CA3 on Religious Worker Visa Regulation: Shalom Pentecostal Church v. DHS

"The Third Circuit on Tuesday upheld a New Jersey federal judge's order striking down a regulation by the U.S. Citizenship and Immigration Service requiring religious worker visa applicants to be performing such work only while legally authorized, saying the rule exceeded the agency's authority.

In a precedential opinion, a three-judge panel said the Immigration and Nationality Act enables an immigrant to obtain a visa as a “special immigrant religious worker” if the immigrant meets certain statutory criteria, including that he or she has been “carrying on” religious work for at least the two years preceding the filing of the visa petition.

But in upholding a portion of a September 2013 ruling by U.S. District Judge Renee Marie Bumb, the Third Circuit said that a USCIS rule requirement that such religious work be performed while the alien is “in lawful immigration status” was invalid because it went beyond the agency's powers and was contrary to congressional intent.

“By its plain terms ... the INA authorizes an alien who engaged in religious work continuously for the two years preceding the visa application and who meets the other statutory criteria to qualify for an I-360 visa as a special immigrant religious worker,” the panel said. “As the statute is clear and unambiguous and the regulation is inconsistent with the statute, the regulation is ultra vires [beyond the powers].”

The instant case was initially filed in 2011 by Shalom Pentecostal Church and its pastor, Carlos Alencar, challenging USCIS's decision to deny a special immigrant religious worker visa petition filed by the church on behalf of Alencar.

Alencar, a Brazilian national, traveled with his family to the U.S. on a B-2 nonimmigrant tourist visa in June 1995. Although he was only authorized to remain in the U.S. until December 1995, Alencar has remained in the U.S. unlawfully since the visa expired.

Since 1997, Alencar has been seeking legal immigration status as a special immigrant religious worker, but several of his petitions were rejected by USCIS. Nonetheless, Alencar began working as a senior pastor for the Shalom Pentecostal Church in 1998 and has continued in that capacity through the filing of this appeal.

The Form I-360 visa petition at issue in this case was filed by the church in 2009. CIS again denied the petition and, in this instance, did so on the sole ground that the church failed meet its requirements under a 2008 amended regulation that Alencar had been “performing full-time work in lawful immigration status as a religious worker for at least the two-year period immediately preceding the filing of the petition.”

The church's subsequent appeal was dismissed because, consistent with the regulation, Alencar's religious employment was not authorized under U.S. immigration law — leading the church to file suit in New Jersey federal court.

Although the panel pointed out that none of its sister appellate courts have yet to weigh in on this issue, it said Judge Bumb correctly concluded that the regulation is beyond the powers, or ultra vires, of the agency because it contradicts the plain language of the INA.

The government — which included the U.S. Department of Homeland Security and USCIS — had appealed the lower court's ruling in late 2013, arguing that Judge Bumb erred by invalidating the regulation.

But the panel ultimately affirmed the judge's ruling as to the invalidity of the regulation, after concluding that Congress never authorized CIS to issue any requirement that aliens performing religious work as ministers be legally authorized to do so.

Despite upholding Judge Bumb's ruling, the panel reversed the judge's order granting the church's petition since USCIS never considered whether Alencar met the other requirements for the special immigrant religious worker program. The Third Circuit remanded the case back to the agency for further fact-finding on the remaining visa criteria pertaining to Alencar.

William Stock, an attorney representing the church and Alencar, told Law360 Wednesday that they "are pleased with the Third Circuit's ruling," and feel the decision could "have a big impact on the religious community." " - Law360, Apr. 8, 2015.  [Hats off to Bill Stock and Scott Pollock!]