Employment visa requirement doesn’t violate RFRA
Congress originally enacted the Religious Freedom Restoration Act (RFRA) in 1993 in response to a U.S. Supreme Court decision it thought infringed on free exercise rights. Although the RFRA was found to be unconstitutional in certain respects, it continues to be applicable to the federal government and its agencies. Thus, it could be applied to religious employers’ efforts to petition for visas for their workers.
Recently, this law was put to the test when a church was denied a visa for a music director because it couldn’t prove that it could pay him since his pay would come directly from the offerings of congregants. Read on to learn how the U.S 10th Circuit Court of Appeals (whose rulings apply to all Utah employers) addressed the religious challenge to the efforts to obtain a religious employment visa.
R-1 visa petition
An R-1 visa allows ministers and other religious workers to enter and stay in the country under a nonimmigrant visa for up to five years. To obtain an R-1 visa, the petitioner must (a) establish that the R-1 applicant has been a member of the same denomination for at least two years prior to the petition and (b) demonstrate the intention and ability to compensate the applicant.
In May 2011, Iglesia Pentecostal Casa De Dios Para Las Naciones, Inc.—a Pentecostal church in Kansas City, Kansas—petitioned the U.S. Citizenship and Immigration Services (USCIS) for an R-1 visa for its music director, Israel Medina-Valdez, a citizen of the Dominican Republic. Specifically, Iglesia petitioned that he be allowed to remain as a temporary worker for two years.
At the time, Medina had already been living in the country under a visa set to expire in August 2011. The church confirmed that it was “willing and able” to pay him $26,000 annually. However, it said that he hadn’t been a member of the denomination for two years.
After receiving the petition, USCIS asked for proof of Iglesia’s ability to meet both the denomination and compensation requirements. The agency initially denied the petition because the church failed to establish the denomination requirement. Iglesia appealed to the administrative appeals office (AAO), which affirmed the petition’s denial because the church had failed to meet either of the requirements.
RFRA exemption?
Iglesia filed a lawsuit in federal district court in October 2013 to challenge the denial of the petition. Meanwhile, the AAO reopened the matter, and the church voluntarily dismissed its suit. It submitted additional evidence, including a balance sheet, bank statements, and a profit-and-loss statement. However, the AAO again denied the petition. This time, it ruled that the church had failed to meet the compensation requirement and indicated that there were unexplained discrepancies in the visa petition, tax forms, and other documents.
Iglesia filed a request to reopen the petition with the AAO. Specifically, it argued that it should be entitled to an exemption from the compensation requirement under the RFRA. It explained that it believed in contributions from parishioners, which it called “love offerings,” and it claimed these contributions would adequately compensate Medina. Such offerings weren’t reflected in the church’s financial documents because the money collected was paid directly to him. The AAO denied the motion to reopen and confirmed that the church hadn’t shown the ability to compensate its music director.
Iglesia again filed suit, challenging the AAO’s determination under the Administrative Procedure Act. It filed a request for summary judgment (a decision in its favor without a trial), arguing that it had shown the ability to pay Medina and that the compensation requirement violated the RFRA. However, the district court affirmed the AAO’s denial, concluding that the finding that the church didn’t have the ability to pay Medina wasn’t “arbitrary and capricious” and that the compensation requirement didn’t violate the RFRA. Iglesia appealed to the 10th Circuit.
No undue burden
The appellate court noted that the RFRA provides that government “shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” Iglesia argued that the compensation requirement substantially burdened its religious exercise in violation of the RFRA. However, the 10th Circuit concluded that the church failed to show that the regulation imposed a substantial burden on its religious exercise.
The court first explained that the requirement didn’t prevent Iglesia from relying on “love offerings” or its congregants to make such offerings. It even noted that the compensation requirement doesn’t mandate any particular method of paying church workers. Instead, it merely means that Iglesia must provide evidence, regardless of the form, that it has the ability to pay the $26,000 salary in order to obtain the R-1 visa. This, the court concluded, doesn’t burden religious exercise.
Second, the 10th Circuit noted that Iglesia didn’t even contend that the compensation requirement substantially burdened religious exercise. The church never explained how “living by faith” is incompatible with documenting donations before using them as compensation for Medina. Therefore, the appellate court concluded that Iglesia didn’t show a RFRA violation. Iglesia Pentecostal Casa De Dios Para Las Naciones, Inc. v. Duke, No. 16-3265 (10th Cir. 2017).
Takeaways
Religious institutions and churches enjoy a certain amount of protection against the federal government for the free exercise of their religious rights under the RFRA, including in obtaining employment visas for religious workers. However, not even churches and religious organizations are immune from most governmental requirements that don’t impinge on the exercise of their religion.
Religious institutions must show that a governmental requirement constitutes an undue burden on its religious exercise for the RFRA to apply. Thus, efforts by churches to bring religious workers from outside the United States to serve in their churches for compensation must generally comply with the visa requirements applicable to employers.\
You can contact the author at rfrazier@kmclaw.com or (801) 323-5933.
