While many churches seek to employ transnational employees to serve as worship leaders for transnational parishioners or to give a transnational flavor to worship, there are immigration law barriers and requirements. Such barriers and requirements, while more likely enforced in the present administration, have been present in one form or another throughout the 21st century and some beyond that. Almost sixty years ago, as a child watching Saturday morning cartoons on broadcast television in black and white transmissions, the Public Service Announcements broadcast in addition to used car sales commercials reminded aliens of the need to renew registration annually. Churches that must confront these laws should do so with qualified immigration law counsel.
In Liberty Church of the Assemblies of God v Pompeo, Memorandum and Order on Defendants’ Motion to Dismiss (D. Mass. 2020), the federal trial court dismissed the case challenging consular denial of a visa to a music worship leader from Brazil. The court invoked the Doctrine of Consular Non-reviewability. The music worship leader originally entered the United States under a Form I-129 application for “R” status filed by the church. The music worship leader worked in that role in 2019. However, in November of 2019, the music worship leader returned to Brazil to become engaged to his fiancée. He could not return to the United States under the original “R” status without first obtaining a new visa. The consular officers in Brazil ruled the music worship leader was ineligible and denied the visa. The basis given for the ruling was that the music worship leader had been in the United States for five years and there was no evidence of any intention to return to Brazil. Allegedly, the consular officers denied the application for the visa without review of any or all of the documentation submitted. The Doctrine of Consular Non-reviewability generally precludes a federal court from reviewing a consular officer’s decision to deny a visa because the issues raised are “non-constitutional.” The church argued that the decision of the consular officer denied the church’s First Amendment rights by violation of the Establishment Clause. However, the trial court held that refusal of a visa was not an entanglement with establishment of a religion. Also, there was no evidence submitted the religious beliefs of the music worship leader played any role in the decision.
If, indeed, the music worship leader was not to be sent back to Brazil by the church to continue ministry there, an immigration lawyer should have been consulted before he returned to Brazil for the engagement. Also, the opinion does not state whether either the church or the music worship leader engaged in efforts to obtain either permanent residency status or citizenship. However, churches should assume that regardless of the political orientation of the administration in any given era, church applications for “R” status will not be viewed with the same “open arms” as similar applications from businesses seeking to brain drain other countries. The same scenario reported in the case reported has been seen by the author in administrations by both major parties.
Church Litigation Update 