contemplated workers who are members of JudeoChristian denominations. Many commenters argued that the initial evidence, attestation, compensation, and tax documentation requirements were too stringent. Commenters objected to the new requirement that petitions be filed on behalf of all nonimmigrant as well as special immigrant religious workers. The commenters frequently disagreed with the proposal to change the lengths of the initial period of stay and renewal periods for nonimmigrant religious worker visas. Several commenters suggested that elements of the proposed rule violated constitutional principles. The specific substantive comments organized by subject area are summarized below.

B. Definitions

The applicable definitions for applicants and petitioners for religious worker classification are set forth in 8 CFR 204.5(m)(5) and 214.2(r)(3). The final rule adds several definitions, and expands or clarifies others. The amendments and additions discussed below, unless otherwise noted, apply to both nonimmigrants and immigrants. In the proposed rule, the definitions were found in the immigrant section, with only a cross reference in the nonimmigrant section. However for ease of reference, the entire set of definitions is now included in both 8 CFR 204.5(m)(5) and 8 CFR 214.2(r)(3).

1. Bona Fide NonProfit Religious Organization

Several commenters objected to the proposed requirement that petitioners must file a determination letter from the IRS of taxexempt status under IRC section 501(c)(3), 26 U.S.C. 501(c)(3), with every petition. Commenters pointed out that the IRS does not require churches to request a determination letter to qualify for taxexempt status. A designation that an organization is a ``church'' is sufficient to qualify for taxexempt status. Although some churches choose to request a formal IRC section 501(c)(3) determination, they are not required to do so. In addition, several comments stated that many churches cannot afford to pay the fees associated with requesting an IRC section 501(c)(3) determination letter.

Many commenters requested clarification of the proposed rule's requirement that a petitioner submit a currently valid IRS determination letter, pointing out that an exemption letter does not expire. One denomination asked that the final regulation specifically state that organizations classified as taxexempt under IRC section 501(d), 26 U.S.C. 501(d), may qualify as bona fide organizations.

USCIS recognizes that the IRS does not require all churches to apply for a taxexempt status determination letter, but has nevertheless retained that
[[Page 72280]]
requirement in this final rule. See Internal Revenue Service, Tax Guide for Churches and Religious Organizations: Benefits and Responsibilities under the Federal Tax Law (IRS pub. no. 1828, Rev. Sept. 2006). A requirement that petitioning churches submit a tax determination letter is a valuable fraud deterrent. An IRS determination letter represents verifiable documentation that the petitioner is a bona fide taxexempt organization or part of a group exemption. Whether an organization qualifies for exemption from federal income taxation provides a simplified test of that organization's nonprofit status.

Requiring submission of a determination letter will also benefit petitioning religious organizations. A determination letter provides a petitioning organization with the opportunity to submit exceptionally clear evidence that it is a bona fide organization.

USCIS recognizes that some religious groups and churches may be classified as taxexempt under IRC section 501(d), 26 U.S.C. 501(d). Unlike an IRC section 501(c)(3), 26 U.S.C. 501(c)(3), tax determination letter, however, an IRC section 501(d) taxexempt determination does not establish the nonprofit status of a religious organization or church. The INA requires that the petitioning religious organization be a bona fide nonprofit organization. INA sections 101(a)(15)(R) and (27)(C)(ii)(III), 8 U.S.C. 1101(a)(15)(R) and (27)(C)(ii)(III). USCIS further understands that some churches could ``engage in business for the common benefit of the members,'' and their members obtain pro rata shares of these funds, which may render the church ineligible for IRC section 501(c)(3) taxexempt status. As discussed elsewhere, the R1 status is not exclusive and religious workers may be admitted under other provisions of the INA. However, given the high incidence of fraud found in the religious worker program, which was found to be tied to the validity of the organization itself, an organization must apply for and receive an IRC section 501(c)(3) determination letter to demonstrate nonprofit status if that organization wishes to utilize either the R1 nonimmigrant or the special immigrant religious worker program. If an IRC section 501(d) exempt organization cannot qualify for IRC section 501(c)(3) status, and is thus unable to petition on behalf of nonimmigrant religious workers under the R1 classification, other nonimmigrant visa categories may be appropriate for that organization's purposes, such as the nonimmigrant B1 category.

