The H-1B visa is a temporary nonimmigrant visa that is available to qualifying religious workers who are looking for an option that will allow them to remain in the United States past their five-year limit in R-1 status while they await their green card priority date to become current. Given the current backlog in EB-4 immigrant visa category for religious workers, those approaching the five-year limit in their R-1 status often need to depart the United States for one full calendar year to reset the R-1 visa clock. After this year abroad, the religious organization may apply for a new 5-year period of R-1 time for the religious worker so that they may return to the United States and continue working while they await their priority date to become current. Last year, RIS began offering H-1B services to our clients as we understand that departing the United States for one year can be disruptive to the work of religious workers and the communities they serve.

The H-1B allows for an additional six years of nonimmigrant status. Just like the R-1 visa, H1B is a dual intent visa, meaning a foreign worker is allowed to pursue a permanent residence process while in H-1B status. Those who change status from R-1 to H-1B with an approved I-360 petition are eligible to adjust status from H-1B and do not need to change status back to R-1 once their priority date becomes current.

The H-1B is designed for workers in a specialty occupation. A specialty occupation is a position that requires the theoretical and practical application of a body of highly specialized knowledge. The occupation must require a U.S. bachelor’s degree or higher in a directly related field or a foreign degree that is equivalent to the same U.S. degree requirements. Given this degree requirement, the H-1B is best suited for those who fall into the R-1 minister category as those positions require at least a bachelor’s degree in a related field, such as theology and philosophy.

The H-1B is an employer-sponsored visa based on a bona fide offer of employment. This means that the religious worker must have their sponsoring employer file the H-1B petition with U.S. Citizenship and Immigration Services (USCIS) on their behalf, just like the R-1. Included in the H-1B petition, the prospective employer must provide evidence that a Form ETA-9035/9035E, Labor Condition Application (LCA) has been certified by the Department of Labor (DOL). The LCA attests that the employer agrees to follow standards, including requirements for wages and working conditions. Unlike the R-1 visa, the H-1B is tied to both the employer and the specific worksite location(s). Once a religious worker is in H-1B status, should their employer decide to move them to another worksite location, a new LCA and a new H-1B would likely need to be filed on their behalf. Similarly, if the religious worker changes employers, a new H-1B petition with the new sponsoring employer would need to be filed on the religious worker’s behalf to remain in valid H-1B status.

Further, unlike the R-1 visa, the H-1B contains a prevailing wage salary requirement. The prevailing wage is the average wage paid to similarly employed workers in a specific occupation. The prevailing wage, determined by the DOL, is tied to the worksite location of the religious worker. In order to remain compliant with the LCA, the sponsoring employer must agree to pay the religious worker at or above the prevailing wage as of the first date the religious worker is in H-1B status. This can create an H-1B eligibility issue for religious workers as some have taken a vow of poverty, or do not receive a salary in the traditional sense.

The fiscal year H-1B cap is set at 65,000 visas by Congress. Due to extremely high demand, every March USCIS conducts an H-1B cap lottery to determine which applicants may move forward to file the H1B petition. Selection is randomized and the applicants selected are notified through their USCIS portal. If selected in the H-1B cap lottery, the employer must then file the H-1B petition on behalf of their religious worker by the end of June. If approved, the religious worker will receive an approval notice with a validity start date of Oct. 1. While most employers are subject to the visa cap, some employers are exempt, including nonprofit organizations affiliated with an institution of higher education. If a sponsoring employer is considered cap-exempt, an H-1B petition can be filed by the employer at any time and the religious worker does not have to be selected in the H-1B lottery to proceed.

While there are significant differences between the R-1 visa and the H-1B visa, we encourage qualified religious workers who will be running out of R-1 time and their sponsoring employers to consider the H-1B visa. Please reach out to your assigned RIS attorney with any questions regarding the H-1B visa process.