20442 Federal Register / Vol. 72, No. 79 / Wednesday, April 25, 2007 / Proposed Rules 

characterize the occupational field, 

including those that require extremely 

high levels of expertise; 

(iii) The rates of pay reasonably and 

generally required in the public and 

private sectors for similar positions; and 

(iv) The availability of individuals 

who possess the qualifications to do the 

work required by the position; 

(10) Documentation, with appropriate 

supporting data, of the agency’s 

experience and, as appropriate, the 

experience of other organizations, in 

efforts to recruit or retain exceptionally 

well-qualified individuals for the 

position or for a position sufficiently 

similar with respect to the occupational 

field, required qualifications, and other 

pertinent factors, to provide a reliable 

comparison; 

(11) Assessment of why the agency 

could not, through diligent and 

comprehensive recruitment efforts and 

without using the critical position pay 

authority, fill the position within a 

reasonable period with an individual 

who could perform the duties and 

responsibilities in a manner sufficient to 

fulfill the agency’s mission. This 

assessment must include a justification 

as to why the agency could not, as an 

effective alternative, use other human 

resources flexibilities and pay 

authorities, such as recruitment, 

retention, and relocation incentives 

under 5 CFR part 575; 

(12) An explanation regarding why 

the position should be designated a 

critical position and made eligible for a 

higher rate of pay under this part within 

its organizational context (i.e., relative 

to other positions in the organization) 

and, when applicable, how it compares 

with other critical positions in the 

agency. The agency must include an 

explanation of how it will deal with 

perceived inequities among agency 

employees (e.g., situations in which 

employees in positions designated as 

critical would receive higher rates of 

pay than their peers, supervisors, or 

other employees in positions with 

higher-level duties and responsibilities); 

(13) Documentation of the effect on 

the successful accomplishment of 

important agency missions if the 

position is not designated as a critical 

position; 

(14) Any additional information the 

agency may deem appropriate to 

demonstrate that higher pay is needed 

to recruit or retain an employee for a 

critical position; 

(15) Unless the position is an 

Executive Schedule position, a copy of 

the position description and 

qualification standard for the critical 

position; and 

(16) The desired rate of basic pay for 

requests to set pay above the rate for 

level II of the Executive Schedule and 

justification to show that such a rate is 

necessary to recruit and retain an 

individual exceptionally well-qualified 

for the critical position. 

§ 535.105 Setting and adjusting rates of 

basic pay. 

(a) The rate of basic pay for a critical 

position may not be less than the rate of 

basic pay, including any locality-based 

comparability payments established 

under 5 U.S.C. 5304 (or similar 

geographic adjustment or supplement 

under other legal authority) that would 

otherwise be payable for the position. 

(b) If critical position pay authority is 

granted for a position, the head of an 

agency may set pay initially at any 

amount up to the rate of pay for level 

II or level I of the Executive Schedule, 

as applicable, without further approval 

unless a higher maximum rate is 

approved by the President under 

§ 535.104(c). 

(c) The head of an agency may make 

subsequent adjustments in the rate of 

pay for a critical position each January 

at the same time general pay 

adjustments are authorized for 

Executive Schedule employees under 

section 5318 of title 5, United States 

Code. Such adjustments may not exceed 

the new rate for Executive Schedule 

level II or other applicable maximum 

established for the critical position. 

However, the employee must have at 

least a rating of Fully Successful or 

equivalent, and subsequent adjustments 

must be based on labor market factors, 

recruitment and retention needs, and 

individual accomplishments and 

contributions to an agency’s mission. 

(d) Employees receiving critical 

position pay are not entitled to localitybased comparability payments 

established under 5 U.S.C. 5304 or 

similar geographic adjustments or 

supplements under other provision of 

law. 

(e) If an agency discontinues critical 

position pay for a given position (on its 

own initiative or because OPM, in 

consultation with OMB, terminates the 

authority under § 535.103(d)), the 

employee’s rate of basic pay will be set 

at the rate to which the employee would 

be entitled had he or she not received 

critical pay, as determined by the head 

of the agency. 

§ 535.106 Treatment as rate of basic pay. 

A critical position pay rate is 

considered a rate of basic pay for all 

purposes except—

(a) Application of any saved pay or 

pay retention provisions (e.g., 5 U.S.C. 

5363); or 

(b) Application of any adverse action 

provisions (e.g., 5 U.S.C. 7512). 

§ 535.107 Annual reporting requirements. 

(a) OPM must submit an annual report 

to Congress on the use of the critical 

position pay authority. Agencies must 

submit the following information to 

OPM by January 31 of each year on their 

use of critical position pay authority for 

the previous calendar year: 

(1) The name, title, pay plan, and 

grade/level of each employee receiving 

a higher rate of basic pay under this 

subpart; 

(2) The annual rate or rates of basic 

pay paid in the preceding calendar year 

to each employee in a critical position; 

(3) The beginning and ending dates of 

such rate(s) of basic pay, as applicable; 

(4) The rate or rates of basic pay that 

would have been paid but for the grant 

of critical position pay. This includes 

what the rate or rates of basic pay were, 

or would have been, without critical 

position pay at the time critical position 

pay is initially exercised and any 

subsequent adjustments to basic pay 

that would have been made if critical 

position pay authority had not been 

exercised (estimate rates where a range 

would apply, such as for Senior 

Executive Service positions); and 

(5) Whether the authority is still 

needed for the critical position(s). 

(b) [Reserved] 

[FR Doc. E7–7763 Filed 4–24–07; 8:45 am] 

BILLING CODE 6325–39–P 

DEPARTMENT OF HOMELAND 

SECURITY 

8 CFR Parts 204, 214, and 299 

[CIS No. 2302–05; DHS Docket No. USCIS–

2005–0030] 

RIN 1615–AA16 

Special Immigrant and Nonimmigrant 

Religious Workers 

AGENCY: U.S. Citizenship and 

Immigration Services, DHS. 

ACTION: Proposed rule. 

SUMMARY: This rule proposes to amend 

U.S. Citizenship and Immigration 

Services (USCIS) regulations regarding 

the special immigrant and 

nonimmigrant religious worker visa 

classifications. This rule addresses 

concerns about the integrity of the 

religious worker program by proposing 

a petition requirement for religious 

organizations seeking to classify an 


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Federal Register / Vol. 72, No. 79 / Wednesday, April 25, 2007 / Proposed Rules 20443 

alien as an immigrant or nonimmigrant 

religious worker. This rule also 

addresses an on-site inspection for 

religious organizations to ensure the 

legitimacy of petitioner organizations 

and employment offers made by such 

organizations. 

This rule also would clarify several 

substantive and procedural issues that 

have arisen since the religious worker 

category was created. This notice 

proposes new definitions that describe 

more clearly the regulatory 

requirements, and the proposed rule 

would add specific evidentiary 

requirements for petitioning employers 

and prospective religious workers. 

Finally, this rule also proposes to 

amend how USCIS regulations reference 

the sunset date, the statutory deadline 

by which special immigrant religious 

workers, other than ministers, must 

immigrate or adjust status to permanent 

residence, so that regular updates to the 

regulations are not required each time 

Congress extends the sunset date. 

DATES: Written comments must be 

submitted on or before June 25, 2007. 

ADDRESSES: You may submit comments, 

identified by DHS Docket No. USCIS–

2005–0030, by one of the following 

methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Mail: Director, Regulatory 

Management Division, U.S. Citizenship 

and Immigration Services, Department 

of Homeland Security, 111 

Massachusetts Avenue, NW., 3rd Floor, 

Washington, DC 20529. To ensure 

proper handling, please reference DHS 

Docket No. USCIS–2005–0030 on your 

correspondence. This mailing address 

may also be used for paper, disk, or CD–

ROM submissions. 

• Hand Delivery/Courier: Regulatory 

Management Division, U.S. Citizenship 

and Immigration Services, Department 

of Homeland Security, 111 

Massachusetts Avenue, NW., 3rd Floor, 

Washington, DC 20529. Contact 

Telephone Number (202) 272–8377. 

FOR FURTHER INFORMATION CONTACT: 

Irene Hoffman Moffatt, Senior Program 

Analyst, Service Center Operations, U.S. 

Citizenship and Immigration Services, 

Department of Homeland Security, 111 

Massachusetts Avenue, NW., 3rd Floor, 

Washington, DC 20529, telephone (202) 

272–8410. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Public Participation 

II. Background 

A. Current Eligibility Requirements for the 

Special Immigrant Religious Worker and 

Nonimmigrant Religious Worker 

B. Rationale for the Proposed Rule 

III. Analysis of Proposed Rule 

A. Proposed Changes to Definitions 

B. Proposed Petitioning Requirements 

C. On-site Inspections 

D. Evidentiary Requirements for 

Petitioning Organizations 

E. Changes Unique to the Special 

Immigrant Religious Worker 

Classification 

F. Changes Unique to the Nonimmigrant 

Religious Worker Classification 

IV. Regulatory Requirements 

A. Regulatory Flexibility Act 

B. Unfunded Mandates Reform Act of 1995 

C. Small Business Regulatory Enforcement 

Fairness Act of 1996 

D. Executive Order 12866 (Regulatory 

Planning and Review) 

E. Executive Order 13132 (Federalism) 

F. Executive Order 12988 (Civil Justice 

Reform) 

G. Paperwork Reduction Act 

List of Subjects 

I. Public Participation 

Interested persons are invited to 

participate in this rulemaking by 

submitting written data, views, or 

arguments on all aspects of this 

proposed rule. The Department of 

Homeland Security (DHS) and U.S. 

Citizenship and Immigration Services 

(USCIS) also invite comments that relate 

to the economic or federalism effects 

that might result from this proposed 

rule. Comments that will provide the 

most assistance to USCIS in evaluating 

these procedures will reference a 

specific portion of the proposed rule, 

explain the reason for any 

recommended change, and include data, 

information, or authority that support 

such recommended change. See 

ADDRESSES above for information on 

how to submit comments. 

Instructions: All submissions received 

must include the agency name and DHS 

Docket No. USCIS–2005–0030. All 

comments received will be posted 

without change to http://www.epa.gov/ 

feddocket, including any personal 

information provided. For detailed 

instructions on submitting comments 

and additional information on the 

rulemaking process, see the ‘‘Public 

Participation’’ heading of the 

SUPPLEMENTARY INFORMATION section of 

this document. 

Docket: For access to the docket to 

read background documents or 

comments received, go to http:// 

www.epa.gov/feddocket. Submitted 

comments may also be inspected at the 

Regulatory Management Division, U.S. 

Citizenship and Immigration Services, 

Department of Homeland Security, 111 

Massachusetts Avenue, NW., 3rd Floor, 

Washington, DC 20529. To make an 

appointment please contact the 

Regulatory Management Division at 

(202) 272–8377. 

II. Background 

A. Current Eligibility Requirements for 

Special Immigrant and Nonimmigrant 

Religious Workers 

Aliens may be classified either as 

nonimmigrant or special immigrant 

religious workers under the Immigration 

and Naturalization Act (INA) and USCIS 

regulations. See sections 101(a)(15)(R) 

and (27)(C) of the Immigration and 

Nationality Act of 1952, as amended, 8 

U.S.C. 1101(a)(15)(R) and (27)(C); 8 CFR 

204.5(m), 214.2(r). To be eligible for 

classification as a religious worker, the 

alien must have been a member of a 

religious denomination having a bona 

fide, nonprofit religious organization in 

the United States for at least two years 

prior to the application for admission to 

the United States if seeking the religious 

worker (R–1) nonimmigrant status, or to 

the filing of the petition with USCIS if 

seeking special immigrant status. The 

alien must seek to enter the United 

States to work for the organization, or a 

bona fide organization affiliated with 

the denomination, as a minister or a 

worker in a religious vocation or 

occupation, regardless of whether or not 

in a professional capacity. Unlike some 

nonimmigrant categories, the R 

classification does not require that the 

alien establish that he or she has a 

residence in a foreign country which he 

or she has no intention of abandoning. 

Under current USCIS regulations, 

‘‘professional capacity’’ is defined as 

‘‘an activity in a religious vocation or 

occupation for which the minimum of a 

United States baccalaureate degree or a 

foreign equivalent degree is required.’’ 8 

CFR 214.2(r)(2). ‘‘Religious occupation’’

is defined as ‘‘an activity which relates 

to a traditional religious function,’’

including, but not limited to, religious 

instructors, cantors and workers in 

religious health care facilities. Id. The 

term generally would not include 

maintenance workers, clerical staff or 

fund raisers. Id. A ‘‘religious vocation’’

is a ‘‘calling to religious life evidenced 

by the demonstration of commitment 

practices in the religious denomination, 

such as the taking of vows.’’ Id. A 

bachelor’s degree or foreign equivalent 

is only required for aliens working in a 

professional capacity, assuming the 

other vocation or occupation 

requirements are met. 

