A statutory sunset date of September 30, 2012 is set to end the immigrant non-minister religious program of the EB-4 preference category. As the statute stands now, aliens seeking EB-4 religious worker benefits for non-minister positions must adjust status before Sept. 30, 2012 to be able to receive an EB-4 green card. Minister positions in the EB-4 category will NOT be affected by this sunset date. The language of the statute states that an alien must seek to adjust status or enter the United States on or before the sunset date. In practice this means that an I-485 Petition to Adjust Status must be APPROVED by Sept. 30, 2012, not simply submitted. As it has done in the past, USCIS is expediting adjudication of submitted non-minister I-485s in order to facilitate their approval by the September 30th end date. While the deadline is fast approaching there may still be time to submit an I-485 and have it adjudicated by the sunset date. A month is not a lot of time for an I-485 to be approved, but with expedited processing by the USCIS applications submitted in August may still be approved by the deadline.

The lack of concurrent filing (filing both USCIS forms I-360 and I-485 at the same time) means that only aliens with already approved I-360s can now hope to have their green card cases approved by the sunset date. If an alien is consular processing then they must enter the United States with their approved EB-4 visa by midnight on the sunset date. Even if an alien has already received a valid EB-4 religious non-minister immigrant visa they must still use such a visa to initially enter the United States before the sunset deadline. If the alien is not admitted to the United States on or before Sept. 30, 2012 AND the sunset date is not extended, the alien’s visa will no longer remain valid.

Is the Sunset Date Final?

The sunset date has been changed many times for the EB-4 non-minister religious worker program. Usually there is a lapse between the statutory sunset and the amended date which allows the program to continue into the future. For example, in 2009 there was a sunset date of Sept. 30, 2009. After this date USCIS would no longer have accepted I-360s and/or I-485s for non-minister religious workers if the deadline was not extended. On October 28, 2009, nearly one month after the statutory end date of the non-minister program, the federal government extended the program to the current Sept. 30, 2012 sunset date. So, there is usually a lapse between the end of the program and its eventual renewal. Sometimes the federal government will temporarily (for a month) extend the sunset date while other legislation dealing with its long-term extension is being discussed.

So, at the moment the sunset date is final, as it has been every time the program has drawn to a close. Yet, while currently final, the sunset date has been extended every time the program was about to end in the past. As stated earlier, this is no guarantee that the program will be extended, but there is already legislation to renew the duration of the non-minister immigrant program and the federal government has shown a pattern of renewing it before.

The EB-4 religious non-minister program has a sunset date so that DHS, USCIS, and the Federal Government can periodically assess the worthiness of the immigrant category and check to see that it is not a continuing source of immigration fraud. A 2005 report by DHS about the EB-4 religious category showed that roughly a third of all EB-4 religious petitions were fraudulent. This led to changes in the program to ensure the integrity of religious immigrant visas. With the rush to make the EB-4 non-minister program more efficient, transparent, and legitimate following the 2005 fraud report, the extension of the deadline in 2009 was one of the hardest to achieve in the programs history. Since this time, however, concerns over fraud in the category have declined and more enforcement and oversight of the program has led to it being seen as a stable and valid source for immigrant visas. With the new stricter administration of the program there are far fewer reasons to not extend it into the future.

Current Bill in Congress

There is currently a bill in Congress introduced by Sen. Patrick Leahy of Vermont which would extend, among other things, the EB-4 non-minister religious program for another 3 years. This bill was passed by the Senate on August 2, 2012 and is now awaiting a decision by the House of Representatives. If the bill is likewise passed by the House it will go to the president to sign. This by itself does not mean that the program will be extended, but it is a good sign that action is being taken months before the deadline is reached.

Filing with the Expectation of Extension of Sunset Date

While the non-minister religious worker immigrant program has consistently been extended in the past, there is no guarantee that this pattern will continue. In all likelihood an extension will be made, but there are some things to keep in mind if filing an I-360 now.

As has been the case before when a sunset date has come to pass, the USCIS will hold all un-adjudicated forms I-360 and I-485 for a brief period following the sunset date to wait for any statutory extensions of the program. As the EB-4 non-minister religious program has not been allowed to end before, there is no precedent to determine what will happen to un-adjudicated I-485s if an extension is not made. Whether fees will be reimbursed or if there will be a grace period for people previously in “I-485 pending” status has not been addressed.

EB-4 applicants will need to weigh the options of filing now with an uncertainty of renewal of the program. For instance, if an alien is in the US in R-1 status that is about to expire it will be beneficial to file an I-485 with applicable fees now in order to enter “I-485 pending status” with the expectation that the adjustment of status form will be adjudicated by the deadline. Conversely, if an alien still has a lot of time remaining in his/her R-1 status it may be beneficial to wait until currently proposed legislation is decided before filing an I-485 and applicable fees. Either way, if an applicant is planning to file an I-485 before the deadline it should be done as soon as possible (before the end of August).

If an alien has not yet filed an I-360 for a non-minister religious position it may be better to wait until a decision is made on extension, unless non-immigrant visa validity issues require an early as possible filing. Since there is no concurrent filing of I-360 and I-485, at this late date an alien without an approved I-360 has no hope of receiving I-485 approval by the sunset date. Since this is true, it would be best to not file an expensive filing fee and to rather wait for a final decision to be made about the extension of the program.

Conclusion

As usual there is both stress and optimism around the time of the periodic EB-4 non-minister religious sunset date. Stressful because it is never assured that the program will be extended, yet optimistic since the program has not yet failed to be extended and because there is currently legislation in the Congress to continue this trend. With the deadline fast approaching an experienced immigration attorney can help weigh the options of filing so close to a sunset date. With knowledge of processing times and prior statutory extensions a reliable immigration attorney will be able to explain the best course of action for navigating the potential end of the EB-4 non-immigrant religious program.

Sources:

Immigration and Nationality Act: 101(a)(27)(C)(ii)(II)-(III)

112th Congress, 2d Session: S. 3245

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(08/23/2012)