Can those who entered as Seaman or Crewman (C-1) adjust status?

Posted at 02/13/2012 | By : | Categories : Immigration Articles,News & Articles | 0 Comment

Aliens who entered as seaman or crewman can adjust status if they have Sec. 245(i) eligibility.  This means that they are beneficiary of an immigrant petition or labor certification filed before April 30, 2001.  The petition could be from a sister, brother or parents to qualify for Sec. 245(i) while to adjust status it could be any petition including from spouse.

Question:    What about those who have no Sec. 245(i) eligibility, can they adjust status?

Answer:    No.  However the Department of Homeland Security is making a proposed regulation to allow them to apply for waiver of unlawful presence while in the U.S. before they proceed to the U.S. Consulate abroad to apply for their immigrant visa.  This proposal may be approved within this year, 2012.

The DHS proposed rule covers alien immigrants who entered the U. S. as seaman or crewman (C-1), those who entered the U.S. border without being inspected by the Immigration Officer or entered under a different name and those alien fiancée who upon arrival to the United States did not marry the U.S. citizen that petitioned them.

Any alien who entered seaman or crewman is inadmissible.  This means that they are present in the United States without authorization from the USCIS.  In many cases they get married to a U. S. citizen and they tried to adjust status.  If they have no pending petition on or before April 30, 2001, the sec. 245(i) eligibility, they are not qualified to adjust status.  The only avenue available is to apply for an immigrant visa at the U.S. Consulate in their country of birth.

Under the current law, they will be subjected to 3 or 10 year bar for unlawful presence in the U.S. once they leave the U.S.  The proposed regulation will allow them to file an I-601 waiver of inadmissibility for the unlawful presence while in the U.S.  The waiver is available to an alien who is the spouse, son or daughter of a United States citizen or of an alien lawfully admitted to permanent residence, if it is established to the satisfaction of the Attorney General that the refusal of admission to the United States of such immigrant alien would result in extreme hardship to the U. S. citizen or lawful permanent resident spouse or parent of such alien.  Once the waiver is approved the alien can travel to the U.S. Consulate to apply for green card.

For example, Carlos, a Filipino, is a crewman for Carnival Cruise Line.  Once in land in Anchorage, he met Sheila, a U. S. citizen and they get married. Carlos has no Sec. 245(i) eligibility because he has no other relative in the U.S.  In this case Sheila can file a petition for Carlos.  However the green card can only be applied for at the U.S. Consulate in Manila because Carlos has unlawful presence in the U.S. In addition, Carlos will need to request for waiver of unlawful presence Form I-601 with the USCIS.  Carlos will have to prove that Sheila will suffer extreme hardship if his application for green card is denied.  If the I-601 is approved, Carlos can travel to the Philippines an apply for his green card at the U.S. Consulate.

Note:        This is not a legal advice.

Crispin Caday Lozano was born in the Philippines and a naturalized U.S. citizen. He is an active member of the State Bar of California, the American Immigration Lawyers Association and the National Association of Consumers Bankruptcy Attorneys. He specializes in immigration law and bankruptcy law. He earned his Juris Doctor at Western State University College of Law in Fullerton, California. He is also a Certified Public Accountant, a Real Estate Broker and a Bachelor of Business Administration Cum Laude graduate. He has offices located in Hayward and San Jose, California. You can contact him at 1-877-456-9266. Email questions to LozanoLawOffice@crispinlozanolaw.com. Visit our website at www.crispinlozanolaw.com