The main substantive difference 

between the special immigrant religious 

worker and the nonimmigrant religious 

worker classification is that the special 

immigrant religious worker must not 

only have been a member of the 


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20444 Federal Register / Vol. 72, No. 79 / Wednesday, April 25, 2007 / Proposed Rules 

religious denomination for the two years 

immediately preceding the application, 

but must have also been working as a 

minister or performing the religious 

vocation or occupation continuously, 

either abroad or in the United States or 

both, for at least two years immediately 

preceding the filing of the application. 

The spouse or child of a 

nonimmigrant granted R–1 status can be 

admitted to the United States as an R–

2 nonimmigrant in order to accompany, 

or follow to join, the principal R–1 

alien. The spouse or child of a special 

immigrant religious worker is eligible to 

apply for permanent residence by virtue 

of the worker’s acquisition of permanent 

residence. 

There is a significant procedural 

difference between the filing processes 

for special immigrant religious workers 

and nonimmigrant religious workers. 

Section 203(e) of the INA, 8 U.S.C. 

1153(e), requires that an alien seeking 

status as a special immigrant religious 

worker file a petition (Form I–360) with 

USCIS. The petition must be approved 

before the alien can obtain special 

immigrant status. Under current USCIS 

regulations, there is no requirement that 

a nonimmigrant living outside of the 

United States file a petition to obtain a 

R–1 visa. At present, an R–1 

classification can be initiated at a 

consular office overseas through 

application for an R–1 visa (without any 

prior approval of a petition by USCIS) 

or, for aliens who are visa-exempt, by 

seeking initial admission into the 

United States. Organizations seeking to 

employ a nonimmigrant religious 

worker already present in the United 

States, or to extend the stay of a current 

R–1 nonimmigrant employee in the 

United States, must file a Form I–129, 

Petition for a Nonimmigrant Worker, 

with USCIS, along with the appropriate 

fee. Filing a Form I–129 with USCIS is 

not the only way that a religious worker 

may obtain further periods of lawful 

stay in the United States. A religious 

worker may obtain additional approved 

periods of lawful stay in the United 

States by using a visa to reenter or, if 

visa-exempt, by seeking reentry at the 

border. 

Unlike the provision for ministers, 

which does not contain a sunset 

provision, section 101(a)(27)(C)(ii)(II) 

and (III) of the Act, 8 U.S.C. 

1101(a)(27)(C)(ii)(II) and (III), as enacted 

by section 151(a) of the Immigration Act 

of 1990 (IMMACT ’90), Pub. L. No. 101–

649, 104 Stat. 4978 (Nov. 29, 1990), 

provided that professional and other 

religious workers must ‘‘seek to enter 

the United States * * * before October 

1, 1994.’’ See also An Act to Amend the 

Immigration and Nationality Act to 

Extend for an Additional 5 years the 

Special Immigrant Religious Worker 

Program, Pub. L. No. 108–99, 117 Stat. 

1176 (Oct. 15, 2003). This sunset 

provision has been extended four times 

and now expires on October 1, 2008. 

Based on the pattern since 1990, further 

extensions to the sunset date can be 

anticipated. To immigrate under the 

special immigrant religious worker 

category, aliens who are not ministers 

must have a petition approved on their 

behalf and either enter the United States 

as an immigrant or adjust their status to 

permanent residence while in the 

United States by no later than 

September 30, 2008. This rule proposes 

to simply reference the statutory 

deadline contained in section 

101(a)(27)(C) of the Act, rather than 

mention a specific date, so that regular 

updates to the regulations are not 

required each time Congress extends the 

sunset date provision. The sunset 

provision only applies to special 

immigrant workers in a religious 

vocation or occupation; it does not 

apply to the nonimmigrant religious 

worker category or to special immigrant 

ministers. 

B. Rationale for the Proposed Rule 

The former Immigration and 

Naturalization Service (INS) published a 

proposed rule in 1995. 60 FR 29771 

(June 5, 1995). While USCIS reviewed 

this earlier proposed rule, the 

Department determined that further 

changes to the regulations governing the 

religious worker program were needed. 

This was particularly evident given the 

passage of time, recent indications of 

fraud in the religious worker program 

and a renewed focus on eradicating 

such fraud, and the need to update 

current regulations to reflect recent 

statutory amendments. 

In March 1999, the Governmental 

Accountability Office (GAO) identified 

incidents of fraud in the religious 

worker program. GAO, Issues 

Concerning the Religious Worker Visa 

Program, Report GAO/NSIAD–99–67 

(March 26, 1999). The report stated that 

the fraud often involved false statements 

by petitioners about the length of time 

that the applicant was a member of the 

religious organization, the qualifying 

work experience, and the position being 

filled. The report also noted problems 

with the applicants making false 

statements about their qualifications 

and exact plans in the United States. 

USCIS has since continued to assess 

the potential for fraud in the religious 

worker program. USCIS developed and 

implemented a benefit fraud assessment 

to measure the integrity of specific 

nonimmigrant and immigrant 

applications and petitions by 

conducting administrative inquiries on 

randomly selected cases. The review is 

referred to as an ‘‘assessment’’ because 

the 220 cases reviewed were not 

attached to any suspicions of fraud; 

rather, they were a statistically valid 

combination of pending and completed 

cases filed over a six month period that 

were reviewed to determine the extent 

of fraud occurring within the sample. 

This assessment by the USCIS Office of 

Fraud Detection and National Security 

(FDNS) confirmed that there was a 33% 

rate of fraud in the religious worker 

program. The assessment also indicated 

patterns of potential fraud and 

weaknesses that created vulnerabilities 

for fraud. Through this sample of 

religious worker cases, FDNS 

established that a significant number of 

petitions filed on behalf of religious 

workers were filed by nonexistent 

organizations (44% of fraudulent cases) 

and/or contained material 

misrepresentations in the 

documentation submitted to establish 

eligibility (54% of fraudulent cases). 

There exists a compelling need to 

eliminate this fraud. A summary of the 

USCIS FDNS Religious Worker Benefit 

Fraud Assessment can be found on the 

docket at http://www.regulations.gov or 

at http://www.uscis.gov under the 

‘‘about USCIS’’ tab, then under 

‘‘Freedom of Information and Privacy 

Act (FOIA).’’

In keeping with the DHS anti-fraud 

strategy, cases identified with 

preliminary findings of fraud are 

referred to the Bureau of Immigration 

and Customs Enforcement (ICE) for 

further investigation, possible removal 

proceedings, or referral for criminal 

prosecution. 

The changes proposed in this rule, if 

implemented, would decrease the 

opportunity for fraud in the religious 

worker program. 

III. Analysis of Proposed Rule 

This rule proposes changes to the 

current religious worker process to 

address concerns about the integrity of 

the religious worker program. Those 

changes include expanding the petition 

requirement for all religious 

organizations seeking to classify an 

alien as an immigrant or nonimmigrant 

religious worker and the possibility of 

an on-site inspection for religious 

organizations to ensure the legitimacy of 

petitioner organizations and 

employment offers made by such 

organizations. 

USCIS also is proposing new and 

amended definitions to describe more 

clearly the regulatory requirements, as 

well as add specific evidentiary 


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Federal Register / Vol. 72, No. 79 / Wednesday, April 25, 2007 / Proposed Rules 20445 

requirements for petitioning employers 

and prospective religious workers. This 

rule also proposes to amend how USCIS 

regulations reference the sunset date, 

the statutory deadline by which special 

immigrant religious workers, other than 

ministers, must immigrate or adjust 

status to permanent residence, so that 

regular updates to the regulations are 

not required each time Congress extends 

the sunset date. 

USCIS does not believe that the 

requirements proposed under this rule 

(as discussed below) would 

substantially burden the free exercise of 

religion and therefore this rule should 

not raise any concerns under the 

Religious Freedom Restoration Act of 

1993. See Pub. L. No. 103–141, 107 Stat. 

1488, found as amended at 42 U.S.C. 

2000bb et seq. The regulation of the 

process that organizations must follow 

to petition for foreign workers and of 

foreign workers seeking to enter or 

remain in the United States exists 

independently of whether the 

employing organization is classified as 

‘‘religious’’ in nature. The existing 

regulation of the religious worker 

program is only being continued by the 

present rule—it is not a new form of 

regulation or a regulation that otherwise 

intrudes upon the existing expectations 

of religious freedom under the First 

Amendment. USCIS has carefully 

crafted the additional requirements 

proposed in an attempt to eradicate 

fraud in the religious worker program. 

The proposed rule applies to the 

religious organizations who petition for 

an immigrant or non-immigrant 

religious worker to perform religious 

work in the United States. The proposed 

rule does not make any distinction that 

is known to be based on the substance 

of an individual’s religious beliefs; it 

only sets qualifications for the 

organization seeking to employ an 

individual, and the qualifications of that 

individual. USCIS, however, is 

interested in public comment on this 

issue and will consider comments 

received in the development of the final 

rule. 

A. Proposed Changes to Definitions 

The applicable definitions for 

applicants and petitioners for religious 

worker classification are set forth in 8 

CFR 204.5(m) and 214.2(r)(2). This 

proposed rule adds several definitions, 

and expands or clarifies others as 

described below. Because each of the 

defined terms are repeated in both 204.5 

and 214.2, the amendments and 

additions proposed below apply to both 

sections as indicated in the regulation 

text at the end of this rule. 

Bona Fide Organizations 

USCIS proposes to clarify the existing 

definition of ‘‘bona fide nonprofit 

religious organization in the United 

States’’ to mean a religious organization 

exempt from taxation as described in 

section 501(c)(3) of the Internal Revenue 

Code of 1986, 26 U.S.C. 501(c)(3), or 

subsequent amendment, as a religious 

organization and possessing a currently 

valid determination letter from the IRS 

confirming such exemption. A church 

must petition as a bona fide nonprofit 

religious organization and may not 

petition as a bona fide organization 

which is affiliated with a religious 

organization as a means to avoid the 

evidentiary requirements applicable to 

churches. USCIS has determined that 

this letter is the best means for a 

petitioner to provide immediate and 

certain documentation at the time of the 

initial application that the religious 

organization is exempt from taxation 

under section 501(c)(3). The agency 

welcomes public comments on 

alternative means for the initial petition 

to include such documentation. 

USCIS also proposes to add to the 

existing definition of ‘‘bona fide 

organization which is affiliated with the 

religious organization in the United 

States,’’ to include entities such as 

educational institutions, hospitals, or 

private foundations. See 8 CFR 

204.5(m)(2), 214.2(r)(2). Such entities 

may qualify as a petitioning employer 

organization for immigration purposes, 

even if their purpose is not exclusively 

religious, if documentation is provided 

to establish the organization’s religious 

purpose and the religious nature of its 

activities. The eligibility of each 

organization will be determined on a 

case-by-case basis. An organization 

granted section 501(c)(3) status by the 

IRS as something other than a religious 

organization must submit the Religious 

Denomination Certification contained in 

the Forms I–360 and I–129, signed by 

the attesting religious organization in 

the denomination to confirm the 

petitioning organization’s affiliation 

with the religious denomination. 

Additionally, the bona fide nonprofit 

religious organization attesting to the 

petitioning organization’s affiliation 

with the denomination must be exempt 

from taxation as described in section 

501(c)(3) of the Internal Revenue Code 

of 1986 and as evidenced by a currently 

valid determination letter from the IRS 

confirming the bona fide nonprofit 

religious organization’s exemption. A 

church may not present itself as a bona 

fide organization affiliated with a 

religious denomination as a means of 

avoiding the requirement that churches 

present an IRS tax-exempt letter as a 

religious organization. 

Denominational Membership 

USCIS proposes to add a definition of 

‘‘denominational membership’’ to 

clarify that, during at least the two-year 

period immediately preceding the filing 

of the petition, the alien must have been 

a member of the same religious 

denomination as the United States 

employer that seeks to employ him or 

her. The definition is premised on the 

shared faith and worship practices of 

the institution, rather than on their 

formal affiliation. The purpose of this 

definition is to avoid the immigration of 

religious workers (1) into institutions 

that are not truly practicing a religion, 

and (2) based on the alien’s recent 

‘‘conversion’’ to a religious commitment 

in the interest of immigration status 

rather than a sincere intention to 

perform service to one’s longstanding 

faith. 

Ministers 

A ‘‘minister’’ is currently defined as 

an individual duly authorized by a 

religious denomination to conduct 

religious worship and to perform other 

duties usually performed by authorized 

members of the clergy of that religion. 