USCIS acknowledges that obtaining a determination letter from the IRS will require the payment of a user fee to the IRS, as discussed in the proposed rule, if the organization does not possess its original determination letter. 72 FR at 20449. USCIS has, however, confirmed with the IRS that determination letters do not expire. Therefore, an organization will need to pay a fee only once to obtain a determination letter. Although USCIS will accept determination letters of any date, USCIS may request evidence or confirm that the exemption is still valid. For example, if the address on the letter differs from the address given in the petition, an explanation should be provided. USCIS has retained the reference to ``currently valid'' determination letters in the rule text to emphasize that a letter revoked by the IRS cannot be used to meet the definition of taxexempt organization under the INA. USCIS will routinely examine the publicly available tax documentation for the petitioning organization to determine the ability of the organization to provide support, will consult with the IRS on whether any petitioning organization is validly exempt from taxation under IRC section 501(c)(3), 26 U.S.C. 501(c)(3), and may refer to IRS Publication 78, Cumulative List of Organizations, to verify whether the determination letter is current.

USCIS will routinely consult with the IRS on whether any petitioning organization is validly exempt from taxation under IRC section 501(c)(3), 26 U.S.C. 501(c)(3), and may refer to IRS Publication 78, Cumulative List of Organizations, to verify whether the determination letter is current. Although existing regulations permit applicants to submit material to USCIS regarding an applicant's non profit status, the Department of Homeland Security (DHS) has determined that antifraud efforts, economy, and efficiency warrant the use of the formal IRS determinations, rather than an independent determination by USCIS. The IRS routinely makes decisions concerning the nonprofit nature of organizations seeking taxexempt status. Furthermore, INA sections 101(a)(15)(R) and (27)(C)(ii)(III), 8 U.S.C. 1101(a)(15)(R) and (27)(C)(ii)(III) use specific terminology that indicates the IRS is an appropriate agency to make determinations as to whether an organization is qualified to apply for religious worker visa benefits. 2. Ministers

The proposed regulation defined a ``minister'' as ``an individual duly authorized by a religious denomination, and fully trained according to the denomination's standards, to conduct religious worship and to perform other duties usually performed by authorized members of the clergy of that denomination.'' Several commenters asserted that the proposed definition of ``minister'' was too narrow. The proposed rule also required specific evidence of ordination and training the minister had received. Several commenters interpreted the new definition as requiring ministers to have completed their training at a seminary or similar institution. Additionally, those commenters stated that not all religions require a formal theological education at an accredited theological institution. Other comments suggested that the concept of ``fully trained'' when referring to a minister's training is too vague in the context of a religion that has many levels of training for its ministers.

USCIS did not intend the definition of ``minister'' to require a uniform type of training that all denominations would have to provide their ministers. In the preamble to the proposed rule, USCIS acknowledged that some denominations do not require a particular level of formal academic training or experience. See 72 FR at 20445. Additionally, the proposed rule recognized that training varies among denominations and, for that reason, the question of whether a minister has met the denomination's training standards is resolved by reference to that denomination's own standards. The rule permits a petitioning organization to submit evidence of the individual denomination's requirements for ordination to minister, the duties allowed to be performed by virtue of ordination, and the denomination's levels of ordination, if any. The definition of ``minister'' set forth in the proposed rule is retained in the final rule.

3. Religious Denomination

Many commenters criticized the proposed definition of ``religious denomination'' because it required a denomination to have an ``ecclesiastical government.'' Commenters interpreted this definition as potentially excluding denominations whose member religious organizations share a common creed but lack a common organizational structure or governing hierarchy. The commenters feared that, as a result, religious organizations without a central government would be unable to hire workers from abroad. However, as explained in the preamble to the proposed rule, the definition of ``religious denomination'' does not
[[Page 72281]]
require a hierarchical governing structure. 72 FR at 20445. USCIS is aware that some denominations officially shun such structures. The focus of the regulation is, instead, on the commonality of the faith and internal organization of the denomination. Thus, an individual church that shares a common creed with other churches, but which does not share a common organizational structure or governing hierarchy with such other churches, can satisfy the ``ecclesiastical government'' requirement of the ``religious denomination'' definition by submitting a description of its own internal governing or organizational structure. Minor changes were made to the definition as set forth in the proposed rule for clarity and the provision regarding group tax exemptions was moved to the definition of taxexempt organization where it is more germane.

4. Religious Occupation

The proposed rule provided examples of qualifying religious occupations. Many commenters stated that the list of example occupations was too narrow and that the examples applied only to Judeo Christian religions. Those commenters suggested broadening the examples to account for religions other than JudeoChristian faiths.

