Analysis of Impact on Hinduism of Proposed US Religious Worker Visa Rule Changes
BY: HINDUISM TODAY
Jun 11, KAUAI, HAWAII (HPI) Hinduism Today has released a 17-page analysis of the proposed rule change to the religious worker visa. Following is the Executive Summary and the analysis, with an extensive discussion of the various issues involved. This rule change is quite drastic, and will definitely impact the use of the R-1 visa by Hindu temples, organizations and monastic orders. We urge Hindus in America to take an interest in this issue.
Proposed Religious Worker Visa Changes
Adverse Impact on American Hindus and Hindu Institutions
The Religious Worker visa is presently used by many Hindu organizations to bring priests and temple builders to the United States, in order to serve the needs of their members by providing traditional places of worship. Changes to this visa program have recently been proposed by the US Citizenship and Immigration Services. Some of the proposed changes would adversely affect the ability of Hindu organizations to adequately serve their members’ religious needs.
The intent of the proposed changes is to combat a high fraud rate in this visa category. Most of the changes involve documenting the legitimacy of the sponsoring institution and the religious credentials of the workers, and pose little difficulty to Hindu organizations, though they may well increase the amount of processing time for the visa.
However, five areas are problematic:
1) the definition and examples of “religious occupation” do not encompass traditional Hindu occupations;
2) the documentation requirements for priests do not relate to the Hindu system of priest training;
3) the requirement that a religious worker be of the same “denomination” as the sponsoring organization does not reflect Hindu traditions;
4) the requirement of a “formal lifetime commitment” to qualify for the religious vocation category would exclude novitiate members of monastic orders; and
5) the required review after just one year in the US would place an onerous administrative burden on the religious organization, and the overloaded USCIS may not be able to process these reviews in a timely fashion.
These issues are complex; to fully understand their impact requires a thorough study of the relevant documents and consultation with an immigration attorney. The Catholic Church and other religious institutions have concerns about the changes which overlap the Hindu concerns to some extent.
All of these areas cause what is called “excessive burden” on the practice of Hinduism. This is illegal under the Religious Freedom Restoration Act of 1993. Proving to the satisfaction of the US Citizenship and Immigration Services that the changes are an excessive burden is up to the Hindu community. Hindu organizations and individuals must take action by sending comments on the changes to the USCIS before June 25, and protesting the rule changes to their federal political representatives. We have been assisted in preparing this document by the Hindu American Foundation, the Council of Hindu Temples of North America and attorney Chetan Tanna.
Managing Editor, Hinduism Today
Note: There is both an immigrant and non-immigrant section of the religious worker visa. The following information is framed in terms of the non-immigrant R-1, and the same comments would apply with regard to the immigrant visa.
a. Relevant documents:
The proposed changes, DHS Docket No. USCIS-2005-0030, by the US Citizenship and Immigration Services (USCIS) can be downloaded here.
A 1999 fraud investigation, which led in part to these proposals, is available here.
The original R-1 visa rules are here.
b. Fraud report impact:
Most of the proposed changes to the religious worker visa have to do with combating fraud. The 1999 analysis (and subsequent investigations) by the government found that fully one-third of Religious Worker visas had been issued under fraudulent circumstances. The original visa regulation is so loosely written that the applicant need not even prove the existence of the American organization he claims to have hired him. The proposed regulations, therefore, include provisions to establish the legitimacy of the employer in the US and to periodically check on-site that the employment remains legitimate. These requirements should prove no obstacle to Hindu temples and organizations. Much of the fraud dealt with individuals in other countries who claimed employment from US religious organizations which either did not actually offer a job, or did not even exist.
c. Stricter interpretation:
In 2007 the Chennai consulate started to strictly interpret the existing R-1 regulations, which do not specify temple architects and artisans (sthapatis and silpis); and as a result, several visas have been refused. Prior to 2007, there had been a more liberal interpretation. We believe that this change was the result of a general crackdown affecting religious workers of all religions applying for the R-1, as detailed in this February 28, 2007, news report. The article begins, “Religious groups and immigration lawyers are expressing alarm at the long delays that priests, nuns, missionaries, and other religious workers now encounter when applying for visas.”
The Chennai consulate has taken a stricter view of the qualifications of priests, rejecting some for being “too young,” another for having no degree in higher education and another for a perceived lack of expertise. It is imperative, therefore, that the revised rules correctly identify and allow for the various capacities of religious workers as found within Hinduism. Right now, they are written using the organizational structure and religious occupations of Christianity and Judaism.
d. Unsuitable H2B recommended:
In refusing the visas for one sthapati and six silpis in April, 2007, the consulate officer said they should apply for the H2B visa, meant for “seasonal non-agricultural workers” to perform “temporary nonagricultural work which may be one-time, seasonal, peak load or intermittent.” There is a cap of 66,000 visas per year on this category, and that quota has been filled for 2007. The H2B is a one-year visa which can be renewed twice, but not automatically. It is not suitable for a temple building team, as the projects often take more than three years.