USCIS proposes to amend this 

definition to require that an individual 

also be ‘‘fully trained according to the 

denomination’s standard.’’ The revised 

definition focuses on the 

denomination’s traditional requirements 

for ordination or its equivalent, because 

some denominations do not require a 

particular level of formal academic 

training or experience. 

Religious Denomination 

USCIS is modifying the definitions of 

‘‘religious denomination’’ to clarify that 

it applies to a religious group or 

community of believers governed or 

administered under some form of 

common ecclesiastical government. See 

8 CFR 204.5(m)(2), 214.2(r)(2). The 

denomination must share a common 

creed or statement of faith, some form 

of worship, a formal or informal code of 

doctrine and discipline, religious 

services and ceremonies, established 

places of religious worship, religious 

congregations, or comparable indicia of 

a bona fide religious denomination. The 

proposed definition does not require a 

hierarchical governing structure because 

some legitimate denominations 

officially shun such structures; instead, 

the focus is on the commonality of the 

faith and internal organization of the 

participating organizations. 


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Religious Occupation 

‘‘Religious occupation’’ is now 

defined as habitual employment in an 

occupation the duties of which 

primarily relate to a traditional religious 

function and that is recognized as a 

religious occupation within the 

denomination. USCIS proposes to 

amend the definition to clarify that the 

duties of the position must be 

‘‘primarily, directly, and substantially 

related to the religious beliefs or creed 

of the denomination.’’ Examples of 

religious occupations include, but are 

not limited to, liturgical workers, 

religious instructors, religious 

counselors, cantors, catechists, 

missionaries, religious translators, 

religious broadcasters, youth ministers, 

religious choir directors or music 

ministers, or ritual slaughter 

supervisors. ‘‘Religious occupation’’

does not include positions whose duties 

are primarily administrative or 

supportive in nature, and any 

administrative duties must be incident 

to the substantive, traditionally religious 

functions. Examples of non-qualifying 

administrative and support positions 

include, but are not limited to: janitors; 

maintenance workers; clerks; 

secretaries; fund raisers; secular 

musicians; secular translators; those 

who sell literature, volunteer as ushers 

during worship services, serve in the 

choir, volunteer part-time to assist the 

clergy, or lead a weekly study group; or 

similar persons engaged in primarily 

secular, administrative or support 

duties. These examples are primarily 

drawn from the legislative history of 

IMMACT ’90. Family Unity and 

Employment Opportunity Immigration 

Act of 1990, H. Rept. 101–723(I), 101st 

Cong., 2nd Sess. (Sept. 19, 1990). 

Religious Vocation 

USCIS is proposing to revise the 

definition of ‘‘religious vocation’’ to 

clarify that it refers to a formal lifetime 

commitment to a religious way of life. 

The opportunity to immigrate as a 

religious worker in a vocation should be 

reserved for those individuals whose 

lives are dedicated to religious practices 

and functions, as distinguished from the 

secular members of the religion. 

Religious Workers 

USCIS proposes to add a new 

definition of ‘‘religious workers’’ and to 

define the term, in part, as individuals 

engaged in a religious occupation or 

vocation either in a professional or nonprofessional capacity. Religious workers 

in a vocation are those individuals who 

have made a formal lifetime 

commitment to a religious way of life. 

USCIS is proposing to require evidence 

that the religious denomination has a 

traditional established class of 

individuals whose lives are dedicated to 

religious practices and functions, as 

distinguished from the secular members 

of the religion. Such evidence may 

include, but is not limited to, the taking 

of vows, or other investitures or 

ceremonies. USCIS requests comments 

with regard to other types of available 

evidence and alternative criteria for 

establishing the required level of 

commitment to a religious way of life 

applicable to diverse religious 

denominations. 

Religious workers in a religious 

occupation are those seeking to be 

employed by a religious organization in 

a religious occupation, the duties of 

which involve traditional religious 

functions. The new definition of 

religious occupation seeks to 

distinguish more clearly between nonqualifying lay or administrative work, 

and the kind of committed religious 

work justifying immigration status. The 

definition and evidentiary requirement 

for religious workers in a religious 

occupation use the bright lines of: (1) 

compensation by the employer, and (2) 

either 20 hours per week for 

nonimmigrants or 35 hours per week 

(full-time) for special immigrants. 

The revised requirements for 

immigrant petitions and nonimmigrant 

status require that the alien’s work be 

compensated by the employer because 

that provides an objective means of 

confirming the legitimacy of and 

commitment to the religious work, as 

opposed to lay work, and of the 

employment relationship. Unless the 

alien has taken a vow of poverty or 

similarly made a formal lifetime 

commitment to a religious way of life, 

this rule requires that the alien be 

compensated in the form of a salary or 

in the form of a stipend, room and 

board, or other support so long as it can 

be reflected in a W–2, wage transmittal 

statements, income tax returns, or other 

verifiable IRS documents. USCIS 

recognizes that legitimate religious work 

is sometimes performed on a voluntary 

basis, but allowing such work to be the 

basis for an R–1 nonimmigrant visa or 

special immigrant religious worker 

classification opens the door to an 

unacceptable amount of fraud and 

increased risk to the integrity of the 

program. In this rule, USCIS is 

proposing to implement bright lines that 

will ease the verification of petitioner’s 

claims in the instances where 

documentary evidence is required. It 

should be noted that this rule greatly 

reduces the burden on petitioners for 

submission of evidence. For example, 

petitioners are currently required to 

submit evidence of the beneficiary’s 

education and training whereas under 

this proposed rule they need only attest 

to the beneficiary’s eligibility. 

Documentary evidence is generally only 

required when it is in the form of an 

official government document or 

similarly provides added reliability. 

This change to the evidentiary 

requirements, in favor of an attestation 

scheme, can only successfully insure 

against fraud and abuse where 

petitioner’s claims can be verified. In 

accordance with 8 CFR 214.2(b)(1), 

members of a religious denomination 

coming temporarily and solely to do 

missionary work on behalf of a religious 

denomination may do so by obtaining a 

B–1 visa and may be granted extensions 

in increments of up to one year 

(provided such work does not involve 

the selling of articles or the solicitation 

or acceptance of donations). 

The issue of training is also clarified. 

The rules do not require a specific set 

of training, but a religious worker must 

be minimally competent to do the work 

and must intend to do it. Religious 

study or training for religious work in 

the United States does not justify 

special immigrant status, though an R–

1 religious worker may pursue study or 

training incident to status, as is 

appropriate in several other 

nonimmigrant classifications. Aliens 

seeking to pursue religious study in the 

United States not incident to R–1 status 

may pursue options such as F–1 or J–

1 classifications. All of these definitions 

recognize that some administrative 

duties are incidental to many religious 

functions, but require that the religious 

functions predominate. 

B. Proposed Petitioning Requirements 

USCIS is proposing to impose a new 

petition requirement on employers or 

organizations seeking to classify an 

alien as a religious worker, whether as 

an immigrant (Form I–360) or 

nonimmigrant (Form I–129). A petition 

requirement already exists for special 

immigrants and for organizations that 

seek to extend the stay or change status 

of a nonimmigrant religious worker 

already in the United States. The 

addition of the petition requirement for 

nonimmigrants seeking an R–1 visa or 

R–1 visa-exempt entry is needed in 

order to facilitate current and future onsite inspections and to further ensure 

the integrity of the program. Only the 

employing, United States organization 

will be allowed to complete and submit 

the Form I–129 or Form I–360 on behalf 

of the beneficiary. Allowing petitions to 

be filed by the aliens themselves or by 

third parties does not support the 


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integrity of the process. Given that there 

always must be an employing United 

States organization; this requirement 

should not pose any undue hardship on 

filers. 

USCIS also is proposing to require 

that the petitioning employer complete 

and submit an attestation along with the 

Form I–129 or the Form I–360, for nonimmigrants and special immigrants, 

respectively. The attestation will serve 

to establish that the alien will be 

entering the United States solely to 

carry on the vocation of a minister or to 

work in a religious vocation or 

occupation, that the alien is qualified 

for such position, and that the job offer 

is legitimate. These attestations must be 

executed by an authorized official of the 

organization. This requirement is 

designed to ensure that the prospective 

employer has the ability and intention 

to compensate the alien at a level at 

which the alien and accompanying 

family members will not become public 

charges, and that funds to pay the 

alien’s compensation do not include any 

monies obtained from the alien, 

excluding reasonable donations or 

tithing to the religious organization. 

C. On-Site Inspections 

This rule proposes that USCIS may 

conduct on-site inspections of 

petitioning organizations seeking to 

employ either an R–1 nonimmigrant or 

special immigrant religious worker. 

Pursuant to its general authority under 

section 103 of the INA and 8 CFR part 

103, USCIS may conduct audits, on-site 

inspections, reviews or investigations, 

to ensure that an alien is entitled to the 

benefit sought and that all laws have 

been complied with before and after 

approval of such benefits. DHS has 

determined that the option to conduct 

such on-site inspections is vital to the 

integrity of the religious worker program 

and petitioning process. A recent 

assessment by the FDNS confirmed that 

there was a high percentage of fraud 

(33%) in the religious worker program. 

Through the statistically valid sample of 

Form I–360 religious worker petitions, 

FDNS established that a significant 

number of petitions filed on behalf of 

religious workers were filed by 

nonexistent organizations and/or 

contained material misrepresentations 

in the documentation submitted to 

establish eligibility. By promulgating 

the option to conduct on-site 

inspections as proposed in this rule, 

USCIS is emphasizing this tool, with 

other program enhancements, as a 

deterrent to fraud and an aid in the 

detection of fraudulent petitions in the 

R–1 nonimmigrant and special 

immigrant religious worker categories. 

This rule will also allow DHS to 

monitor religious workers and ensure 

they maintain lawful status while in the 

United States. The purpose of this 

activity is to eliminate the inappropriate 

award of immigration benefits to 

unqualified individuals. 

D. Evidentiary Requirements for 

Petitioning Organizations 

USCIS also proposes to change the 

evidentiary requirements for petitioning 

employer organizations seeking a 

religious worker. Existing regulations 

require that the organization submit 

documentation showing that it is 

exempt from taxation in accordance 

with section 501(c)(3) of the Internal 

Revenue Code of 1986 as it relates to 

religious organizations. USCIS is 

proposing to specifically require that 

petitioning organizations submit a 

currently valid determination letter 

from the Internal Revenue Service (IRS). 

Likewise, a group of religious 

organizations, that are recognized as tax 

exempt under a group tax exemption, 

must provide the most current 

determination letter from the IRS that 

establishes that the group is an 

organization as described in section 

509(a)(1) of the Internal Revenue Code 

of 1986, 26 U.S.C. 509(a)(1), and that the 

group’s tax exemption is in accordance 

with section 501(c)(3) of the Internal 

Revenue Code of 1986. USCIS 

recognizes that in some cases such a 

determination letter will require the 

payment of a user fee to the IRS. See IRS 

Form 8718 (rev. June 2006). 

Although churches may not be 

required to obtain a section 501(c)(3) 

exemption for tax purposes, such an 

exemption is required when requesting 

immigration benefits on behalf of an 

alien. See Internal Revenue Service, Tax 

Guide for Churches and Religious 

Organizations: Benefits and 

responsibilities under the Federal Tax 

Law (IRS pub. no. 1828, Rev. Sept. 

2006); compare, section 

101(a)(27)(C)(ii)(III) of the INA, 8 U.S.C. 

1101(a)(27)(C)(ii)(III). Entities seeking to 

employ alien religious workers should 

be willing to request IRS recognition of 

their tax-exempt status, and their 

certifications to IRS under applicable 

tax rules will help ensure the integrity 

of their participation in the immigration 

process. In addition, the proposed 

regulation would modify the current 

regulatory text by replacing the ‘‘it’’

with ‘‘organization’’ in order to clarify 

that the organization must be exempt 

from taxation. USCIS requests 

comments regarding how to document 

bona fide tax exempt status, including 

the availability of other government 

agencies that may certify the bona fide 

tax exempt status of organizations 

located in United States territories that 

may be outside the jurisdiction of the 

IRS. 

E. Changes Unique to the Special 

Immigrant Religious Worker 

Classification 

Current regulations describing various 

categories of religious workers have led 

to much confusion. USCIS is now 

proposing to reorganize 8 CFR 204.5(m) 

in its entirety and simplify the religious 

worker classification by dividing it into 

three distinct categories: ministers, 

individuals engaged in a religious 

vocation, and individuals engaged in a 

religious occupation. Individuals within 

the latter two categories may be either 

professionals or non-professionals. 

