Category: church immigration


Because of the Pandemic of 2020-2021, courts across the United States have been closed, locked down, delaying hearings and trials, and generally more slowly reaching cases and resolving or ending disputes of all types. Even as the Pandemic has morphed into an endemic, if it is, to catch up the courts had to focus on criminal case dockets to the exclusion of all else. Thus, we have reached the 300th report on this website much later than might have been expected. That does not necessarily mean that there are fewer lawsuits involving churches. Indeed, during the Pandemic, governments on both oceanic coasts of the United States leaped to close, curtail or harass churches such that they, too, were closed or locked down. The reported case in this 300th report is a case in point.

Some denominations and churches import ministry talent from other countries to shore up their own or to train and return, to minister to immigrants through someone with their own heritage, and to diversify.  In Iglesia Pentecostal Casa De Dios Para Las Naciones, Inc. v Duke, 718 Fed. Appx. 646 (10th Cir. 2017), the federal court of appeals held that “love offerings” that were not documented by the church could not be used to comply with salary disclosure requirements to obtain an R-1 5-year visa pursuant to the Immigration and Nationality Act.  The 10th Circuit did not disdain “loving offerings” as compensation, but merely held if the church had no records of them at all the church could not use them as proof of compensation to obtain an R-1.  “Love offerings” could be used as proof of compensation if churches recorded the amount collected and paid to the minister.

In National Capital Presbytery v Mayorkas, Memorandum Opinion (DDC, 2021) the federal trial court in Washington DC reversed the denial of an R-1 visa renewal because the reasons for denial given by the United States Citizenship and Immigration Services (“USCIS”) and its appeals office violated the Religious Freedom Restoration Act (“RFRA”).  USCIS held that inconsistent R-1 application evidence was submitted that first stated the manner in which the minister was compensated was by amounts dedicated to housing, insurance, or salary but later changed it, without amending the Form I-129 application, to an annual lump sum, allegedly proving there was no commitment to pay the immigrant minister.  The federal trial court noted that in the DC Circuit it has been recognized that ministerial salary is “an internal matter of the religious institution affected.”  An internal church governance matter generally cannot be heard by a court or government agency because it is prohibited by the First Amendment Ecclesiastical Abstention Doctrine.  Because the subject of the R-1 was a minister, the Ministerial Exception applied as well.  The trial court held the USCIS action “substantially burdened [the denomination’s] religious exercise.”  The case was remanded to USCIS for a decision on whether the denomination could apply for the R-1 visa on behalf of one of its constituent churches even though the constituent church would be responsible for compensation of the minister.

Proving up compensation to support R-1 visa applications must include documentation of the manner of compensation (e.g., “love offerings,” salary, housing, medical insurance, etc.) and documentation of the availability of liquidity or historical income streams (e.g., church budgets, “love offerings”) to pay the compensation.  Proof the minister is for a fact a “minister” of the denomination or church must be included and will be more difficult for non-ecumenical denomination or church structures because of the lack of an identified and credible ecclesiastical licensure authority.


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.