2. How Hinduism differs from Abrahamic Faiths
a. Religious concepts and structures in the R-1:
It is clear that the R-1 visa was written to fit the Christian and Jewish faiths. To the considerable extent that Hinduism differs from these faiths, the visa rules-both existing and proposed-either do not make sense or simply do not apply. And with the new strict interpretation being applied, Hinduism is left out almost entirely.
b. Temples and Hinduism:
Several of the difficulties with the R-1 visa and Hindu requests revolve around the particular nature of the Hindu temple. Temples range from the simplest village structure built at the base of a tree to the Angkor Wat Hindu temple in Cambodia, which remains the world’s largest religious structure.
Hindu temples built in the United States have ranged from simple meeting halls with the Deity statues at the front to the large concrete and stone temples of Chicago, Pittsburgh and Houston to the all-stone Iraivan temple in Hawaii being entirely hand-crafted out of granite.
The traditional temples are built according to Hindu scriptures which dictate every detail of the complex and ornate structures. The temples in northern climates tend to be modern buildings within which are enclosed the traditional sanctums made in plaster or stone; those in the southern states may be entirely in traditional style. There exist no artisans in the US trained in creating the traditional aspects of the temples, including the ornate plaster work, Deity carving, stone work, silver, gold and jewelry work and creation of wood accoutrements. If Hindus are not allowed to bring in these specialized artisans, the traditional temples cannot be built.
After the temple has been built, there is ongoing maintenance which may require artisans; and every twelve years, the temple undergoes a thorough renovation which requires the artisans.
c. The Hindu “religious occupations”:
In the Paramesvara Agama, according to Dr. S.P. Sabharathnam, there are listed ten categories of workers in an active temple. Dr. Sabharathnam is retired professor of Saiva Siddhanta from the University of Madras and perhaps India’s foremost experts on the Agama scriptures, which detail the rules for temple worship, as well as construction. The Paramesvara Agama is a specifically Saivite text, and there are similar Agamas for the other major denominations of Hinduism with similar rules. In the Paramesvara Agama, a list of ten is given:
1) acharya (the chief priest) and archakas (his assistant priests, both according to the 6 sampradaya or denomination of the particular Deity to be worshiped);
2: Veda bhashinah (who recite the Vedic hymns during the worship);
3: paricharakas (priests who help with the worship, including the pachakas or cooks who are responsible to prepare the food offered to the temple Deity, later distributed to the devotees as prasadam, blessed food offering);
4: teertha grahinah (who collect holy water from various places);
5: pushpa grahinah (who collect flowers and make garlands);
6: karana palakas (those who take care of and preserve the Deity statues, images, metal tools, utensils, all those items needed for the various aspects of the worship, as well as those master craftsmen responsible for the building and upkeep of the temple itself, the sthapatis and silpis);
7: dhoopakarah (who take care of incense and fragrant substances);
8: malaapaharinah (sweepers and cleaners);
9: gayakah (singers, such as the oduvars and bhajan leaders);
10): vaditra vadinah (those who play musical instruments, such as the nagaswaram reed instrument and tavil drum).
The list appeared in a text entitled Sakalagama Manjari at the Adyar Library in Madras, and is repeated in other Agama texts. Of these ten categories, the first three are priests who require diksha or ordination to perform their tasks. The remainder are workers but not priests. They are daily blessed by the chief priest to perform their tasks.
In the sense of the R-1 visa as applied to other religions, the categories four (collector of holy water), five (garland makers), seven (responsible for incense), and eight, sweepers and cleaners, might not be considered religious workers as they do not involve much specialized religious knowledge. The three types of priests, the singers and musicians already fall clearly in the R-1 category.
The upachayaa who is an officiating priest for ceremonies that take place outside the temple, including the rites of passage (samskaras), such as weddings and funerals already clearly falls clearly under the R-1.
There are also teachers of Hinduism (swamis, pundits and shastris), scriptural experts, translators and astrologers (responsible for the Hindu calendar, scheduling of festivals and timings of daily worship). These also fall in the R-1 existing definitions.