The proposed rule recognizes that the 

prior religious work need not 

correspond precisely to the type of work 

to be performed; for instance, a former 

minister may immigrate to work as a 

missionary, and a former missionary, 

now ordained, may immigrate to work 

as a minister. The rule codifies 

longstanding recognition that a break in 

the continuity of religious work during 

the two years immediately preceding 

the filing of the petition will not affect 

eligibility if the alien has performed as 

a religious worker on a compensated, 

full-time basis, the break did not exceed 

two years, and the nature of the break 

was for further religious training or for 

sabbatical and did not involve 

unauthorized work in the United States. 

The proposed rule also clarifies that 

qualifying prior experience (that is, 

during the two years immediately 

preceding the petition or preceding any 

acceptable interruption of religious 

work) acquired in the United States 

must have been authorized under 

United States immigration law and in 

conformity with all other laws of the 

United States such as the Fair Labor 

Standards Act of 1938, 29 U.S.C. 201 et 

seq., 52 Stat 1060, as amended. If the 

alien was employed in the United States 

during the two years immediately 

preceding the filing of the application, 

the petitioner must submit the alien’s 

W–2 wage statements, the employer’s 

wage transmittal statements, and the 

transcripts of the alien’s processed 

income tax returns (IRS Form 4506T) for 

the preceding two years reflecting such 

work. Additionally, the alien must have 

belonged to the same denomination as 

the petitioner organization throughout 

the two years of qualifying employment. 

The evidentiary requirements in the rule 

also will ensure that the tax laws have 

been generally observed. Allowing 

periods of unauthorized, unreported 

employment to qualify an alien toward 


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permanent immigration undermines the 

integrity of the United States 

immigration system. 

USCIS proposes to remove existing 8 

CFR 204.5(m)(3)(iv), which currently 

states that the director may request 

appropriate additional evidence relating 

to the eligibility under section 203(b)(4) 

of the Act, 8 U.S.C. 1153(b)(4), of the 

religious organization, the affiliated 

organization, or the alien. This 

paragraph is unnecessary, since it 

merely repeats general adjudicative 

procedures found in 8 CFR 103.2. A 

similar provision has been stricken from 

the nonimmigrant religious worker 

regulations. 

F. Changes Unique to the Nonimmigrant 

Religious Worker Classification 

To maintain consistency in the 

adjudication of the nonimmigrant and 

special immigrant religious worker 

classifications, DHS has made 

conforming changes to the 

nonimmigrant religious worker 

classification (R visa category), where 

appropriate, to reflect the changes 

proposed in the definitions and filing 

requirements for special immigrant 

religious workers. 

Some proposed requirements, such as 

the period of authorized stay, are 

applicable only to the R visa category. 

Under current regulations, the standard 

period of stay is three years (with one 

potential extension of two years). USCIS 

proposes to change the standard period 

of stay to one year (with two potential 

extensions of two years each). An alien 

may apply for a one-year period of stay 

by filing the Form I–129 and the R 

Classification Supplement with the 

required attestation section completed 

and supporting documentation. This 

one-year admission runs from the date 

of initial admission in order to provide 

the alien the benefit of the full year and 

also to accommodate for any delay in 

consular processing. An alien may 

apply for additional periods of stay by 

filing the Form I–129 with USCIS and 

through demonstration of the alien’s 

compensation by the approved 

employer in a manner that assures 

compliance with tax policies and 

provides better assurance to USCIS that 

the required employment relationship 

truly exists. Any request for R–1 status, 

admission beyond the first year of R–1 

status, or any period of extension of 

stay, must include initial evidence of 

the previous R–1 employment in the 

form of the alien’s W–2 wage 

statements, the employer’s wage 

transmittal statements, and transcripts 

of the alien’s processed income tax 

returns (IRS Form 4506T) for any 

preceding period spent in the United 

States in R–1 status. For any period of 

such employment not yet reflected in 

documents, such as W–2s, wage 

transmittal statements or income tax 

returns, required to be completed or 

filed at the time of filing the petition, 

then pay stubs relating to payment for 

such employment shall also be 

presented for work not yet reflected in 

such documents. Aliens who have taken 

a vow of poverty or similar formal 

lifetime commitment to a religious way 

of life may submit evidence of such 

commitment in lieu of the above 

documentary requirements, but must 

also submit evidence of all financial 

support (including stipends, room and 

board, or other forms of support) 

received while in R–1 status. 

The proposed rule will require that 

every petition for R–1 classification 

must be initiated by filing a Form I–129 

with USCIS. Beneficiaries will no longer 

be able to obtain an R–1 visa or status 

at a United States Consulate abroad or 

at a port-of-entry without the prior 

approval of the Form I–129 by USCIS. 

Visa-exempt aliens will present the 

USCIS approval of the Form I–129 at the 

port-of-entry when applying for 

admission in R–1 status. Only a 

prospective or existing employer can 

complete and file the Form I–129, and 

the employer must notify USCIS when 

the individual on an R–1 visa has been 

released from his or her employment or 

is no longer working the minimally 

required hours. 

DHS is proposing to exempt from the 

five-year maximum stay certain aliens 

whose work in the United States is 

intermittent or seasonal. DHS requests 

comments on the need for this 

exemption in the religious worker 

context. Lastly, the existing rule is 

clarified to allow R–2 spouses and 

children to remain in the United States 

for the same time limits as the principal 

alien. Nevertheless, as with any 

dependent nonimmigrant status, the 

primary purpose of the spouse or child 

must be to join or accompany the 

principal R–1 alien in the United States. 

USCIS may limit, deny or revoke on 

notice any stay for an R–2 that is not 

primarily intended for that purpose or is 

intended to evade the normal 

requirements of the nonimmigrant 

classification that otherwise would 

apply when the principal alien is absent 

from the United States. An R–1 alien 

may not use occasional work visits to 

the United States in order to ‘‘park’’ the 

R–2 family members in the United 

States for extended periods while the 

principal alien is absent. 

IV. Regulatory Requirements 

A. Regulatory Flexibility Act 

USCIS has reviewed this regulation in 

accordance with the Regulatory 

Flexibility Act (5 U.S.C. 605(b)). USCIS 

is not able at this time to certify this rule 

will not have a significant economic 

impact on a substantial number of small 

entities. This proposed rule amends 

existing regulations pertaining to the 

special immigrant and nonimmigrant 

religious worker classifications and also 

is designed to address fraud in, and 

ensure the integrity of, the religious 

worker program. This rule affects only 

those religious organizations and bona 

fide organizations affiliated with a 

religious denomination (which may 

include educational institutions, 

hospitals, and private foundations) that 

are seeking to classify an alien as a 

nonimmigrant religious worker or 

special immigrant religious worker. 

DHS estimates that USCIS likely will 

receive approximately 22,338 petitions 

filed annually from such organizations 

and that in most instances, such 

organizations would be considered 

‘‘small entities’’ as that term is defined 

under 5 U.S.C. 601. The 22,338 figure is 

derived from the total number of Forms 

I–360 and I–129 religious worker 

petition filings in the prior fiscal year 

(4,617 Form I–360s and 5,939 Form I–

129s filed for change of status or 

extension of stay of R–1 

nonimmigrants), plus 11,782 visas 

issued by the Department of State for 

initial R–1 nonimmigrant visas, which 

USCIS projected will be the number of 

new petitions it will see for the R–1 

nonimmigrant category in light of the 

new petition requirement for that 

classification. The 22,338 figure, 

however, does not take into account 

petitioning organizations that file 

petitions for several potential religious 

workers. Further, there are no available 

statistics on the total number of 

religious organizations and affiliated 

bona fide organizations that may exist in 

the United States and of that the number 

the percentage of organizations that 

ultimately may seek to hire a foreign 

national to perform work in a religious 

occupation or vocation. The 

Department, therefore, seeks comments 

on the extent of any potential economic 

impact of this rule on small entities. 

USCIS recognizes that there will be 

certain additional costs and burdens on 

the religious organizations and bona 

fide organizations affiliated with a 

religious denomination due to the new 

petitioning requirement for R–1 

nonimmigrants. The estimated costs and 

benefits are described in detail in the 

Executive Order 12866 section below. 


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Even assuming that the number of 

petition filings remains constant 

annually and projecting that 

approximately 15,637 (70% of the 

22,338 petitions) individual 

organizations will seek religious 

workers, USCIS has determined that the 

total costs to a religious or affiliated 

bona fide organization of for a religious 

worker petition ($190) would represent 

a small percentage of the organization’s 

total annual wage cost for the 

beneficiary of the religious worker 

petition (depending on the type of 

worker sought and assuming, for 

purposes of this analysis, that the 

position is salaried). USCIS also projects 

that the petition cost would be an even 

smaller percentage of the petitioning 

organization’s overall operating budget. 

These percentages were calculated 

based on Bureau of Labor Statistics 

indicating national average wages for 

the private sector ($17.25/hour), 

religious workers ($11.41/hour), 

Directors of Religious Activities/ 

Education ($16.41/hour), and clergy 

($19.23/hour) and based on the standard 

35 hours per week for a full-time worker 

for a full year. Finally, petitioning 

organizations will have an additional 

burden in terms of time needed to 

complete attestation and certification 

requirements related to the 

organization’s tax exempt status and the 

potential religious worker’s 

qualifications and to collect and submit 

additional information related to the 

employer’s tax exempt status and an 

attestation regarding the potential 

religious worker’s qualifications and 

duties, etc. USCIS anticipates, however, 

that most of this information will be 

readily available to the organization. 

Thus, any impact on religious or 

affiliated organizations or individuals to 

comply with these requirements should 

be minimal. 

Additionally, USCIS recognizes that 

many religious organizations will be 

required to pay a user fee to the IRS to 

acquire a currently valid determination 

letter of their IRC section 501(c)(3) 

status. IRS Forms 1023 and 8718 (rev. 

June 2006). Very small organizations 

with gross revenues of not more than 

$10,000 may be charged a fee of $300 by 

the IRS to determine their current 

501(c)(3) status. Organizations with 

gross receipts in excess of $10,000 

during the previous four years or 

anticipating gross receipts averaging 

more than $10,000 during the first four 

years, may be charged a fee of $750 by 

the IRS to determine their current 

501(c)(3) status. USCIS does not 

currently possess sufficient information 

to determine which organizations would 

fall into each category or otherwise not 

be required to pay such a fee. 

Accordingly, DHS invites comments on 

the scope of these costs and more 

accurate means for defining these costs. 

Again, DHS invites comments on ways 

that a religious organization could 

demonstrate that they meet the 

requirements without providing a 

501(c)(3) letter, but without USCIS 

being required to analyze sizeable 

paperwork to verify the status. USCIS is 

also pursuing alternative avenues of 

verification directly with the IRS. 

Considering the importance of 

preventing fraud in the religious worker 

program and of ensuring that only 

legitimate religious organizations and 

bona fide affiliated organizations 

participate in the process, DHS believes 

that this proposed rule will have a 

positive impact overall. USCIS 

anticipates a net reduction of many of 

the adjudicative resources that might be 

expended in determining whether a 

religious worker petition involves 

potential fraud or misrepresentations. 

USCIS, however, specifically invites 

public comment on the estimated cost to 

petitioning religious organizations and 

bona fide organizations affiliated with a 

religious denomination to comply with 

the new religious worker petition 

requirements and prepare for the on-site 

inspections. 

B. Unfunded Mandates Reform Act of 

1995 

This rule will not result in the 

expenditure by state, local, and tribal 

governments, in the aggregate, or by the 

private sector, of $100 million or more 

in any one year, and it will not 

significantly or uniquely affect small 

governments. Therefore, no actions were 

deemed necessary under the provisions 

of the Unfunded Mandates Reform Act 

of 1995. 

C. Small Business Regulatory 

Enforcement Fairness Act of 1996 

This rule is not a major rule as 

defined by section 804 of the Small 

Business Regulatory Enforcement Act of 

1996. This rule will not result in an 

annual effect on the economy of $100 

million or more; a major increase in 

costs or prices; or significant adverse 

effects on competition, employment, 

investment, productivity, innovation, or 

on the ability of United States-based 

companies to compete with foreignbased companies in domestic and 

export markets. 

D. Executive Order 12866 (Regulatory 

Planning and Review) 

This rule is considered by the 

Department of Homeland Security to be 

a ‘‘significant regulatory action’’ under 

Executive Order 12866, section 3(f), 

Regulatory Planning and Review. 

Accordingly, this regulation has been 

submitted to the Office of Management 

and Budget for review. 

Assessment of the Costs 

This proposed rule amends existing 

regulations pertaining to the special 

immigrant and nonimmigrant religious 

worker classifications. For fiscal year 

2005, 3,230 individual organizations 

filed 4,617 petitions with USCIS seeking 

special immigrant religious workers. 

