Sometimes ship crewmembers ‘jump ship’ while their vessel is in the US in the hope that they can obtain their green card and build a better life.
Unfortunately, they would soon realize that as a rule, they are not eligible to adjust status even if they are married to a US citizen.
What then are their options?
If the crewman is the beneficiary of a petition or labor certification filed on or before April 30, 2001 and was in the US on December 21, 2000 if the petition was filed after January 14, 1998, he is covered by the 245(i) exception to the adjustment bar. However, if he does not fall under this exception, he has to go abroad and obtain an immigrant visa.
This would mean years of separation from his family if he has accrued unlawful presence in the US for more than 180 days. But a recent regulation now allows certain individuals, including crewmembers, to shorten the separation by obtaining a provisional waiver before he departs for his immigration interview abroad.
We have recently represented a crewmember who successfully obtained a provisional waiver. Our client was in the Philippines only for a few weeks and is now a lawful permanent resident in the US.
Another option is for the crewmember to check with an attorney if he is a crewman to begin with.
Under the Immigration and Nationality Act, an alien crewman is a person serving in a capacity required for the normal operation and service on board a vessel or aircraft, who intends to land temporarily and solely in the pursuit of his calling as a crewman.
The proper visa classification for crewmen is the D visa. However, the C-1 visa is also given to crewmen who will be in immediate and continuous transit through the U.S. to join a ship or aircraft in the U.S. Consular officials often issue a dual transit/crewmember visa called “C-1/D”.
Confusion sometimes arises because, since the C-1 visa is generally for those who are passing through the U.S. to another country, not all transit visa holders are crewmembers but they are issued a C-1/D visa.
The confusion continues upon inspection for admission or parole in the U.S., where the individual may be issued an I-94 with a C-1 or D stamp, or an I-95 (crewman’s landing permit).
In other words, not everyone with a C-1 or a C-1/D visa is a crewman and ineligible to adjust status. If the person does not meet the statutory definition of a crewman, he/she should not be considered ineligible for adjustment of status. Under the law, it is one’s occupation and purpose of entry that makes him a crewman and not the manner of his arrival.
Given the serious immigration implications of being categorized as a crewman, it is important to look beyond what may be stamped on the face of one’s immigration papers and analyze many factors, including his occupational history, purpose in coming to the United States, circumstances surrounding his inspection upon admission to the U.S., and actions after his entry.
(Editor’s Note: REUBEN S. SEGURITAN has been practicing law for over 30 years. For more information, log on to www.seguritan.com or call 212-695-5281.)