Opportunity overlooked? Don’t judge a C-1 visa by its cover

By Attorneys Ben Loveman and Nancy E. Miller

dreamstimefree_239043Every week clients consult with us who erroneously believe that they are not eligible for adjustment of status simply because they entered on a C-1 visa.    The prevailing understanding of the C/D visa category is that the use of a C-1 visa to enter the United States results in a bar to becoming a permanent resident from within the United States (a process also known as ‘adjustment of status’).  However, this understanding is flawed. In hopes of dispelling this pernicious myth, we devote our discussion this week to the nuances of the C-1 visa category.

Let’s start with the most typical use of a C-1 visa by a bona fide crewman.  A person entering the U.S. with a C-1 visa to pursue employment aboard a vessel (a ship or airplane) is a bona fide ‘crewman.’  Crewmembers are ineligible to adjust status in the United States. If they are eligible to get a green card (such as through their marriage or other family relationship), they must complete the process through the U.S. Consulate in their home country. It is from the application of this section of law that many have come to believe that all C-1 entrants are barred from adjusting status.  However, the C-1 visa category is not exclusively for crewman and exceptions to the general rule apply.

In addition to being given to crewmen, C-1 visas are also issued to those in continuous transit through the United States en route to another international destination.  “C-1 in-transit” holders are not prohibited on that basis from adjusting status.  So, if one is traveling from their home country to a third country and has a “layover” in the United States, they are likely to be issued a C-1 transit visa.  This will allow them to remain in the U.S. for no more than 29 days.  If, for some reason, they don’t leave and later become eligible to get a green card, they will be able to adjust their status in the U.S.  Of course, USCIS will look very closely at why they did not leave to determine whether they had a preconceived intent to remain in the U.S. at or before they entered.  If CIS concludes that they did, they could be denied in the exercise of discretion.

Just because one works on a ship does not mean he is a crewman.  The law defines a crewman as one who is required for to perform duties for normal operation and service aboard a vessel.  While this does include persons employed by concessionaires (e.g. beauticians), it does not include persons not needed for normal operation or where numbers are in excess.  The Board of Immigration Appeals has ruled 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.  The Board further clarified that the “substance rather than the form [of the entry] which controls.”  On that basis, the argument has been made that one who misrepresented his intention to work on a vessel is not barred from adjustment under 245(c).  However, person misrepresenting their intentions will require a waiver of inadmissibility to be eligible for adjustment of status.  They will need to show that their U.S. citizen or lawful permanent resident parent or spouse will suffer extreme hardship if they are not permitted to remain in the U.S.

Bona fide crewmen are able to adjust their status too if covered by INA §245(i).  245(i)  applies to persons who had a petition or labor certification filed on their behalf (or on behalf of certain relatives) prior to April 30, 2001.  If such a petition was filed prior to between January 14, 1998 then the filing alone satisfies the requirements. A petition filed after January 14, 1998 but on or before April 30, 2001 requires further showing physical presence in the United States on December 21, 2000.  Satisfaction of§245(i) allows adjustment of status for bona fide crewman.

Crewman who cannot adjust may benefit from the ‘provisional waiver’ program. Crewmen were never prohibited from departing to obtain an immigrant visa abroad.  However, one who leaves after having been unlawfully in the U.S. for a year or more is barred for 10 years from returning.  The bar is waivable upon a showing of extreme hardship to their qualifying relative.  The “provisional waiver” allows for preapproval of the waiver eliminating lengthy separation and uncertainty from the process.

If you or your loved one entered the United States with a C-1 or D visa, consult with an experienced and knowledgeable immigration attorney to determine what options exist to allow you to legalize your status.