Also, 5,939 petitions were filed with 

USCIS for extensions and changes of 

status for R–1 nonimmigrant religious 

workers. Not all of these R–1 petitions 

represent filings by a single religious 

organization or bona fide organization 

affiliated with a religious denomination. 

These figures also do not account for 

instances where a single religious 

organization or affiliated bona fide 

organization filed petitions for several 

potential religious workers. 

Currently, there is no petition 

requirement for religious organizations 

or bona fide affiliated organizations 

initially seeking a nonimmigrant 

religious worker. To estimate the 

number of organizations that may be 

affected by the new petition 

requirement for the nonimmigrant 

religious worker classification (R–1), 

USCIS looked at the number of 

nonimmigrant visas that were issued by 

the Department of State for religious 

workers in 2004. Department of State 

issued 11,782 visas for 2004; however, 

this number does not exclude those 

aliens who potentially have multiple 

visas or those aliens who were 

previously in R–1 nonimmigrant status 

and received extension of their status by 

obtaining a new visa and reentering the 

United States (rather than seeking an 

extension while in the United States). 

Assuming the number of religious 

worker petitions filed annually and the 

number of religious or affiliated 

organizations seeking workers remain 

constant, DHS projects that 

approximately 15,637 individual 

organizations will seek religious 

workers each fiscal year. This projection 

is based on the percentage of religious 

organizations and bona fide affiliated 

organizations that sought special 

immigrant religious workers in FY 2005 

(70%) applied against the total 

population of projected annual petition 

filings of 22,338. In order to differentiate 

the amount attributed to each form 

associated with the Religious Worker 

program (Form I–129 and I–360) the 

following figures will be used to 

estimate costs and burden hours for 


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each form. Based on the percentage of 

religious organizations and bona fide 

affiliated organizations that sought 

special immigrant religious workers in 

FY 2005 (70%) applied against the 

population of projected annual petition 

filings for the Form I–129, DHS 

estimates that there will be 

approximately 12,407 (17,721 × 70%) 

Form I–129 filings for the nonimmigrant 

religious worker, and 3,230 (4,617 × 

70%) for the Form I–360 which 

comprises the total 15,637 (22,338 × 

70%) total projected filings for both 

forms. 

The current fees for the Form I–129, 

Petition for Nonimmigrant Worker, and 

the Form I–360, Petition for Amerasian, 

Widow(er), or Special Immigrant are 

$190. USCIS is proposing to modify 

these fees in a separate rule. USCIS 

already has an approved information 

collection for the Form I–129, OMB 

1615–0009, and Form I–360, OMB 

1615–0020. Petitioning organizations 

are required to submit additional initial 

evidence related to their tax-exempt 

status and an attestation regarding the 

potential religious worker’s 

qualifications and duties, etc. 

Information collection costs, therefore, 

are increased by these requirements, 

which would increase the existing 

information collection burden by 

roughly 15 minutes per respondent for 

the new attestation for both the Form I–

129 and the Form I–360. If there are 

15,637 respondents, this increases the 

information collection burden by 

approximately 3,908 hours, which at 

$16 per hour increases public costs by 

$62,528. DHS estimates that the Form I–

129 will have 12,407 of the 15,637 

estimates filings which would be an 

increase in information collection 

burden by approximately 3,101 hours 

for the attestation which at $16 per hour 

increases the public costs for the Form 

I–129 by $49,616. DHS estimates that 

the Form I–360 will have 3,230 of the 

15,637 estimates filings (based on the 

FY05 filings stated earlier) which would 

be an increase in information collection 

burden by approximately 807 hours 

which at $16 per hour increases the 

public costs for the Form I–360 by 

$12,912. The total cost of petitioning 

under this proposed rule is estimated to 

be $6,510,103. ($5,165,373 for the Form 

I–129 and $1,344,730 for the Form I–

360). In addition, changes in filing 

requirements will increase the 

frequency of filings for extensions or 

changes of status over a five-year period, 

increasing the total costs to the public 

to $6,665,503. 

In addition, several respondents are 

expected to pay the fee required under 

Internal Revenue Regulations of ($750) 

for obtaining a section 501(c)(3) status 

determination letter from that agency. 

Since this is a new requirement, USCIS 

has no data on which to base an 

estimate of how many will be required 

to resort to this course of action. The 

agency has anecdotal stories from 

adjudications and other programs 

indicating that these letters are regularly 

lost or destroyed, and the existence of 

the IRS form points to its eventuality. 

Nonetheless, even assuming that all 

15,637 religious worker petitions 

expected to be received per year are 

required to pay this fee, the total cost of 

such requests would be under $12 

million. USCIS feels that the actual 

number will be much less and 

welcomes comments on this impact. 

Together the total cost of these 

proposed changes are estimated to be 

$18,393,253, which remains well below 

the threshold of an economically 

significant rule as provided by the 

Executive Order. 

Assessment of Benefits 

The cost of the proposed rule’s 

increased information collection is 

outweighed by the overall benefit to the 

public of an improved system for 

processing religious workers. 

The proposed rule is a vital tool in 

furthering the protection of the public 

by (1) more clearly defining the 

requirements and process by which 

religious workers may gain admission to 

the United States, and (2) increasing the 

ability of DHS to deter or detect 

fraudulent petitions and to investigate 

and refer matters for prosecution. A 

recent assessment by the USCIS Office 

of Fraud Detection and National 

Security confirmed that there was a high 

percentage of fraud in the religious 

worker program. Through this 

statistically valid sample of I–360 

religious worker petitions, FDNS 

established that a significant number of 

petitions filed on behalf of religious 

workers were filed by nonexistent 

organizations and/or contained material 

misrepresentations in the 

documentation submitted to establish 

eligibility. The benefits of decreased 

fraud and increased national security 

tend to be intangible, thus, the benefits 

of such reduction in the high level of 

fraud in this program are difficult to 

quantify. On the other hand, the lack of 

such protections become quite tangible 

as soon as the lack of protections such 

as those proposed in this rule are 

manifested in the tangible economic or 

societal damage caused by a recipient of 

a fraudulent religious worker visa. The 

changes to the petition requirements for 

all religious workers as well as other 

program enhancements, such as a 

possible on-site inspection, are intended 

to increase detection of fraudulent 

petitions in this category and increase 

the ability of DHS to monitor that the 

eligible alien maintains status during 

their stay as valued guests in this 

country. 

This rule amends requirements for the 

special immigrant and nonimmigrant 

religious worker visa classifications. It 

will not significantly change the number 

of persons who immigrate to the United 

States based on employment-based 

petitions or temporarily visit based on a 

nonimmigrant visa petition. This rule is 

intended to benefit the public by 

clarifying definitions associated with 

the religious worker classifications, 

acceptable evidence, and specific 

religious worker qualification 

requirements. Balanced against the costs 

and the requirements to collect 

information, the burden imposed by the 

proposed rule appears to USCIS to be 

justified by the benefits. 

E. Executive Order 13132 (Federalism) 

This rule will not have substantial 

direct effects on the States, on the 

relationship between the National 

Government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government. Therefore, in 

accordance with section 6 of Executive 

Order 13132, it is determined that this 

rule does not have sufficient federalism 

implications to warrant the preparation 

of a federalism summary impact 

statement. 

F. Executive Order 12988 (Civil Justice 

Reform) 

This rule meets the applicable 

standards set forth in sections 3(a) and 

3(b)(2) of Executive Order 12988. 

G. Paperwork Reduction Act 

Any prospective employer must file a 

Form I–129, Petition for Nonimmigrant 

Worker, or Form I–360, Petition for 

Amerasian, Widow(er), or Special 

Immigrant seeking to classify an alien as 

a religious worker under sections 

101(a)(15)(R) and (27)(C) of the Act. The 

Forms I–129 and I–360 are considered 

information collections under the 

Paperwork Reduction Act (PRA). The 

Office of Management and Budget 

(OMB) has previously approved both 

the Forms I–129 and I–360 for use. The 

OMB control numbers for these 

collections for the Form I–129 is OMB 

1615–0009 and for the Form I–360 is 

OMB 1615–0020. 

This proposed rule extends the 

number of respondents for Form I–129 

and adds new information collections 

with respect to evidentiary attestations 


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for both the Form I–129 and Form I–

360. These requirements are considered 

information collections subject to 

review by OMB under the Paperwork 

Reduction Act of 1995. Written 

comments are encouraged and will be 

accepted until June 25, 2007. When 

submitting comments on the 

information collection, your comments 

should address one or more of the 

following four points. 

(1) Evaluate whether the collection of 

information is necessary for the proper 

performance of the functions of the 

agency, including whether the 

information will have practical utility; 

(2) Evaluate the accuracy of the 

agency’s estimate of the burden of the 

collection of information, including the 

validity of the methodology and 

assumptions used; 

(3) Enhance the quality, utility, and 

clarity of the information to be 

collected; and 

(4) Minimize the burden of the 

collection of the information on those 

who are to respond, including through 

the use of any and all appropriate 

automated, electronic, mechanical, or 

other technological collection 

techniques or other forms of information 

technology, e.g., permitting electronic 

submission of responses. 

Overview of Information Collection for 

Attestation in the Form I–129 

(1) Type of information collection: 

Revision of currently approved 

collections. 

(2) Title of Form/Collection: I–129, 

Petition for a Nonimmigrant Worker/ 

Evidentiary requirements; religious 

worker. 

(3) Agency form number, if any, and 

the applicable component of the 

Department of Homeland Security 

sponsoring the collection: Form I–129, 

U.S. Citizenship and Immigration 

Services. 

(4) Affected public who will be asked 

or required to respond, as well as a brief 

abstract: Individuals. The information 

collection is necessary in order for 

USCIS to make a determination whether 

the prospective employer is a bona fide 

non-profit religious organization or a 

bona fide organization which is 

affiliated with the religious 

denomination, that the job offer is 

legitimate, that the beneficiary qualifies 

for the classification sought, and that 

the employer is providing compensation 

in compliance with the Internal 

Revenue Code. 

(5) An estimate of the total number of 

respondents and the amount of time 

estimated for an average respondent to 

respond to the new requirements: 

381,355 respondents at 3 hours per 

response. In addition, the on-site 

inspection is estimated to be an 

additional 65 minutes for each religious 

organization (12,407 respondents). 

(6) An estimate of the total of public 

burden (in hours) associated with the 

collection: Total reporting burden hours 

is 1,157,501. 

All comments and suggestions or 

questions regarding additional 

information should be directed to the 

Department of Homeland Security, U.S. 

Citizenship and Immigration Services, 

Regulatory Management Division, 111 

Massachusetts Avenue, NW., 3rd Floor, 

Washington, DC 20529; Attention: 

Richard A. Sloan, Director, 202–272–

8377. 

Overview of Information Collection for 

Attestation in the Form I–360 

(1) Type of information collection: 

Revision of currently approved 

collections. 

(2) Title of Form/Collection: Form I–

360 Petition for Amerasian, Widow(er), 

or Special Immigrant /Evidentiary 

requirements; religious worker. 

(3) Agency form number, if any, and 

the applicable component of the 

Department of Homeland Security 

sponsoring the collection: Form I–360, 

U.S. Citizenship and Immigration 

Services. 

(4) Affected public who will be asked 

or required to respond, as well as a brief 

abstract: Individuals. The information 

collection is necessary in order for 

USCIS to make a determination whether 

the prospective employer is a bona fide 

non-profit religious organization or a 

bona fide organization which is 

affiliated with the religious 

denomination, that the job offer is 

legitimate, that the beneficiary qualifies 

for the classification sought, and that 

the employer is providing compensation 

in compliance with the Internal 

Revenue Code. 

(5) An estimate of the total number of 

respondents and the amount of time 

estimated for an average respondent to 

respond to the new requirements: 16,914 

respondents at 2.25 hours per response. 

(6) An estimate of the total of public 

burden (in hours) associated with the 

collection: Total reporting burden hours 

is 41,554. 

All comments and suggestions or 

questions regarding additional 

information should be directed to the 

Department of Homeland Security, U.S. 

Citizenship and Immigration Services, 

Regulatory Management Division, 111 

Massachusetts Avenue, NW., 3rd Floor, 

Washington, DC 20529; Attention: 

Richard A. Sloan, Director, 202–272–

8377. 

List of Subjects 

8 CFR Part 204 

Administrative practice and 

procedure, Immigration, Reporting and 

recordkeeping requirements. 

8 CFR Part 214 

Administrative practice and 

procedure, Aliens, Employment, 

Foreign officials, Health professions, 

Reporting and recordkeeping 

requirements, Students. 

