United States Third Circuit

Plaintiff is a Brazilian national who has remained in the United States unlawfully since his tourist visa expired in December 1995. Though plaintiff was not authorized to work under the terms of his B-2 visa, nor did he otherwise obtain employment authorization, he served and has continued to serve as a senior pastor for the Shalom Pentecostal Church from 1998 until the filing of this appeal. Plaintiff's I-360 visa petition, filed by the Church on his behalf, was denied on the sole basis that the Church had failed to establish, pursuant to 8 C.F.R. sections 204.5(m)(4) and (11) (the Regulation) that he 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. The district court's order granting summary judgment and striking sections 204.5(m)(4) and (11) as ultra vires is affirmed, and the portion of the judgment granting plaintiff's petition is reversed and remanded for further proceedings, where sections 204.5(m)(4) and (11)'s "in lawful immigration status" requirement for religious work is ultra vires because it contradicts the plain language of the Immigration and Nationality Act, which enables an immigrant to obtain a visa as a special immigrant religious worker if the immigrant has been carrying on religious work for at least the two years preceding the filing of the visa petition.

Appellate Information

• Decided 04/07/2015
• Published 04/07/2015

Judges

• Krause

Court

• United States Third Circuit

Counsel