The sixth category above, karana palakas, qualify for the R-1 as these master craftsmen are clearly involved in “inculcating or carrying out the religious creed and/ or beliefs of the denomination,” which in Hinduism necessarily includes temple worship. Examples of these religious workers include sthapatis (architects who design and recommend renovations for temples), silpis (stone sculptors and masons who carve and build the temples), carpenters (to custom construct on site the temple chariots and other wooden religious accouterments used in the temple); and jewelers (to custom make on site silver, gold and bejeweled ornamentations for the temple’s Deities).
It was proposed to add in this fourth category “dancers and actors of religious themes; katha kaalashepam (story tellers) and pravachanam (lecturer)” to this category of artists. But the story tellers and lecturers probably already qualify as “ministers” under the R-1 visa, and the dancers and actors likely qualify for the visiting performing artist visa, O and P. The latter are also subject to long processing delays so there would be some advantage to having dancers and actors under R-1 if their sole work was in temples. The limitation would be that they could not perform in a secular environment.
3. Redefinition of “Religious Occupation”
a. Existing definition:
The existing definition says, in total, “A religious occupation is the habitual employment or engagement in an activity which relates to a traditional religious function. Examples of individuals in religious occupations include, but are not limited to liturgical workers, religious instructors, religious counselors, cantors, catechists, workers in religious hospitals or religious health care facilities, missionaries, religious translators, or religious broadcasters. This group does not include janitors, maintenance workers, clerks, fund raisers, or persons solely involved in the solicitation of donations.”
b. Proposed definition:
The proposed definition is much longer. It reads in critical parts: “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. 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.”
c. Significant changes in definition:
The original “A religious occupation is the habitual employment or engagement in an activity which relates to a traditional religious function” changes to “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.” In addition to this change is one added example, “ritual slaughter worker.”
d. Hindu problem with definition of religious occupation:
Neither the original nor the proposed definitions and, more importantly, the examples cited, properly encompass the traditional religious occupations within Hinduism, even though they are all required to “carry out the religious creed and/or beliefs of the denomination.” The word “priest,” for example, is not even mentioned.
e. Proposed Hindu rewording for “religious occupations”:
The following changes in wording, plus the addition of examples from Hindu practice, will clarify that traditional Hindu religious workers qualify for the visa. 1) “liturgical workers” may be changed to “liturgical workers and priests;” 2) “choir directors, music ministers, cantors” may be changed to “religious artists, including musicians, singers, dancers and actors in religious presentations;” 3) “ritual slaughter supervisors” may be changed to “religious food preparers, including temple priests who prepare food for worship and ritual slaughter supervisors.”
f. Proposed Hindu additions to examples of “religious occupations”:
There should be included a “religious master craftsmen” (or “religious artisans,” or just “artisans”). They are specially trained craftsmen required to build or renovate the temples, shrines or special objects used in ritual worship or festivals. Examples are architects (also trained in the religious rituals required during construction), stone sculptors , carpenters and jewelers.
g. How do Hindu religious workers provide formal occupation documentation?:
In a religion in which many religious professions remain hereditary, it is indeed a challenge to supply the kind of documentation USCIS has come to expect for Christian ministers trained in theological seminaries. Many Hindu priests are trained in gurukulams, special schools just for them, from the ages of 6 or 8 until 16 or 18, at which time they are fully trained Hindu priests. They may have certificates to this effect, but the gurukulam system itself is not a product of government regulation, and the certificates may be difficult to authenticate to the consulate’s satisfaction. In the proposed rules, the employing organization must attest to the qualifications of the person they intend to hire; and that person is required to supply additional documentation. We propose that USCIS can rely on documentation in the form of employment records and recommendations from recognized temples in India in lieu of acceptable documents of training and ordination.
4. Requirement of Denomination Affiliation
a. Existing definition:
“A religious denomination is a religious group or community of believers. Among the factors that may be considered in determining whether a group constitutes a bona fide religious denomination are the presence of some form of ecclesiastical government, a recognized creed and form of worship, a formal code of doctrine and discipline, religious services and ceremonies, established places of religious worship, and religious congregations. For purposes of this definition, an interdenominational religious organization which is exempt from taxation pursuant to section 501(c)(3) of the Internal Revenue Code of 1986 will be treated as a religious denomination.”
The rule also requires that the organization belong to a religious denomination, and that the worker has been a member of the same religious denomination for two years before applying for the visa.
b. Proposed definition:
The proposed regulations state, “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 or subsequent amendment, as a religious organization will be presumed to belong to the same religious denomination, but such official affiliation is not necessary for denominational membership.”
Later in the proposed rules, a “Religious Denomination Certification” is required stating that “the petitioning organization is affiliated with the religious denomination.”