8 CFR Part 299 

Immigration, Reporting and 

recordkeeping requirements. 

Accordingly, chapter I of title 8 of the 

Code of Federal Regulations is proposed 

to be amended as follows: 

PART 204—IMMIGRANT PETITIONS 

1. The authority citation for part 204 

continues to read as follows: 

Authority: 8 U.S.C. 1101, 1103, 1151, 1153, 

1154, 1182, 1186a, 1255, 1641; 8 CFR part 2. 

2. Section 204.5 is amended by 

revising paragraph (m) to read as 

follows: 

§ 204.5 Petitions for employment-based 

immigrants. 

* * * * * 

(m) Religious workers. (1) Any 

prospective employer may file a Form I–

360, Petition for Amerasian, Widow(er), 

or Special Immigrant visa petition, on 

behalf of an alien for classification 

under section 203(b)(4) of the Act as a 

section 101(a)(27)(C) of the Act special 

immigrant religious worker. Such a 

petition may be filed for an alien who 

(either abroad or in the United States) 

for at least the two years immediately 

preceding the filing of the petition has 

been a member of a religious 

denomination that has a bona fide 

nonprofit religious organization in the 

United States. The alien must be coming 

to the United States solely for the 

purpose of working, on a compensated, 

full-time basis, in one of the following 

capacities: 

(i) The vocation of a minister of that 

religious denomination; or 

(ii) A religious vocation; or 

(iii) A religious occupation. 

(2) The alien also must be coming to 

work for a bona fide nonprofit religious 

organization in the United States, or a 

bona fide organization which is 

affiliated with the religious 

denomination and is exempt from 

taxation as an organization described in 

section 501(c)(3) of the Internal Revenue 

Code of 1986 or subsequent amendment, 

at the request of the organization to 

fulfill a reasonable need of the 


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organization. All three types of religious 

workers must have been performing, on 

a compensated, full-time but not 

necessarily exclusive basis, as a minister 

or in a religious vocation or occupation 

in the denomination continuously for at 

least the two-year period immediately 

preceding the filing of the petition. A 

full-time position is considered to be 35 

hours per week. The prior religious 

work may be either abroad or in lawful 

immigration status in the United States, 

and must have occurred after the age of 

14 years. The prior religious work need 

not correspond precisely to the type of 

work to be performed; for instance, a 

former minister may immigrate to work 

as a missionary, and a former 

missionary, now ordained, may 

immigrate to work as a minister. 

(3) A break in the continuity of the 

required religious work during the two 

years immediately preceding the filing 

of the petition will not affect eligibility 

so long as: 

(i) The alien was still employed as a 

religious worker on a compensated, fulltime basis, 

(ii) The break did not exceed two 

years, and 

(iii) The nature of the break was for 

further religious training or for 

sabbatical that did not involve 

unauthorized work in the United States. 

However, the alien must have been a 

member of the petitioner’s 

denomination throughout the two years 

of qualifying employment. 

(4) Definitions. As used in this 

paragraph (m) the term: 

Bona fide nonprofit religious 

organization in the United States means 

a religious organization exempt from 

taxation as described in section 

501(c)(3) of the Internal Revenue Code 

of 1986, as a religious organization and 

possessing a currently valid 

determination letter from the IRS 

confirming such exemption. A church 

must petition as a bona fide nonprofit 

religious organization and may not 

petition as a bona fide organization that 

is affiliated with an organization as a 

means to avoid the evidentiary 

requirements applicable to churches. 

Bona fide organization which is 

affiliated with the religious 

denomination means an organization 

which is closely associated with and 

routinely and substantially acts to 

further the religious goals of the 

religious denomination, as attested to by 

a bona fide nonprofit religious 

organization in the United States within 

the denomination. The bona fide 

nonprofit religious organization 

attesting to the petitioning 

organization’s affiliation must be 

exempt from taxation as described in 

section 501(c)(3) of the Internal Revenue 

Code of 1986, and as evidenced by a 

currently valid determination letter 

from the IRS confirming the bona fide 

nonprofit religious organization’s 

exemption. ‘‘Affiliation’’ for this 

particular purpose does not require legal 

relationship in the form of ownership or 

control by the denomination or by 

religious organizations within the 

denomination, but it does require a 

solid and public commitment by the 

affiliated organization to the tenets of 

the religious denomination. 

Denominational membership means 

membership during at least the two-year 

period immediately preceding the filing 

date of the petition, in the same type of 

religious denomination as the United 

States religious organization where the 

alien will be employed. Membership in 

religious denominations, including 

interdenominational organizations, 

sharing forms of government and 

worship, creeds, and disciplinary 

practices may be sufficient to show 

denominational membership. The 

denominational membership 

requirement shall be interpreted in a 

manner to allow qualification of persons 

who have demonstrated a sincere 

commitment to the religious faith of the 

United States organization of 

employment, and to prevent 

qualification by persons who may have 

taken on the faith of the United States 

organization for purposes of facilitating 

eligibility for United States immigrant 

or nonimmigrant status. 

Minister means an individual duly 

authorized by a religious denomination, 

and fully trained according to the 

denomination’s standards, to conduct 

religious worship and to perform other 

duties usually performed by authorized 

members of the clergy of that 

denomination. The term does not 

include a lay preacher or a person not 

authorized to perform such duties. In all 

cases, there must be a rational 

relationship between the activities 

performed and the religious calling of 

the minister. The minister must also 

intend to work solely as a minister in 

the United States, but the performance 

of administrative duties incident to the 

predominant, essentially religious 

duties does not exclude one from the 

definition of minister. 

Religious denomination means a 

religious group or community of 

believers governed or administered 

under a common type of ecclesiastical 

government. Members of a 

denomination must share a recognized 

common creed or statement of faith, a 

common form of worship, a common 

formal code of doctrine and discipline, 

religious services and ceremonies, 

common established places of religious 

worship, religious congregations, or 

comparable indicia of a bona fide 

religious denomination. For the 

purposes of this definition, religious 

organizations that are recognized as tax 

exempt under a group tax exemption 

issued pursuant to section 501(c)(3) of 

the Internal Revenue Code of 1986, as a 

religious organization will be presumed 

to belong to the same religious 

denomination, but such official 

affiliation is not necessary for 

denominational membership. 

Religious occupation means habitual 

employment in an occupation the duties 

of which primarily relate to a traditional 

religious function and which is 

recognized as a compensated religious 

occupation within the denomination. 

The duties of the position must be 

primarily, directly and substantively 

related to, and must clearly involve 

inculcating or carrying out the religious 

creed and/or beliefs of the 

denomination. The position must be 

traditionally recognized by the religious 

organization or similar organizations as 

a compensated occupation within the 

denomination. A religious occupation, 

in contrast to a vocation, must be 

salaried, or otherwise compensated by 

stipend, room and board, or other 

support that is reflected in an alien’s W–

2, wage transmittal statements, or 

income tax returns. Examples of 

occupations that can qualify as a 

religious occupation include liturgical 

workers, religious instructors, religious 

counselors, cantors, catechists, 

missionaries, religious translators, 

religious broadcasters, youth ministers, 

religious choir directors or music 

ministers, or ritual slaughter 

supervisors. ‘‘Religious occupation’’

does not include positions whose duties 

are primarily administrative or 

supportive in nature, and any 

administrative duties must be incident 

to the substantive, traditionally religious 

functions. Examples of non-qualifying 

administrative and support positions 

include, but are not limited to: janitors; 

maintenance workers; clerks; 

secretaries; fund raisers; secular 

musicians; secular translators; those 

who sell literature, volunteer as ushers 

during worship services, serve in the 

choir, volunteer part-time to assist the 

clergy or teach religion classes; or 

similar persons engaged in primarily 

secular, administrative or support 

duties. It is expected that members of 

religious organizations volunteer their 

time even in traditionally religious 

functions, and immigration status will 

not be conferred to lay persons who 

have arranged to be paid for 


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traditionally volunteer work in order to 

obtain immigration status. Religious 

study or training for religious work does 

not constitute religious work, but a 

religious worker may pursue study or 

training incident to status. For 

nonimmigrant purposes, prior 

experience or training is not required, 

the petition must demonstrate that the 

alien truly intends to take up the 

described religious occupation, and the 

position must require at least 20 hours 

per week of compensated service. For 

immigrant petitions only, the position 

offered must be permanent and fulltime, and the alien’s experience in the 

preceding years must have been fulltime. Full-time is considered to be 35 

hours per week. 

Religious vocation means a formal 

lifetime commitment to a religious way 

of life. There must be evidence that the 

religious denomination has a traditional 

established class of individuals whose 

lives are dedicated to religious practices 

and functions, as distinguished from the 

secular members of the religion. It 

requires that the individual make a 

formal lifetime commitment through 

vows, or other investitures or 

ceremonies, to this class of individuals 

and religious way of life. Examples of 

individuals with a religious vocation 

include, but are not limited to nuns, 

monks, and religious brothers and 

sisters. 

Religious worker means an individual 

engaged in and, according to the 

denomination’s standards, qualified for 

a religious occupation or vocation, 

whether or not in a professional 

capacity. Such individuals may work in 

a religious vocation if they have made 

a formal lifetime commitment to a 

religious way of life and in a religious 

occupation if the duties predominantly 

involve traditional religious functions. 

(5) Form and filing requirements. The 

Form I–360, Petition for Amerasian, 

Widow(er), or Special Immigrant, along 

with the fee specified in 8 CFR 

103.7(b)(1), and supporting evidence 

must be filed at the appropriate USCIS 

service center. Such a petition must be 

filed by the prospective United States 

employer on behalf of an alien who is 

either abroad or in the United States. 

After the date stated in section 

101(a)(27)(C) of the Act (as amended), 

immigration or adjustment of status on 

the basis of this section is limited solely 

to ministers of religion. 

(6) Attestation. The Form I–360 

contains an attestation section which an 

authorized official of the prospective 

employer must complete, sign and date. 

The term ‘‘prospective employer’’ refers 

to the organization or institution where 

the alien will be performing the 

proffered duties. The attestation 

includes a statement which certifies 

under penalty of perjury that the 

contents of the attestation are true and 

correct to the best of his or her 

knowledge. This attestation must be 

submitted by the prospective employer 

along with the petition. In the Form I–

360, the prospective employer must 

specifically attest to the following: 

(i) That the prospective employer is a 

bona fide non-profit religious 

organization or a bona fide organization 

which is affiliated with the religious 

denomination and is exempt from 

taxation in accordance with section 

501(c)(3) of the Internal Revenue Code 

of 1986; 

(ii) The number of members of the 

prospective employer’s organization, the 

number and positions (with brief 

descriptions) of employees in the 

prospective employer’s organization, the 

number of aliens holding R visa status 

currently employed or employed within 

the past five years by the prospective 

employer’s organization, and the 

number of special immigrant religious 

worker and R visa petitions and 

applications filed by or on behalf of any 

aliens to be employed as ministers or 

religious workers for the prospective 

employer in the past five years; 

(iii) The title of the position offered to 

the alien, the complete package of 

compensation being offered and a 

detailed description of the alien’s 

proposed daily duties; 

(iv) That the alien will be employed 

at least 35 hours per week and such 

services are needed on a full-time basis; 

(v) The specific location(s) of the 

proposed employment; 

(vi) That the alien has worked as a 

compensated, full-time religious worker 

for the two years immediately preceding 

the filing of the application and is 

otherwise qualified for the position 

offered; 

(vii) That the alien has been a member 

of the denomination for at least two 

years immediately preceding the filing 

of the application; 

(viii) That the alien will not be 

engaged in secular employment, and 

any compensation for religious work 

will be paid to the alien by the attesting 

employer; 

(ix) That the prospective employer 

has the ability and intention to 

compensate the alien at a level at which 

the alien and accompanying family 

members will not become a public 

charge, and that funds to pay the alien’s 

compensation do not include any 

monies obtained from the alien, 

excluding reasonable donations or 

tithing to the religious organization, and 

that the petitioner will notify USCIS of 

any changes to the alien’s employment; 

and 

(7) Evidence relating to the petitioning 

organization. A petition shall include 

the following initial evidence relating to 

the petitioning organization: 

(i) A currently valid determination 

letter from the Internal Revenue Service 

(IRS) showing that the organization is 

exempt from taxation in accordance 

with section 501(c)(3) of the Internal 

Revenue Code of 1986, as a religious 

organization; or 

(ii) For religious organizations that are 

recognized as tax exempt under a group 

tax exemption, a currently valid 

determination letter from the IRS 

establishing that the group is an 

organization as described in sections 

509(a)(1) of the Internal Revenue Code 

of 1986, and that the group’s tax 

exemption is in accordance with section 

501(c)(3) of the Internal Revenue Code 

of 1986, as a religious organization; or 

(iii) For a bona fide organization 

which is affiliated with the religious 

denomination, if the organization was 

granted a section 501(c)(3) exemption as 

something other than a religious 

organization: 

(A) A currently valid determination 

letter from the IRS showing that the 

organization is exempt from taxation in 

accordance with section 501(c)(3) of the 

Internal Revenue Code of 1986, not 

necessarily as a religious organization; 

(B) Documentation that establishes 

the religious nature and purpose of the 

organization, such as a copy of the 

organizing instrument of the 

organization that specifies the purposes 

of the organization; 

(C) Organizational literature, such as 

brochures, calendars, flyers and other 

literature describing the religious 

purpose and nature of the activities of 

the organization; 

(D) A Religious Denomination 

Certification. The Form I–360 contains a 

‘‘Religious Denomination Certification’’

section which the petitioner must have 

the attesting religious organization 

complete, sign and date. The ‘‘Religious 

Denomination Certification’’ includes a 

statement certifying under penalty of 

perjury that the petitioning organization 

is affiliated with the religious 

denomination. The certification must be 

submitted by the petitioner along with 

the petition and attestation; and 

(E) A currently valid determination 

letter from the IRS evidencing that the 

attesting organization is exempt from 

taxation in accordance with section 

501(c)(3) of the Internal Revenue Code 

of 1986, as a religious organization. 

