Seguritan US Immigration Articles

Prepare for H-1B Filing Now

The United States Citizenship and Immigration Services (USCIS) will once again open its doors to H-1B cap applications and considering that the applications for last fiscal year was 233,000, it is safe to assume that it will exceed this figure this year.

Ultimately, the applications are expected to exceed the quota which is at 65,000 for foreign workers in specialty occupations and 20,000 for graduates with advanced degrees from the US. And if the H-1B petitions go beyond the cap, the USCIS will conduct a lottery to determine which petitions will make it to the cap.

With that in mind, it is best to be prepared early to avoid delays. US companies and employers intending to hire foreign workers must start working on all the paper works for the H-1B petitions now to be ready for the April 1 filing.

For instance, the approval and certification of the labor condition application (LCA) with the Department of Labor (DOL) in itself takes about seven business days and that should be considered in the timeframe. In fact, it is recommended that LCAs be prepared and submitted to the DOL as early as February.

It is also best to be ready with all necessary documentations because the USCIS will issue a Request For Evidence (RFE) if your petition is not sufficient to grant said request. When RFEs are issued, this can delay the approval of the petition sometimes way beyond the October 1 start day.

RFEs are often about the position open for H-1B workers, the qualifications and degree held by said worker and whether that matches with what is desired by the company. Sometimes it also looks into whether the candidate’s education and/or experience are equivalent to a US bachelor’s degree.

Petitions not selected during the lottery will be rejected. The petition and the fee will be returned except in cases of multiple filings. Thus, it is advisable not to file multiple petitions for one H-1B worker because that can result in the denial of all petitions and the fees paid will not be refunded. Related employers such as parent and subsidiary companies, however, are not precluded from filing petitions on behalf of the same H-1B so long as it is for different positions and based on legitimate needs of the employers.

H-1B petitions may also be accompanied with a request for premium processing but this will not increase the probability of getting an H-1B number. It will, however, be issued receipts faster than those under regular processing and in case the USCIS conducts a lottery, petitions filed under premium processing will know the results more quickly.

In preparing the H-1B petition, employers must indicate their true intention regarding the work site of the H-1B worker. If the H-1B worker will not work at their headquarters but in a client worksite, this fact must be stated in the petition. Criminal charges have been filed by the Department of Homeland Security (DHS) against employers for stating anything other than the truth.

An employer who intends to assign the H-1B worker in another work site on October 1 should state it in the petition and the Labor Condition Application (LCA) even if the employer is still unable to specify the worksite at this time.

If the H-1B petition comes with a request for change of status, the petition must be accompanied with documentary evidence of the nonimmigrant status of the beneficiary through September 30, 2016.

Work authorization for F-1 students under Optional Practical Training (OPT) who have timely filed an H-1B petition and requested for change of status shall be extended until September 30 when the petition is approved or while the petition is pending. Students who completed their OPT but are within valid grace period will receive automatic extension of their authorized stay. However, they will not be allowed to work during the period.

If you have everything and all necessary documentations, it is best to file the H-1B petition on March 31 to be received at the USCIS by overnight mail delivery on April 1.

Lawful Admission Required for Adjustment of Status

One of the requirements for adjustment of status is the alien’s lawful admission to the United States. This means that the alien must have been inspected, admitted or paroled into the US.The Immigration Nationality Act (INA) defines the terms “admitted” and “admission” as “the lawful entry of a noncitizen following inspection and authorization by an immigration officer.”

For foreign nationals who enter the US by air or sea and who are processed by the U.S. Customs and Border Protection (CBP), lawful admission is generally easier to demonstrate as they are normally issued an I-94 Form upon entry.

Since April 2013, the CBP no longer issued the paper I-94 and created an electronic I-94 Form based on the foreign national’s travel documents. The electronic Form I-94 may be printed by accessing the CBP’s website. Aside from the I-94, the CBP office also makes an annotated admission stamp on the foreign national’s passport which may also serve as proof of lawful admission.

However, for those travelling by land, there have been instances when border officials simply “wave through” foreign nationals who enter the US by car without asking any questions. Was there lawful admission in this case?

In a 1980 case, the BIA held that an alien who was “waved through” and who did not make a false claim to citizenship was “inspected” and “admitted” to the US for purposes of adjustment of status. In that case, the alien was a passenger in a car entering the US. The border official waved them through after questioning the driver. She was not asked any question nor did she volunteer any information.

The BIA reasoned that the noncitizen was “inspected” when she physically presented herself for questioning and did not make a false claim to citizenship and she was “admitted” when the officer permitted her to enter the United States.

