Photo of Employment visa requirement doesn’t violate RFRA

Employment visa requirement doesn’t violate RFRA

Ryan B. Frazier
Utah Employment Law Letter

Congress originally enacted the Religious Freedom Res­toration Act (RFRA) in 1993 in response to a U.S. Supreme Court decision it thought infringed on free exercise rights. Al­though the RFRA was found to be unconstitutional in certain respects, it continues to be applicable to the federal government and its agencies. Thus, it could be applied to religious employ­ers’ efforts to petition for visas for their workers.

Recently, this law was put to the test when a church was denied a visa for a music director because it couldn’t prove that it could pay him since his pay would come directly from the of­ferings of congregants. Read on to learn how the U.S 10th Cir­cuit Court of Appeals (whose rulings apply to all Utah employ­ers) addressed the religious challenge to the efforts to obtain a religious employment visa.

R-1 visa petition

An R-1 visa allows ministers and other religious workers to enter and stay in the country under a nonim­migrant visa for up to five years. To obtain an R-1 visa, the petitioner must (a) establish that the R-1 applicant has been a member of the same denomination for at least two years prior to the petition and (b) demonstrate the intention and ability to compensate the applicant.

 In May 2011, Iglesia Pentecostal Casa De Dios Para Las Naciones, Inc.—a Pentecostal church in Kansas City, Kansas—petitioned the U.S. Citizenship and Immigra­tion Services (USCIS) for an R-1 visa for its music direc­tor, Israel Medina-Valdez, a citizen of the Dominican Re­public. Specifically, Iglesia petitioned that he be allowed to remain as a temporary worker for two years.

At the time, Medina had already been living in the country under a visa set to expire in August 2011. The church confirmed that it was “willing and able” to pay him $26,000 annually. However, it said that he hadn’t been a member of the denomination for two years.

After receiving the petition, USCIS asked for proof of Iglesia’s ability to meet both the denomination and compensation requirements. The agency initially de­nied the petition because the church failed to establish the denomination requirement. Iglesia appealed to the administrative appeals office (AAO), which affirmed the petition’s denial because the church had failed to meet either of the requirements.

RFRA exemption?

Iglesia filed a lawsuit in federal district court in October 2013 to challenge the denial of the petition. Meanwhile, the AAO reopened the matter, and the church voluntarily dismissed its suit. It submitted ad­ditional evidence, including a balance sheet, bank state­ments, and a profit-and-loss statement. However, the AAO again denied the petition. This time, it ruled that the church had failed to meet the compensation re­quirement and indicated that there were unexplained discrepancies in the visa petition, tax forms, and other documents.

Iglesia filed a request to reopen the petition with the AAO. Specifically, it argued that it should be entitled to an exemption from the compensation requirement under the RFRA. It explained that it believed in contribu­tions from parishioners, which it called “love offerings,” and it claimed these contributions would adequately compensate Medina. Such offerings weren’t reflected in the church’s financial documents because the money collected was paid directly to him. The AAO denied the motion to reopen and confirmed that the church hadn’t shown the ability to compensate its music director.

Iglesia again filed suit, challenging the AAO’s de­termination under the Administrative Procedure Act. It filed a request for summary judgment (a decision in its favor without a trial), arguing that it had shown the abil­ity to pay Medina and that the compensation require­ment violated the RFRA. However, the district court affirmed the AAO’s denial, concluding that the finding that the church didn’t have the ability to pay Medina wasn’t “arbitrary and capricious” and that the compen­sation requirement didn’t violate the RFRA. Iglesia ap­pealed to the 10th Circuit.

No undue burden

The appellate court noted that the RFRA provides that government “shall not substantially burden a per­son’s exercise of religion even if the burden results from a rule of general applicability.” Iglesia argued that the compensation requirement substantially burdened its religious exercise in violation of the RFRA. However, the 10th Circuit concluded that the church failed to show that the regulation imposed a substantial burden on its religious exercise.

The court first explained that the requirement didn’t prevent Iglesia from relying on “love offerings” or its congregants to make such offerings. It even noted that the compensation requirement doesn’t mandate any particular method of paying church workers. Instead, it merely means that Iglesia must provide evidence, re­gardless of the form, that it has the ability to pay the $26,000 salary in order to obtain the R-1 visa. This, the court concluded, doesn’t burden religious exercise.

Second, the 10th Circuit noted that Iglesia didn’t even contend that the compensation requirement sub­stantially burdened religious exercise. The church never explained how “living by faith” is incompatible with documenting donations before using them as compen­sation for Medina. Therefore, the appellate court con­cluded that Iglesia didn’t show a RFRA violation. Iglesia Pentecostal Casa De Dios Para Las Naciones, Inc. v. Duke, No. 16-3265 (10th Cir. 2017).


Religious institutions and churches enjoy a certain amount of protection against the federal government for the free exercise of their religious rights under the RFRA, including in obtaining employment visas for religious workers. However, not even churches and re­ligious organizations are immune from most govern­mental requirements that don’t impinge on the exercise of their religion.

Religious institutions must show that a governmen­tal requirement constitutes an undue burden on its re­ligious exercise for the RFRA to apply. Thus, efforts by churches to bring religious workers from outside the United States to serve in their churches for compensa­tion must generally comply with the visa requirements applicable to employers.\

You can contact the author at or (801) 323-5933.


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