(8) Evidence relating to the 

qualifications of a minister. If the alien 

is a minister, the petitioner must submit 


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as initial evidence a copy of the alien’s 

certificate of ordination or similar 

documents reflecting acceptance of the 

alien’s qualifications as a minister in the 

religious denomination, as well as 

evidence that the alien has completed 

any course of prescribed theological 

education at an accredited theological 

institution normally required or 

recognized by that religious 

denomination, including transcripts, 

curriculum, and documentation that 

establishes that the theological 

institution is accredited by the 

denomination. For denominations that 

do not require a prescribed theological 

education, the petitioner must submit 

evidence of the denomination’s 

requirements for ordination to minister, 

evidence of the duties allowed to be 

performed by virtue of ordination, 

evidence of the denomination’s 

gradations of ordination, if any, and 

evidence of the alien’s completion of the 

denomination’s requirements for 

ordination. 

(9) Evidence relating to the alien’s 

prior employment. Initial evidence must 

include evidence of the alien’s prior 

religious employment. If the alien was 

employed in the United States during 

the two years immediately preceding 

the filing of the application, the 

petitioner must submit the alien’s W–2 

wage statements, the employer’s wage 

transmittal statements, and the 

transcripts of the alien’s processed 

income tax returns for the preceding 

two years reflecting such work. If more 

than six months of such employment is 

not yet reflected in the documents such 

as W–2s, wage transmittal statements or 

income tax returns required to be 

completed or filed at the time of filing 

the petition, then pay stubs relating to 

payment for such employment shall also 

be presented for work not yet reflected 

in such documents. If the alien was 

employed outside the United States 

during such two years, the petitioner 

must submit comparable evidence of 

compensation and religious work. 

Aliens who have taken a vow of poverty 

or similar formal lifetime commitment 

to a religious way of life may submit 

evidence of such commitment in lieu of 

the above documentary requirements, 

but must also submit evidence of all 

financial support (including stipends, 

room and board, or other support) 

received in the preceding two years. 

Qualifying prior experience (that is, 

during the two years immediately 

preceding the petition or preceding any 

acceptable break in the continuity of the 

religious work) must have occurred after 

the age of 14, and, if acquired in the 

United States, must have been 

authorized under United States 

immigration law. 

(10) Audits, inspections, assessment, 

verification, spot checks, and site visits. 

The supporting evidence submitted may 

be verified by USCIS through any means 

determined appropriate by USCIS, up to 

and including an on-site inspection of 

the petitioning organization. The 

inspection may include a tour of the 

organization’s facilities, an interview 

with the organization’s officials, a 

review of selected organization records 

relating to compliance with immigration 

laws and regulations, and an interview 

with any other individuals or review of 

any other records that the USCIS 

considers pertinent to the integrity of 

the organization. An inspection may 

include the organization headquarters, 

or satellite locations, or the work 

locations planned for the applicable 

employee. If USCIS decides to conduct 

a pre-approval inspection, satisfactory 

completion of such inspection will be a 

condition for approval of any petition. 

* * * * * 

PART 214—NONIMMIGRANT CLASSES 

3. The authority citation for part 214 

continues to read as follows: 

Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 

1184, 1185 (pursuant to E.O. 13323, 69 FR 

241, 3 CFR, 2003 Comp., p. 278), 1186a, 

1187, 1221, 1281, 1282, 1301–1305, 1372, 

1379, 1731–32; section 643, Pub. L. 104–208, 

110 Stat. 3009–708; section 141 of the 

Compacts of Free Association with the 

Federated States of Micronesia and the 

Republic of the Marshall Islands, and with 

the Government of Palau, 48 U.S.C. 1901 

note, and 1931 note, respectively, 8 CFR part 

2. 

4. Section 214.2 is amended by 

revising paragraph (r) to read as follows: 

§ 214.2 Special requirements for 

admission, extension, and maintenance of 

status. 

* * * * * 

(r) Religious workers—(1) General. 

Under section 101(a)(15)(R) of the Act, 

an alien who, for at least the two years 

immediately preceding the time of 

application for admission, has been a 

member of a religious denomination 

having a bona fide nonprofit religious 

organization in the United States, may 

be admitted temporarily to the United 

States to carry on the activities of a 

religious worker for a period not to 

exceed five years. The alien must be 

coming to or remaining in the United 

States solely for one of the following 

purposes: 

(i) As an employee of a religious 

organization within the denomination, 

or of a bona fide organization which is 

affiliated with the religious 

denomination, at the request of the 

organization; 

(ii) To carry on the vocation of a 

minister of the religious denomination; 

or 

(iii) To work in a religious vocation or 

occupation. 

(2) An alien may work for more than 

one qualifying employer as long as each 

qualifying employer submits the Form 

I–129 and R Classification Supplement, 

and, where applicable, accompanying 

documentation, submitted either in a 

single petition or through an additional 

petition. 

(3) Definitions. As used in this 

paragraph (r), as applicable to the 

proposed employment and to the 

membership in the two years preceding 

the filing of the petition, the definitions 

of terms set forth at 8 CFR 204.5(m)(1), 

concerning immigrant religious workers, 

shall apply to nonimmigrant religious 

workers. 

(4) Requirements for admission/ 

change of status; time limits—(i) 

Principal applicant. If otherwise 

admissible, an alien who meets the 

requirements of section 101(a)(15)(R) of 

the Act may be admitted as an R–1 alien 

or changed to R–1 status for an initial 

period of up to one year from date of 

initial admission. If visa-exempt, the 

alien must present the original Notice of 

Action, Form I–797 approval notice (not 

a copy), at the port of entry. 

(ii) Spouse and children. The spouse 

and children of an R–1 alien who are 

accompanying or following to join the 

principal may be accorded R–2 status 

and admitted or have their R–2 status 

extended for the same period of time 

and subject to the same limits as the 

principal, regardless of the time such 

spouse and children may have spent in 

the United States in R–2 status. Neither 

the spouse nor children may accept 

employment while in the United States 

in R–2 status. 

(iii) Extension of stay or readmission. 

An R–1 alien who is maintaining status 

or is seeking readmission and who 

satisfies the eligibility requirements of 

this section may be granted an extension 

of R–1 stay or readmission in R–1 status 

for the validity period of the petition, up 

to 2 years, provided the total period of 

time spent in R–1 status does not exceed 

a maximum of five years. A petition for 

an extension of R–1 status must be filed 

by the United States employer on Form 

I–129, Petition for a Nonimmigrant 

Worker, along with the R Classification 

Supplement containing the attestation, 

the fee specified in 8 CFR 103.7(b)(1), 

and the supporting evidence, at the 

appropriate USCIS service center. 

(iv) Limitation on total stay. An alien 

who has spent five years in the United 


cprice-sewell on PRODPC61 with PROPOSALS
Federal Register / Vol. 72, No. 79 / Wednesday, April 25, 2007 / Proposed Rules 20455 

States under section 101(a)(15)(R) of the 

Act may not be readmitted to, or receive 

extension of stay in, the United States 

under the R visa classification unless 

the alien has resided abroad and been 

physically present outside the United 

States for the immediate prior year. The 

limitations in this paragraph shall not 

apply to R–1 aliens who did not reside 

continually in the United States and 

whose employment in the United States 

was seasonal or intermittent or was for 

an aggregate of six months or less per 

year. In addition, the limitations shall 

not apply to aliens who reside abroad 

and regularly commute to the United 

States to engage in part-time 

employment. To qualify for this 

exception, the petitioner and the alien 

must provide clear and convincing 

proof that the alien qualifies for such an 

exception. Such proof shall consist of 

evidence such as arrival and departure 

records, transcripts of processed income 

tax returns, and records of employment 

abroad. The primary purpose of the 

spouse or child must be to join or 

accompany the principal R–1 alien in 

the United States. USCIS may limit, 

deny or revoke on notice any stay for an 

R–2 that is not primarily intended for 

this purpose or is intended to evade the 

normal requirements of the 

nonimmigrant classification that 

otherwise would apply when the 

principal alien is absent from the United 

States. 

(5) Jurisdiction and procedures for 

obtaining R–1 status. A petitioner 

seeking to classify an alien as a religious 

worker, by initial petition or by change 

of status, shall file a petition on Form 

I–129, Petition for a Nonimmigrant 

Worker, along with the R Classification 

Supplement containing the attestation, 

the fee specified in 8 CFR 103.7(b)(1), 

and supporting evidence, at the 

appropriate USCIS service center. The 

Form I–129, Petition for a 

Nonimmigrant Worker, must be 

submitted by the employer in the 

United States seeking to employ the 

religious worker. 

(6) Attestation. The Form I–129, 

Petition for a Nonimmigrant Worker, 

contains an attestation section in the R 

Classification Supplement, which the 

authorized official of the prospective 

employer must complete, sign and date. 

The term ‘‘prospective employer’’ refers 

to the organization or institution where 

the alien will be performing the 

proffered duties. The attestation 

includes a statement which certifies 

under penalty of perjury that the 

contents of the attestation are true and 

correct to the best of his or her 

knowledge. This attestation must be 

submitted by the prospective employer 

along with the petition. In the Form I–

129 R Classification Supplement, the 

prospective employer must specifically 

attest to the following: 

(i) That the prospective employer is a 

bona fide non-profit religious 

organization or a bona fide organization 

which is affiliated with the religious 

denomination and is exempt from 

taxation in accordance with section 

501(c)(3) of the Internal Revenue Code 

of 1986; 

(ii) The number of members of the 

prospective employer’s organization, the 

number and positions (with brief 

descriptions) of employees in the 

prospective employer’s organization, the 

number of aliens holding R visa status 

currently employed or employed within 

the past five years by the prospective 

employer’s organization, and the 

number of special immigrant religious 

worker and R visa petitions and 

applications filed by or on behalf of any 

aliens to be employed as ministers or 

religious workers for the prospective 

employer in the past five years; 

(iii) The title of the position offered to 

the alien, the complete package of 

compensation being offered and a 

detailed description of the alien’s 

proposed daily duties; 

(iv) That the position that the alien is 

being offered requires at least 20 hours 

per week of compensated service; 

(v) The specific location(s) of the 

proposed employment and that the alien 

is otherwise qualified for the position 

offered; 

(vi) That the alien has been a member 

of the denomination for at least 2 years; 

(vii) That, if the position is not a 

religious vocation, the alien will not be 

engaged in secular employment, and 

any compensation for religious work 

will be paid to the alien by the attesting 

employer, 

(viii) That the prospective employer 

has the ability and intention to 

compensate and otherwise support 

(through housing, for example) the alien 

at a level at which the alien and 

accompanying family members will not 

become public charges, and that funds 

to pay the alien’s compensation do not 

include any monies obtained from the 

alien, excluding reasonable donations or 

tithing to the religious organization; and 

(ix) That the petitioner will notify 

USCIS of any changes to the alien’s 

employment and reapply by filing a new 

Form I–129 on behalf of the alien within 

60 days of the occurrence of any change. 