In 1996, Congress enacted the Illegal Immigration Reform and Immigration Responsibility Act (IIRIRA) and amended the INA to define the meaning of “admitted” as being “the lawful entry of a noncitizen following inspection and authorization by an immigration officer.”

However, the Board reaffirmed its earlier decision. The Board held that “lawful entry” did not require that the entry be substantially regular; it only had to be procedurally regular. In this case, the noncitizen was also a passenger of a car crossing the US-Mexico border. She was not asked any questions and was waved through by the border official. It held that, just like in an earlier case, the admission was procedurally regular and met the definition of “admission” under the INA.

Thus, if a noncitizen does not make false claim to citizenship, is not asked any questions, does not volunteer any information, and is waved through by a border official, he has been “admitted” even if he did not have valid entry documents.

The noncitizen does not gain lawful status upon entry in the United States and is still removable for being “inadmissible at the time of entry”. However, since the noncitizen was “admitted”, he is eligible for immigration benefits, such as adjustment of status in the US, if the noncitizen later on marries a US citizen, subject to other requirements under the law.

Where primary proof of lawful admission is not available such as in the case of the noncitizen who was waved through, secondary evidence may be submitted. Secondary evidence may include affidavits regarding admission.

A request for evidence (RFE) is expected when secondary evidence of lawful admission is submitted. A timely response to the RFE must be submitted even if the requested documents have already been initially submitted.

Adjustment of Status of 245(i) Derivative Beneficiary

An alien who entered the U.S. without inspection, worked without authorization or overstayed a temporary visa is generally not eligible to adjust status to that of a lawful permanent resident. Congress passed a law in 1994 which allowed aliens, who were otherwise ineligible, to adjust their status in the United States.

After Section 245(i) expired, Congress extended it and allowed an alien to adjust status as long as he was the beneficiary of a labor certification application or immigrant visa petition filed on or before April 30, 2001. If an alien is the beneficiary of a qualifying petition or application and has paid the $1,000 penalty fee, his eligibility to adjust status is preserved.

At the same time, if the qualifying petition or labor certification was filed after January 14, 1998 the alien must be physically present in the U.S. as of December 21, 2000 in order to be eligible for Section 245(i) benefits.

The law allows “grandfathering” meaning the alien continues to benefit under 245(i) until he adjusts status and even on a basis other than the qualifying immigrant visa petition or labor certification.

Two types of aliens can be grandfathered under 245(i). The first refers to principal grandfathered aliens or the beneficiaries of visa petitions or labor certifications filed before April 30, 2001 if the petition or application was properly filed and approvable when filed. The second category pertains to spouses and children of principal grandfathered aliens, also called derivative grandfathered aliens.

To illustrate this, suppose that a nursing aide named Ellen entered the U.S. in 1995 but overstayed her tourist visa and has been living in the U.S. ever since. Suppose that she was the beneficiary of a labor certification application filed a few weeks before April 30, 2001 by her employer, a nursing home which unfortunately went out of business a few years later.

In 2006, let’s say another employer, this time a hospital, files another labor certification application and later an immigrant visa petition for Ellen. Can she adjust status? Because she is “grandfathered” under the old law, when her priority date is reached she can file for adjustment of status, notwithstanding her unlawful presence of more than 10 years.

In this example, Ellen is the principal grandfathered alien. Since the qualifying labor certification was filed after January 14, 1998 but before April 30, 2001, she must show when she finally applies for adjustment of status on the basis of the hospital’s visa petition that she was physically present in the U.S. on December 21, 2000.

If Ellen has a husband and daughter, they can be derivative grandfathered aliens who can apply for permanent resident status without the need of showing the required physical presence in the U.S. because Ellen meets that requirement.

But what if Ellen’s husband, a derivative grandfathered alien, is the beneficiary of an approved employment-based visa petition and his priority date was reached earlier, but he could not show physical presence in the U.S. as of December 21, 2000. Can he qualify for a 245(i) adjustment?

The Board of Immigration Appeals’ ruling in Matter of Svetislav Ilic tells us that he can. In that case, the respondent’s wife was the beneficiary of a family-based petition filed by her U.S. citizen sister. The respondent entered the U.S. without inspection in 2005 but he was the beneficiary of an approved I-140 petition with a priority date of April 22, 2004.

Removal proceedings were brought against him and he sought adjustment of status under Section 245(i) as a relief. The government opposed his application and said that since he is not adjusting on the basis of his wife’s family-based petition, he has become a “principal adjustment applicant” and he needs to demonstrate that he was in the U.S. as of December 21, 2000.