USCIS acknowledges the commenters' concerns regarding the examples. The list was neither exhaustive nor more than exemplary. USCIS has, however, removed the list of examples because it created confusion about the scope of the definition of ``religious occupation.'' The list was only illustrative and not necessary to the rule. As discussed in the original rules implementing the religious worker categories, and in the proposed rule, the list was derived from the legislative history. See 72 FR at 20446.

When adjudicating petitions, USCIS will rely on the general definition of a ``religious occupation.'' Petitioners must demonstrate that the occupation relates primarily to a traditional religious function that is recognized as a religious occupation within the denomination.

A significant number of commenters opposed the inclusion of all administrative positions in the list of positions that may not be found to be religious occupations. The comments stated that, unlike secular administrators, religious administrators exercise religious leadership and policymaking duties that may directly affect the practices of the denomination. USCIS generally agrees with the commenters; thus, this rule does not disqualify all administrative positions, but only those positions that are primarily administrative. Under the rule, a position including limited administrative duties may qualify as a religious occupation, provided such duties are incidental to substantive, traditionally religious functions.

One commenter was concerned that the proposed regulation excludes ``those who sell literature'' as a qualifying religious occupation because distribution of literature can be an inherently religious activity. The notion of canvassing, including selling literature, has a long history in the United States and USCIS acknowledges that history. USCIS does not agree, however, that selling literature alone is a basis for admission of an alien to the United States as a religious worker, but has removed ``those who sell literature'' from the list of excluded occupations as well as the other nonqualifying examples. Fundraising is prohibited from qualifying as a religious occupation, but whether a position that involves selling literature may qualify as a religious occupation will depend on the evidence submitted.

USCIS does not intend to limit legitimate religious vocations under this final rule, and USCIS will consider all of the relevant law in making such determinations. In this final rule, USCIS is establishing requirements for determining whether any religious organization may seek the admission of an alien into the United States for religious vocation and other related purposes under a specific visa
classification. These regulations are designed to establish the bona fide nature of the organization and the occupation under the statute, and the petitioning organization is responsible for establishing facts supporting its application. Moreover, the petitioning organization is responsible for establishing that the specific occupation requires specific actions as a part of the beliefs of that organization, and that those evidentiary elements must lead USCIS to conclude that any limitation in the regulation could not be applied to the applicant in light of constitutional or statutory limitations.

5. Religious Vocation

The proposed regulation defined ``religious vocation'' as ``a formal lifetime commitment to a religious way of life.'' Several commenters objected to the lifetime requirement, stating that religious vocations in many religious denominations do not require a lifetime commitment. Thus, some commenters concluded that employees who will practice a religious way of life during their proposed period of stay in the United States, but who do not necessarily make a lifetime commitment to such a life, such as missionaries or novitiates, could not qualify as religious workers. Additionally, the commenters interpreted the proposed definition of ``religious occupation'' as requiring employees to receive traditional salaries, thus excluding employees who receive nonsalaried compensation such as room and board. The commenters also interpreted the ``religious occupation'' and ``vocation'' definitions as excluding nonimmigrants who rely on self support. Due to the confusion over the proposed definitions of both ``religious vocation'' and ``religious occupation,'' some commenters concluded that certain types of religious workers would not be able to qualify for visas as they would not be covered by either of the proposed definitions.

USCIS will retain the definition of ``religious vocation'' as stated in the proposed rule; however, as explained in detail below, clarifications in the compensation requirements for all nonimmigrant religious workers were made in response to commenters' concerns. USCIS clarifies that, under certain circumstances, nonsalaried support may qualify as compensation. Additionally, USCIS clarifies that under certain circumstances, as explained in detail below, nonimmigrant beneficiaries who will be selfsupporting may qualify for admission under the ``occupation'' or ``religious vocation'' definitions.

Missionaries and novitiates who cannot be classified as religious workers coming to the United States to perform a religious vocation because vocations in their denomination do not require a lifetime commitment should nevertheless be able to qualify as religious workers under the ``religious occupation'' definition.

C. Compensation Requirements

USCIS proposed to add a requirement that the alien's work, under both the immigrant and nonimmigrant programs, be compensated by the employer. Specifically, the rule proposed amending the definition of ``religious occupation'' to require that an occupation be
``traditionally recognized as a compensated occupation within the denomination.'' Commenters were concerned that the proposed rule would exclude many religious workers who do not receive salaried compensation, but may receive stipends, room, board, or medical care, or who may rely on other resources such as personal savings, rather than salaried or nonsalaried compensation.

