PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 13-4434

_____________

SHALOM PENTECOSTAL CHURCH; 

CARLOS ALENCAR

v.

ACTING SECRETARY UNITED STATES DEPARTMENT 

OF HOMELAND SECURITY; DIRECTOR UNITED 

STATES CITIZENSHIP AND IMMIGRATION SERVICES; 

DIRECTOR OF THE CALIFORNIA SERVICE CENTER 

OF USCIS; DIRECTOR UNITED STATES CITIZENSHIP 

AND IMMIGRATION SERVICES ADMINISTRATIVE 

APPEALS OFFICE, in their official capacity,

Appellants

_____________

Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 1-11-cv-04491)

District Judge: Honorable Renee Marie Bumb

_____________

Argued: September 8, 2014
2

Before: RENDELL, GREENAWAY, JR., and KRAUSE, 

Circuit Judges

(Opinion filed April 7, 2015)

_____________

WILLIAM A. STOCK, ESQUIRE (Argued) 

Klasko, Rulon, Stock & Seltzer

1601 Market Street, Suite 2600

Philadelphia, PA 19103

Counsel for Appellees

GEOFFREY FORNEY, ESQUIRE (Argued)

United States Department of Justice

Office of Immigration Litigation

Room 6223

450 5th Street, N.W.

Washington, DC 20001

MELISSA S. LEIBMAN, ESQUIRE

United States Department of Justice

Office of Immigration Litigation

Room 6022

P.O. Box 868

Ben Franklin Station

Washington, DC 20001

Counsel for Appellants

SCOTT D. POLLOCK, ESQUIRE

Suite 2200 

105 West Madison
3

Chicago, IL 60602

Counsel for Amicus Appellee

_____________

OPINION OF THE COURT

_____________

KRAUSE, Circuit Judge

The Immigration and Nationality Act (INA) enables an 

immigrant to obtain a visa as a “special immigrant religious 

worker” if the immigrant meets certain statutory criteria, 

including that he has been “carrying on” religious work for at 

least the two years preceding the filing of the visa petition. 

This case presents the question whether a requirement

imposed in the relevant regulation that this religious work 

have been carried on “in lawful immigration status” crosses 

the line from permissible statutory interpretation by the

responsible agency to ultra vires regulation contrary to the

clear intent of Congress. None of our sister Courts of 

Appeals have yet weighed in on this issue, but the District 

Court here concluded that the regulation is ultra vires because 

it contradicts the plain language of the INA. Shalom 

Pentecostal Church v. Beers, No. 11-4491, 2013 U.S. Dist. 

LEXIS 185091, at *19 (D.N.J. Sept. 16, 2013). For the 

reasons set forth below, we agree. We therefore will affirm

the District Court’s order as to the invalidity of the regulation

but will reverse and remand for further fact-finding on the 

remaining visa criteria.
4

I. Factual Background and Procedural History

A. Alencar’s Visa Application

None of the material facts in this case are disputed. 

Appellee Carlos Alencar, a Brazilian national, travelled with 

his family to the United States on a B-2 nonimmigrant tourist 

visa in June 1995. The visa authorized Alencar to stay in the 

United States until December 1995, but he has remained in 

the United States unlawfully since the visa expired. Alencar 

was not authorized to work under the terms of his B-2 visa, 

nor did he otherwise obtain employment authorization. 

Alencar has been seeking legal immigration status as a 

special immigrant religious worker since 1997, when he first 

petitioned for an I-360 visa petition, which would eventually 

qualify him to seek permanent residency status. That petition 

and a second petition filed by Alencar in 2001 were both 

rejected by the United States Citizenship and Immigration 

Service (CIS). Nonetheless, Alencar began working as a 

senior pastor for the Shalom Pentecostal Church (the 

“Church”) in 1998 and continued in that capacity through the 

filing of this appeal. 

The I-360 petition at issue here was filed by the 

Church on Alencar’s behalf in 2009. CIS again denied the 

petition and, in this instance, did so on the sole ground that 

the Church had failed to establish, pursuant to newly 

promulgated 8 C.F.R. 204.5(m)(4) and (11) (the 

“Regulation”), that Alencar had been “performing full-time 

work in lawful immigration status as a religious worker for at 

least the two-year period immediately preceding the filing of 

the petition.” (App. 90 (emphasis added).) The CIS 

Administrative Appeals Office dismissed the Church’s 
5

appeal, concluding, consistent with the Regulation, that 

Alencar’s “religious employment in the United States during 

the qualifying period was not authorized under United States 

immigration law.” (App. 66.)

