Religious Privilege Weakens the Integrity of the U.S. Immigration System

Photo by Elias Castillo on Unsplash

Introduction

Religious privilege is unfortunately well established in American society, and the immigration system is no exception. This piece looks at how religion receives special treatment under U.S. immigration law—particularly through visa options like the R-1 and the I-360—and compares them with secular counterparts like the H-1B and I-140. My aim is to show that the process is clearly easier for religious workers and organizations, and that this imbalance deserves scrutiny and reform.

Overview of Religious Immigration Privileges

Religious privilege has been in the American immigration system since at least 1991. This privilege comes in the form of two things. The R1 nonimmigrant visa and the religious worker option in the I-360 application to gain an immigrant visa. These were written into law in 1991. The R-1 visa allows an immigrant to work in America for 30 months at a time in this position before they must renew their visa. The religious worker option in the I-360 application is a way for them to apply for a green card. These are examples of religious privilege for the following reasons. The first reason is the fact that these two options even exist as a category onto themselves is an example of privilege, I would argue. The second reason is the fact that the requirements to getting these visas are often not as high as their secular counterparts are like the H1B.

I will now list out the steps needed to get an initial R-1 visa and then the steps needed for an initial H-1B visa in order to show how there are a different set of standards attached to the religious option. I will then list out the required steps for a religious based green card and the steps for an equivalent employment based green card. All of this information comes from the instruction manuals for these visas on the USCIS website.

R-1 Visa vs. H-1B Visa

R-1 visa

In summary: To file a petition for a religious worker (such as an R-1 visa), a U.S. employer must provide proof of the organization’s tax-exempt status through a valid IRS determination letter. If the organization is a non-religious 501(c)(3) affiliated with a religious denomination, additional documentation is required to prove its religious purpose and affiliation. The petition must also include a signed Employer Attestation and Religious Denomination Certification (if applicable). Employers must show how the beneficiary will be compensated or, if self-supporting, demonstrate that the position is part of an established missionary program. Additionally, evidence must be provided that the beneficiary has been a member of the religious denomination for at least two years and is qualified for the offered position. To see the full process in more detail, see the steps in the appendix.

H-1B visa

In summary: To petition for an H-1B visa, which is for specialty occupations requiring at least a bachelor’s degree, the employer must first post a notice in two locations for 10 days, detailing the position, salary, work location, and company information. They must then file a Labor Condition Application (LCA) with the Department of Labor, including tax documentation and all details from the notice. Once the LCA is certified, the employer must submit evidence that the job qualifies as a specialty occupation, that the position is legitimate and available, and that the beneficiary holds the required degree or equivalent education/experience. Additional requirements may include proof of a required state license, a written or oral employment agreement, and—if filing under the H-1B cap—a valid registration confirmation number, selection notice, and a copy of the beneficiary’s passport or travel document used during registration. To read in more detail about the steps for the H1B visa, please see Appendix.

I-360 vs. I-140

I-360

In summary: A U.S. employer—or in some cases, the beneficiary—may file an I-360 petition for a special immigrant religious worker seeking full-time employment with a bona fide nonprofit religious organization or its affiliate in the U.S. The position must be as a minister, or in a religious vocation or occupation, either professionally or non-professionally. To qualify, the beneficiary must have been a member of the religious denomination and worked continuously in a qualifying religious role (after age 14) for at least two years prior to filing. The petition must include proof of the organization’s tax-exempt status, its religious nature and affiliation, and compensation details. It must also provide evidence of the beneficiary’s membership, qualifying work experience, and ability to perform the duties. Non-minister religious workers must immigrate or adjust status before a sunset date, subject to extension by Congress. For more information on the step by step process, please see the Appendix.

I-140

In summary: When a U.S. employer files an I-140 petition for a professional (someone with at least a bachelor’s degree), they must first obtain a prevailing wage determination from the Department of Labor, which takes about 5–6 months and sets the minimum salary required for the position. After receiving this, the employer must conduct extensive recruitment efforts to prove no qualified U.S. workers are available, which can be costly. If no suitable U.S. applicants are found, the employer can file a PERM (Form 9089) application, which takes another 15–16 months to process. If qualified Americans do apply, the process must stop and restart from the beginning. The I-140 petition must include the certified labor certification, evidence that the foreign worker holds the required degree (or equivalent), proof that the degree is necessary for the job, and documentation showing the employer’s ability to pay the offered wage—such as tax returns, financial statements, or a statement from a financial officer if the company has 100+ employees. For more information on the step by step process, please see the Appendix.