For all persons who come under the R-1, this requirement is made: “that for the twoyear 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.”
c. Hindu problems with the denomination requirement:
The concept of member of a denomination is a Christian and Judaic concept and does not relate well to Hinduism. Hinduism certainly has denominations. The major ones are the Saiva, Shakta, Vaishnava and Smarta traditions. Within these there are subdenominations such as Kashmir Saivite, Vallabhacharya sect of Vaishnavism and Kabir Panth. But these denominations, which may have existed for thousands of years, have no central administrative authority.
The statement in the proposed definition that “members of a denomination must share...” contains concepts which do not apply to Hinduism, as its beliefs and practices are not that formalized. Many Hindu priests are intentionally trained to be able to perform ceremonies for all the different Hindu denominations.
Furthermore, in the American context, most Hindu organizations do not have an exclusive membership. Many Hindu institutions in the USA are nondenominational, i.e., cater to Hindus of all denominations. This is because the Hindu population in most geographic areas is small and a one place of worship for all Hindu denominations is the only practical solution. It is common for Hindus to participate in the activities of a number of Hindu organizations of differing denominations.
In the case of religious workers such as temple craftsmen, it is not expected in India that they belong to the denomination of the temple they are working on, though that often would be the case. The temple architects in particular are trained to build the temples according to the scriptural requirements of the specific denomination, regardless of the denomination they themselves belong to.
d. Hindu proposed change to the denomination requirement:
Because of this difference in the concept of denomination, the following requirement does not work for Hindu institutions: “that for 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 wording of the original R-1 visa, “For purposes of this definition, an interdenominational religious organization which is exempt from taxation pursuant to section 501(c)(3) of the Internal Revenue Code of 1986 will be treated as a religious denomination” can be restored and expanded upon to encompass the Hindu tradition. The proposed rule deletes any mention of interdenominational religious organizations.
We propose the requirement be reworded as follows: “that for the two-year period immediately preceding the filing of the petition, the alien must have been a member of the same or an affiliated religious denomination as the United states religious organization that seeks to employ him or her. For the purposes of this clause, the alien’s interdenominational membership within the same religion as the interdenominational religious organization which is exempt from taxation pursuant to section 501 (c)(3) of the Internal Revenue Code of 1986, will be treated as belonging to the same religious denomination. For religions the practice of which in the United States is strongly nondenominational, the alien need only be a member of the same religion.”
5. The “Religious Vocation” Definition
a. Existing definition:
“A religious vocation is a calling to religious life evidenced by the demonstration of commitment practiced in the religious denomination, such as the taking of vows.”
b. Proposed definition:
The proposed rules state: “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.”
The proposed rules specifically state, “Religious study or training for religious work does not constitute religious work, but a religious worker may pursue study or training incident to status.”
c. Hindu problems with religious vocation definition:
The use of the phrase “a formal lifetime commitment to a religious way of life” is ambiguous. Does it mean that any vows taken must be for a lifetime? Does it mean that the individual intends to pursue his or her vocation for a lifetime but that the vows may be for a shorter period? In the Catholic orders, vows are given for a fixed period of time while the person is under training. When fully qualified, the person may take lifetime vows. But some orders, such as the Sisters of Charity, never take lifetime vows.
Within Hinduism, a formal lifetime commitment is taken by the sannyasin or swami after a period of novitiate training and religious work. Several US Hindu organizations, including the BAPS Swaminarayan Sanstha, Saiva Siddhanta Church, the Divine Life Society, Ramakrishna Mission and others, all have monastic orders, members of which may come from any country. All require a period of novitiate experience under short-term vows as taking lifetime vows is quite a serious step and needs years of proper preparation. Candidates are expected to enter the novitiacy with the full intention of making it a lifetime commitment, but time is allowed to pass for this intention to mature before the lifetime vows are given.
There are also lay brother or lay sister traditions within Hinduism whereby the person is fully committed to the religious life, but does not take lifetime vows. This is similar to the lay orders within Catholicism.
The rules need to allow both for novitiates and for lay brothers or sisters to come to the United States and do religious work at their respective institutions.
d. Hindu proposed definition:
A better wording under religious vocation would be: “Religious workers in a vocation are those individuals who have made a formal commitment to a religious way of life.” Alternatively, if the word “lifetime” is felt essential, it should refer to the individual’s commitment and not his vows: “Religious workers in a vocation are those individuals who have the intention of pursuing a lifetime commitment to a religious way of life.”