In 2011, Alencar and the Church filed a complaint in 

the United States District Court for the District of New 

Jersey, challenging the denial of the I-360 petition on several 

grounds, including that the Regulation was ultra vires to the 

INA.1 The District Court denied the Government’s motion to 

dismiss and subsequently granted plaintiffs’ motion for 

summary judgment, invalidating the Regulation on the 

grounds that the statutory language was unambiguous and 

that the Regulation’s addition of the “lawful status” 

requirement was inconsistent with the statutory scheme.2 The 

District Court further held that any remand would be futile 

and ordered CIS to grant Alencar’s I-360 petition. 

 

1 Alencar and the Church also argued below that the 

Regulation violates the Religious Freedom Restoration Act

(42 U.S.C. § 2000bb) and the First and Fourteenth 

Amendments of the Constitution of the United States. The 

District Court dismissed these claims, and Appellees have not 

challenged those rulings on appeal.

2 The majority of the district courts to have considered 

this question have come to the same conclusion. See

Congregation of the Passion v. Johnson, No. 13-2275, 2015 

WL 518284, at *7 (N.D. Ill. Feb. 6, 2015); Shia Ass’n of Bay 

Area v. United States, 849 F. Supp. 2d 916 (N.D. Cal. 2012). 

But see Islamic & Educ. Ctr. Ezan of Greater Des Moines v. 

Napolitano, 826 F. Supp. 2d 1122 (S.D. Iowa 2011).
6

B. The Visa Petition Process

The INA provides for preference in the issuance of 

visas to five categories of workers: (1) priority workers, (2) 

aliens with advanced degrees or of exceptional ability, (3) 

skilled workers and professionals, (4) special immigrants, 

including religious workers, and (5) foreign investors. 8 

U.S.C. § 1153(b)(1)-(5). The subcategory at issue in this 

case—the special immigrant religious worker program—

permits ministers and nonminister religious workers to 

immigrate in legal status to the United States to perform 

religious work. 8 U.S.C. § 1101(a)(27)(C). In order to 

become a legal permanent resident (LPR) through the special 

immigrant religious worker program, an alien or his 

prospective employer must complete two steps. First, the 

applicant must successfully petition CIS for an I-360 visa. 8 

C.F.R. § 204.5(a), (c), (m)(6). If granted that visa, the alien 

may apply to the Attorney General for permanent adjustment 

of status. 8 U.S.C. § 1255.3 

This case focuses on the first step of this process. The 

INA requires that, in order to qualify for an I-360 visa as a 

special immigrant religious worker, the immigrant must meet 

three criteria: (1) membership in a religious denomination 

 

3 At the second step of this process, an alien with an 

approved visa petition who is already in the United States 

may seek adjustment to LPR status, subject to a variety of 

restrictions and the Attorney General’s discretion. 8 U.S.C. 

§ 1255(a). Alternatively, if abroad, an alien may apply for an 

immigrant visa from the local American consulate. 8 C.F.R. 

§ 204.5(n).
7

with a bona fide nonprofit religious organization in the United 

States for two years immediately preceding the petition, (2)

intent to enter the United States or change status within the 

United States solely for the purpose of working as a minister

or in another religious vocation, and (3) the “carrying on” of 

such religious work continuously for at least the two years 

before applying. 8 U.S.C. § 1101(a)(27)(C)(i)-(iii).4

 

4

In full, this section of the INA provides:

The term “special immigrant” means—

. . . 

(C) an immigrant, and the immigrant’s spouse and 

children if accompanying or following to join the 

immigrant, who—

(i) for at least 2 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;

(ii) seeks to enter the United States—

(I) solely for the purpose of carrying on 

the vocation of a minister of that 

religious denomination,

(II) before September 30, 2015, in order 

to work for the organization at the 

request of the organization in a 

professional capacity in a religious 

vocation or occupation, or

(III) before September 30, 2015, in order 

to work for the organization . . . at the 
8

As it is authorized to do under 8 U.S.C. § 1103(a)(3), 

CIS has promulgated regulations elaborating on these

statutory qualifications. Under the regulations, the visa 

petition procedure begins when either an alien or a person on 

the alien’s behalf applies for an I-360 visa. That visa, if 

granted by CIS, classifies an alien as a special immigrant 

religious worker. The filer must present evidence that the 

alien meets the statutory requirements as expounded by the

regulations. For example, while the statute requires that the 

alien seek to enter the United States “solely for the purpose of 

carrying on the vocation of a minister,” 8 U.S.C. 