Analysis of Religious Privilege

After presenting the guides on how to file an initial R-1 and H-1B visa and then how to file an I-140 and an I-360, a cursory examination of the different approaches clearly reveals how the religious approach has privileges that the more secular version doesn’t. I am not at this point arguing that it was an intentional step to give the religious options preferential treatment; it may have been a complete accident. What I am arguing is that the religious options are clearly easier to file and the set of requirements to meet are frankly lower than the more secular alternatives, and that it is inappropriate for the U.S. government to be privileging religion in this circumstance over non-religion.

Even a basic comparison of the processes reveals that religious organizations face significantly fewer regulatory hurdles than secular employers. Starting with the R-1 vs. the H-1B, these are among some of the differences:

H-1B requires getting a labor certification application from the Department of Labor (DoL) while the R-1 doesn’t. An element of the labor certification application is the employer declaring to the DoL that it is aware of what the minimum wage is for the position at hand and that they promise to either pay the minimum wage or higher. There is no apparent such declaration required from the R-1 employer.
The H-1B requires the employer to give documentation to show, according to government sources, that the position that they are petitioning for is actually classified as a specialty occupation. The R-1 visa does not require such documentation to make its case.
The H-1B visa is required to alert people in the company that they are hiring an H-1B worker while the R-1 visa doesn’t require that at all.
Finally, for the H-1B, it is required that the foreign worker demonstrate that they have a minimum of a bachelor’s degree or higher and usually have to then demonstrate how their education properly prepared them for their job and thus without their degree they couldn’t do it. The R-1 only says that it be demonstrated that the foreign worker is qualified to perform their job duties, but it leaves it up to the discretion of the employer to decide how they will show this.

Thus, from any reasonable point of view, it is clear that an R-1 visa does not require the same high standards that an H-1B does in order to be filed and accepted. Now, I fully admit that these issues really only apply to when it is a comparable position under both the R-1 visa and the H-1B visa such as a Minister for Music under R-1 and a Music Director under H-1B, where a minimum of a bachelor’s degree is the norm. There are some instances where a position for an R-1 visa doesn’t require the minimum of a bachelor’s degree. In these instances, though, I think that it is still a case of religious privilege that it be up to the employer’s discretion as to what they consider to be necessary qualifications to show that the foreign worker is qualified for the position.

The disparities between religious and secular visa pathways to a green card are not subtle—they’re structural. These are among some of the differences:

The fact that the religious option even exists as its own category for an immigration visa is an example of religious privilege.
The fact that the religious employer for I-360 option does not need to do a prevailing wage application or a PERM application or recruitment, all of which take time and money, before filing the I-360 application while that is required for the I-140 application shows massive privilege. Now, I will again fully admit that an employer can do an I-140 application for a religious worker and in doing that they would need to do all the regular steps mentioned. The fact is that if the circumstances of the situation were applicable, the religious worker could avoid doing all of that and just file the I-360 cleanly.
Thus, from a reasonable point of view, it is clear that it is unabashedly easier to file an I-360 for a religious worker compared to doing an I-140 for a religious worker or a secular worker and that, frankly, this is very unfair.

Policy Recommendations and Conclusion

So, after looking at the steps for these different visas and comparing and contrasting them, it is clear that an obvious privilege exists for the religious options. I am again not saying that the privilege was built into it from the beginning and is intentional; only that the privilege clearly exists, it is not appropriate, and things need to be changed.

While I don’t know what all of the fixes should be, here are some starter ideas. If there must be an R-1 visa for religious workers, make it that there is an appropriate secular alternative so that there is a balance and religion is not privileged over non-religion. I can see no rational reason for why the R-1 visa should not have to do some of the more demanding steps that the H-1B visa does. There is no need to necessarily do all of them. But here are some things that wouldn’t hurt the R-1 at all: having to do a posting notice and get a labor certificate from the DoL promising that it will pay the right wage instead of the government just assuming that the religious company will pay the correct wage because it is religious. Another thing which wouldn’t hurt the R-1 is to have to show that the foreign worker is correctly qualified to do the position in the same way that the H-1B does, rather than leaving it up to the employer’s discretion on how to show it.

