Helping a Client by Invalidating a Regulation

Our client, a Pentecostal Church in New Jersey, came to us with a problem: its immigrant petition on behalf of a minister had been denied.

When we reviewed the denial, we realized that the denial was completely correct based on the regulations, but that the regulation itself contradicted the text of the Immigration and Nationality Act.  In this case, the INA specifies that an immigrant petition is available to an immigrant minister who has been “carrying on” the vocation of minister for at least two years prior to the petition being filed.  The Department of Homeland Security, however, had issued a regulation narrowing that requirement, only deeming work as a minister to be acceptable if it was paid, full-time employment, and most importantly, only accepting time spent in ministry in the US if it was conducted while in lawful immigration status.  Because this minister had lost immigration status and was trying use this immigrant petition as a first step to resume legal status, he was caught in a Catch-22.

Because the denial was correct under the regulations, further challenge before USCIS would be futile, as administrative agencies are obliged to follow their regulations and cannot act on a challenge to the regulations.  We determined that the church could bring suit against the Department of Homeland Security, challenging the regulation under the Administrative Procedures Act — a federal statute that applies to all administrative agencies.  In the District Court decision, a federal judge agreed with the argument we made on behalf of the church that the regulation barring consideration of religious work “carried on” without legal immigration status was invalid.  The Department of Homeland Security appealed their loss to the Third Circuit Court of Appeals in Philadelphia, where a three-judge panel also agreed with our argument and struck down the invalid regulation, remanding the pastor’s immigrant petition back to USCIS and ordering it to reconsider their decision without using the invalid regulation.  This decision paves the way not just for this pastor, but potentially many other ministers and religious workers, to obtain permanent residence status in spite of small lapses in their immigration status.