Carrying on religious work without work authorization does not present a bar to receiving a special immigrant visa, the U.S. Court of Appeals for the Third Circuit, in Philadelphia, has concluded Shalom Pentecostal Church v. Acting Secretary U.S. Department of Homeland Security, et al., No. 13-4434 (3d Cir. Apr. 7, 2015).
Carlos Alencar came to the United States on a tourist visa in 1995, and although his status expired after six months, he remained in the country and worked as a religious worker without work authorization. Two years later, Alencar filed a special immigrant religious worker petition, which was rejected by U.S. Citizenship and Immigration Services (“USCIS”). In 1998, Alencar became a senior pastor at Shalom Pentecostal Church and in 2001 the Church filed another immigrant visa petition on Alencar’s behalf. This petition was also rejected by USCIS.
In 2009, the Church filed a third immigrant visa petition on Alencar’s behalf. It was denied by USCIS because Alencar did not have proper work authorization under immigration regulations, providing that an eligible applicant must have worked in a religious occupation for at least two years “in lawful immigration status” before the petition is filed.” 8 C.F.R. §204.5(m). The Church and Alencar filed an appeal with the Administrative Appeals Office, but the denial was affirmed.
In 2011, Alencar and the Church brought a suit against USCIS claiming, among other things, that the regulation used to deny the immigrant visa petition was ultra vires, or “beyond the powers” of the agency to promulgate. The district court ruled in Alencar’s favor, invalidating 8 C.F.R. § 204.5(m)(4) and (11) and ordering USCIS to approve the petition.
The USCIS appealed but the Court of Appeals affirmed. It noted that the controlling statute at gave no indication that the qualifying two years of religious employment must be carried out in a lawful status. 8 U.S.C. § 1101(a)(27)(C)(i)-(iii). The Court also concluded that by omitting the word “lawfully,” the Congress intended to create an exception for special immigrant religious workers.
Despite this victory, Alencar’s path to becoming a permanent resident is far from over. Being unlawfully present in the United States for more than one year and working without authorization for more than 180 days make Alencar ineligible for permanent residence without first being out of the country for at least 10 years.