§ 1101(a)(27)(C)(ii)(I), the regulations specify that the 

intended religious work be both full time and compensated. 8 

C.F.R. § 204.5(m)(2).

In 2008, CIS amended 8 C.F.R. § 204.5(m) to require 

that an alien have worked “either abroad or in lawful 

immigration status in the United States, and . . . continuously 

for at least the two-year period immediately preceding the 

filing of the petition” to be eligible for classification as a 

special immigrant religious worker. 8 C.F.R. § 204.5(m)(4) 

(emphasis added). The amendments also added that 

“[q]ualifying prior experience . . . if acquired in the United 

States, must have been authorized under United States 

 

request of the organization in a religious 

vocation or occupation; and 

(iii) has been carrying on such vocation, 

professional work, or other work continuously 

for at least the 2-year period described in clause 

(i).

8 U.S.C. § 1101(a)(27)(C).
9

immigration law.” 8 C.F.R. § 204.5(m)(11). The Regulation 

thus disqualifies applicants like Alencar who did “carry on”

otherwise qualifying religious work during the two years 

before they filed a visa application but did so without lawful 

status. 

II. Jurisdiction and Standard of Review

The Government filed a timely notice of appeal on 

November 13, 2013. The District Court had jurisdiction 

pursuant to 5 U.S.C. § 702 of the Administrative Procedure 

Act (APA), and we have jurisdiction to hear this appeal under 

28 U.S.C. § 1291. We review the legal conclusions related to 

standing de novo. Edmonson v. Lincoln Nat’l Life Ins. Co., 

725 F.3d 406, 414 (3d Cir. 2013). We apply de novo review 

to the District Court’s grant of summary judgment in a case 

brought under the APA. Cyberworld Enter. Techs., Inc. v. 

Napolitano, 602 F.3d 189, 195 (3d Cir. 2010). 

III. Discussion

The Government raises two issues on appeal. First, it

contends that Alencar and the Church lack standing to 

challenge the denial of the I-360 petition. Specifically, the 

Government contests: (1) the constitutional standing of both 

Alencar and the Church, (2) Alencar’s standing under CIS 

regulation 8 C.F.R. § 103.3(a)(1)(iii)(B), and (3) Alencar’s 

right to sue under the INA. Second, the Government argues

that the District Court erred in ruling that the Regulation is

ultra vires. We address these issues in turn. 
10

A. Standing 

1. Constitutional Standing

Article III of the Constitution requires that a plaintiff

establish standing in order for his case to be justiciable. 

Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-60 (1992). 

Constitutional standing has three elements: injury in fact,

causation, and redressability. Id. at 560-61. Here, the 

Government challenges only the third. For an injury to be 

redressable, the plaintiff must show that it is “likely, as 

opposed to merely speculative, that the injury will be 

redressed by a favorable decision.” Id. at 561 (internal 

quotation marks and citation omitted). If the plaintiff is the 

object of government action, “there is ordinarily little 

question that the action or inaction has caused him injury, and 

that a judgment preventing or requiring the action will redress 

it.” Id. at 561-62. 

The Government asserts that no matter the result of 

this appeal, Alencar will not be eligible for adjustment to LPR 

status for at least ten years, so that any victory in the current 

proceeding will be “pyrrhic.” (Appellants’ Br. 17 (citing 

App. 36).) Even if an I-360 visa is granted, the Government 

points out, an alien is statutorily ineligible to adjust status

from within the United States if he worked in unlawful 

immigration status for more than 180 days. 8 U.S.C. 

§ 1255(c)(2), (k)(2). But an alien who seeks to adjust status

from outside the United States and was present unlawfully in 

the United States for one year or more is inadmissible to the 

United States for ten years from his date of departure. 8 

U.S.C. §§ 1182(a)(9)(B)(i)(II); 1201(g)(1). Alencar worked 

in unlawful immigration status for more than 180 days and 

has been present unlawfully in the United States for more 
11

than one year. Hence, he will be ineligible for adjustment of 

status for at least ten years. 

This syllogism, however valid, does not bear on the 

question of Alencar’s standing to challenge the denial of his 

I-360 petition on the basis of the legality of the Regulation. 

