Individuals entering the United States on a crewman’s visa face several prohibitions on making their status legal that other non-immigrant entrants to the US are not affected by. Crewmen cannot generally adjust status to that of lawful permanent resident and they are precluded from seeking Cancellation of Removal relief in Immigration Court. Even if a crewman is married to a US citizen, a marriage-based Green Card can be out of reach. In meeting with many former crewmen—some of whom have been in the US for years with no legal status—it has become clear to the author that some options do exist, and each case should be carefully analyzed to determine whether relief should be sought. Below are several paths by which crewmen can consider moving forward.
Adjustment of Status under Section 245(i)
Crewmen that come under the protection of INA Section 245(i) are not subject to the “crewman bar” if they were the beneficiary of a petition filed on or before April 30, 2001 and pay the government a $1,000 penalty. 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 US on December 21, 2000 in order to be eligible to use INA Section 245(i). If the crewman is able to establish eligibility under INA Section 245(i), he or she is not barred from adjustment of status. Note, however, that Section 245(i) does not waive the ban on attaining Cancellation of Removal relief in immigration court.
Misidentification as a crewman
Some individuals traveling to the US are incorrectly made subject to the “crewman bar” even if they do not meet the definition of a crewman. A crewman is clearly defined in INA Section 101(a)(15)(D) as a person who serves aboard a vessel or aircraft and whose intention in entering the US is to pursue the calling of crewman. As such, only such individuals should be treated as crewmembers under immigration law. Unfortunately, the C-1 visa is often associated with crewmen, and many individuals holding a C-1 Visa or a C-1 entry document (Form I-94) are subject to the crewman bar. In fact, federal regulations assign the “D” visa classification to crewmembers. The C-1 category is for foreign nationals in immediate and continuous transit through the US 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 US in transit.
Because there is often varying information entered by immigration officers on 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 US is to work aboard that vessel or aircraft. Only real crewmembers are barred from adjustment of status under the immigration and nationality act, as supported by relevant Board of Immigration Appeals case law. 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” with respect to adjustment of status and Cancellation of Removal requires a detailed analysis of the person’s activities before entry to the US, their subjective plans at their moment of entry into the US, and their activities subsequent to entry.
New Provisional Waiver Program
Crewmen in the US that are married to US citizens and not eligible to benefit from Section 245(i) are not able to adjust their status in the US Most already know that the only way under current law to “legalize” their status is to await approval of their immigrant visa petition and then travel to their home country’s US Embassy or Consulate for an immigrant visa interview. However, the day that a crewman that has accrued over one year of unlawful presence in the US departs the US, he immediately incurs a 10-year ban from re-entering the country. In the past, the crewman might be stuck in their home country for years awaiting when or if their waiver of the 10-year bar would be approved.
However, as of March 4, 2013 the new Provisional Waiver Program allows qualifying applicants for an unlawful presence waiver to submit their waiver in the US, and then depart the US with the peace of mind that their waiver has been granted. This new procedure reduces the risk that such an applicant would travel abroad for an embassy interview, only to be denied the waiver and be stuck there for 10 years. Crewmen whose waivers are approved under this program will most likely spend only a few days to a few weeks abroad instead of many months. In order to be eligible, the only inadmissibility ground must be unlawful presence; the crewman must be the beneficiary of an approved immigrant visa petition filed by a spouse, child, or – if the applicant is under 21 – parent of the child; the qualifying relative must be a citizen spouse or parent; the applicant must be present in the US at the time the waiver application is filed; and the crewman must never have been in immigration court proceedings (or the proceedings must be fundamentally closed). Assuming the Waiver is approved, the applicant attends a Visa Interview in his or her home country and is issued the Visa.
Crewmen that have rocked the boat by overstaying their visa may have options. The analysis begins with whether one is subject to the bar, then to whether 245(i) relief is available and finally, to whether strong equities justifying a Provisional Waiver are present. An evaluation from an experienced and client-focused Immigration Attorney will yield answers as to whether any relief is available in a specific crewman’s case.
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Atty. Khurgel is a former USCIS and Department of State Embassy Officer with over ten years of government service and private immigration practice experience. His offices are located in Irvine, California.
