Premium Processing for the I-360 Petition and I-765 Application
Religious workers provide essential services all throughout this country. Sadly, the R-1 religious worker visa is only valid for a maximum of five years. Once the five-year period has been reached, the religious worker must leave the country for at least a whole year before trying to return. There is an option for religious workers to adjust status to lawful permanent resident and to continue their essential work here; however, this process takes years and can often leave religious workers in a period of limbo. This is why we need U.S. Citizenship and Immigration Services (USCIS) to act to expedite these processes.
How do we keep essential religious workers in the United States permanently?
For religious workers who wish to adjust their status, there are two key forms that must be submitted and filed with USCIS. The first of these is called the I-360 Petition for Amerasian, Widow(er), or Special Immigrant, and the second application is called the I-485 Application to Register Permanent Residence or Adjust Status. As the name suggests, the I-360 petition covers a plethora of potential immigrants, including the pertinent class of Special Immigrant Religious Worker. This requires the petitioning religious organization in the United States to file the I-360 petition on behalf of the religious worker and assure the U.S. government that they will continue employing the religious worker in the stated capacity. One of the requirements of the I-360 petition is that the individual “must have two years of continuous experience immediately before filing the petition.” This means that in most cases religious workers are not filing an I-360 petition until they have been in the United States for two years at the earliest.
The R-1 status for religious workers is valid for an initial period of thirty months, with the option to have it extended for another thirty months for a total of sixty months (five years). This means that if the religious order has decided to begin the permanent residency process for a religious worker, the process will typically begin while the religious worker is almost halfway through their R-1 status. If the I-360 petition is filed as timely as possible, the average religious worker would now be around three years into their five years of R-1 status, leaving two for the processing of the I-485 application.
The I-485 application can only be filed once the priority date (the date of filing for the I-360 petition) is before the date on the visa bulletin for religious workers. The visa bulletin is a chart published every month and used to determine available immigrant visas. Depending on the religious worker’s nationality, that priority date could be months or even years away from being able to file. Because of the temporal realities of managing immigration statuses on a scale of months and years, many of the other categories under the I-360 petition allow for the concurrent filing of both the I-360 petition and the second application the I-485. Regrettably, no such option for concurrent filing exists for religious workers, so they must wait for their I-360 petition to be approved before they have the ability to file an I-485 application.
Is there anything that can be done to adjudicate the I-360 petition quickly?
In December 2021, our Advocacy team prepared a policy brief detailing the consequences of USCIS policies and backlogs affecting religious workers and the communities they serve. In this policy brief, our Advocacy team proposed expanding the existing premium processing program to include the I-360 petition and the I-765 Application for Employment Authorization, the application for an employment authorization document filed alongside the I-485 application. As a result, on March 29, 2022, USCIS announced new actions to reduce backlogs and expanded premium processing.
Premium processing is an expedited adjudication service which is currently available to a handful of select petitions including the I-129 Petition for Nonimmigrant Worker, the petition needed for religious workers. Premium processing reduces adjudication times from months down to days. While USCIS does charge a relatively high fee, for many the cost is more than worth the expedited processing of their case. USCIS’ March 29 announcement discussed their plan of expanding premium processing to other petitions; however, the I-360 was not among those listed.
USCIS did state that, as part of their plan to reduce their backlog, they want to address reducing processing times on various petitions. Unlike the expansion of premium processing, which actually gives petitioners a concrete option to speed up their processing, this backlog reduction plan is simply stating their processing goals. It has been over a year since this announcement and many of these processing goals have yet to be reached. Expanding premium processing to the I-360 would aid both petitioners by giving them the ability to have their petition adjudicated in relatively brief time while also helping USCIS reach their desired reduced processing times. However, even if USCIS eventually expands premium processing to the I-360, there is still the issue of maintaining work authorization once the I-485 has been filed but the R-1 religious worker status is expiring.
What can be done to maintain work authorization while the I-485 application is pending?
Once the I-485 application has been filed the individual is allowed to stay in the U.S. while it is pending but this does not ensure that the religious worker may continue doing their essential work while the application is being adjudicated. Work authorization for religious workers is tied to their R-1 status, so once that expires so does their ability to work. The I-485 application itself is currently averaging two and a half to three years to process, so even if everything works out absolutely perfectly for the religious worker, they can still be left with months (or possibly longer) where their religious worker status has expired and with it their ability to continue working.
The I-765 application allows for the continuation of work authorization while the I-485 is pending, even after the religious worker’s R-1 status has expired. When filed concurrently with the I-485 application, there is no additional filing fee. However, even this application can take quite some time to process, with current processing times around one and a half years. As part of USCIS’ announcement last year, they have started expanding premium processing to the I-765. As of now premium processing has only been expanded to very specific categories under the I-765, which does not include the category for pending I-485 applications.
Where does this leave us and where do we go from here?
Thanks in no small part to the hard work of our dedicated Advocacy team, USCIS has started taking steps towards adjudicating petitions and applications for nonimmigrants sooner than the listed processing times. USCIS has started to expand premium processing to include more petitions, applications, and nonimmigrant categories, but for religious workers it is not enough. Additionally, USCIS also allows applicants to request an expedite request or review of their pending petitions and applications if the applicant can show that their request meets one or more of certain criteria. However, this request is not always approved by USCIS.
We will continue to request that USCIS expand premium processing to both the I-360 petitions and I-765 applications in order to ensure religious workers may stay in the U.S. and continue providing essential work to their communities, because religious workers are essential.