As a threshold matter, the Government’s contention that relief 

must be immediate to satisfy constitutional standing finds no 

support in our precedent. Rather, as the Supreme Court made 

clear in Lujan, redressability hinges on the availability and 

likelihood of relief, rather than the immediacy of relief. See

504 U.S. at 561-62. Indeed, a requirement of immediate 

redressability would be particularly inappropriate in the 

immigration context, where there is frequently a lengthy 

delay between a favorable decision and the availability of 

relief. See Scialabba v. Cuellar de Osorio, 134 S. Ct. 2191, 

2199 (2014).

In any event, Alencar is seeking a visa at this point, not 

permanent adjustment of status. While obtaining a visa is a 

prerequisite to applying for LPR status, the INA makes clear 

that the visa petition process and the adjustment of status 

process are distinct. Compare 8 U.S.C. § 1153, with 8 U.S.C.

§ 1255; see Matter of O-----, 8 I & N Dec. 295, 297 (BIA 

1959) (“The visa petition procedure is concerned merely with 

the question of status. It does not concern itself with 

substantive questions of inadmissibility . . . .”). Even the 

Government acknowledges that “the INA sets forth distinct 

criteria for applicants qualifying as special immigrant 

religious workers (immigrant visa) and for those seeking to 

adjust status (adjustment of status).” (Appellants’ Br. 31.)

We are guided by the Supreme Court’s approach in 

Monsanto Co. v. Geertson Seed Farms, where the Court 
12

analyzed redressability in the context of multi-part 

proceedings based on the availability of relief at a given step,

rather than the likelihood of achieving the ultimate goal. See

561 U.S. 139, 151-53 (2010) (holding that farmers had 

standing to challenge restrictions on an agency’s ability to 

deregulate a genetically-engineered product even though their 

ultimate goal of deregulation could not be achieved without 

further agency action). In Alencar’s case, that step is the 

petition for an I-360 visa. If Alencar satisfies § 1101(a)(27)’s 

criteria, the statute provides in mandatory terms that a visa 

“shall be made available,” subject to specified numerical 

limits. 8 U.S.C. § 1153(b)(4). Thus, as the Sixth Circuit 

aptly observed in Patel v. USCIS, when an alien’s visa 

petition is denied, he has “lost a significant opportunity to 

receive an immigrant visa” and “that lost opportunity is itself 

a concrete injury.” 732 F.3d 633, 638 (6th Cir. 2013)

(quoting Abboud v. INS, 140 F.3d 843, 847 (9th Cir. 1998)). 

The Government’s insistence that we determine at the 

visa petition stage the redressability of a different and 

potential injury, i.e., Alencar’s prospects for eventual 

adjustment of status, would turn the INA’s carefully 

considered statutory scheme on its head. Congress has 

provided for separate and sequential processes to obtain an I360 visa and to apply for adjustment of status. Compare 8 

U.S.C. § 1153, with 8 U.S.C. § 1255. At the second stage,

CIS—not the federal courts—ordinarily adjudicates an 

application for adjustment of status in the first instance, 8 

C.F.R. § 245.2(a)(1), and Congress has expressly excluded 

from judicial review the Attorney General’s discretionary 

decision regarding final adjustment of status. 8 U.S.C.
13

§§ 1252(a)(2)(B)(i), 1255(a).5It would hardly make sense, 

then, to base an alien’s standing at the first stage on a court’s 

prognostication about that Executive Branch decision at the 

second. 

Instead, we hold that the injury at that first stage is 

redressable by judicial action, and Appellees therefore have 

constitutional standing to challenge the denial of the I-360 

petition.

2. Regulatory Standing

The Government contends that Alencar cannot 

proceed, even if he has Article III standing, because a CIS 

regulation, 8 C.F.R. § 103.3(a)(1)(iii)(B), authorizes an 

administrative appeal only by an “affected party,” which is 

defined as “the person or entity with legal standing in a 

proceeding,” and which “does not include the beneficiary of a 

petition.” 8 C.F.R. § 103.3(a)(1)(iii)(B). Courts have relied 

on this regulation to uphold agency decisions dismissing visa 

beneficiaries for lack of standing in the context of 

administrative proceedings. See, e.g., Echevarria v. Keisler, 

505 F.3d 16, 18 (1st Cir. 2007); Kale v. INS, 37 F. App’x 90

(5th Cir. 2002) (per curiam) (unpublished table decision). 