The BIA held that if the respondent’s wife meets the physical presence requirement, then she is grandfathered for 245(i) eligibility, and so is respondent even if he is adjusting on the basis of his employer’s I-140 petition.

Adjustment of Status for Children of Fiancé(e) Visa Holders

The K-1 visa, also known as fiancée visa, allows a U.S. citizen to bring a foreign national fiancée into the United States. In order for the fiancée to be eligible to adjust status to permanent residence, they must marry within 90 days of the fiancée’s arrival in the U.S.

The fiancé(e)’s “minor child” may also enter the U.S. on a K-2 visa and apply for permanent residence just like the fiancé(e) parent. If the marriage does not occur within the 90-day period, the fiancé(e) and the derivative child must depart the U.S.

What event fixes the derivative child’s age in order to find out if he or she is eligible for a green card? And what age should it be – 18 or 21? Until recently, there have been conflicting views on this issue.

In a case decided by the Board of Immigration Appeals, it was held that as long as the K-2 derivative child entered the U.S. before reaching age 21, he or she is eligible to adjust status.

That case was about Hieu Trung Le, the son of a Vietnamese woman who entered the U.S. on a fiancé(e) visa. Hieu Trung entered the U.S. at the age of 19 as an alien derivative child. His mother married her U.S. citizen fiancé immediately after arriving in the U.S.

About two months later, the mother and son applied for adjustment of status. Although the mother was approved, Hieu Trung was not because, according to the USCIS, he could not qualify as a stepchild of the fiancé petitioner. Under the law, in order to be a “stepchild” the marriage of the parent must have occurred before the child reaches the age of 18.

Hieu Trung was placed in removal proceedings. By that time, he had reached 21 years of age. He renewed his adjustment application before the judge as a relief in immigration court but the judge denied it, but for a different reason.

The judge said that the respondent was eligible for adjustment when he applied to the USCIS because he was then under 21 years old. However, since he was already over 21 years old, he was denied adjustment by the judge.

On appeal, the BIA rejected the reasoning of both the USCIS and the immigration judge. It found that a K-2 derivative child’s eligibility to adjust status is determined at the time of admission to the U.S. with the K-2 visa, and as long as the bona fide marriage between the K-2 child’s parent and the U.S. citizen occurs within the 90-day period.

The court said that the term “minor child” for whom K-2 derivative status is available means a “child” or an unmarried person under 21 years of age.

It also held that a fiancé(e) derivative child need not qualify as a “stepchild” of the U.S. citizen petitioner as long as he was a “child” of the fiancé(e) parent, i.e. under 21 years and unmarried.

Since Hieu Trung was 19 years old when he was admitted to the U.S. on his K-2 visa, the BIA said that he appears to be eligible for adjustment of status and therefore sent the case back to the immigration judge for further action.

This decision is beneficial to the children of foreign fiancé(e)s who lost the opportunity to become permanent residents because they had reached their 18th birthday before K-1/K-2 visa processing, which sometimes takes a year or more, was completed.

This also means that their eligibility for a green card will not be affected by government delay. It is unfair for these children to lose the chance to become lawful permanent residents and be separated from their family in the U.S. simply because they “aged out” before the USCIS adjudicated their adjustment applications.

Adjustment of Status Granted Despite Gap In Lawful Status

A foreign national with an approved employment-based immigrant petition whose priority date is current may apply for an immigrant visa through consular processing abroad or apply for adjustment of status if applicant is already in the U.S. Adjustment of status is the more preferred route because the applicant is eligible for work authorization and permission to travel while the application is pending.

To be eligible to adjust status, the applicant must meet the basic requirements, namely, physical presence in the U.S. at the time of filing, having lawfully entered the U.S. through inspection by a U.S. immigration officer or paroled into the U.S., and not being subject to any of the inadmissibility grounds.

Foreign nationals who have incurred “unlawful status” are generally not eligible to adjust status. However, certain employment-based adjustment applicants may still obtain approval of their I-485 adjustment of status applications despite gaps in lawful status. Under Section 245(k), they may adjust status if the total period of their unlawful status is not more than 180 days.

A recent case appealed to the Board of Immigration Appeals (BIA) involved Lorna Maynigo, a Filipino citizen, who entered the United States on June 24, 2001. She changed her status to H-1B which was valid until August 29, 2006. She timely filed a request for extension of her H-1B status on August 28, 2006.

The Citizenship and Immigration Services (CIS) denied Maynigo’s request for extension on March 7, 2007. She subsequently filed an application for adjustment of status on June 29, 2007 based on an approved I-140 employment-based visa petition. The priority date for the visa petition was current. The CIS denied her adjustment of status application and she was placed in removal proceedings before an immigration judge.