In response to the commenters' concerns, USCIS is clarifying that [[Page 72282]]
compensation can include either salaried or nonsalaried compensation. Under the Internal Revenue Code, nonsalaried support, such as stipends, room, board, or medical care, qualifies as taxable compensation unless specifically excluded. See IRC section 119, 26 U.S.C. 119; 26 CFR 1.1191 (exclusion for lodging provided for convenience of employer). The IRS applies special rules for housing, for example, to members of the clergy. Under these rules, clergy do not include in income the rental value of a home (including utilities) or a designated housing allowance provided to clergy as part of their pay. The home or allowance must be provided as compensation for services as an ordained, licensed, or commissioned minister. The rental value of the home or the housing allowance must be included as earnings from selfemployment on Schedule SE (Form 1040) if the clergy is subject to the selfemployment tax. See generally Internal Revenue Service, Social Security and Other Information for Members of the Clergy and Religious Workers, Publication 517.

Commenters objected to being required to submit tax documents to demonstrate nonsalaried compensation.

USCIS intends to apply the documentation and determinations made by the IRS and the basis for making those determinations as closely as possible. USCIS does not possess the expertise to make determinations of taxexempt status or the fine points of gross and adjusted income. The comments have not provided a basis for USCIS to make these determinations without a record based on the application of the existing tax laws to both organizations and individuals.

Several commenters stated that the proposed compensation requirement would exclude programs that traditionally utilized only selfsupporting religious workers from participating in the R1 visa program. The comments noted that religious workers who are self supporting receive neither salaried nor nonsalaried compensation; instead, they may rely on a combination of resources such as personal or family savings, room and board with host families in the United States, and donations from the denomination's local churches. Additionally, the comments noted that selfsupporting religious workers are currently admitted under the R1 visa program. In response, the final rule will continue to allow these aliens to be admitted under the R1 visa classification. USCIS will, however, to preserve its ability to prevent fraud, permit selfsupporting religious workers only under very limited circumstances, and, consistent with other provisions of the final rule, require specific types of documentation.

The change provides that if the nonimmigrant alien will be self supporting, the petitioner must submit documentation establishing that the position the alien will hold is part of an established program for temporary, uncompensated missionary work within the organization, which is part of a broader, international program of missionary work sponsored by the denomination.

USCIS again notes that the religious worker visas are not the exclusive means by which an alien may be admitted to the United States to perform selfsupported religious work, including missionary work. Current regulations specifically provide for the admission of missionaries under the general visitor for business visa:

Any B1 visitor for business or B2 visitor for pleasure may be admitted for not more than one year and may be granted extensions of temporary stay in increments of not more than six months each, except that alien members of a religious denomination coming temporarily and solely to do missionary work in behalf of a religious denomination may be granted extensions of not more than one year each, provided that such work does not involve the selling of articles or the solicitation or acceptance of donations. 8 CFR 214.2(b)(1). See also 9 FAM 41.31 N9.1. Therefore, self supporting religious workers who are not eligible for admission to the United States as R1 nonimmigrant religious workers may pursue admission in the B1 classification.

D. Petitioning Requirements

The proposed rule introduced the new requirement that a petitioner must file a petition on the alien's behalf with USCIS before the Department of State (DOS) will issue a nonimmigrant visa to the alien. Previously, aliens seeking nonimmigrant religious worker status could apply directly to USCIS or, from out of the country, through the DOS. Many commenters questioned whether USCIS has the statutory authority to require religious organizations to file petitions for nonimmigrants. While nothing in the INA specifically states that a petition is required for nonimmigrant religious workers, nothing prohibits it. In addition, the Secretary of Homeland Security has the general authority to promulgate regulations to implement the immigration laws, INA section 103(a)(1), 8 U.S.C. 1103(a)(1), and must specifically, under INA section 214(a), 8 U.S.C. 1184(a), prescribe by regulation the time and under what conditions a nonimmigrant may be admitted to the United States. Congress has found it reasonable to implement a petition requirement in other nonimmigrant programs. USCIS is implementing the petition requirement for nonimmigrant religious workers as a way to determine that a minister will be admitted to the United States to work for a specific denomination and that other religious workers will be admitted to work for a specific religious organization at the request of that organization. Requiring a petition for every nonimmigrant will also deter fraud and allow USCIS to detect fraud earlier in the process. Therefore, the final rule retains the nonimmigrant petition requirement.

