Third Circuit: USCIS Regulation on Religious Worker Experience Requirement Invalidated

Practical Law Legal Update 6-608-2925 (Approx. 5 pages)

Third Circuit: USCIS Regulation on Religious Worker Experience Requirement Invalidated

by Practical Law Labor & Employment

Background

In 1995, Brazilian national Carlos Alencar traveled to the US on a B-2 nonimmigrant tourist visa. He was authorized to remain in the country through the end of the year, but he stayed unlawfully after his stay expired. Beginning in 1997, Alencar sought legal immigration status as a "special immigrant religious worker" under the INA, but USCIS rejected both of his Form I-360 petitions.

Despite these rejections, Alencar began working as a senior pastor for the Shalom Pentecostal Church in 1998. In 2009, the church filed a new I-360 visa petition for Alencar. USCIS once again denied the petition, this time solely on the ground that Alencar did not meet the requirements of a 2008 amended regulation that the beneficiary's two years of full-time religious work immediately preceding the petition filing, if performed in the US, be "in lawful immigration status."

Alencar and the church filed a lawsuit with a New Jersey district court, challenging USCIS's decision to deny the special immigrant religious worker visa petition. The district court denied the government's motion to dismiss and granted a motion for summary judgment in favor of Alencar and the church. The district court ordered USCIS to grant Alencar's I-360 petition. The government appealed to the Third Circuit, arguing that:

The district court incorrectly found that the regulation was ultra vires.
Both plaintiffs lacked standing to challenge USCIS's denial of the I-360 petition.

Outcome

In a matter of first impression, the Third Circuit:

Affirmed the district court's order that the regulation was invalid.
Reversed and remanded the matter for more fact-finding on the remaining visa criteria.

The Third Circuit found that:

To qualify for an I-360 visa as a special immigrant religious worker, an individual must:
- be a member of a religious denomination with a non-profit religious organization in the US for two years;
- intend to enter the US for the purpose of working as a minister (or other religious vocation); and
- conduct the religious work continuously for at least two years before applying for the visa.
In 2008, USCIS amended its regulations to require an individual seeking a special immigrant religious worker visa status to have worked in lawful immigration status if the two years of work experience is gained in the US (8 C.F.R. § 204.5(m)(4)).
The regulation would disqualify Alencar's application because he worked in the US for the two prior years, but did so without lawful status.

Concerning the challenge to the regulation's validity, the Third Circuit found that:

When addressing the validity of a statute or regulation the Chevron analysis is used. Under Chevron:
- the analysis is complete if Congress has spoken directly on an issue, leaving no ambiguity; and
- if the statute is ambiguous or contains gaps, the court then determines whether the agency's construction of the statute is reasonable.
(Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).)
Since the statute was clear and unambiguous, USCIS's regulation was inconsistent with the statute and as a result, was ultra vires.
In its plain terms, the INA authorizes an individual to qualify for an I-360 visa as a special immigrant religious worker if he engaged in two years of continuous religious work (preceding the filing) and meets other statutory qualifications.
The statute defined the term "immigrant" to include both legal and illegal aliens. Congress was aware that special immigrant religious workers may have worked illegally before applying for legal status.
Requiring visa applicants to have lawful immigration status would render a separate part of the INA, concerning prior unauthorized employment, useless (INA § 245(k) (8 U.S.C. § 1255(k)(2))).
When Congress includes or excludes particular language in one section but not another, it has done so intentionally (Russello v. United States, 464 U.S. 16, 23 (1983)). In this case, Congress deliberately requires lawful status in several other related sections, but omits the requirement for special immigrant religious workers.

Concerning the standing issue, the Third Circuit found that:

Although the government argued that Alencar lacked the "redressability" element of standing because even if his visa was granted, he could not gain legal permanent residence for at least ten years, the court noted that:
- Alencar was only seeking a visa classification, not permanent status adjustment; and
- the visa petition and adjustment of status are different processes.
(Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 151-53 (2010).)
Alencar had regulatory standing since, for special immigrant religious workers, the foreign worker is not just a passive beneficiary but someone who has legal standing to file a petition (8 C.F.R. §204.5(m)(4)).

The Third Circuit:

Found that the district court erred in ordering USCIS to grant the petition of Alencar and the church because it had not adequately determined whether Alencar met the other requirements to qualify for a special immigrant religious worker visa.
Remanded the case for a determination of Alencar's qualifications under the statute.

Practical Implications

In a matter of first impression for the Third Circuit, the court found, in Shalom Pentacostal Church, that a USCIS regulation requiring religious workers who meet a two-year work experience requirement to show that the experience, if gained in the US, was gained while in lawful status was beyond USCIS's powers because it contradicted the plain language of the INA. While no other circuit courts have yet addressed the issue, it is reasonable to believe that other circuits may soon follow the Third Circuit and tackle this issue as well.

Third Circuit: USCIS Regulation on Religious Worker Experience Requirement Invalidated | Practical Law