A few months ago, I’ve been tasked with helping churches in the area apply for R-1s for full-timers. Being a native-born citizen, I’ve never had to deal with visas in the US. So I had to do a lot of research on the laws and application process regarding R-1 visas and visas in general. In a sense, I had to become an “expert” on the subject in a short period of time so I could take care of one of the situations that required a response within a week or so. I’m using this post and subsequent posts as a place to collect my research, especially as it pertains to full-timers, that may be for others’ benefit, but also in case I forget something along the way.
Visas, Statuses, and I-94s
When non-US citizens enter the US, their legal entering and remaining in the US depends on 3 things and their respective expiration dates: visa, status, and I-94.
A visa allows you to enter the country legally. Before any foreign citizen enters the US, they must first apply for and obtain the appropriate visa according to the purpose of their entering the US. For those serving full time, this would be an R-1 visa; for family members of full-timers, R-2; and for those attending the FTTA, M-1. In order to enter the US, one must have a valid visa and be entering the US according to the type of the visa. If Customs and Border Protection (CBP) suspects that you are violating or will violate the terms of your visa, they will deny you entry into the US even though you have a valid visa. Such examples include:
- Your status is invalid or expired (see below).
- If they suspect you are coming in to work and you don’t have a work visa.
- if they suspect you will overstay your status.
- If they suspect you don’t plan on leaving the country once your status expires. If you come in on a nonimmigrant visa, the conditions of the visa is that you leave the country once your visa expires without changing to a visa or a green card. One common immigration fraud is foreigners coming in intending to get married and staying in the US.
Likewise, the expiration date on the visa is related to when you may enter the US. If you are already in the US, the expiration date of the visa itself means nothing. In most cases though, the expiration date of the visa and status are the same.
A visa only allows you to enter the US; what allows you to stay in the US is status. Once you enter the US, what visa you hold is irrelevant; you must have the proper status according to what you are doing. For those who come in on a visa, usually the status corresponds with the visa in name, category, and expiration date. But sometimes the visa and status don’t match, especially when the status is changed after entering the US. In other cases, sometimes the visa will expire after the status. Regardless of the validity of the visa, once the status expires, one’s presence in the US is illegal and he/she will begin to accumulate overstay days.
Once you enter the US, your status can be changed. The most common example related to full-timers is serving after the Training. You enter the country with an M-1 visa to attend the Training, and once you enter, your M-1 status is enacted. Term by term, you renew/extend the M-1 status (or get a new M-1 visa if you left the country during the interim) until you graduate from the Training. After the Training, you either extend the M-1 status on OPT first or directly change your status to R-1 if you start serving. From the time you entered the country to start the Training, if you never leave the country, you would not receive any visas except the initial M-1 to enter for your first term, which would have an expiration date close to the end of your first term (July or December). But if you continued to finish the Training, and then to serve, your visa would be expired, but your status would be valid and even changed (R-1 instead of M-1). Because you never left the country and re-entered, you would not have any newer visas, but through the proper paperwork, your status would continue to be updated according to your current situation.
If you were here in the US with a valid status, and you file a petition to change or extend that status (and submit it) before the expiration date of your current status, you are allowed to remain in the US while the application is pending. However, that is just a provision to be physically present in the US, not to operate assuming that your change of status is already approved. I’m not sure if this provision means you can continue as if your previous status was extended, or if you just allowed to be in the US but are not allowed to do anything. For example, after completing the Training, after you or the church submits the R-1 application on time (before the expiration of the M-1 status), you are allowed to remain in the US while waiting for a decision, but you are not allowed to begin working (ie. serving). You are not allowed to receive compensation for anything from the church until your R-1 is approved. To receive any form of regular compensation is unauthorized work and immediately invalidates your status and permission to be in the US, even while the R-1 application is pending, and you begin to accumulate overstay time.
The US Citizenship and Immigration Services (USCIS) definition of work is not according to our common sense. Their definition of work is the fulfillment of any position that is normally paid, regardless if the employee is actually paid or not. So if you tell them that you are volunteering serving during the time that the application is pending, that is still unauthorized work, because the serving “position” is normally a paid position, and because of that, your volunteering in that position still means you have the expectation for the position to become paid in the near future. In order for what you do to be counted as volunteering in USCIS’ eyes, the position that you fill must be a designated volunteer position, or an internship. Such a designated position means that during the time you are in the position, and after your time in the position ends, you cannot receive any form of compensation from the company, nor can you expect any kind of material benefit (in the form of a paid position or otherwise) from them in the future.
So if your status is such that does not allow you to work, this is what “work” means.
I-94 Departure Card
An I-94 is a departure card that you obtain when you enter the country. Even though your visa and status may have a certain expiration date, your I-94 may place further restrictions on how long you may remain in the country during this trip. For example, your status may expire one year from now. However, your I-94 may have a date on it for 3 months from now. That means that even though your status doesn’t expire for another year, you may only stay in the country on this trip for 3 months. If you stay longer than 3 months, then even though your status is still valid, you will be considered to have overstayed.
