Religious Workers Must Wait to File for Visas

(CN) - Immigration rules governing foreign religious workers have nothing to do with religious freedom, the 9th Circuit ruled Friday.

The federal appeals court in Seattle rejected a challenge by 16 immigrants with five-year religious worker visas to a regulation that prohibits individuals from filing visa applications concurrently with those of their sponsoring employers. While other immigrants are allowed to do so, "special immigrants" like religious workers and international broadcasters must wait for the Citizenship and Immigration Service to approve their employers' petitions before they can file applications, which can lead to long waits, possible visa violations and even deportation. The government argued that the regulation is needed to combat fraud.

In a 2007 lawsuit, the workers and their employers claimed that the regulation violated the Religious Freedom Restoration Act (RFRA), and their rights to due process and equal protection. A federal judge in Seattle ruled for the government last May, and the plaintiffs appealed to the 9th Circuit. After first considering the case in 2010 and finding that the regulation was not contrary to statute, a three-judge appeals panel unanimously affirmed on Friday.

"The fundamental flaw in the plaintiffs' reliance on RFRA is that the challenged regulation does not affect their ability to practice their religion," wrote Judge Mary Schroeder for the court. "They are subject to removal after five years because their visas have expired, not because they are practicing their religion. Their inability to file their applications concurrently with their employers' petitions may well delay religious workers from adjusting status before their temporary visas expire, but it does not prevent them from practicing their religion. Nor does the delay in their ability to file visa applications require plaintiffs to give up any tenet of their religion to access a government benefit."

The panel also rejected the plaintiffs' equal protection claims, finding that the government had shown "that there have been concerns about fraud in the religious worker visa program, and as a result, the government has encountered difficulties in determining which applicants are bona fide religious workers."

Plaintiffs' due process claims met with similar defeat.

"While the regulation may compound frustration caused by delay, plaintiffs cannot claim that their due process rights have been violated unless they have some 'legitimate claim of entitlement' to have the petitions approved before their visas expire," Schroeder wrote.

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