And in regard to the I-360, one serious policy option worth considering is the elimination of the I-360 category entirely, merging religious workers into the standard employment-based framework of the I-140. I cannot think of a single secular reason why religion should be so privileged that it not only gets its own special category alongside other categories like refugees and victims of domestic abuse, but that it also has fewer standards to follow compared to the I-140.

Appendix

R-1 step by step

The petition must be filed by a U.S. employer with:
Currently valid determination letter from the Internal Revenue Service (IRS) establishing that the organization is a tax-exempt organization; or
For a religious organization that is recognized as tax-exempt under a group tax-exemption, a currently valid determination letter from the IRS establishing that the group is tax exempt; or
For a bona fide organization that is affiliated with the religious denomination, if the organization was granted tax-exempt status under section 501(c)(3) of the Internal Revenue Code (IRC) of 1986, or any subsequent amendments or equivalent sections of prior enactments of the IRC, as something other than a religious organization
(1) A currently valid determination letter from the IRS establishing that the organization is a tax-exempt organization;
(2) Documentation that establishes the religious nature and purpose of the organization, such as a copy of the organizing instrument of the organization that specifies the purposes of the organization;
(3) Organizational literature, such as books, articles, brochures, calendars, flyers, and other literature describing the religious purpose and nature of the activities of the organization; and
(4) Religious Denomination Certification, which is part of the R-1 Classification Supplement to Form I-129, completed, signed, and dated by the religious organization certifying that the petitioning organization is affiliated with the religious denomination.
Employer Attestation, which is part of the R-1 Classification Supplement to Form I-129, completed, signed, and dated by an authorized official of the petitioner;
Verifiable evidence of how the petitioner intends to compensate the beneficiary, including salaried or non-salaried compensation;
If the beneficiary will be self-supporting, the petitioner must submit documentation establishing that the position the beneficiary will hold is part of an established program for temporary, uncompensated missionary work, which is part of a broader international program of missionary work sponsored by the denomination;
Evidence that the beneficiary has been a member in the religious denomination during at least the 2 years immediately preceding the filing of the petition; and
Evidence to establish the beneficiary is qualified to perform the duties of the offered position.

H-1B step by step

H-1B visa (a specialty occupation visa that you must show requires the minimum of a bachelor’s degree or higher in order to do it)
Employer must put up a notice in 2 locations for ten days alerting other people that an H1B worker is being hired. Notice must list the company name, the number of workers, the name of the position, the duration of the position, the salary of the position, and where the worker will work.
Employer must submit a labor condition application to the Department of Labor notifying them that they intend to hire an H1B worker and providing all of the information that they put in the posting notice. In order to submit this particular application, they must also submit multiple tax documents first or the system won’t accept it.
Evidence that a labor condition application (LCA) has been certified by the U.S. Department of Labor;
Evidence showing that the proposed employment qualifies as a specialty occupation. This would be to have printouts from the relevant government websites showing that it is treated as a specialty occupation;
Evidence that you have a bona fide position in a specialty occupation available for the beneficiary as of the start date of the validity period requested on the petition. A petitioner is not required to establish specific day-to-day assignments for the entire time period requested in the petition.
Evidence showing that the beneficiary has the required degree by submitting either: A. A copy of the beneficiary’s U.S. bachelor’s or higher degree as required by the specialty occupation; B. A copy of a foreign degree and evidence that it is equivalent to the U.S. degree; or C. Evidence of education, specialized training, and/or progressively responsible experience that is equivalent to the required U.S. degree.
A copy of any required license or other official permission to practice the occupation in the state of intended employment; and
6 A copy of any written contract between the petitioner and the beneficiary or a summary of the terms of the oral agreement under which the beneficiary will be employed.
If you are filing an H-1B cap petition for a fiscal year that H-1B registration is required, you must provide a valid Beneficiary Confirmation Number for the beneficiary included in this petition, along with a copy of the H-1B Registration Selection Notice.
If you are filing an H-1B cap petition for a fiscal year that H-1B registration is required, you must submit evidence of the beneficiary’s passport or travel document used at the time of registration to identify the beneficiary.