We cannot agree that this regulation bars Alencar’s 

claim here. Even assuming that it applies outside the context 

 

5

If an alien has been placed in deportation or removal 

proceedings, the Immigration Judge hearing the proceeding 

has exclusive jurisdiction over the application for adjustment 

of status, subject to certain exceptions. 8 C.F.R. 

§ 1245.2(a)(1). 
14

of administrative proceedings, this regulation must be read in 

tandem with 8 C.F.R. § 204.5(c). As the government points 

out, § 204.5(c) provides that, for most of the employmentbased visa categories, only the “employer” has standing to 

file a petition, rendering the alien the “beneficiary” and, 

consistent with the premise of the Government’s argument, 

not an “affected party” for purposes of standing on 

administrative appeal.6 The Government overlooks, however, 

the specific carve-out within § 204.5(c), which provides that, 

for special immigrant religious workers, “the alien, or any 

person in the alien’s behalf” has standing to file. For this 

category of visa petitioner, the alien is not merely a 

“beneficiary,” but instead, either directly or through someone 

on his behalf, has legal standing. Thus, contrary to the 

Government’s position, the “affected party” authorized to

undertake an administrative appeal, even under CIS 

regulations, includes the special immigrant religious worker 

himself.

3. The Zone-of-Interests Test

Even where standing is otherwise satisfied, an 

aggrieved party may be precluded from pursuing relief if the 

interest it seeks to vindicate falls outside the “zone of 

 

6

In any event, the cases relied upon by the Government 

appear limited to the administrative agency context, leading 

some courts to hold that § 103.3(a)(1)(iii)(B) only governs 

administrative proceedings and does not apply to standing in 

federal court at all. See, e.g., Ore v. Clinton, 675 F. Supp. 2d 

217, 223 (D. Mass. 2009); Maramjaya v. USCIS, No. 06-

2158, 2008 WL 9398947, at *4 (D.D.C. Mar. 26, 2008). 
15

interests” protected by the statute invoked. Lexmark Int’l, 

Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 

1386-89 (2014). The Government argues that Alencar lacks 

this “zone of interest” or “prudential standing,”7 baldly 

asserting that the INA’s “primary purpose” is “to protect 

American workers, while providing employers with limited 

access to foreign labor, only when absolutely necessary,” and 

therefore “aliens do not fall within any interest protected by 

the statute.” (Appellants’ Reply Br. 4-5 (internal citations 

omitted).) However, the zone-of-interests test for actions 

under the APA is “not especially demanding,” foreclosing 

suit “only when a plaintiff’s interests are so marginally 

related to or inconsistent with the purposes implicit in the 

statute that it cannot reasonably be assumed that Congress 

authorized the plaintiff to sue.” Lexmark, 134 S. Ct. at 1389 

(quoting Match-E-Be-Nash-She-Wish Band of Pottawatomi 

Indians v. Patchak, 132 S. Ct. 2199, 2210 (2012)).

The text of the INA leaves no doubt that the interests 

of employment-based visa petition applicants, and special 

immigrant religious workers in particular, are directly related 

 

7 The Supreme Court has criticized the use of 

“prudential standing” to describe this doctrine because the 

question of whether a plaintiff has a cause of action under a 

statute hinges on whether Congress has granted the plaintiff a 

cause of action, rather than whether courts think it should 

have done so. Lexmark, 134 S. Ct. at 1386-88 (describing the 

phrase “prudential standing” as “misleading”); see also Ass’n 

of Battery Recyclers, Inc. v. EPA, 716 F.3d 667, 675-76 (D.C. 

Cir. 2013) (Silberman, J., concurring) (stating “‘prudential 

standing’ is a misnomer”). Therefore, erstwhile “prudential 

standing” is referred to here as the “zone-of-interests test.” 
16

to the purposes of the INA. The statute specifies the five 

categories of workers who receive preferential treatment in 

the visa process. 8 U.S.C. § 1153(b). For special immigrant 

religious workers, it provides visas to the aliens themselves,

rather than to their employers, 8 U.S.C. § 1153(b)(4), and it 

contains an exception to the general disqualification for 

unlawful work status, so that these workers may still seek 

permanent residence as long as they have worked no more 

than 180 days unlawfully. 8 U.S.C. § 1255(k). Further, while 

other employment-based visa applicants require a

certification from the Department of Labor that no qualified 

Americans are available for the job, religious workers need 

only show that they have the requisite qualifications. 

Compare 8 U.S.C. § 1153(b)(3)(C) and 8 U.S.C. 

