By Attorneys Robert L. Reeves and Jeff L. Khurgel
Unlike students, tourists, and business visitors, people who enter the U.S. while working aboard a ship or airplane are generally prohibited from adjusting their status to permanent resident. This rule applies even if the crewmember is attempting to adjust his or her status based on marriage to a U.S. Citizen. The prohibitive law which bars crewmen from adjustment of status is found in Section 245(c)(1) of the Immigration and Nationality Act (“INA”), which indicates that adjustment of status “shall not be applicable to” crewmen. However, exceptions to this “crewman bar” do exist.
An important exception applies to those crewmen who come under the protection of INA Section 245(i). Such individuals are not barred as crewmen if they were the beneficiary of a petition filed on or before April 30, 2001. The qualifying petition may also have been filed for the crewman’s parent while the crewman was under 21 years of age. Crewmen whose qualifying petition was filed after January 14, 1998, and up to April 30, 2001, also need to prove that they were in the U.S. on December 21, 2000 in order to be eligible to use INA §245(i). If eligibility under INA Section 245(i) can be established, crewmen are not barred from adjustment of status.
There is another common scenario in which crewmen are not barred from adjustment of status – namely, when the “crewman” is not really a crewman at all. The definition of a crewman is clearly defined in INA Section 101(a)(15)(D) as one who serves aboard a vessel or aircraft and whose intention in entering the U.S. is to pursue the calling of crewman. As such, only such individuals should be treated as crewmembers under immigration law. Unfortunately, all too often, people fall short in analyzing whether someone truly should be subject to the “crewman bar” or whether the individual is not within the definition of a crewman at all.
An unwritten and woefully incorrect rule-of-thumb dictates that individuals holding a C-1 Visa or a C-1 entry document (Form I-94) are crewmembers. On the contrary, as indicated in Title 22 of the Code of Federal Regulations, under Section § 41.12, crewmembers are assigned the “D” visa classification. The C-1 category is for aliens in immediate and continuous transit through the U.S. Confusion often arises because most crewmen are issued a dual transit/crewmember visa, the “C-1/D”. Further confusion is added because border or airport officers will sometimes place a C-1 or D stamp on the Form I-94 entry card, and sometimes issue a Form I-95 crewman’s landing permit to people entering the U.S.
With disparate information entered on immigration documents, including visas, passports, and entry forms, it is easy to lose focus of the simple definition of a crewman: one who serves aboard a vessel or aircraft and whose intention in entering the U.S. is to work aboard that vessel or aircraft. Only real crewmembers are barred from adjustment of status under INA Section 245(c)(1).
In a case called Matter of Rebelo, the Board of Immigration Appeals (BIA) upheld the simple definition of crewman in holding that, regardless of the entry document, it is the purpose of entry that determines whether one is a crewman. In Rebelo, an individual was not deemed to be a crewman even though he was serving as a crewman on board the vessel on which he arrived, was listed on the vessel’s arrival manifest as a crew member, and for 25 years immediately preceding U.S. entry had been a crewman by occupation. The BIA held the individual was not a crewman for immigration purposes because the purpose of his visit was as a temporary visitor, not to engage in crewman activities.
However, in the Matter of Goncalves and Matter of Tzimas cases, individuals who were admitted to the U.S. in C-1 status and did intend to board a vessel for employment purposes were subject to the “crewman bar.” Also, in Matter of Campton, an individual that entered the U.S. on a B-2 tourist visa, but whose actual purpose of entry was to engage in commercial activities on board a small vessel, was deemed to be a real crewman.
Towards the end of its decision in Campton, the BIA indicated: “it is substance rather than form which controls.” The analysis of whether someone is a crewman does not stop at observing what letter of the alphabet is indicated on their immigration documents. Rather, determining whether an individual is subject to the “crewman bar” requires a detailed analysis of the person’s activities before entry to the U.S., their subjective plans at their moment of entry into the U.S., and their activities subsequent to entry. A careful evaluation by an experienced law firm will assist an individual in understanding whether or not a bar to adjustment of status applies.