Impact of Method of Entry on Adjustment of Status

By Robert L. Reeves & Nancy E. Miller

In the ideal situation, an alien who enters the United States and becomes eligible for lawful permanent residence can get their green card through adjustment of status and not have to leave the United States to complete the process.  However, situations are not always ideal.  The type of visa one uses to enter the United States (or the lack of visa) may limit or preclude adjustment of status.  It may also prevent one from being eligible for certain forms of relief from removal.  This article will discuss C-1 crewmen, D and the effect of entering without inspection. 

C visas are also known as transit visas.  The most common of these is the C-1. The C-1 category is for aliens in transit from one vessel to another.  Examples of people eligible for this visa are crewmen joining their vessel and business people passing through the United States in their travel from one country to another.   C-1 transits are not the same as C-1 crewmen and will not be dealt with in this article. 

D visas are also known as crewmen visas.  They are given to persons serving in good faith in any capacity required for normal operation and service on board a vessel. Three factors determine alien crewman status: (1) the nature of the employee’s duties; (2) when those duties are performed; and (3) whether any employee has a permanent connection with the ship and whether their presence facilitates the operation of the vessel.

C-1 crewmen and D visa holders are given a maximum period of admission of 29 days.  They are not eligible to extend or change status.  They are not eligible to adjust status unless they are 245(i) grandfathered.  They are not eligible for cancellation of removal if they are placed in proceedings.

An alien who enters without inspection (EWI) is subject to being placed into removal proceedings.  However, an alien who is apprehended at the border and cannot prove that he has been present in the U.S for 2 or more years, or, one who is apprehended within 100 miles of the border and cannot establish that he has been physically present in the U.S. continuously for the preceding 14 days, is subject to expedited removal.  Unless he asserts  that he has a credible fear of persecution or torture in his home country, he can be placed on the next plane or bus home.  Unfortunately, he will be accompanied by a deportation order.  If he returns without permission, he will be subject to a lifetime bar from admission and will be required to wait outside the U.S. for ten years before being eligible to apply for a waiver. 

An EWI alien who has avoided deportation orders and lifetime bars is still not home free.  If he becomes eligible to apply for a green card, he will not be able to adjust status unless he is 245(i) grandfathered.  If he chooses to consular process, he will need to request a waiver of a 3 or 10 year bar if he has been unlawfully present in the U.S. for 6 months or more.  In order to apply for a waiver, the alien must show that their qualifying relative (USC or LPR parent or spouse only) will suffer extreme hardship if the waiver is not granted.  This can be a very difficult standard to meet.  

When one who applies for adjustment is not eligible for that benefit, it is not a surprise that the application is denied.  However, the story does not end there.  More often than not, the alien also receives a Notice to Appear in Immigration Court.  At that point, the alien is not seeking a benefit, he or she is fighting against being deported. 

The type of visa one uses to enter the United States can severely impact their ability to remain in the United States.  For that reason, it is important to consult a knowledgeable and experienced immigration attorney before entry into the United States and before filing for any benefits while in this country.