§ 1182(a)(5)(A) with 8 U.S.C. § 1153(b)(4). 

In sum, Congress has taken affirmative steps in the 

INA to enable qualified foreign workers to provide services to 

religious organizations within the United States. See Patel, 

732 F.3d at 636-37 (collecting authority); H.R. Rep. 101-

723(I) (1990); see also Br. of Amicus Curiae American 

Immigration Lawyers Association at 3. We therefore reject 

the proposition that Alencar’s interests “are so marginally 

related to or inconsistent with the purposes implicit in the 

statute that it cannot reasonably be assumed that Congress 

intended to permit the suit.” Lexmark, 134 S. Ct. at 1389

(quoting Match-E-Be-Nash-She-Wish, 132 S. Ct. at 2210).

B. Validity of the Regulation

 In addressing the validity of the Regulation, we apply 

the two-step analysis articulated by Chevron U.S.A., Inc. v. 

Natural Resources Defense Council, Inc., 467 U.S. 837 

(1984). If Congress has directly and clearly spoken to the 
17

question at issue, our Chevron analysis is complete at step 

one, and Congress’s unambiguous intent controls. Id. at 842-

43. However, if the statute is “silent or ambiguous,” or “[i]f 

Congress has explicitly left a gap for the agency to fill,” we 

proceed to the second step and determine whether the

agency’s construction of the statute is reasonable. Id. at 843.

In the first step of the Chevron analysis, we carefully 

scrutinize the plain text of the statute and apply traditional 

tools of statutory construction. Bautista v. Att’y Gen., 744 

F.3d 54, 58-68 (3d Cir. 2014). Mindful of the Supreme 

Court’s mandate that “[a] court must . . . interpret the statute 

as a symmetrical and coherent regulatory scheme, and fit, if 

possible, all parts into an harmonious whole,” FDA v. Brown 

& Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) 

(internal citation and quotation marks omitted), we also may

consider the broader statutory context and examine other 

parts of the governing statute to determine if the statutory 

language is silent or ambiguous. See, e.g., Scialabba, 134 S. 

Ct. at 2204-05 (2014). 

Here, the statute defines a special immigrant religious 

worker as an “immigrant” who has been “carrying on such 

vocation, professional work, or other work continuously for at 

least the 2-year period” preceding the application. 8 U.S.C. 

§ 1101(a)(27)(C)(iii). The term “immigrant”—defined by the 

INA, with certain exceptions, as “every alien”—by its plain 

terms includes aliens in both legal and illegal immigration 

status. 8 U.S.C. § 1101(a)(15).

Because the term “carrying on” is not defined by the 

INA, we look to its ordinary meaning. Black’s Law 

Dictionary defines “carry on trade or business” as “to 

conduct, prosecute or continue a particular avocation or 
18

business as a continuous operation or permanent occupation.” 

Black’s Law Dictionary 214 (6th ed. 1991). Similarly, other 

dictionaries define “carry on” as “to manage” or “to conduct.” 

OED Online (December 2014), available at 

http://www.oed.com/view/Entry/28252; The American 

Heritage Dictionary 286 (4th ed. 2009); Webster’s Third New 

International Dictionary 344 (1993). None of these 

definitions includes a requirement of lawfulness of the action 

or lawful status of the actor. 

Moreover, a court should interpret a statute so as to 

“give effect to every word of a statute wherever possible.” 

Leocal v. Ashcroft, 543 U.S. 1, 12 (2004). The Regulation’s 

requirement that qualifying work under § 1101(a)(27)(C)(iii) 

be “in lawful immigration status” would render another 

section of the INA, 8 U.S.C. § 1255(k)(2), largely, if not 

entirely, superfluous. That is, in providing that a specified 

number of days of unauthorized work will not disqualify 

special immigrant religious workers from applying for 

permanent resident status, § 1255(k)(2) necessarily assumes 

that some such workers will have engaged in prior 

unauthorized employment. Under the Regulation, on the 

other hand, a special immigrant religious worker could not

obtain an I-360 visa—a prerequisite to applying for 

adjustment of status under § 1255(k)—if that worker had 

engaged in even a single day of unauthorized work during the 

two years preceding such worker’s I-360 visa petition. The 

Regulation, in effect, would make § 1255(k)(2)’s exemption 

for unauthorized work meaningless in most circumstances.8 

 

8 While both sections could still have force in the 

situation where a petitioner worked in unlawful status for less 
19

Furthermore, in Russello v. United States, the Supreme 

Court observed that “[w]here Congress includes particular 

language in one section of a statute but omits it from another, 

it is generally presumed that Congress acts intentionally and 

purposely in the disparate inclusion or exclusion.” 464 U.S. 

