IN a shocking and disturbing change in policy, the U.S. Embassy in Manila has begun charging crewmen with fraud when those crewmen return to Manila for immigrant visa processing after obtaining an approved provisional waiver.

Until this policy is reconsidered, I would caution crewmen against leaving the U.S. for Embassy processing of their immigration visa even if they have an approved provisional waiver.  This is because they could be charged with fraud if the provisional waiver is voided, and they would have to apply for a fraud waiver for the 10-year bar and misrepresentation which could take the USCIS several additional months to process, while they are stuck in the Philippines.

The reason or grounds for the fraud finding is based on the fact that the crewman merely overstayed his visa and/or began working in the U.S. soon after arrival.  This is the case even if the crewman arrived in the U.S. decades ago!  As the Embassy explains its fraud findings, the crewman entered the U.S. on a C-1/D visa, “and engaged in conduct inconsistent with his nonimmigrant visa status within 90 days of his entry by engaging in unauthorized employment and by failing to depart the United States within 29 days as required on a C-1/D visa.”

Under the Embassy’s reasoning, it would be legally impossible for any crewmen to now qualify for a provisional waiver, even though the provisional waiver regulations expressly state crewmen are eligible for provisional waiver, and even though, in the past, crewmen had routinely been granted provisional waivers, returned to the Philippines, had their immigrant visas issued, and then they returned to the U.S.  I myself have written about provisional waiver for crewmen and featured several crewmen on Citizen Pinoy, who went back to the Philippines, were processed for their immigrant visa, and safely returned to the U.S.

It appears the reason for this change in policy is the U.S. State Department’s recently imposed “90-day rule,” by which if a person enters the U.S. on a nonimmigrant visa, and then engages in conduct inconsistent with that visa within 90 days of entry, they have committed fraud.  Therefore, if a crewman (or even a visitor who overstayed) entered the U.S., and started working within 90 days of arrival, they have committed fraud.  If they now return to the Philippines on a provisional waiver, they risk being charged with fraud.  In addition, the maximum time a crewman may remain in the U.S. is 29 days.  Therefore, it could be considered fraud if they merely overstay beyond the 29 days or began working within 90 days of their arrival.

But none of this makes sense!

• The regulations specifically and expressly state that crewmen qualify for provisional waiver.

• Provisional waiver is supposed to benefit those aliens who overstayed.

• Obviously, anyone applying for the provisional waiver has overstayed.

• Crewmen are allowed to remain in the U.S. for a maximum of 29 days.  But if the Embassy is imposing a 90-day rule, no crewmen could qualify for provisional waiver and the regulation is meaningless.

• Simply put, if the Embassy’s position is that overstaying constitutes fraud, how can any crewman qualify for the provisional waiver?

For my part, I’m continuing to monitor this development, and will provide updates if there are any changes.  But for now, crewmen risk being charged with fraud if they return to the Philippines for Embassy visa processing even with an approved provisional waiver.

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Michael J. Gurfinkel has been an attorney for over 35 years and is licensed, and an active member of the State Bars of California and New York. All immigration services are provided by, or under the supervision of, an active member of the State Bar of California. Each case is different and results may depend on the facts of the particular case. The information and opinions contained herein (including testimonials, “Success Stories”, endorsements and re-enactments) are of a general nature, and are not intended to apply to any particular case, and do not constitute a prediction, warranty, guarantee or legal advice regarding the outcome of your legal matter. No attorney-client relationship is, or shall be, established with any reader.

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