USCIS Releases Guidance on Maximum Period of Stay for Nonimmigrant Religious Workers

U.S. Citizenship and Immigration Services released a policy memorandum on March 8, 2012, (PDF) for Immigration Service Officers who adjudicate religious worker (R-1) nonimmigrant petitions for those coming to the United States temporarily to perform religious work, and their dependents. The memo outlines the procedure to be used for “recapturing” time spent outside the United States by R-1 nonimmigrants when seeking an extension of their R nonimmigrant status. The guidance applies to all R-1 petitions seeking to recapture time that are currently pending with USCIS or to new petitions filed on or after March 8, 2012.

“Recapturing” is used in the memo as “short-hand” for the period of time spent outside the United States that the worker seeks to have subtracted from his or her maximum period of stay in R-1 status, to have that period of time added back (“recaptured”) when he or she requests an extension of R-1 status.

USCIS explained that the R-1 nonimmigrant classification is for those seeking to enter the United States for a period not to exceed five years solely to work as a minister or in a qualifying religious occupation or vocation. In calculating the five-year maximum period of stay, USCIS has not subtracted time in which the R-1 religious worker was traveling or residing outside of the United States following his or her initial admission in R-1 status.

USCIS noted that certain nonimmigrants who have spent the maximum period of stay authorized by their nonimmigrant classification are prohibited from having a new petition in the same status filed on their behalf until they have remained outside of the United States for a specific period of time (also known as a “limitation on admission” or “limitation on total stay”). Currently, USCIS policy guidance provides that H-1B and L-1 nonimmigrants and their dependents may recapture time spent outside of the United States when calculating their maximum period of authorized stay.  USCIS said the policy of allowing recapture is intended to permit a qualifying nonimmigrant to spend the maximum permitted period of time allowed by his or her classification in the United States before he or she must spend a specific period outside of the United States to file a new petition for the same status.

USCIS said it has determined that extending the recapture policy to the R-1 nonimmigrant classification is “appropriate, and that such a policy is consistent with R-1 statutory and regulatory language and the purpose and intent of the R-1 visa classification.” USCIS has further determined that the spouse or minor child of a principal who recaptures periods of time spent outside the United States toward an extension of R-1 status may receive periods of R-2 stay coextensive with that of the principal.

The USCIS memo may be an effort to settle or moot a class action lawsuit filed earlier this year that challenged the agency’s prior refusal to allow R-1 religious workers to recapture time spent out of the United States. See Society of the Divine Word v. Napolitano (N.D. Ill. filed Jan. 3, 2012).