I-360 step by step

A special immigrant religious worker in I-360 application
S. employer may file this petition for a beneficiary who seeks to enter the United States to be employed full time by a bona fide nonprofit religious organization in the United States (or a bona fide organization that is affiliated with the religious denomination in the United States) to work:
Solely as a minister of that religious denomination;
In a religious vocation either in a professional or non-professional capacity; or
In a religious occupation either in a professional or non-professional capacity. The beneficiary may file this petition on his or her own behalf.
To qualify, the beneficiary must have been: 1. A member of a religious denomination that has a bona fide nonprofit religious organization in the United States for at least the two years immediately preceding the filing of the petition; and
Working continuously, after turning 14 years of age, in one of the positions described above, either abroad or in the United States, for at least two years immediately preceding the filing of the petition. NOTE: All religious workers, other than ministers, immigrating to the United States as special immigrant religious workers must immigrate or adjust to lawful permanent resident status before the established sunset (expiration) date. Statutory amendments may extend this date. USCIS will provide information on its website at www.uscis.gov/working united-states/permanent-workers/employment-based-immigration-fourth-preference-eb-4/religious-workers/ special-immigrant-religious-workers if the date is extended.
You must file the petition with evidence relating to the petitioning organization, including;
A currently valid determination letter from the Internal Revenue Service (IRS) establishing that the organization is a tax exempt organization;
For a religious organization that is recognized as tax exempt under a group tax exemption, a currently valid determination letter from the IRS establishing that the group is tax-exempt;
For a bona fide organization that is affiliated with the religious denomination, if the organization was granted tax exempt status under section 501(c)(3) of the Internal Revenue Code of 1986, or subsequent amendment or equivalent sections of prior enactments of the Internal Revenue Code, as something other than a religious organization, including:
A currently valid determination letter from the IRS establishing that the organization is a tax-exempt organization;
Documentation that establishes the religious nature and purpose of the organization, such as a copy of the organizing instrument that specifies the purposes of the organization;
Organizational literature, such as books, articles, brochures, calendars, flyers, and other literature describing the religious purpose and nature of the activities of the organization; and
A religious Denomination Certification (part of Form I-360) completed, signed, and dated by the religious organization certifying that the petitioning organization is affiliated with the religious denomination;
An employer Attestation (part of Form I-360) and certification completed, signed, and dated by an authorized official of the prospective employer of the beneficiary seeking religious worker status;
Verifiable evidence of how the prospective employer intends to compensate the beneficiary, including salaried or non salaried compensation;
Evidence that the beneficiary has been a member of the religious denomination during at least the two years immediately preceding the petition;
Evidence to establish that the beneficiary has been working continuously, after turning 14 years of age, in one of the positions listed above, either abroad or in the United States, for at least the two years immediately preceding the petition; and
Evidence to establish the beneficiary is qualified to perform the duties of the offered position.

I-140 step by step

For a U.S. employer filing for a professional (an individual holding the minimum of a bachelor’s degree or higher) using the I-140 application.
They must first submit a prevailing wage application to the Department of Labor to find out how much they are legally required to pay at a minimum the foreign worker once their green card application is approved. It takes about 5 to 6 months for the Department of Labor to issue its ruling.
Once the Prevailing Wage application has been determined, the employer must then engage in recruitment ad efforts before it can sponsor the foreign worker in order to demonstrate that there were no eligible, able bodied Americans available who could do the position. This requires a number of different ad campaigns and a minimum of usually a couple thousand dollars in expenses to the employer.
Once they have conducted the recruitment ads and if no one applies and is qualified, the employer than submit a PERM 9089 application to the Department of Labor with all of the information about the employer, the foreign worker, the qualifications, the job duties and requirements. It then takes about 15 to 16 months for the application to be certified. However, if Americans do apply who are qualified and want the job, the employer must stop the application, wait for a period of time and then start the process all over again with a new prevailing wage application.
A labor certification
Evidence that the alien holds a U.S. baccalaureate degree or equivalent foreign degree; and
Evidence that a baccalaureate degree is required for entry into the occupation.
Ability to Pay Wage You must submit evidence with petitions requiring job offers that the prospective U.S. employer has the ability to pay the offered wage. You may provide evidence in the form of copies of annual reports, Federal tax returns, or audited financial statements. If the prospective U.S. employer employs 100 or more workers, you may submit a statement from the organization’s financial officer establishing their ability to pay the wage. In certain circumstances, you may submit additional evidence, such as profit/loss statements, bank account records, or personnel records.