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"On April 7, 2015, the U.S. Court of Appeals for the Third Circuit, in Shalom Pentecostal Church v. Acting Secretary DHS, 783 F.3d 156 (3d Cir. 2015), found the regulatory requirements that qualifying work experience gained in the United States must have been acquired in lawful status (herein “lawful status requirements”) in 8 CFR 204.5(m)(4) and (11) to be beyond the Department’s legal authority (ultra vires). The court found that the statute was clear and unambiguous and that the regulation was inconsistent with the statute. The Department of Homeland Security (DHS) did not seek further review of this decision.
As a result of this decision and a growing number of Federal courts reaching the same conclusion, U.S. Citizenship and Immigration Services (USCIS) has decided to acquiesce to the Shalom Pentecostal decision nationally and will no longer deny special immigrant religious worker petitions based on the lawful status requirements at 8 CFR 204.5(m)(4) and (11).1 To promote a uniform immigration policy and consistent adjudications, this policy memorandum (PM) instructs USCIS employees to apply the Shalom Pentecostal decision nationwide until such time as DHS amends the regulations at 8 CFR 204.5(m)(4) and (11) to remove the lawful status requirements. This PM updates chapter 22.3(b) of the Adjudicator’s Field Manual (AFM); AFM Update PM-602-0119. The guidance contained in this PM is controlling and supersedes any prior guidance on the lawful status requirements for special immigrant religious workers." - USCIS, July 5, 2015.