Undocumented Minister Granted Special Immigrant Status
By Raul Rivera
(To view this blog in Spanish, please click here)
Last month, I was in San Jose, California conducting one of our Ultimate Church Structure Conferences. One of our topics covered that day was foreign guest speakers and immigration. Many pastors had questions regarding that topic, which led me to write today's article in order to provide more thorough information concerning the immigration of ministers. In 1995, Carlos Alencar entered the United States with his wife and two children on a B-2 nonimmigrant visitor's visa for pleasure. It was a six-month visa, and it did not authorize him or anyone in his family to work. After the six-month visa expired, Carlos decided to stay in the United States. He remained in an "unlawful status" and became the pastor of Shalom Pentecostal Church.
What is special immigrant status?
After being employed by the church for 11 years, in 2009 the church filed Form I-360 on their pastor's behalf in order to obtain "classification as a special immigrant." Special immigrant status has many unique benefits because the law provides that if a minister is granted this status, it includes his/her spouse and children. However, the law says that in order to qualify for the status, the minister must meet the following conditions as found in U.S.C. 1101(a)(27)(C):
1. The minister must be a member of a church/denomination that has bona fide religious nonprofit 501(c)(3) status and,
2. The minister enters the United States before September 30, 2015 in order to work for the church at the request of the church.
Shalom Pentecostal Church believed that Carlos Alencar met the requirements and therefore, they submitted the petition on his behalf. All that was needed was for the United States Citizenship and Immigration Services (USCIS) to approve the application. Getting special immigrant status for Carlos was very important to both the church and to him because once a minister gets this status, he/she can apply for an adjustment and easily acquire permanent residence (U.S.C. 1255 and C.F.R. 245.2(a)(2)(i)(B)).
Petition denied, church appeals and wins
When the church submitted the petition, it stated three things in its application:
1. It showed its 501(c)(3) status
2. It proved that their pastor was employed by the church for the last two years
3. It admitted that he had been in the United States unlawfully.
After reviewing the petition, USCIS denied giving the pastor special immigrant status, claiming that The United States Department of Homeland Security had created a regulation requiring that in order for a minister to receive special immigrant status, he/she must have been working for the church under a "lawful immigrant status." Because Carlos Alencar was an undocumented immigrant, the USCIS denied the petition.
The Pentecostal church and the pastor appealed USCIS' determination to the United States District Court of New Jersey. It argued that the regulation created by the Department of Homeland Security was illegal because it violated the special immigrant statute as found in U.S.C. 1101(a)(27)(C). They claimed that the Department of Homeland Security moved beyond its legal power (ultra vires) to create the regulation because the plain language of the law never required the minister to be documented. In other words, they claimed that even if the minister has undocumented status, and he/she has worked for a church for the last two years, he/she can still apply for the special immigrant status and it must be given by USCIS. That seemed like a stretch, but the court agreed with the Pentecostal church and the pastor. The court ruled as follows:
1. It stated that the plain meaning of the law was clear and that the regulation as created by the Department of Homeland Security was not legal. It ruled that government "agencies are not free to create exceptions to statutes."
2. It stated that the statute is clear and that the legal status of the work performed is inclusive of "all work performed inside and outside the United States, whether lawful or unlawful." This is big. Under the court's ruling, the minister can be a citizen of a foreign country, living in that foreign country, and can work for a church that is located in the United States and after two years, apply for special immigrant status.
Impact of this case
This case Shalom Pentecostal Church v. Janet Napolitano may have a major impact on the number of ministers that are of foreign descent who have been living in the United States undocumented. It may provide relief to the thousands of ministers who have been working for a church but always under the dismal cloud of thinking that some day they may be deported. Having pastored a Spanish speaking church, I met hundreds of men and women who were living in the U.S undocumented. While the argument could have been made that they were living illegally in the U.S., I felt compelled to preach the gospel to them and love them without distinction. However, this case speaks to someone who is living in the U.S. undocumented and has become the pastor of a church or has been working for a church. This ruling may open the door for many of them to finally get documented status and ultimately American citizenship. It may dissolve the cloud of doubt that has continually spoken in their ear that one day it could all come to an end.
Are you in that situation?
If you or someone you know is in that situation, the first thing your church or ministry must do is acquire its 501(c)(3) status in order to prove that it is a bona fide nonprofit organization. Secondly, clearly document any and all work that the minister has performed for the church/ministry. It is important that your documentation be real and not just cavalier paperwork. One clear way to do that is to create a written agreement between the church and the minister. Neither the law nor the regulation says that the work the minister performs for the church must be compensated work. By taking these steps, you can be well on your way to correcting issues that have hovered over your head for quite some time.