Tag: church immigration

POST 150: CHURCH IMMIGRATION ISSUES

Immigration law in the United States is not generally within the scope of this website and not within the expertise of the author. Nevertheless, church and para-church organizations are often embroiled in immigration law problems, especially in the border states. However, even in non-border states the issue comes up. Most church lawyers in most places have seen recurrent immigration problems. The problems involving only church members are problematic because the resources are not available to engage counsel. But, church and para-church organizations that have immigration issues are usually able to deploy sufficient resources and may be motivated to do so. The problems encountered usually involve the religious visa (“R-1 visa”) or the religious worker petition (“I-360 petition.”) See, Religious Freedom and Restoration Act of 1993 §3, 42 U.S.C. § 2000bb-1 (2006) (“RFRA”). For example, if a denomination or organization of churches funds mission work outside the United States, it may occasionally want in person reports made to member churches on the work from the foreign citizen missionaries themselves. But, the federal government has in the past declined R-1 visas or I-360 petitions if there is inadequate assurance the foreign citizen missionary will leave the United States upon expiration of the visa or petition.

In O Centro Espirita v Homeland Security, Memorandum and Order (NM 2018) the federal trial court granted an injunction against Homeland Security for denying an R-1 visa because the applicant, a foreign citizen minister, was not compensated by the para-church organization. The federal government was using compensation as the dividing line between lay church members and actual religious workers. But, the para-church organization in question was part of a religious group that did not permit compensation of its ministers. Indeed, the same issue was litigated by the same para-church organization in 2010 before the same court. Pursuant to the resolution of the 2010 case, the Department of Justice appointed one of its civil rights attorneys to act as a “contact point” for this particular religious group to avoid the issue but for some reason by 2017 that was not working. After the court granted the injunction, the parties settled the case and the 91 page opinion was mostly focused on the award of over $50,000 in attorney fees against the federal government.

For most churches and para-church organizations facing immigration law questions, the only rational answer is an attorney focused on the practice of immigration law. This is not a do it yourself area of the law at this time and may never be because of the rapidity with which the law in the subject changes. Not every case will end in litigation; indeed, that will probably be the rare exception.

The 150th case report on this website is remarkable only in that it evidences further the growth in church litigation subject matter.  Legal questions unimaginable a couple of decades ago for churches are now routine.  Abatement seems unlikely.