This final rule also includes a provision for a petitioner to appeal a determination by USCIS to deny a petition. See 8 CFR 214.2(r)(17). USCIS also is establishing a process for USCIS to revoke a petition once granted, and for the petitioner to appeal a revocation decision. 8 CFR 214.2(r)(18) and (19).

Numerous commenters stated that, for various reasons, the new petitioning requirement would delay nonimmigrant visa approvals. Commenters also said that the Department of State (DOS) has substantial expertise adjudicating religious worker visas; consequently, religious worker visas are promptly processed (a result lauded by the commenters), while still identifying potential fraud. Some commenters suggested that, if petitions are required for all religious workers, the final rule should limit the amount of time that USCIS takes to process the petitions. Additionally, several commenters recommended that to speed processing of petitions, USCIS should precertify religious organizations as valid employers.

USCIS acknowledges the concerns of commenters that requiring a petition for all religious workers could delay issuing a visa. However, the petition requirement is essential to preventing fraud in the religious worker program. While DOS consular officers do have experience with nonimmigrant religious workers, they are not in a position to determine the bona fides of a religious organization located in the United States. Requiring an approved petition will assist consular officers in making a decision on religious worker nonimmigrant visa applications. Furthermore, at this time, the USCIS California Service Center is processing all religious nonimmigrant and immigrant religious worker petitions. This specialization promotes expertise
[[Page 72283]]
that leads to prompt processing of religious worker petitions.

Several commenters asked USCIS to establish a blanket approval or precertification program for religious organizations. USCIS understands the commenters' concerns. A precertification process could benefit religious organizations and USCIS, by reducing the petitioning burden on bona fide nonprofit religious organizations. However, the proposed rule did not include a blanket approval or precertification program. USCIS must carefully evaluate how such a process would work, establish criteria that a religious organization would have to meet, determine a precertification validity period, and promulgate regulations governing requirements to be precertified. An agency is not required to adopt a final rule that is identical to the proposed rule and in fact agencies are encouraged to modify proposed rules as a result of the comments they receive. However, final rules ultimately adopted can only include those changes that the interested public could view as logical based on what was proposed. In this case, USCIS does not believe that the proposed rule provided sufficient notice that the final rule may contain precertification requirements and will thus not adopt the commenters' suggestion. USCIS will consider approaches to addressing the issues presented by the comments, including a possible future rulemaking to provide for a precertification process. The final rule does not preclude USCIS from considering the history of an organization's petitions in determining whether to grant a specific petition, and USCIS may consider that history in each individualized consideration.

E. OnSite Inspections

Several commenters supported onsite inspections that are tailored to detect fraud, but do not intrude on religious organizations' privacy. However, a number of commenters questioned onsite inspection procedures, requirements, and potential consequences. The comments stated that the regulations should establish deadlines for USCIS to complete onsite inspections; otherwise, petition processing backlogs could result. Other comments said the results of site inspections should be reviewable. Some argued that the proposed rule provided no guidelines regarding the scope of onsite inspections. The undefined scope, according to some comments, might encourage overzealousness by USCIS or lead to denials solely based on the results of an onsite inspection. Commenters objected to the prospect of unannounced site inspections.

USCIS, like all Federal agencies, must carry out administrative activities that ensure the integrity of the benefit programs it administers. Onsite inspections are a useful tool to verify the legitimacy of information contained in applications and petitions, the continued eligibility for a benefit, and the legitimacy of petitioners. Therefore, this rule does not modify the proposed regulations pertaining to onsite inspections. If an onsite inspection yields derogatory information not known to the petitioner, USCIS will issue a Notice of Intent to Deny (NOID) the petition. See 8 CFR 103.2(b)(16). The petitioner may then submit additional documentation that may rebut the derogatory evidence. In addition, a denial of a petition may be appealed to the USCIS Administrative Appeals Office. See 8 CFR 204.5(n)(2) and 214.2(r)(13).

USCIS acknowledges that processing delays occurred when USCIS inaugurated the onsite inspection program. As USCIS has gained experience with the program, however, delays have decreased. Additional resources, including personnel, have been dedicated to the program and process improvements. USCIS intends to commit more resources and personnel to the program in the near future. To determine the status of a petition, petitioners may consult the USCIS Web site or contact the National Customer Service Center to obtain the status of petitions. If the National Customer Service Center cannot provide an answer, the inquiry will be referred to the California Service Center customer service division.

