When is a Crewman Allowed to Adjust Status?
December 14, 2011
There are many stories of ship crew members who “jump ship” while their vessel is in the U.S. Sometimes they do it on the advice of well-meaning friends and relatives, at times it is premeditated, but almost always they do it in the hope of having a better life in this country.
Unfortunately, they also later realize that they are barred from getting a green card.
Alien crewmen on a ship or aircraft are not eligible to adjust status. This is true even if they are married to a U.S. citizen. They also cannot extend their stay or change their status. Furthermore, they are ineligible for the relief of cancellation of removal, even after ten years of residence in the U.S. and even though they can show that their deportation would result in exceptional and extremely unusual hardship to their qualifying relatives.
The “crewman bar” to adjustment of status is intended to prevent people from abusing the seaman’s route to gain easy access to the U.S. to reside here permanently.
An exception to the bar to adjustment of status is available under Sec. 245(i) of the Immigration and Nationality Act (INA).There is no bar to adjustment of status if the crewman was the beneficiary of a petition filed on or before April 30, 2001, and can prove that he was in the U.S. on December 21, 2000 if the petition was filed after January 14, 1998 but on or before April 30, 2001.
An often overlooked exception, although it is strictly speaking not an exception, is if the alien is not a “crewman” to begin with.
Under the INA, an alien crewman is a person serving in a capacity required for the normal operation and service on board vessel or aircraft, who intends to land temporarily and solely in pursuit of his calling as a crewman.
The proper visa classification for crewmen is the D visa. However, the C-1 visa is also given to crewmen who will be in immediate and continuous transit through the U.S. to join a ship or aircraft in the U.S. Consular officials often issue a dual transit/crewmember visa called “C-1/D”.
Confusion sometimes arises because, since the C-1 visa is generally for those who are passing through the U.S. to another country, not all transit visa holders are crewmembers but they are issued a C-1/D visa.
The confusion continues upon inspection for admission or parole in the U.S., where the individual may be issued an I-94 with a C-1 or D stamp, or an I-95 (crewman’s landing permit).
In other words, not everyone with a C-1 or a C-1/D visa is a crewman and ineligible to adjust status. If the person does not meet the statutory definition of a crewman, he/she should not be considered ineligible for adjustment of status. Under the law, it is one’s occupation and purpose of entry that makes him a crewman and not the manner of his arrival.
Given the serious immigration implications of being categorized as a crewman, it is important to look beyond what may be stamped on the face of one’s immigration papers and analyze many factors, including his occupational history, purpose in coming to the United States, circumstances surrounding his inspection upon admission to the U.S., and actions after his entry.