16, 23 (1983). Section 1101(a)(27)(C)(iii) states that an alien 

must “carry on” his religious work “continuously” but makes 

no mention of “lawfully.” Elsewhere within §§ 1101 and 

1153, in contrast, Congress specified no less than six times 

when it intended to require lawful status as a prerequisite to 

the grant of certain status or relief. See 8 U.S.C. § 1101(a)(6) 

(defining a “border crossing identification card” as a 

document that can be issued only to an alien who is “lawfully 

admitted” for permanent residence); 8 U.S.C. 

§ 1101(a)(27)(A) (creating a category of special immigrants 

for immigrants “lawfully admitted” for permanent residence 

who are returning from a temporary visit abroad); 8 U.S.C. 

§ 1101(i)(2) (permitting aliens who are the victims of severe 

human trafficking to engage in employment during the period 

they are in “lawful temporary resident status”); 8 U.S.C. 

§ 1153(a)(2)(A), (B) (alloting visas to the spouses, children, 

and unmarried sons and daughters of aliens “lawfully 

admitted” for permanent residence); 8 U.S.C. § 1153(b)(5)

 

than 180 days and then, during the two years immediately 

prior to filing the I-360 visa petition, worked legally in the 

United States or worked abroad, the Government cannot 

negate the canon against superfluity merely by pointing out 

that a theoretical exception exists. See Duncan v. Walker, 

533 U.S. 167, 174-75 (2001) (applying the canon against 

superfluity where a construction of the statute would render a 

word insignificant but not wholly superfluous). 
20

(making visas available for qualified immigrant entrepreneurs 

whose businesses will create full time employment for,

among others, aliens “lawfully admitted” for permanent 

residence or “lawfully authorized” to be employed in the 

United States).

Yet there can be no doubt Congress was well aware 

that special immigrant religious workers may have worked 

illegally before applying for legal status: An alien seeking 

permanent adjustment of status under 8 U.S.C. § 1255, for 

example, generally is ineligible if he has “continue[d] in or 

accept[ed] unauthorized employment prior to filing an 

application for adjustment of status,” 8 U.S.C. § 1255(c)(2), 

or “was employed while the alien was an unauthorized alien,”

8 U.S.C. § 1255(c)(8). For special immigrant religious 

workers who are present in the United States pursuant to 

lawful admission at the time of the application, however, the 

INA specifically carves out an exception to allow for 

adjustment of status—even if the alien engaged in 

unauthorized employment—so long as that unauthorized 

employment did not exceed 180 days in the aggregate. See 8 

U.S.C. § 1255(k)(2). Against this backdrop, Congress’s 

decision to specify in § 1101(a)(27)(C)(iii) that immigrants 

carry on their religious work “continuously,” but not

“lawfully,” is particularly significant. 

We are unswayed by the line of decisions from the

Court of Appeals for the D.C. Circuit declining to apply 

Russello in the administrative agency context and observing 

that “a congressional mandate in one section and silence in 

another” may simply reflect a decision “to leave the question 

to agency discretion.” Catawba Cnty., N.C. v. EPA, 571 F.3d 

20, 36 (D.C. Cir. 2009) (quoting Cheney R. Co. v. ICC, 902 
21

F.2d 66, 69 (D.C. Cir. 1990)). We have not adopted this 

reasoning, and, to the contrary, we have concluded that “we 

must read the statute as written,” giving meaning to 

distinctions between statutory provisions, rather than rely on 

implicit assumptions of intent. Hanif v. Att’y Gen., 694 F.3d 

479, 486 (3d Cir. 2012).

Section 1255(k)(2) also puts to rest the Government’s 

arguments that § 1101(a)(27)(C)(iii) must be read in 

connection with the statutory ban on employers hiring 

unauthorized aliens and that the overall structure and purpose 

of the INA require lawful work absent an explicit exception.

See 8 U.S.C. § 1324a(a)-(b). Indeed, the argument proves too 

much, for Congress carved out just such an exception for the 

adjustment of status of special immigrant religious workers

who engaged in unauthorized employment for an aggregate 

period of up to 180 days and otherwise satisfy § 1255(k). 8 

U.S.C. § 1255(k)(2). 

