Both Canon Law and Civil Law are engaged when looking at the immigration status of seminarians to be incardinated in United States dioceses.

Assumptions of Canon Law

• When a seminarian is ordained as a transitional deacon, he is incardinated into a particular diocese. Incardination in a diocese assumes the ability to reside in the United States permanently.

• If a seminarian is a U.S. citizen by birth or naturalization, immigration law does not apply.
  
• If a seminarian is a LPR, i.e. a green card holder, (or in process of obtaining a green card, immigration law does not apply.
  
• If a seminarian is not a U.S. citizen nor LPR, then there are immigration consideration prior to ordination to transitional deaconate.

• WHO CAN OBTAIN THIS STATUS: A seminarian is eligible for an F-1 non-immigrant student visa by matriculation as a full-time student in an accredited seminary. The seminary files the necessary paperwork to Bureau of Citizenship and Immigration Services (BCIS), however, it is the sponsoring diocese’ responsibility to supply all the necessary information about the candidate.
  
  
• CAN A SEMINARIAN WORK FOR PAY? A seminarian may not work for salary unless conditions are met. F-1 student status does not have automatic work authorization.
  
  A seminarian, who holds am F-1 student status, is eligible to work 40 hours per week during semester breaks and 20 hours per week during school time. This work can be of any type and for salary. However, a work authorization application and approval must be filed through Bureau of Citizenship and Immigration Services (BCIS).
  
  Another arrangement can be made whereby a seminarian is “maintained” during school breaks, that is, his bills are directly paid by the employer and a stipend (not salary) is given.
  
  
• TRAVEL RESTRICTIONS ON F-1 STATUS: There are numerous new regulations for maintenance of F-1 status and for travel outside of the United States in order to return to the United States that are imposed on holders of non-immigrant F-1 student status. The seminary should be aware of these regulations and assist the international seminarian with implementation.
  
  It is the responsibility of the seminarian, however, to inform the appropriate office at their seminary, in ample time, of their travel plans.
  
  
• LENGTH OF F-1 STATUS: A seminarian holds an F-1 non-immigrant student status as long as he is registered at the seminary, not necessarily matriculating as some transitional deacons do pastoral work during this time. The student status finishes upon graduation or, in this particular case, ordination to priesthood. This fact points to where canon law and immigration law intersect and decisions and action are necessary.

1. Option #1 –
   Adjust* status from F-1 Student to Special Immigrant Religious Worker (green card – LPR)
   
   
2. Option #2
   Change* status from F-1 Student to Religious Worker (R-1 non-immigrant), then adjust status to Special Immigrant Religious Worker (green card – LPR)
   
   
   • Change of status: a person changes from one non-immigrant status to another non-immigrant status e.g F-1 to R-1
     Adjustment of status: a person adjusts from one non-immigrant status (no permanent residency in United States) to an immigrant status that gives permanent residency to live in the United States. e.g. adjust from F-1 (non-immigrant) to Special Immigrant Religious Worker (Special R-1 immigrant)
     Important: Incardination (which presupposes permanent residency in an United States diocese) occurs at time of ordination as a transitional deacon.

• Although this option directly adjust the seminarians status from F-1 to a Special Immigrant Religious Worker (R-1 green card), there are a number of considerations:

1. Timing of process: The Special Immigrant R-1 category has been permanently extended by legislation for ordained individuals, but not for non-ordained. In order to have an approved status at time of transitional deacon ordination, the process would need to begin somewhere around the end of first year theology or beginning of second year theology.
   
   This fact poses problems as to eligibility:
   
   • The seminarian is not ordained
     
   • The seminarian has limited theological training (a documentation criterion for Special Immigrant R-1)
     
   • It might be difficult to prove to BCIS religious “work” since the seminarian is registered as an international student, not a worker, in an accredited seminary school.
     
   • There is a vocational discernment issue when an application is submitted so soon in seminary formation, i.e. Year 1 or Year 2 of Theology. If the seminarian leaves - either of his own discernment or that of his sponsoring Bishop – his application becomes void. The petitioner was the Diocese in the name of the Bishop and that relationship no longer applies. This withdrawal could place the seminarian in an “undocumented” status, unless he plans to return to his home country.
   
   
2. Travel restrictions: Since this process takes a significant amount of time, approval of this status might not occur prior to deacon and/or priesthood ordination. This fact poses difficulties when the newly ordained desires to travel to their home country for ordination celebrations. Travel outside the United States is not the problem, the return to the United States is the difficulty.
   
   An immigration attorney should always be consulted prior to any travel on a non-immigrant status outside the United States.
   
   
3. Work Restrictions: During this process, a seminarian is ineligible to apply for work authorization from BCIS. Thus, he may be maintained, but not work for a salary nor on a payroll.

• One Immigration application process: Adjustment of status allows for a one step application, namely F-1 Student to Special Immigrant Religious Worker
  
  
• Permanent Residency: If the immigration application process moves smoothly and in a timely manner, it is likely that the seminarian will have permanent residency in the United States prior to his ordination as a transitional deacon.
  This fact establishes consistency between canon law (incardination) and immigration law.

• File R-1 non-immigrant petition immediately after transitional deacon ordination with accompanying ordination certificate. File for three years
  
• Retain this status until after priestly ordination. This allows the person to work (R-1 is a work authorization visa) and to travel home after priesthood ordination for first Mass etc with no travel restrictions.
  
• File for Special Immigrant R-1 at the end of first year of priesthood ordination (Thus, two years on the R-1). It will take approximately two years to complete and the priest should not travel outside the United States during these years.

1. Establishes religious dimension of beneficiary based on ordination. Ordination is first category for R-1 non-immigrant petition.
   
2. Allows for employment on payroll during early years of ordination.
   
3. Allows for travel (often related to the celebratory nature of ordination) without restriction until filing for Special Immigrant green card.
   
4. Tests seminarian’s vocation since change of status is not initiated until after deacon ordination, thereby leaving the seminarian in F-1 student status as long as possible.

1. 1. The seminarian for ordination – both as transitional deacon and into priesthood – does not have permanent residency in the United States.
   
2. This is a significant factor for the Ordinary to be aware since canonically the individual is incardinated into a particular United States diocese.
   
3. It is a two-step process of change of status, then adjustment of status, thereby adding more work and expense.

Given the information outlined above, although there is an incongruity between canon law and immigration law in Option Two, Option Two is the most viable for approval for Special Immigrant R-1 status in the long term.

However, as stated above, each individual has his own unique set of circumstances. Because of this fact, an immigration attorney should be consulted and advice followed. This consultation should take place at the time of acceptance to a diocese and for admission to a seminary. It is important that a long-range plan of action and timeline be established from the beginning of formation in order that immigration papers may be filed appropriately and in a timely manner.

An additional notes of recommendation:

1. The petitioner for any immigration papers for a seminarian, transitional deacon, permanent deacon or foreign-born priest (non-LPR person) should be the Ordinary in the name of the Diocese or his designated representative in these matters (for example, Vicar General). Whoever is named as petitioner should be signatory of the papers and will receive all BCIS communications.
   
   
2. It is strongly urged that a licensed immigration attorney review all papers for filing and include a G-28 form with the packet (Attorney representation). This fact is a safety net for any complications that might arise in processing.

Written by: Sr. Marie Prefontaine, SND
April 2004