DEAR Attorney Tan,
I entered the US in 1998 as a crewman. I have recently married a US citizen and would like to get a green card. However, I have heard that since I entered as a crewman, I cannot adjust my status to a permanent resident. Is this true? –Lost on Land
Dear Lost on Land,
Under INA Section 245(c)(1), a person who enters the US as a “crewman” is generally barred from adjusting his status to permanent residence. However, analysis of this issue must begin with determining whether you are actually a “crewman,” who is barred from adjustment.
A “crewman” is defined as a person “serving…in a capacity required for normal operation and service on board a vessel, …or aircraft, who intends to land temporarily and solely in pursuit of his calling as a crewman and to depart from the United States with the vessel or aircraft on which he arrived or some other vessel or aircraft.” INA Section 101(a)(15(D). A “crewman” under this definition is assigned a “D” visa classification, but is often issued a dual C-1 transit/ D crewman visa. Because of this, a common misperception exists that a C-1 visa classification is designated for crewmen, and that a person who entered the US under a C-1 classification is by definition a “crewman,” therefore barred from adjusting his status to permanent resident. However, it is important to keep in mind that if a person entered on a C-1 transit visa, he may not be a “crewman” and may be eligible to adjust status. Further, the facts of a particular case regardless of letter classification of one’s visa upon entry may also be considered. If you entered on a C-1 transit visa, or under circumstances that do not fit the definition of a “crewman,” you may be eligible to adjust status.
If you are considered a “crewman” under the above definition, you can still file for adjustment of status to permanent residence and get a green card in the US if you are covered by INA Section 245(i). To be covered under INA Section 245(i), one must be the beneficiary of a visa petition or labor certification filed on or before April 30, 2001. If the petition was filed between January 14, 1998 and April 30, 2001, physical presence in the US on December 21, 2000 is also required.
If you are not covered under INA Section 245(i), and are considered a “crewman” under the above definition, you would need to obtain your immigrant visa at a foreign consular post. Traditionally, persons who were unlawfully present in the US for more than 1 year, and who had to obtain their immigrant visa at an overseas US consulate were subject to an unlawful presence bar from returning to the US for 10 years. That person would be able to seek a waiver of the unlawful presence bar after leaving the US, but if denied, he would be left outside of the US, and away from his family for 10 years. However, under the Provisional Waiver program, you can apply for and get a decision on the waiver of the unlawful presence bar without leaving the US. If the waiver is approved, you can leave the US with some assurance that you will obtain your immigrant visa at the US consulate post and quickly return. Spouses and minor children of US citizens are eligible for provisional waiver relief.
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Darrick V. Tan, Esq. is admitted to practice law in California and Nevada. Mr. Tan is a graduate of UCLA and Southwestern University School of Law. He is a member of the Consumers Attorney Association of Los Angeles and is a former member of the Board of Governors of the Philipp ine American Bar Association.
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LAW OFFICES OF DARRICK V. TAN, 3580 Wilshire Boulevard, Suite 900, Los Angeles, CA 90010. Tel: (323) 639-0277. Email: firstname.lastname@example.org.