The proposed rule and the final rule use a list of different terms to describe the onsite inspections. The list was revised in the final rule to include more commonly used terms such as compliance review. The intent is not to assign one specific name, but to give notice to petitioners that such reviews may be part of the religious worker program.

To allay commenters' concerns about possible abuse of the onsite inspection process, USCIS will establish additional communications processes for petitioners to report alleged abuses. Information regarding this will be posted on the USCIS Web site. Waste, fraud, and abuse should also be reported to the DHS Inspector General. F. Religious Freedom Restoration Act of 1993 (RFRA)

Commenters asserted that the proposed regulation would violate the First Amendment, Const. of the United States, Amdt. I (1791), and the Religious Freedom Restoration Act of 1993, Public Law 103141, sec. 3, 107 Stat. 1488 (Nov. 16, 1993) (RFRA), found at 42 U.S.C. 2000bb1, by placing a substantial burden on a religion that is not in the furtherance of a compelling government interest, or at least not furthered by the least restrictive means. Some commenters stated that preventing fraud was commendable but that a compelling government interest has not been established. Several commenters said that filing petitions for nonimmigrants or having to request an extension of status after only one year would place undue financial and paperwork burdens on religions. Additionally, the commenters stated that the proposed definitions of religious occupation and religious vocation prohibited their denominations from utilizing the program.

USCIS disagrees with the specific notion that the final rule violates the RFRA. The RFRA provides:

Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability, except * * * if it demonstrates that application of the burden to the person
(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.
Public Law 103141, sec. 3, 42 U.S.C. 2000bb1. The final rule is intended to permit religious organizations to petition for admission of religious workers under restrictions that have less than a substantial impact on the individual's or an organization's exercise of religion. A petitioner's rights under RFRA are not impaired unless the organization can establish that a specific provision of the rule imposes a significant burden on the organization's religious beliefs or exercise. Further, this rule is not the sole means by which an organization or individual may obtain admission to the United States for religious purposes, and DHS believes that the regulation, and other provisions of the INA and implementing regulations, can be administered within the confines of the RFRA. An organization or individual who believes that the RFRA may require specific relief from any provision of this regulation may assert such a claim at the time they petition for benefits under the regulation.

Nor does this final rule impose a ``categorical bar'' to any religious organization's petition for a visa or alien's application for admission.
[[Page 72284]]
Instead, the rule sets forth the evidentiary standards by which USCIS will adjudicate nonimmigrant and immigrant petitions.

USCIS also does not believe that the new requirements will reduce the diversity or types of religious organizations that practice in the United States or the types of religious workers whom religious organizations could hire. Changes have been made so that the final definitions of ``religious occupation,'' ``religious vocation,'' ``minister,'' and ``denomination'' will not prevent religious organizations from using the religious worker program as some commenters claimed. Additionally, rather than the proposed one year initial period of admission and two extensions of two years each, the final rule permits up to 30 months for the initial period of admission and one extension of up 30 months. Therefore, the final rule imposes a much smaller financial and paperwork burden on petitioners than the proposed rule.

Eradicating fraud where fraud has been determined to exist in one third of nonimmigrant visa petitions, as discussed in the proposed rule, is a compelling government interest to ensure the integrity of the immigration process as well as for the protection of national security. See 72 FR at 20442. Therefore, the final rule retains the requirements that a religious organization file a petition for each religious worker and submit an IRS determination letter establishing the organization's taxexempt status. Additionally, USCIS will maintain the discretion to conduct onsite inspections as USCIS believes they are the most effective and least restrictive means of combating fraud in the religious worker program.

USCIS will consider all of the factual evidence presented in support of a petition for a religious worker under the provisions of the rule. After reviewing the comments and the applicable law, however, USCIS does not believe that the evidentiary requirements of the rule constitute a violation of the RFRA.

G. Concurrent Filing

Some commenters suggested that the final regulation provide an option for special immigrant religious workers to concurrently file Form I360, Petition for Amerasian, Widow(er) or Special Immigrant, and Form I485, Application to Register Permanent Residence or Adjust Status. The commenters asserted that concurrent filing would speed up the process of granting permanent residence to religious workers. One commenter requested that concurrent filing not be permitted.

