On Dec 04 2008 by William A. Stock
Are L-1 Visas Possible For Religious Organizations?
With the increased scrutiny given to R-1 cases, there may be a temptation to look for other options, such as H-1Bs for religious professionals. One option, for those religious organizations with an international scope, might be the L-1 intracompany visa.
Three cases identify the factors needed to have a qualifying “affiliate” relationship between two non-profit, non-share organizations for purposes of obtaining an L-1 visa. These cases (Matter of Church of Scientology International, 19 I&N Dec. 593 (Commr. 1988); In Re: X, 9 Immig.Rptr. B2-8 (AAU 1991); and In Re: X, 8 Immig. Rprt. B2-51 (AAU 1990)) illuminate the difficulties in this approach, as all three organizations involved were found ineligible as L-1 “qualifying organizations.” They provide a road map, however, for documenting a “qualifying relationship” among non-profit organizations.
Ownership and control are the relevant factors for establishing a qualifying relationship for purposes of L visas, even with non-profit, non-share organizations. Matter of Church of Scientology International (“Scientology”) is the leading case and is designated as a precedent that USCIS officers must follow in deciding similar cases. Scientology holds that the definition of “affiliate” from the regulations controls in a situation where two nonprofit or non-stock organizations seek to establish an L qualifying relationship based on their organizational affiliation. See 8 CFR § 214.2(a)(1)(ii)(L). An “affiliate” must be owned and controlled by the same parent or individual or one of two legal entities owned and controlled by the same group of individuals, each individual owning and controlling approximately the same share or proportion of each entity. Id.
Scientology defines “ownership” as the direct or indirect legal right of possession of the assets of an entity with full power and authority to control it. It defines “control” as the direct or indirect legal right and authority to direct the establishment, management, and operations of an entity. Mere control over the doctrines of the Church is not sufficient control to establish the qualifying relationship. Matter of Church Scientology International, 19 I&N Dec. 593 (Cmmr. 1988).
Scientology compares the organization and control of the Church of Scientology with that of the Roman Catholic Church. The case states that the Catholic Church may qualify as a “qualifying organization” because the Pope has control over theological doctrines and control over the assets, management, and operations of each diocese, including control over bishops and archbishops. Id. at 600. This finding of control was based on Church documents explaining that a Roman Catholic bishop or archbishop incorporates a diocese or archdiocese only with the authority of and under proclamation of the Pope. Id. The bishop is the corporation sole and he is authorized to hold and own property. Id. Only the Pope has the control to open and close a diocese. Id. Since, according to the Commissioner’s reading, the Pope is the only person who can appoint the corporation sole and only he can change the jurisdictions of the dioceses, he indirectly owns the dioceses’ assets because he can direct their transfer or disposition. Id. Thus, according to the Commissioner, the Pope could have sufficient control over the local diocese for the L-1 qualifying relationship to exist between overseas and US dioceses of the Church.¹
Reviewing organizational documentation of the Church of Scientology, the Commissioner determined that the Church did not have sufficient control over its local entities. If the local entity can be dissolved without consent of the parent, there is insufficient control. Id. at 601. A voluntary and self-determined agreement is insufficient to establish control. According to the Commissioner, in the Church of Scientology the foreign entity’s assets were held locally and ministers could be ordained and have ordination revoked locally. Based on these factors, the relationship between the Mother Church and the foreign entity was more akin to a franchiser/franchisee than a parent/subsidiary. Id. The Mother Church ensured standardization of doctrine, but the rest of the “business” was independent of the Mother Church. Id. This was a license agreement and contractual relationships are not considered a qualifying relationship, citing Matter of Schick, 13 I&N Dec. 647 (R.C. 1970).
Two other cases found no qualification for L status based on insufficient common ownership or control.
In Re: X (1990) involved a non-profit, non-share entity that was not a religious organization. The AAU followed Scientology and held that the qualifying relationship was absent when the foreign entity could dissolve the relationship with the U.S. entity and was subject only to the policy control of the U.S. entity. 8 Immig. Rptr. B2-51 (AAU 1990). The foreign entity managed its own internal affairs. There was insufficient control to establish the qualifying relationship.
In Re: X (1991) the qualifying relationship did not exist when the legal ownership of temple assets was vested in local boards or public trusts. 9 Immig. Rptr. B2-8 (AAU 1991). The parent church is recognized only as the spiritual authority, with control only over the religious aspects. Id. There was insufficient control over the assets and management of the local entity for the qualifying relationship to exist.
In sum, the rule in Scientology is that a “qualifying relationship” for L purposes will exist only when a parent church or other nonprofit has meaningful control over the assets of both local entities. Simply supplying the doctrines and ecclesiastical guidance is insufficient. The parent church or other nonprofit must have sole discretion to change the jurisdictions of the local organizations and appoint their leaders. It appears from the cases that if the parent has control over establishing and changing the jurisdictions of each local organization and their leadership, it has the power to control indirectly the sale or transfer of the local organizations’ assets, and therefore it can be said to have indirect control over the assets. This indirect control may well be sufficient to establish the qualifying relationship for purposes of L visas, but nothing short of such control would be.
¹ I make no guarantees that the Commissioner is correct in his reading of the Code of Canon Law.