Don't Count on Religious Freedom Arguments to Overturn Religious Worker Visa Denials

Churches and other religious organizations can file petitions to sponsor foreign workers for religious worker (R-1) status in the United States—a status that can last up to five years. However, poor planning and well-meaning but improper actions during the process can lead to rejections, a result that religious freedom arguments won’t necessarily reverse. A large church based in New Mexico recently learned that the hard way.

The church filed an R-1 petition to sponsor a worship pastor from South Africa who visited the church and led worship services while on a B-2 tourist visa. Although the church waited until the R-1 petition was approved before putting the pastor on its payroll, the church allowed the pastor to continue leading services—receiving honoraria for doing so—while the petition was pending and the pastor was still on tourist status. When the pastor later produced his approved R-1 petition at the consulate in Johannesburg to obtain an R-1 visa to reenter the United States, officials denied the visa on the basis that the pastor had previously misrepresented that he was entering the U.S. as a tourist when he intended to engage in unauthorized work as an independent contractor for the church. 

Unable to employ its preferred worship pastor, the church sued, seeking reversal of the visa denial in part under the Religious Freedom Restoration Act (RFRA), a federal “super statute” that protects the religious exercise of individuals and organizations. The church argued that the consular officer’s denial of the pastor’s visa violated RFRA by substantially burdening the church’s choice of minister and how it compensates its ministers. The court disagreed.

The court ruled that RFRA’s protections are subject to the doctrine of “consular nonreviewability,” a judge-made rule that severely limits courts’ ability to reverse decisions made by consular officials. That’s significant because courts have applied RFRA to USCIS denials of R-1 petitions. If the ruling stands, religious organizations may be able to invoke RFRA at the R-1 petition stage but not the visa stage.

The court added that even if consular nonreviewability did not apply, the church’s RFRA argument would still fail because the visa denial did not prevent the church from finding another worship pastor or adhering to its beliefs about minister compensation. In reaching that conclusion, the court rejected the church’s argument that the visa denial amounted to a ban on honoraria for foreign itinerant worship pastors. 

The case offers a cautionary tale to churches and other religious organizations seeking to sponsor foreign religious workers. Care must be taken to avoid activities prior to or during the petition phase that could jeopardize the outcome. Sponsoring organizations should also understand the nuances and limitations of RFRA and other religious liberty protections.

Even secular organizations can learn from this decision. Strict compliance with the rules surrounding tourist and visitor visas is necessary to prevent even the appearance of misrepresentation. The doctrine of consular nonreviewability applies to all consular visa interviews, not just those for an R-1 petition. 

The Sherman & Howard team has significant experience working with religious organizations on R-1 petitions, as well as other immigration, employment, and religious liberty issues. Contact us for guidance if your organization is considering sponsoring a foreign religious worker.