20 Mar Entry with C-1 Visa Does Not Always Bar Adjustment of Status
By: Attorney Ben Loveman
“Attorney, I entered with a C-1 visa, so I can’t adjust my status, right? We hear this basic question all the time from clients hoping to adjust their status and be granted permanent resident status (green card). Unfortunately, many people mistakenly believe that entering the U.S. with a C-1 visa is an automatic bar to getting their green card in the United States. To help dispel this myth we devote our discussion this week to the nuances of the C-1 visa.
The C-1 and C-1/D visa category is an often-utilized visa used to enter the United States for various reasons. The most common use of a C-1 visa is for a person to enter the U.S. to pursue employment aboard a vessel. These bona fide ‘crewmen’ are generally issued C-1/D visas and are prohibited from adjustment of status under Section 245(c) of the Immigration and Nationality Act. But what if you enter the U.S. with a C-1 visa but are not a crewman?
The C-1 visa category is not exclusively for crewmen and exceptions to the general rule apply. One exception is for a person who was issued a C-1 visa because they will be transiting through the United States to a third country. There is not a prohibition on adjustment of status for C-1 visa holders who were simply transiting through the United States. An example: a Filipino citizen named Ramonito is planning to work at a military base in Guantanamo Bay. His itinerary requires a layover in Los Angeles. Ramonito uses his C-1 visa to enter the United States with his “transit visa,” before he is ultimately required to continue his journey to Guantanamo Bay. If Ramonito fails to timely leave the U.S., he may still be eligible for adjustment of status despite his entry with the C-1 visa. This exception might also apply for bona fide crewmen who have finished their contracts.
A second exception arises for people who enter the U.S. with a fraudulent C-1 visa. Federal regulations define “crewman” as someone entering the U.S. to serve on board a vessel or aircraft in pursuit of their calling as a crewman. Does the adjustment of status bar apply to the person who enters the U.S. under an assumed name, and who has no intention of working as a crewman? The Board of Immigration Appeals has stated that the “focal issue in determining whether an alien qualifies as a crewman is whether the person entered the United States in pursuit of his calling as a seaman.” It is an argument that “substance over form” should control. Thus, there is a strong claim that a person who uses a C-1/D or D visa and falsely claims to be joining a ship is still eligible for adjustment of status.
With this exception, there is no doubt that the foreign national will require a waiver for fraudulently obtaining their visa. An example: Ramonito seeks entry to the U.S. after acquiring a fraudulent C-1/D visa from an agent. Ramonito also claims at entry that he will be joining a ship after his arrival in the United States. Even if no such ship exists, Ramonito may still be eligible for adjustment of status so long as he is able to acquire a waiver of his misrepresentation.
Bona fide crewmen can also adjust their status if covered by Section 245(i) of the Immigration and Nationality Act. A person is most commonly covered by previously having a petition or labor certification filed on their behalf (or perhaps on behalf of their parents) prior to April 30, 2001. In addition, if the petition was filed between January 14, 1998 and April 30, 2001, the foreign national must have been physically present in the U.S. on December 21, 2000.
Finally, crewman not meeting any of these exceptions may still be eligible for a ‘Provisional Unlawful Presence Waiver.’ This waiver may be granted upon a showing of extreme hardship to a U.S. citizen or lawful permanent resident spouse or parent. Before seeking this waiver though, find out for sure whether an exception applies in your case so that you can potentially apply for adjustment of status.
Crewman visas can be complex. Consult with a knowledgeable and experienced immigration attorney to thoroughly discuss your options before automatically assuming you are not eligible for adjustment of status.