Written by Meredith W. Barnette, Esq., Partner.
Running out of validity time on an R-1 religious worker visa while waiting for a green card to become available? Garfinkel Immigration Law Firm has had success assisting clients in this situation by switching them to an alternative nonimmigrant classification, like an H-1B visa.
What is the R-1 religious worker visa?
The R-1 visa is a nonimmigrant visa available to foreign nationals seeking to temporarily enter the United States to work as a minister or to perform a religious vocation or occupation.
Foreign nationals must meet the below criteria in order to be eligible for an R-1 religious worker visa:
- Be a member of a religious denomination that has a bona fide nonprofit religious organization in the U.S. for the immediate two-year period prior to filing the R-1 petition
- Be applying to work for a nonprofit religious organization in the U.S. that is a 501(c)(3) religious organization exempt from taxation
- Have membership in the same type of religious denomination for which they will work in the U.S.
- Be coming to the U.S. to work solely as a minister or in a religious vocation/occupation for at least 20 hours a week
- Be coming to the U.S. at the request of the R-1 petitioner and to work solely for that petitioner
R-1 visa petitions can be approved by United States Citizenship and Immigration Services (USCIS) for an initial stay of up to 2.5 years (30 months). An additional 2.5 year-extension (30 months) is usually available, for a total stay of up to five years.
Why are there delays in receiving green cards for these R-1 religious workers?
After the five-year period, R-1 religious workers either must return to their home country for at least one year, apply for and receive a green card, or switch to another nonimmigrant visa category.
Usually, R-1 religious workers file for an immigrant visa (green card) in the EB-4 Certain Religious Workers category. However, there have been extended delays in that category in the Visa Bulletin throughout FY2024 (Oct. 2023 – Sept. 2024), and they continued into the October 2024 edition, the first of FY2025 (Oct. 2024 – Sept. 2025).
For instance, the EB-4 Certain Religious Workers Dates For Filing chart was retrogressed until February 1, 2021 across all countries of chargeability in the September 2024 Visa Bulletin. There was then no movement in the October 2024 bulletin, with the Dates for Filing remaining exactly the same for all countries.
A change made by the Department of State (DOS) in April 2023 may be one reason for the increased retrogression. At that time, the DOS stopped separating out immigrant visas for those born in El Salvador, Guatemala and Honduras in the EB-4 category in the Visa Bulletin and began including those countries in the “All Other” chargeability section, which likely added to the backlog. Before April 2023, there was a much longer wait in the EB-4 category for El Salvador, Guatemala and Honduras than the “All Other” category.
The retrogression poses issues for R-1 religious workers because of the five-year maximum validity for the visa category discussed above. In some scenarios, employers have even lost valuable ministers, religious leaders and/or other key workers because of the immigrant visa backlog, which have caused these workers to lose work authorization and to return to their home country.
Extra employment authorization in nonimmigrant status could still be needed even if employers initiate the green-card process early in their employee’s R-1 status. One such strategy is for R-1 religious workers to switch to the H-1B visa category. This creative strategy has allowed Garfinkel Immigration Law Firm’s religious clients to retain their religious workers who are critical to their operations, mission and society.
Switching from R-1 to H-1B visa
As mentioned above, Garfinkel Immigration Law Firm has had success switching religious workers into the H-1B nonimmigrant category.
The H-1B visa is generally available for U.S. employers to fill a “specialty occupation” with a qualified foreign national. A specialty occupation is one that generally requires a bachelor’s degree or higher, or its equivalent, as a minimum, entry-level credential.
A legislatively established statutory cap limits approvals of new H-1B petitions in a fiscal year to 85,000, however, certain institutions and foreign nationals are “cap-exempt” and may be eligible to file an H-1B petition not subject to the numerical limits. This could include religious institutions, such as dioceses, churches, interfaith organizations, service groups and more.
In order to qualify for cap-exemption, the organization must first show it is considered a not-for-profit, a category in which all R-1 religious organization employers fit into. The organization then must prove it is affiliated with a college or university.
Religious institutions can demonstrate this affiliation by:
- Having a written agreement with a U.S. college or university which allows their seminary students to complete an internship at the religious organization.
- Having a written agreement with a U.S. college or university which permits students to lead youth groups, mentorship programs, outreach programs, bible studies, and/or more.
- Being associated with a U.S. college or university through shared ownership or control.
Showing such affiliation allows the R-1 religious workers employed by the organization to switch to the H-1B visa classification without concern about the cap for the applicable fiscal year.
Moving to the H-1B category has allowed those foreign nationals to receive work authorization in the United States for a maximum of six more years, in most circumstances. That has permitted them a total of 11 years of nonimmigrant employment authorization in the U.S. (five in R-1 status, six in H-1B status).
Other strategies
R-1 foreign nationals could potentially switch their visa into another nonimmigrant category depending on their home country as well as their education and experience level.
Further, those in R-1 status could apply for a green card in a different preference category, depending on availability in the Visa Bulletin and their eligibility. But, this strategy does have some drawbacks.
The EB-4 category does not require the foreign national to go through the PERM process, which is often the costliest and most time-consuming part of the green card process. Switching preference categories would likely negate the foreign national’s ability to skip that step.
The attorneys at Garfinkel Immigration partner with religious organizations and their nonimmigrant visa holders to help develop the best strategy if their R-1 employees are approaching their max out date for employment authorization.
Further reading
What is the R-1 religious worker visa?
Visa Bulletin and the green-card process