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New USCIS Memo Benefits R-1 Religious Workers

The religious worker (R) visa program was created more than 20 years ago to allow foreign religious workers to perform religious duties in the United States on a temporary basis. The program was intended to enable churches, mosques, synagogues and other religious organizations, which had been struggling to find qualified workers, to better serve their communities.

After a government study found widespread fraud in the R visa program, the USCIS made significant changes in November 2008 to both nonimmigrant (R-1) and immigrant religious visa regulations.

The R-1 religious worker classification is for ministers and persons working in a religious vocation or religious occupation coming temporarily to the U.S. to be employed at least part time by a non-profit religious organization. The maximum period of stay in R-1 status is 5 years

In the year that the new regulations took effect, the number of R visas issued dropped from more than 13,000 to just below 4,000.

Just recently, the USCIS announced a policy change that would be beneficial to R nonimmigrants. Religious workers in R-1 status are now allowed to recapture time spent outside the United States. “Recapture” is a benefit that until now was enjoyed only by H-1B and L-1 nonimmigrants and their families.

Under the new policy explained in the memorandum dated March 8, 2012, time spent by the R-1 nonimmigrant traveling or residing outside the U.S. following initial admission in R-1 status could now be subtracted from the maximum period of stay in the U.S. in R-1 status.

Previously, an R-1 nonimmigrant who had spent 5 years in the U.S. on R-1 status needed to reside abroad and be physically present outside the U.S. for the immediate year before being readmitted or granted an extension of stay.

Now, only time actually spent in the U.S. in R-1 status can be counted towards the maximum authorized stay of 5 years. Any trip of at least one 24-hour calendar day outside the U.S. can be recaptured. The reason for the alien’s absence is irrelevant.

The religious worker’s spouse and child on R-2 dependent status also benefit from the recapture. The updated regulations state that if the R-1 nonimmigrant is able to recapture a two-week trip abroad, his/her dependents should be given an extension of stay up to the new expiration of the R-1 alien’s period of stay.

The petitioning organization carries the burden of proof to establish eligibility for time recapture. It must submit evidence documenting the beneficiary’s periods of physical presence outside the U.S. Although summaries and charts of travel are helpful, the petitioner must remember to include independent documentary evidence of the time sought to be recaptured, such as copies of the passport stamps, I-94 cards, and plan tickets.

This policy change recognizes the fact that ministers and religious workers sometimes have to perform religious services abroad and as a result spend weeks, if not months, outside the United States. At times, they leave the U.S. for their home country for personal reasons.

The policy memo also acknowledges that the petitioning organization’s need for the workers’ services does not end at exactly the same date as the expiration of period of stay requested in the petition.

Domestic Employees of Diplomats To Get Protection

The USCIS has recently announced that A-3 and G-5 visa holders who are victims of human trafficking and other violations would become eligible for deferred action.

With this relief, the victims may be allowed to work legally and remain in the United States to resolve their pending complaints regarding the violation of the terms and conditions of their employment contract, or conditions related to human trafficking and similar violations.

A-3 and G-5 visas are nonimmigrant visas issued to attendants, servants or personal employees of ambassadors, diplomats, consular officers, foreign government officials or officers of international organizations.

Human trafficking, sometimes referred to as “trafficking in persons” and considered a form of modern-day slavery, includes acts of forced labor, holding a worker against his/her will to pay off a debt, and sex trafficking.

Trafficking may occur even in labor situations, as in the case of A-3 and G-5 visa holders. These individuals are especially vulnerable to abuse and exploitation by their employers because the latter can claim diplomatic immunity from civil and criminal prosecution.

In the request for deferred action, the victim must submit a letter requesting deferred action and outlining the violation of the employment contract or conditions and the ongoing civil action, as well as a copy of the civil complaint filed in court. The victim must give proof of legal entry into the U.S. through an A-3 or G-5 visa.

If the application for deferred action is approved, the USCIS will adjudicate the I-765 or application for employment authorization. The EAD to be issued will be valid for one year but may be renewed upon proof that the civil case is still pending. Fee waiver is available.

There have been many documented cases of trafficking especially of domestic workers who were subjected to abuse and maltreatment by their diplomat employers. For instance, from 2000 to 2008, there were some 42 domestic workers who had accused foreign diplomats of wrongdoing.

These cases involved promises of fair wages being made to the workers while still in their home countries. After arriving in the United States, the employees usually found their passports being taken away by the employer. They were threatened not to leave the premises, forced to work long hours and seven-day weeks, and paid very low wages, if at all. The workers were also subjected to physical, psychological and even sexual abuse. However, because of diplomatic immunity, many of them were simply scared into silence.

By allowing for deferred action, the USCIS has taken a small but vital step towards alleviating the plight of trafficking victims by giving the workers immigration status, albeit temporary, and taking out one of the factors adding to these workers’ vulnerability.

Report Reveals Abuse of H-2B Visa Program

On December 10, 2010, two Filipino-Americans who operated a labor contracting service were sentenced for criminal violations under the federal H-2B guest worker program. Sophia Manuel and Alfonso Baldonado, Jr., owners of Quality Staffing Services Corporation, had pleaded guilty to charges involving forced labor of 39 Filipino nationals.

Manuel was sentenced to 78 months in prison and Baldonado to 51 months. Manuel was also sentenced for false statements made on an application for a labor certification and visas under the H-2B visa program.