Nor are we persuaded that, when Congress directed 

CIS to issue regulations specific to fraud in the special 

immigrant nonminister religious worker program (the 

“Nonminister Program”), it thereby acknowledged ambiguity 

in the work qualifications for ministers. Special Immigrant 

Nonminister Religious Worker Program Act, Pub. L. No. 

110-391, 122 Stat. 4193 (2008); see 8 U.S.C. 

§ 1101(a)(27)(C)(ii)(II), (III). The Government submits that

CIS adopted the Regulation as part of an agency rule intended 

to improve its “ability to detect and deter fraud,” and that the 

Regulation therefore necessarily was authorized by Congress.

See Special Immigrant and Nonimmigrant Religious Workers, 

73 Fed. Reg. 72,276-01 (November 26, 2008). Some parts of 

this rule were clearly designed to address fraud in the 
22

administration of the program, such as the provision 

authorizing CIS to perform an on-site inspection of a 

petitioning religious organization, presumably to confirm, 

where relevant, that the alien is actually carrying on the 

specified religious work, as well as to ascertain the 

organization’s bona fides. See, e.g., 8 C.F.R. § 204.5(m)(12). 

That purpose is not apparent, however, in a requirement that 

such work, actually having been performed, was performed 

while the alien was in a particular immigration status. Nor 

could that requirement, to the extent it is imposed on 

ministers, conceivably be aimed at fraud in the Nonminister 

Program. 

The Government also argues that Congress indicated 

its acquiescence to the Regulation by reauthorizing the 

Nonminister Program four times since DHS adopted the 

Regulation.9 However, the canon of ratification, i.e., that 

“Congress is presumed to be aware of an administrative . . . 

interpretation of a statute and to adopt that interpretation 

when it re-enacts a statute without change,” Lorillard v. Pons, 

434 U.S. 575, 580 (1978), has little probative value where, as 

here, what is re-enacted is a different subsection of the 

statute. See Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 

770 n.4 (2004). It has even less bearing when it is 

 

9 See Reauthorization of EB-5 Regional Center 

Program, Pub. L. No. 112-176 § 3, 126 Stat. 1325 (2012); 

Department of Homeland Security Appropriations Act, 2010, 

Pub. L. No. 111-83 § 568(a)(1), 123 Stat. 2142 (2009); 

Legislative Branch Appropriations, Pub. L. No. 111-68 § 133, 

123 Stat. 2023 (2009); Special Immigrant Nonminister 

Religious Worker Program, Pub. L. No. 111-9 § 1, 123 Stat. 

989 (2009). 
23

contradicted by clear and unambiguous evidence of 

Congress’s intent, reflected here in the plain language of 

§ 1101(a)(27)(C)(iii).

In sum, by its plain terms and consistent with Russello

and applicable canons of statutory construction, the INA 

authorizes an alien who engaged in religious work 

continuously for the two years preceding the visa application 

and who meets the other statutory criteria to qualify for an I360 visa as a special immigrant religious worker. As the

statute is clear and unambiguous and the Regulation is 

inconsistent with the statute, the Regulation is ultra vires and 

we do not reach the second step of the Chevron analysis. 

IV. Remedy

Having struck down the Regulation, the District Court 

concluded that remand would be futile and ordered CIS to 

grant the petition because it had offered no alternative ground 

for denial of Alencar’s petition. Given the outcome dictated 

by the Regulation, however, CIS had no occasion to consider

whether Alencar meets the other requirements for the special 

immigrant religious worker program. When further factfinding is necessary to resolve an issue, a court of appeals “is 

not generally empowered to conduct a de novo inquiry into 

the matter being reviewed and to reach its own conclusions 

based on such an inquiry.” INS v. Ventura, 537 U.S. 12, 16 

(2002) (per curiam) (quoting Fla. Power & Light Co. v. 

Lorion, 470 U.S. 729, 744 (1985)). Accordingly, we will

reverse the order granting the petition and will remand to the

District Court with instructions to remand to the agency to

address in the first instance whether Alencar satisfies

§ 1101(a)(27)(C)’s remaining criteria. 
24

* * *

For these reasons, we will affirm that portion of the 

District Court’s order granting summary judgment and

striking 8 C.F.R. §§ 204.5(m)(4) and (11) as ultra vires, will 

reverse the portion granting Alencar’s petition, and will 

remand to the District Court for proceedings consistent with 

this opinion.