By Reeves & Associates
People who entered the United States with C-1 or C-1/D visas often say that they entered as “crewman” or with a “seaman’s book.” Generally, they are not eligible to adjust their status (meaning complete their processing for a green card in the United States). Assuming that they are independently eligible for lawful resident status, they must complete their processing in the U.S.
Consulate of their home country. But there are exceptions to this general rule which will allow some people who entered the United States with crewman visas to become permanent residents through adjustment of status. The first exception stems from the fact that a C-1 visa may be issued for two different purposes. First, a C-1 visa may be issued to a crewman intending to enter the United States to join and work on a ship.
This is the class of persons who will not be able to apply for adjustment of status. C-1 visas are also issued to intending crewmen who are in immediate and continuous transit through the United States to a third country. Persons falling into this category are eligible for adjustment of status, although they will have to address the issue of preconceived intent (meaning the question of whether they were always an intending immigrant regardless of what they said on prior applications). Finally, the D-1 visa is issued to crewman serving in good faith on board a vessel. D-1 visa entrants are not entitled to adjustment of status.
Another exception to the general rule against adjustment of status for crewman can be found at INA section 245(i). This section of law applies to persons who had a petition or labor certification filed on their behalf (or in some cases on behalf of one of their relatives) prior to April 30, 2001. If such a petition was filed between January 14, 1998 and April 30, 2001, the person would also need to have been physically present in the United States on December 21, 2000 in order to benefit from INA section 245(i). A person who falls within 245(i) will be allowed to adjust their status in the United States even if they entered the United States as a bona fide crewman.
Another option for crewmen who are eligible for a green card is to consular process. Persons who entered the United States as a crewman have never been prohibited from departing the United States to obtain an immigrant visa at a U.S. Embassy abroad. However, usually such a departure will trigger a bar to reentering the United States known as the unlawful presence bar. A three year bar is triggered if a person has been unlawfully present in the United States for more than 180 days and a ten year bar will be imposed if the person has been unlawfully present for over one year.
The unlawful presence bar is waivable but requires a showing of extreme hardship to a U.S. citizen or lawful permanent resident spouse or parent. Further, persons departing the United States to apply a waiver face great uncertainty and prolonged processing time in order to receive a decision on their waiver application. However, the Obama administration created a provisional waiver process earlier this year. Under the “provisional waiver” crewmen would allow a person to pre-apply for the waiver from within the United States and receive a decision on their waiver application before they decide whether to depart to apply for an immigrant visa abroad.
Another theoretical exception to the general rule is applicable to persons who may have entered with a crewman visa but who did not actually intend to work in the crewman profession upon entering the United States. While many courts have held that by choosing to seek entry to the United States as a crewman, an alien has agreed to the limitations associated with that status and cannot later avoid the consequences of those restrictions by claiming not to be a crewman, other language from case law leaves open the possibility that one who obtained and entered on a crewman’s visa but never intended to be a crewman may be able to avoid the consequences of that choice.
Of course, since their actions constitute visa fraud, they will be required to obtain a waiver of that ground of inadmissibility. Determining whether you or a loved one may benefit from any of the options discussed in this article will require the expertise of a skilled and experienced immigration attorney. If you or your loved one entered the United States as a crewman, you should consult an experienced and knowledgeable immigration lawyer to determine how to proceed in your goal toward permanent residence.