(7) Evidence relating to the petitioning 

organization. The petitioner must 

submit the following initial evidence 

relating to the petitioning organization: 

(i) A currently valid determination 

letter from the Internal Revenue Service 

(IRS) showing that the organization is 

exempt from taxation in accordance 

with section 501(c)(3) of the Internal 

Revenue Code of 1986, as a religious 

organization; or 

(ii) For religious organizations that are 

recognized as tax exempt under a group 

tax exemption, a currently valid 

determination letter from the IRS 

establishing that the group is an 

organization as described in sections 

509(a)(1) of the Internal Revenue Code 

of 1986 or subsequent amendment, and 

that the group’s tax exemption is in 

accordance with section 501(c)(3) of the 

Internal Revenue Code of 1986, as a 

religious organization; or 

(iii) For a bona fide organization 

which is affiliated with the religious 

denomination, if the organization was 

granted a section 501(c)(3) exemption as 

something other than a religious 

organization: 

(A) A currently valid determination 

letter from the IRS showing that the 

organization is exempt from taxation in 

accordance with section 501(c)(3) of the 

Internal Revenue Code of 1986, (not 

necessarily as a religious organization), 

(B) Documentation that establishes 

the religious nature and purpose of the 

organization, such as a copy of the 

organizing instrument of the 

organization that specifies the purposes 

of the organization, 

(C) Organizational literature, such as 

brochures, calendars, flyers and other 

literature describing the religious 

purpose and nature of the activities of 

the organization, and 

(D) A Religious Denomination 

Certification. The Form I–129 contains a 

‘‘Religious Denomination Certification’’

section which the petitioner must have 

the attesting religious organization 

complete, sign and date. The ‘‘Religious 

Denomination Certification’’ includes a 

statement certifying under penalty of 

perjury that the petitioning organization 

is affiliated with the religious 

denomination. The certification must be 

submitted by the petitioner along with 

the petition and attestation. 

(E) A currently valid determination 

IRS letter evidencing that the attesting 

organization is exempt from taxation in 

accordance with section 501(c)(3) of the 

Internal Revenue Code of 1986, as a 

religious organization. 

(8) Evidence relating to the 

qualifications of a minister. If the alien 

is a minister, the petitioner must submit 

as initial evidence a copy of the alien’s 

certificate of ordination or similar 

documents reflecting acceptance of the 

alien’s qualifications as a minister in the 

religious denomination, as well as 

evidence that the alien has completed 

any course of prescribed theological 


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20456 Federal Register / Vol. 72, No. 79 / Wednesday, April 25, 2007 / Proposed Rules 

education at an accredited theological 

institution normally required or 

recognized by that religious 

denomination, including transcripts, 

curriculum, and documentation which 

establishes that the theological 

education is accredited by the 

denomination. For denominations that 

do not require a prescribed theological 

education, the petitioner must submit 

evidence of the denomination’s 

requirements for ordination to minister, 

evidence of the duties allowed to be 

performed by virtue of ordination, 

evidence of the denomination’s 

gradations of ordination, if any, and 

evidence of the alien’s completion of the 

denomination’s requirements for 

ordination. 

(9) Change or addition of employers; 

employer obligations. An alien admitted 

in the R–1 classification shall engage 

only in employment that is consistent 

with the approved petition, the 

attestation contained in the supplement 

and supporting documents submitted to 

USCIS. A different or additional 

employer seeking to employ the alien 

must obtain prior approval of such 

employment through the filing of an 

additional Form I–129, Petition for a 

Nonimmigrant Worker, with the R 

Classification Supplement, supporting 

documents and the appropriate fee. Any 

compensated work for an unauthorized 

religious organization will constitute a 

failure to maintain status within the 

meaning of section 237(a)(1)(C)(i) of the 

Act. When an alien who has obtained 

R–1 classification is working less than 

the required number of hours or has 

been released from or has otherwise 

terminated employment before the 

expiration of a period of authorized R–

1 stay, the employer through whom R–

1 classification has been obtained must 

notify DHS within 7 days of such 

release or termination, using reporting 

procedures set forth in the instructions 

to Form I–129, Petition for a 

Nonimmigrant Worker, which can be 

found on the USCIS Internet Web site at 

http://www.uscis.gov. 

(10) Evidence of previous R–1 

employment. Any request for R–1 status, 

admission beyond the first year of R–1 

status, or any period of extension of 

stay, must include initial evidence of 

the previous R–1 employment in the 

form of the alien’s W–2 wage 

statements, the employer’s wage 

transmittal statements, and transcripts 

of the alien’s processed income tax 

returns for any preceding period spent 

in the United States in R–1 status. For 

any period of such employment not yet 

reflected in the documents such as W–

2s, wage transmittal statements or 

income tax returns required to be 

completed or filed at the time of filing 

the petition, then pay stubs relating to 

payment for such employment shall be 

presented for work not yet reflected in 

such documents. Aliens who have taken 

a vow of poverty or similar formal 

lifetime commitment to a religious way 

of life may submit evidence of such 

commitment in lieu of the above 

documentary requirements, but must 

also submit evidence of all financial 

support (including stipends, room and 

board, or other support) received while 

in R–1 status. 

(11) Nonimmigrant intent. The filing 

or approval of a permanent labor 

certification or the filing of a preference 

petition for an alien shall not be a basis 

for denying an R petition, a request to 

extend such a petition, or the alien’s 

application for admission, change of 

status, or extension of stay. The alien 

may legitimately come to the United 

States for a temporary period as an R 

nonimmigrant and depart voluntarily at 

the end of his or her authorized stay 

and, at the same time, lawfully seek to 

become a permanent resident of the 

United States. 

(12) Audits, inspections, assessment, 

verification, spot checks, and site visits. 

The supporting evidence submitted may 

be verified by USCIS through any means 

determined appropriate by USCIS, up to 

and including an on-site inspection of 

the petitioning organization. The 

inspection may include a tour of the 

organization’s facilities, an interview 

with the organization’s officials, a 

review of selected organization records 

relating to compliance with immigration 

laws and regulations, and an interview 

with any other individuals or review of 

any other records that the USCIS 

considers pertinent to the integrity of 

the organization. An inspection may 

include the organization headquarters, 

or satellite locations, or the work 

locations planned for the applicable 

employee. If USCIS decides to conduct 

a pre-approval inspection, satisfactory 

completion of such inspection will be a 

condition for approval of any petition. 

* * * * * 

PART 299—IMMIGRANT FORMS 

5. The authority citation for part 299 

continues to read as follows: 

Authority: 8 U.S.C. 1101 and note, 1103; 8 

CFR part 2. 

6. Section 299.1 is amended in the 

table by revising the entries for Forms 

‘‘I–129’’ and ‘‘I–360’’, to read as follows: 

§ 299.1 Prescribed forms. 

* * * * * 

Form No. Edition date Title 

* * * * * * * 

I–129 ......................................................... XX–XX–XX Petition for a Nonimmigrant Worker. 

* * * * * * * 

I–360 ......................................................... XX–XX–XX Petition for Amerasian Widow(er) or Special Immigrant. 

* * * * * * * 

7. Section 299.5 is amended in the 

table, by revising the entries for Forms 

‘‘I–129’’ and ‘‘I–360’’, to read as follows: 

§ 299.5 Display of control numbers. 

* * * * * 


cprice-sewell on PRODPC61 with PROPOSALS
Federal Register / Vol. 72, No. 79 / Wednesday, April 25, 2007 / Proposed Rules 20457 

1See Final Regulation Regarding Participant 

Directed Individual Account Plans (ERISA Section 

404(c) Plans), 57 FR 46,906 (Oct.13, 1992) (codified 

at 29 CFR § 2550.404c–1). This regulation may be 

accessed at www.dol.gov/dol/allcfr/title_29/ 

Part_2550/29CFR2550.404c-1.htm. 

Form No. Form title 

Currently 

assigned 

OMB 

control No. 

* * * * * * * 

I–129 ......................................................... Petition for a Nonimmigrant Worker ............................................................................ 1615–0009 

* * * * * * * 

I–360 ......................................................... Petition for Amerasian Widow(er) or Special Immigrant ............................................. 1615–0020 

* * * * * * * 

Dated: April 16, 2007. 

Michael Chertoff, 

Secretary. 

[FR Doc. E7–7743 Filed 4–24–07; 8:45 am] 

BILLING CODE 4410–10–P 

DEPARTMENT OF LABOR 

Employee Benefits Security 

Administration 

29 CFR Part 2550 

RIN 1210–AB07 

Fee and Expense Disclosures to 

Participants in Individual Account 

Plans 

AGENCY: Employee Benefits Security 

Administration, Department of Labor. 

ACTION: Request for information. 

SUMMARY: The Department of Labor is 

currently reviewing the rules under the 

Employee Retirement Income Security 

Act (ERISA) applicable to the disclosure 

of plan administrative and investmentrelated fee and expense information to 

participants and beneficiaries in 

participant-directed individual account 

plans (e.g., 401(k) plans). The purpose 

of this review is to determine to what 

extent rules should be adopted or 

modified, or other actions should be 

taken, to ensure that participants and 

beneficiaries have the information they 

need to make informed decisions about 

the management of their individual 

accounts and the investment of their 

retirement savings. The purpose of this 

notice is to solicit views, suggestions 

and comments from plan participants, 

plan sponsors, plan service providers 

and members of the financial 

community, as well as the general 

public, on this important issue. 

DATES: Written or electronic responses 

should be submitted to the Department 

of Labor on or before July 24, 2007. 

ADDRESSES: Responses: To facilitate the 

receipt and processing of responses, 

EBSA encourages interested persons to 

submit their responses electronically by 

e-mail to e-ORI@dol.gov, or by using the 

Federal eRulemaking portal at http:// 

www.regulations.gov (follow 

instructions for submission of 

comments). Persons submitting 

responses electronically are encouraged 

not to submit paper copies. Persons 

interested in submitting written 

responses on paper should send or 

deliver their responses (preferably, at 

least three copies) to the Office of 

Regulations and Interpretations, 

Employee Benefits Security 

Administration, Room N–5669, U.S. 

Department of Labor, 200 Constitution 

Avenue, N.W., Washington, DC 20210, 

Attention: Fee Disclosure RFI. All 

written responses will be available to 

the public, without charge, online at 

http://www.regulations.gov and http:// 

www.dol.gov/ebsa, and at the Public 

Disclosure Room, N–1513, Employee 

Benefits Security Administration, U.S. 

Department of Labor, 200 Constitution 

Avenue, NW., Washington, DC 20210. 

FOR FURTHER INFORMATION CONTACT: 

Katherine D. Lewis, Office of 

Regulations and Interpretations, 

Employee Benefits Security 

Administration, Room N–5669, U.S. 

Department of Labor, Washington, DC 

20210, telephone (202) 693–8510. This 

is not a toll-free number. 

SUPPLEMENTARY INFORMATION: 

A. Background 

According to the Department’s most 

recent data, an estimated 41 million 

participants in 401(k) plans are 

permitted to direct the investment of all 

or a portion of their plan accounts. 

While contributions and earnings 

increase retirement savings in 401(k) 

and other participant-directed plans, 

fees and expenses charged to participant 

accounts can substantially reduce that 

growth. For this reason, it is important 

that plan participants, particularly those 

responsible for making their own 

investment decisions, consider what 

and how fees and expenses are charged 

to their individual accounts. 

In general, the purpose of this Request 

for Information (RFI) is to obtain, from 

the perspective of plan participants, 

plan sponsors and plan service 

providers, information concerning: (1) 

What administrative and investmentrelated fee and expense information 

participants should consider; (2) the 

manner in which that information 

should be provided or made available to 

participants; and, (3) who should be 

responsible for providing the 

information. Responses to this RFI will 

be used to assist the Department in 

determining to what extent rules should 

be developed or modified, or other 

courses of action pursued, to improve 

the information currently available to 

participants and beneficiaries relating to 

administrative and investment-related 

fees and expenses, recognizing that in 

many instances participants may have 

to bear the cost of disclosing such 

information. 

In considering the questions set forth 

in the RFI, commenters are encouraged 

to take into consideration the following 

initiatives. 

Section 404(c) Regulation 

In 1992, the Department adopted a 

final regulation under section 404(c) of 

ERISA.1 In general, the regulation sets 

forth the conditions under which 

participants are considered to be 

exercising control over the assets in 

their accounts, thereby relieving 

fiduciaries from liability for the results 

of participants’ investment decisions. 

Among other matters, the regulation, at 

§ 2550.404c–1(b)(2)(i)(B), conditions 

relief upon participants and 

beneficiaries being provided and having 

access to specific information 

concerning their plan and the 

investment options offered thereunder. 

In framing the disclosure requirements, 

the Department attempted to strike a 

balance between what it believed 

participants needed to make informed 

investment decisions and the burdens 


cprice-sewell on PRODPC61 with PROPOSALS