Green Cards for Priests and Religious Workers – New Problems
By Dilip Patel
One option used by religious organizations to process green cards for priests and religious workers in R-1visa status was through the EB-4 Preference by filing the I-360 immigrant petition.
The I-360 has to be approved before the Adjustment of Status (AOS) application for the green card could be filed by the worker. One challenge was to get the I-360 Petition approved before the R-1 worker used up their maximum stay of five (5) years in the U.S. In addition to having the I-360 approved, the AOS applicant had to show that visa numbers were available under the EB-4 Preference. This is where a new more serious issue has arisen. For the past few months, a wait list developed for EB-4 applicants when none had existed (except for EB-4 applicants chargeable to Honduras, El Salvador,\ and Guatemala). For April and May 2023, the wait list has stretched further back to almost five years to those for whom the I-360 was filed before September 2018.
In the April Visa Bulletin, the U.S. Department of State (DOS) announced changes in how it allocates green cards for the EB-4 category, which include religious workers, special immigrant juveniles, and diplomats, among others.
There is an annual numerical limitation on green card issuance. Employment-based (EB) green cards are allocated in five different preference categories. For example, religious workers are in the EB-4 preference category. Immigrant visas are further allocated based on country of chargeability (usually place of birth of applicant), as the law limits 7 percent of the visas being issued to one country of chargeability. If the demand for immigrant visas from one country exceeds the 7 percent cap, then their immigrant visa availability dates are listed in separate columns in the Visa Bulletin. These dates are important because it signals when an EB-4 applicant with an approved Form I- 360 person may proceed to apply for their immigrant visa or adjust their status to permanent residence.
Until recently, visa availability for those born in Honduras, El Salvador and Guatemala were listed in a separate column on the Visa Bulletin for employment-based immigrant visas because demand exceeded the 7 percent limitation in the EB-4 category. Based on this calculation, the immigrant visa availability date for EB-4 applicants from those countries was March 15, 2018, while visa availability date for India was 2022 (not a problem because the I-360 processing time itself was over a year).
In March 2023, DOS decided that it had made a legal mistake in separating these three countries from the rest of the world for purposes of visa availability because, while their visa demand exceeded the 7 percent limitation for EB-4, it did not exceed the limitation in overall usage. Therefore, the three countries were added back to the rest of the world demand and the available visas were reallocated across the EB-4 category. The result is that immigrant visa availability for all EB-4 visa applicants retrogressed to September 2018, regardless of their country of birth.
How does this impact my case?
Those EB-4 applicants who have already filed an AOS application can remain in the United States even though they are no longer eligible to obtain a green card. U.S. Citizenship and Immigration Services (USCIS) will hold their file until the date on the Visa Bulletin reaches their priority date. When this occurs, USCIS will approve the green card. Until then, AOS applicants are eligible to receive extensions of their employment and travel authorization.
The real issue is for the R-1 workers who have not yet filed an EB-4 AOS application because it is not likely that they will be able to file the AOS application by the time they use up the 5-year limit in R-1 status. They need to maintain status to file the AOS and they cannot work without the R status. One option is to leave and wait abroad to process the immigrant visa through consular processing when their date reaches the front of the line. Once they have lived abroad for a full year, they could be eligible for a new five-year period of R-1 eligibility, but there may be an issue with overcoming the temporary intent requirement.
Dilip Patel of Buchanan Ingersoll & Rooney PC, a board-certified expert on immigration law, can be reached at (813) 222-1120 or email firstname.lastname@example.org