There are two types of expiration dates on I-94s, a specific date and duration of stay. If your I-94 has a specific date, that means you can only stay until the date printed on your I-94, regardless of the expiration date of your visa or status, unless you fill out the necessary paperwork to extend that date. If your I-94 is printed with “duration of stay” or “D/S,” then you may stay until your status expires or is otherwise invalidated.
If you become out-of-status for any reason while you are in the US (if you entered the country legally), or if you entered the country illegally, you start to accumulate overstay. Overstay days are accumulated consecutively. That means that if you were illegal, became legal, then illegal, only days from the last illegal block would count towards your overstay days.
If you are out of status when you leave the country (voluntarily), you may be barred from re-entering the country or getting visas for a period of time depending on the number of days of overstay you accumulated. If you have 180 days or less (less than 6 months), there is no penalty; 181-365 days (between 6 months and a year), you will be barred for 3 years; more than 365 days (more than a year), 10 years.
Remember that if you are in the country on a valid status, and you apply to change your status before the current status expires, you are allowed to remain in the country legally while the application is pending as long as you do not overstep the restrictions of your current status. If your application to change status is denied, you will begin to accumulate overstay days depending on your I-94. If your I-94 has a specific date for you to leave the country, then you will accumulate overstay days from the date indicated on your I-94 if the application was denied for being frivolous (without lawful basis) or unauthorized work. If your I-94 says “duration of stay” or “D/S,” then you will accumulate overstay days from the date the application was denied. This is true regardless if the application was filed in a timely manner (before the expiration of the previous status) or not.
What is the R-1 status?
An R-1 is a non-immigrant work status. It allows you to work for a religious denomination with the agreement that once the status expires, you will leave the country. The R-1 status has 2 stages. The R-1 status allows a total of 5 years, but that 5 years is split into 2 portions of 2.5 years each. The initial R-1 approval allows you 2.5 years. At the end of the first 2.5 years, an R-1 extension application must be filed and approved to get the maximum 5 years.
The R-1 status is not only tied to the full-timer, but also to the church. That means that if the full-timer stops serving, switches churches, or another church adds to his support, the R-1 will need to be reconfigured or terminated. The church has the obligation to notify USCIS if the full-timer ceases to serve with the church. Any other churches that come into the picture of the full-timer’s service needs to file new R-1 petition with USCIS to employ the full-timer. If the full-timer stops serving to go to school or pick up a job, the appropriate status change needs to be applied for.
Applying for R-1
The application process actually begins with the church, not with the full-timer. In this process, the church is known as the petitioner and the full-timer the beneficiary. The church needs to petition USCIS for permission to hire the full-timer and prove that:
- It is a real church with IRS 501(c)(3) designation
- This is a real job
- The church needs this full-timer as opposed to a US citizen that could also do this job
- The church is capable of hiring this full-timer
- The full-timer is qualified to work this job
- The full-timer has been meeting in the same denomination as the church for the past 2 years
The church needs to fill out USCIS form I-129, write and attach a letter, enclose all necessary evidence to prove the above, and pay a fee.
The application process normally takes a few months. If this is the first time a church is applying for an R-1, in order to make sure of some of the points above, USCIS will visit (unannounced) the church address and the full-timer’s work place listed on the application, as well as schedule a phone or live interview with the main brother and full-timer listed on the application. The application will be signed by and sent in care of one of the leading brothers, usually the “official president” of the incorporation as filed with the government, and USCIS will correspond with this brother for all the matters related to this application.
The most common visa fraud is with R-1 cases. Therefore, USCIS scrutinizes very heavily on R-1 applications. Therefore, care must be exercised that every detail on every document matches. Every discrepancy between documents can be expected to be called into question by the USCIS. It is always better for the facts to be airtight rather than explain things that USCIS catches later on.
Keep a copy of everything filed with USCIS. Oftentimes they will ask questions that were already addressed in an earlier filing and it is better to quote that earlier filing than submitting something new. Pay attention to the wording of the Request for Further Evidence letter given by the USCIS. If they are asking for further details, then make sure to include further details, but make sure the information is consistent across all the documents filed with USCIS in any given petition.
When the application is approved, different things happen depending on the current status of the beneficiary (full-timer):
- If the full-timer is already in the country and his/her status is still valid (there were no violations of status, i.e. no unauthorized work), the change in the full-timer’s status to R-1 is effected automatically. There is no need for the full-timer to apply for a change in status separately. The full-timer does not need to apply for an R-1 visa (it is actually not possible to do so from within the US) while in the US. If the full-timer leaves the country any time in the future, he/she will need to apply for an R-1 visa while out of the country at the US embassy/consulate before returning to the US.
- If the full-timer is out of the country, his/her status will be effected when he/she enters the country. In order to enter the US, the full-timer will need to apply for a visa at the US embassy/consulate in that country before entering the US. Keep in mind that when entering the US, your responses to the CBP officer is important. If they suspect that you are using the R-1 visa inappropriately to enter the country for other reasons other than religious work, you will be denied entry. After you enter into the country, pay attention to the date on your I-94 and petition to extend that date if necessary.