6. One-Year Review and Two-Year Extensions
a. Proposed change:
The proposed changes, Section 214.2 r.4.iii (Extension of stay or readmission) authorizes an initial one-year period of stay for the R classification. An extension can be granted upon petition with Form I-129 for two years, which then can be extended to be followed by a second review at three years for a maximum time of five years of R-1 status.
b. Problem created:
The one-year initial period of stay creates a significant financial, functional and administrative burden on all religious organizations. The application backlog at the USCIS is substantial. As such, to require religious organizations to first incur the financial liability and functional delays associated with the initial processing of the Form-129 for R classification to get religious workers from abroad and then require them to reapply for further periods of stay within just 12 months could adversely and substantially limit the religious organization’s ability to conduct and fulfill its religious function. Instead, religious organizations will be bogged down by large amounts of paperwork, application and legal fees and USCIS processing delays.
c. Hindu proposed change:
We recommend that the initial period be for two years, with a single extension of three years allowed upon petition with Form I-129.
7. Action call to Hindu organizations
A concerted political effort by all concerned Hindus will be required to impact the rules proposal. This needs to include direct submission of comments to the US Citizenship and Immigration Services, letters of concern sent to members of Congress and other influential politicians, alliance with local and national groups sharing our concerns and getting media attention on the issue.
a. Rule change creates “excessive burden on practice of religion”:
Hindu temples and institutions in the United States stand to be adversely impacted by proposed changes to the R-1 religious worker visa category. The Religious Freedom Restoration Act of 1993 states, in part, “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” On pages 9 to 11 of the proposed rule is the required analysis by USCIS. On page 10, they state, “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.” As part of their justification for this conclusion, they state, “The proposed rule does not make any distinction that is known to be based on the substance of an individual’s religious beliefs.”
In the case of the practice of the Hindu religion in America, this statement is clearly erroneous as even the existing R-1 regulations are entirely framed in the terminology and ecclesiastical structure of Christianity and Judaism. This bias was noticed when the bill creating the category was introduced in Congress in 1992, and efforts were made at the time to make the religious worker definitions more inclusive. The efforts were not successful. There is no provision for the different structure of the Hindu religion, its priesthood or ways of worship. American Hindus are, therefore, substantially burdened by the proposed regulations.
b. Advice on issuing statements:
As they are developed, we will make available statements and comments from Hindu organizations which can serve as models for institutions to develop their own statements. It is important that each statement be sufficiently individualized to the institution, as “boiler-plate” letters have little to no impact. We advise that each letter contain some wording referencing this document, such as “Our response is based on a thorough preliminary analysis of the R-1 visa issued by the editors of Hinduism Today.” This will inform USCIS of this analysis and show the source of common wording amongst the responses they are seeing. Better we are up front about this, or we may fall into the “boiler-plate” category. What each institution must do in its comments to USCIS is cite numerous examples of how the rules changes will impact or already have impacted them specifically.
A useful model to draw upon in the meantime is this statement of the Catholic cardinal of Detroit to Congress in 2000. This statement was not in response to the present set of rule changes, but an earlier attempt to modify the R-1 visa. It is a well-written piece, in almost a folksy tone, weaving in facts and figures with running narrative and compelling examples. Time and again without using the exact words “excessive burden,” he makes it clear that the changes being contemplated at that time would do just that.
Located here is a comment regarding an immigration matter that is not the R-1 visa. One can see the proper form for comments in the letter’s structure. A second sample letter is here.
Located here is an example from the federal register of the USCIS analysis of comments received on an immigration issue, rules regarding timeframes. It can be studied to understand how USCIS deals with comments and perhaps deduce what kind of issues they are likely to actually respond favorably on. You will note in studying the USCIS response in this case that how many people commented on a particular point does not relate to whether they actually changed anything. They responded favorably to very specific suggestions in line with their overall intent, even when made only by one person. In the case of the R-1, their overall intent is to prevent fraud, and comment letters should keep this in mind. As part of this intent to prevent fraud, they are tweaking the definitions of occupations with unfair consequences to Hindus.
The comments must be on letterhead, and should be submitted in pdf format as well as printed. They will also take DVD submission, which could include video of a temple building project, plaster masons at work or jewelers making the kavachams for the Deities. Such visual imagery can be very informative as to the skill and uniqueness of these crafts. An effective letter from an institution or individual will cite specific experiences with the visa issue, such as visas denied to legitimate candidates and the inconvenience caused thereby. It can cite the impossibility of hiring local workers to do the construction or renovation work on the religious structures. It can stress the need of the community to have a fully functioning temple in their midst, and how this impacts the next generation and the future of Hinduism in the country. It can include statements of religious leaders in India as to the need for qualified priests in the temples.
The deadline for comments is June 25, 2007. It is imperative that Hindus respond in a timely way with comments and garner the support of political leaders before these rules become final.