On Sep 17 2013 by William A. Stock

KILP Attorneys Help Local Church Prevail over USCIS’ Illegal Regulation

Two KILP attorneys — partner William A. Stock and associate Matthew T. Galati  — received a favorable decision yesterday from a federal judge in the District of New Jersey.  KILP represented a local church and brought suit against USCIS over an illegal federal regulation that had stopped the church from sponsoring a pastor as an immigrant religious worker.  In a decision issued yesterday, United States District Judge Renee Marie Bumb found the regulations at 8 C.F.R. § 204.5(m)(4) and (m)(11) to be ultra vires – that is, promulgated beyond the scope of USCIS’ power under the Immigration and Nationality Act.  Subject to the government’s opportunity to appeal, the offending regulations have been stricken by the Court, which has ordered USCIS to approve the petition. This important case may allow many immigrant religious ministers and other religious workers the opportunity to qualify for lawful permanent residence even if they have minor gaps in their lawful status or work authorization in the United States.

As background, immigrant religious ministers are eligible for Green Cards as special immigrants under the EB-4 preference category. The relevant section of the Immigration and Nationality Act sets out the requirements for the EB-4 preference category, including that the special immigrant religious minister must have been carrying on his or her vocation for a period of two years immediately prior to the filing of the petition to grant him or her special immigrant status.

In 2008, USCIS implemented a new rule, codified in regulation at 8 C.F.R. § 204.5(m)(4), which limited the kinds of experience “carrying on the vocation” of minister that USCIS would accept.  The regulation says that the two years in the vocational must have been “either abroad or in lawful immigration status in the United States.” The other regulatory provision at issue, 8 C.F.R. § 204.5(m)(11), requires petitioners to document the qualifying experience abroad or lawful status. The effect of this regulation was that even if a minister spent just one day working out of status, the visa petition would be denied notwithstanding that the statute had no such requirement. In fact, a separate provision of the Immigration and Nationality Act, § 245(k), provides an exception for such workers allowing them to be out of status for up to 180 days following his/her latest admission to the U.S. and still be able to adjust status, provided certain other conditions are met.

Given the overall scheme of the INA, we argued to the Court that Congress did not impose a requirement that every day of the required two years of “carrying on the religious vocation” be in lawful status – a minister’s visa might be renewed late, or confusion about activities allowed by a visiting missionary might cause an inadvertent status violation.  Indeed, the statute recognizes that such events may happen, and forgives them if they are less than 180 days in duration.

The Court agreed with our arguments, and ruled that on the question of whether one’s employment need  to be authorized in order to qualify for a religious minister’s petition to be approved, “the Statute is neither ambiguous, nor silent, and Congress did not leave a gap for regulations to fill” and thus the regulation at issue was inconsistent with the INA. Further, the Court held that the regulation at issue was in conflict with INA § 245(k), as described above, given that it directs officers to deny petitions even where a minister has spent a mere day of working without authorization. Accordingly, the Court has stricken 8 C.F.R. § 204.5(m)(4) and (11), and ordered USCIS to approve the petition.

Under the Federal Rules, the government Defendants are offered an opportunity to appeal this case within the next 60 days. Nonetheless, KILP’s and the Church’s success in the Court represents a major victory for religious ministers and workers with short gaps in employment authorization or status, who would otherwise be without relief.