By: Michael Phulwani, Esq., David H. Nachman, Esq. and Rabindra K. Singh, Esq.
United States and Citizenship Services (CIS), agreeing with the U.S. Court of Appeals for the Third Circuit decision in Shalom Pentecostal Church v. Acting Secretary DUS that its 2008 regulation was ultra vires, released a new policy memorandum (memo) stating that it will no longer require that the qualifying religious work experience for the 2-year period preceding submission of a Form I-360 special immigrant religious worker petition be acquired in lawful immigration status if gained in the United States.
As many are aware, the Immigration and Nationality Act (INA) enables an immigrant to obtain a visa as a “special immigrant religious worker” if the immigrant meets certain statutory criteria, including that s/he has been “carrying on” religious work for at least the two (2) years preceding the filing of the visa petition. The Shalom Pentecostal case presented the issue of whether a requirement imposed in the relevant regulation that this religious work have been carried on “in lawful immigration status” crosses the line from permissible statutory interpretation by the responsible agency to ultra vires regulation contrary to the clear intent of Congress.
The Third Circuit Court of Appeals in Shalom Pentecostal found that the lawful status requirements in 8 CFR 204.5(m)(4) and (11) are ultra vires in that the statute is clear and unambiguous and the regulation is inconsistent with the statute. The court also found the lawful status requirements to impermissibly conflict with section 245(k) of the INA which states that certain aliens may work without authorization for up to 180 days and still remain eligible for an adjustment of status. Similarly, section 245(i) of the INA allows certain immigrants to adjust status despite having worked without authorized status. The Third Circuit found that the lawful status requirements impermissibly render special immigrant religious workers who may be otherwise eligible for adjustment of status under section 245 of the INA ineligible because such workers cannot obtain the approved Form 1-360, Petition for Amerasian, Widow(er), or Special Immigrant, needed to qualify for an adjustment of status.
So, does that means that anyone who submitted, on his own or through his employer, a Form I-360 special immigrant religious worker petition would be able to adjust status in the United States even if s/he acquired the relevant experience in an unlawful status provided the special immigrant religious worker meets all other regulatory requirements. The short answer is “No.” However, certain special immigrant religious worker(s) could derive lasting relief.
In order to become a Legal Permanent Resident (LPR) through the special immigrant religious worker program, an alien or his prospective employer must complete two steps. First, the applicant must successfully petition CIS using Form I-360. Upon approval of I-360 petition, the alien may apply for adjustment of status in the United States or apply for an immigrant visa using Consular processing if outside the United States.
The new CIS memo only helps in successfully completing the first step of the two-step process for those special immigrant religious worker(s) who gained the qualifying relevant work experience in an unlawful status in the United States. It will not help in crossing the second hurdle, of adjusting status in the United States, to become an LPR unless the applicant is the beneficiary of Section 245(i) of the INA.
As stated in the memo, special immigrant religious workers whose qualifying work experience was not obtained in lawful immigration status may be ineligible to adjust status under the requirements set forth in section 245 of the INA. Such workers may also be subject to the 3- or 10-year bars to admission under section 212(a)(9)(B)(i) of the INA if they seek to reenter the United States after being unlawfully present for a period of more than 180 days.
To summarize, although the new CIS memo will only help such special immigrant religious workers who gained qualifying relevant work experience in an unlawful status in the United States by obtaining approval of their Form I-360 special immigrant religious worker petition; it will not help them in adjusting status in the United States to become an LPR. However, certain special immigrant religious workers may combine the relief emanating from the memo and utilize it with the relief contained in INA 245(i) to obtain a lasting relief from CIS by being able to adjust status in the United States to that of an LPR.
 783 F.3d 156 (3d Cir. 2015)
 Under INA 245(i), an alien, (a) who is physically present in the U.S. and (b) who entered without inspection, who is in unlawful immigration status, who fails to maintain status or who has accepted unauthorized employment, may adjust status if: (1) the alien is the beneficiary of an immigrant petition or application for labor certification filed on or before April 30, 2001; (2) the immigrant petition or labor certification application was properly filed and approvable when filed; and (3) the alien was physically present in the U.S. on December 21, 2000 if the qualifying immigrant petition or labor certification application was filed after January 14, 1998.