Their staffing firm enticed workers to come to the United States and for a fee, promised them housing, job placement and transportation. However, soon after their victims arrived in the U.S. the defendants exploited them. Since the workers had paid recruitment fees up-front back home, many of them incurred debt and thus faced serious economic harm and possible incarceration if they returned to the Philippines.

The workers shared an overcrowded three-bedroom house and without adequate food and water, while they were made to work at swanky country clubs and hotels. Their passports were confiscated and they were threatened with arrest and deportation when they complained and were ordered not to leave the premises without permission and an escort.

This case illustrates the egregious violations that have been committed under the H-2B program. In a recent investigative study, the Government Accountability Office (GAO) exposed the abuse and fraud perpetrated by unscrupulous employers and recruiters not unlike those committed by Manuel and Baldonado.

GAO reviewed ten civil and criminal cases involving visa fraud or exploitation under the H-2B visa program that have either been closed or settled. The practices discovered by GAO involved failure to pay the workers the prevailing hourly wage or overtime, charging them exorbitant fees, and submission of fraudulent documentation to the government.

In six of the ten cases reviewed, the employers did not pay their H-2B employees the established hourly wage and/or overtime pay. H-2B workers are covered by the Fair Labor Standards Act which mandates the payment of at least the minimum wage and overtime pay on non-exempt employees.

Six cases showed employers charging H-2B workers excessive fees. These fees comprised of visa processing fees above actual costs, rent in overcrowded and grossly overpriced apartments, and transportation charges subject to “late fees”. As a result, many workers were left in greater debt than when they just arrived.

The study also uncovers the fraud that recruiters and employers committed so they could exploit their H-2B workers or hire more employees than needed. In particular, they misclassified employee duties on labor certification applications in order to pay lower prevailing wages, used shell companies to file fraudulent applications for unneeded employees, and then leased these additional employees to business that were not on the visa petitions.

Some of the deplorable acts include those committed by a hotel in South Dakota that charged nine employees $1,200 each in visa processing fees when that was the cost for all nine workers; charging a monthly rent of $1,050 for an apartment that normally rented for only $375; isolating the employees from the community, confiscating their passports, and threatening them with physical abuse and deportation in a “box” if they disobeyed orders.

Another employer, a construction company in Louisiana, conspired with a foreign contract labor firm to lure 87 Indian nationals to the U.S. and charged them $20,000 each for the H-2B visa, but never employing them. In another case, a New York-based carnival operator housed its H-2B workers in overcrowded and cockroach- and bedbug-infested trailers with unsanitary bathrooms.

An H-2B worker is defined as a foreign nonimmigrant worker employed to perform temporary nonagricultural labor or services. The employer is required to show that the need for the workers is temporary and that there are no available U.S. workers capable of performing such labor or service.

H-1B Option for Physical Therapists

Physical Therapists continue to be in demand in the U.S. The Bureau of Labor Statistics projects that their employment will grow by 30% from 2008 to 2018. A recent report by the American Physical Therapy Association shows that the vacancy rate of physical therapists ranges from 13.1% in outpatient settings to 18.6% in long term care settings.

Many physical therapists are recruited from foreign countries such as Philippines and India. There are two ways that they enter the U.S., namely, as nonimmigrants or immigrants.

The most common nonimmigrant option is the H-1B route. H-1B is reserved for specialty occupations and has an annual cap of 65,000. Hospitals and other health care facilities may be exempted from the cap if they are nonprofit organizations affiliated with an institution of higher education.

The position of physical therapist is a specialty occupation. But there was a question over a year ago as to whether a bachelor’s or master’s degree was required for H-1B. The Occupational Outlook Handbook in its 2009 edition stated that the minimum requirement for a physical therapist in the U.S. is a master’s degree so the USCIS denied H-1B petitions for physical therapists that did not have a master’s degree.

But the issue was resolved by the USCIS in a memo dated May 20, 2009. In that memo the USCIS said that in adjudicating H-1B petitions filed on behalf of beneficiaries in health care specialty occupation, the Occupational Outlook Handbook is only a starting point and that other authoritative sources such as the state licensing board standards must be consulted.

The USCIS memo went on to state that if the beneficiary has a valid license to practice physical therapy in the state of intended employment, the beneficiary will be considered to meet the qualifications to perform services in a specialty occupation, regardless of whether the said beneficiary has a bachelor’s degree or a master’s degree.

The license may be unrestricted or restricted. If it is unrestricted the H1-B petition is approvable for up to 3 years. If it is restricted (e.g., license approved except for mandatory supervised practice) the petition may be approved for one year or for the duration of the license, whichever is longer.

There are states that do not issue a license because of a lack of social security card and/or evidence of employment authorization. So long as the beneficiary complies with the requirements for licensure and has filed an application for a license in accordance with the state rules and procedures, the H-1B petition may be approved but only for a period of one year.

If the beneficiary is abroad and therefore cannot take the licensure examination as it’s given only in the U.S., the H-1B petition may still be approved for one year provided the physical therapist has completed all the licensure requirements and is allowed to take the test once he/she arrives in the U.S.

A visa screen certificate is required to be submitted with the H-1B petition. This may be obtained from the Commission on Graduates of Foreign Nursing Schools (CGFNS) or the Foreign Credentialing Commission on Physical Therapy (FCCTP). The certificate which is valid for 5 years certifies that the physical therapist’s education, experience and training and English proficiency are equivalent to those of a U.S. worker.

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