The comments seeking to allow concurrent filing have not been adopted. The Department is under a statutory mandate pursuant to the Special Immigrant Nonminister Religious Worker Program Act, S. 3606, Public Law No. 110391 (October 10, 2008), to issue this final rule ``to eliminate or reduce fraud'' in regard to the granting of special immigrant status to nonminister religious workers. The bar to concurrent filing is a valuable fraud deterrent in the entire special immigrant religious worker program. Prohibiting concurrent filing of the visa petition and adjustment of status application for special immigrant religious workers dissuades the filing of fraudulent petitions by or for ineligible and/or inadmissible aliens who might otherwise gain valuable benefits such as employment authorization while an immigrant petition is pending. For this reason, the Department believes that not allowing concurrent filing in this arena is necessary to protect the integrity of the religious worker program for eligible, bona fide religious organizations and their eligible employees.

Concurrent filing was implemented as an accommodation for business petitioners and to add efficiency to processing large backlogs for Form I140, Immigrant Petition for Alien Worker, that adversely impacted, among others, aliens wishing to adjust their status in the United States who could not file Form I485 until the Form I140 was approved. 67 FR 49561 (July 31, 2002). The policy decision to allow concurrent filing for Forms I140 was based on research into business employment based visa programs of the United States. The research showed that recruiters found that many talented employees worldwide were increasingly unwilling to tolerate the long waits and uncertainty entailed in immigrating to the United States. When professional workers encounter long delays, United States employers are at a disadvantage because foreign job candidates may decide to accept employment in countries with more expeditious employmentbased immigration programs. Concurrent filing has also been allowed if there is a current priority date in familybased preference categories or if an alien qualifies as an immediate relative. An underlying goal of the familybased visa program is the unification of families and concurrent filing supports this goal.

These rationales for allowing concurrent filing are not present in the religious worker context. Additionally, USCIS is not allowing concurrent filing given the high incidence of fraud in the program. USCIS did not propose to allow concurrent filing and has not added provisions in the final rule to provide for it. The United States is defending its previous decision not to allow concurrent filing of Forms I360 and I485, and has considered the litigation challenging that decision in reiterating that decision in this rulemaking.

H. Nonimmigrant Intent

The proposed rule would have clarified that an alien may come legitimately to the United States for a temporary period as an R nonimmigrant, depart voluntarily at the end of the period of authorized stay, and at the same time, lawfully seek to become a permanent resident of the United States. Several comments were received that generally supported this proposed provision. The final rule retains a provision on nonimmigrant intent that states that an R classification may not be denied solely because a labor certification or preference petition, including a Form I360, has been filed by or on behalf of the alien. However, the provision has been rewritten for clarity and readability.
I. Changes Unique to the Special Immigrant Religious Worker Classification

The proposed rule recognized that a break in the continuity of religious work during the two years immediately preceding the filing of the petition would not affect eligibility if the alien had been employed as a religious worker, the break did not exceed two years, and the nature of the break was for further religious training or for sabbatical and did not involve unauthorized work in the United States. Several commenters questioned whether the break in continuity would also apply to sick leave, pregnancy leave, spousal care, or vacations. As these events, for example sick leave and vacation, are typical in the normal course of any employment, they will not be seen as a break of the twoyear requirement as long as the alien is still considered employed during that time.
J. Changes Unique to the Nonimmigrant Religious Worker Classification

Currently, the initial admission period for nonimmigrant petitioners is up to three years, with a single extension of up to two years. USCIS proposed to reduce the initial admission to no more than one year with two potential extensions of up to two years each, not to exceed five years total. Commenters strongly objected to the proposed reduced period of admission
[[Page 72285]]
and shortened periods for extensions. The commenters expressed numerous reasons why this change would be burdensome. For example, filing three petitions would markedly increase costs to petitioners, such as USCIS form filing fees and legal fees, and the initial oneyear admission and the twoyear extensions would make it difficult to plan hiring needs and training programs.

Commenters made a variety of recommendations: Retain the current admission and extension scheme; provide an initial admission of up two years with one potential extension of up to thr

FOR FURTHER INFORMATION CONTACT

Emisa Tamanaha, Adjudications Officer, Business and Trade Services, Service Center Operations, U.S. Citizenship and Immigration Services, Department of Homeland Security, 111 Massachusetts Avenue, NW., 3rd Floor, Washington, DC 20529, telephone (202) 2721505.