As of June 25, 2009, the USCIS will accept concurrent filings for I-360, Special Religious Worker Petitions and I-485, Applications to Adjust Status, pursuant to an official memorandum of the “Acting” District Director, Donald Neufeld. The memorandum came about in response to the decision of the US District Court in Ruiz-Diaz v. US., No. C07-1881 RSL (W.D. Wash, June 11, 2009) wherein the District Court granted Plaintiffs relief in a class action lawsuit that challenged USCIS regulations that excluded Special Religious workers from the concurrent filing process allowed for most workers. The memorandum outlines how USCIS will implement the new policy as to new filers and those whose cases were pending as of June 25, 2009.

Generally, an I-360 Visa Petition may be filed by a bona fide, non-profit religious organization in the US on behalf of a Minister, Professional Religious Worker or traditional religious worker, who has been performing the same religious work in the same religious denomination for at least two-years preceding the date of filing. Beneficiaries of I-360 Visa Petitions may have acquired the two years experience overseas prior to entering the US, or in the US while in R-1 Temporary Religious Worker status. The USCIS has recently been taking many months to approve I-360 Petitions, due to internal backlogs and their policy of subjecting such applications to “compliance review,” which involved lengthy delays and interviews of religious workers at the USCIS District Office; ostensibly to ferret out fraud.

Before the new policy was announced, these lengthy delays in the processing of I-360 Petitions caused problems for many religious workers, who could not file for adjustment of status and obtain authorization to work before their I-360 Petition was approved. Many religious workers were required to continue extending their R-1 visas, but the five-year limitation on R-1 extensions would create an enormous problem if the I-360 Petition were not approved prior to the expiration date of the R-1. Even more complicated is the rule barring R-1 visa holders from having “immigrant intent.” An R-1 religious worker who required an extension of R-1 status because of the delays in processing his I-360 Immigrant petition, could be denied the R-1 extension because the filing of the I-360 showed “immigrant intent!”

With this illogical “Catch-22” vexing them, as well as the problem with the I-360 Special Religious worker program expiring every three years, Plaintiffs in the Ruiz case sought permission to “concurrently file” their applications for adjustment of status with the I-360 Petitions at the outset. Concurrent filing is allowed by regulation where there is a visa immediately available; i.e. the priority dates are “current” in the category sought. Since Special religious workers fall under the Employment 4th preference, which is almost always current, the District Judge in Ruiz-Diaz ruled the regulation disallowing concurrent filing of the I-485 with I-360 Petitions invalid.

In accordance with the Ruiz-Diaz case, the USCIS will accept concurrent filing for anyone who tried to concurrently file their applications on or after July 31, 2002. The USCIS will also NOT count the period of “unauthorized employment” from the earlier of the date of the submission of the original I-360, or November 21, 2007, once the applicant files a previously rejected I-360/485 package. Additionally, three different groups of individuals will receive protection from the accrual of “unlawful presence” and “unauthorized employment.” These include (1) workers whose concurrently filed I-360 and I-485 applications were rejected previously; (2) any worker who has a currently pending I-360; and (3) any worker who files a new I-360 with USCIS on or after June 11, 2009.

With a lack of any change in the immigration laws and policy by way of new legislation in Washington, litigation has become the most powerful tool available to attorneys to correct unfair implementation of the immigration laws. USCIS’ new policy coming in direct response to the Ruiz-Diaz ruling will now prevent the USCIS from arbitrarily delaying the cases of religious workers, allowing them and their families to obtain work authorization and survive in the US while waiting for their permanent resident status to be approved.