The immigration judge (IJ) disagreed with the CIS and found Maynigo to be eligible for adjustment of status under Section 245(k). The IJ clarified that under Section 245(k), an employment-based immigrant may adjust status if (1) the applicant is in the U.S. pursuant to a lawful admission and (2) after being admitted pursuant to a lawful admission, the applicant cannot have exceeded more than 180 days in the aggregate of any of these violations: (a) “failed to maintain continuously” a lawful status; (b) engaged in unauthorized employment; or (c) otherwise violated the terms and conditions of admission.

According to the CIS, Maynigo was “out of status” since the expiration of her H-1B on June 29, 2006. The IJ disagreed, saying that because Maynigo filed a timely application for extension of her H-1B status, she maintained lawful status under the terms of Section 245(k) while that extension application was pending. The IJ further stressed that the only period that Maynigo “failed to maintain” her status was the period between March 2007 when CIS denied the request for extension of her H-1B and June 2007, when she filed for adjustment of status. The period was approximately three-and-a-half months which was less than the 180 days allowed under Section 245(k).

The IJ also noted that if the court denies Maynigo’s adjustment application, she would be forced to apply for immigrant visa through consulate process. She would then be subject to the three or possibly ten-year bar for unlawful presence and would not qualify for waiver of that ground for inadmissibility.

The IJ found the consequences of a denial too harsh for an individual who has done everything in her power to maintain lawful status since coming to the U.S. and would unduly penalize her for the brief period she failed to maintain lawful status. For this reason, the IJ found that she deserved the court’s favorable exercise of discretion and granted her application for adjustment of status.

Restriction on Adjustment of Status of Fiancé

A special kind of visa known as K-1 is available to allow a foreign fiancé(e) of a U.S. citizen to enter the U.S. for the purpose of marrying the U.S. citizen. In this type of situation, a tourist visa is not appropriate since the foreign fiancé(e)’s intent is to reside in the U.S. permanently after marriage.

But marriage alone does not confer permanent resident status. The fiancé(e)’s entry on the K-1 visa is only the start of a process to a green card, which comprises four main steps.

First, the U.S. citizen must file a petition (Form I-129F) with the USCIS along with evidence of the relationship with the foreign fiancé(e), including evidence that the two have met in person within the last two years. The couple also must both be free to marry and have a bona fide or good faith intention to marry.

If the petition is approved, the foreign fiancée will apply for the K-1 visa at the U.S. consulate or embassy abroad. The K-1 visa is a single entry visa that allows the foreign fiancé(e) to enter the U.S. to marry the visa sponsor within 90 days of arrival.

Second, the parties must actually get married within 90 days, or else the K-1 fiancé(e) would be required to depart the United States.

If the parties do get married within 90 days, the foreign spouse can proceed to the third step which is the application for adjustment of status. Under the law, the foreign spouse can become a permanent resident only as a result of marriage to the U.S. citizen who filed the K visa petition.

The foreign spouse may adjust only to a conditional lawful permanent resident (LPR) status. On the second anniversary of the green card, the spouses go through the fourth step which is the filing of the joint petition to remove the condition on the foreign spouse’s LPR status. This two-year period serves to satisfy the government that the marriage was entered into in good faith and not for immigration purposes.

If joint filing of the petition is no longer possible, such as when the marriage has ended in divorce, the foreign spouse can file for a waiver of the joint filing requirement. If the waiver is granted, the condition on the foreign spouse’s LPR status is removed. On the other hand, if it is denied, the foreign spouse loses LPR status and gets placed under removal proceedings.

What happens if the marriage does not survive the 2-year period and the foreign spouse’s joint petition waiver is denied? A recent decision from U.S. Court of Appeals for the Second Circuit highlights a specific restriction on those who were admitted to the U.S. on a fiancé visa: they may not adjust to LPR status except on the basis of marriage to the K-1 visa sponsor.

In the case Caraballo-Tavera v. Holder, the foreign spouse had gone through the first three steps described above. But since he and his U.S. citizen wife had already divorced, he filed the petition to remove the conditions by himself and sought a waiver of the joint filing requirement.

The USCIS denied the waiver request, finding that he failed to prove the bona fides of his marriage. Left without lawful status, he was placed under removal proceedings.

At that time, he was already the beneficiary of an approved immigrant visa petition by his U.S. citizen daughter. He argued before the immigration judge that he was eligible to adjust status on that basis.

The immigration judge disagreed, as did the Board of Immigration Appeals. The Second Circui Court of Appeals ruled that he was ineligible to adjust status through his U.S. citizen child or on any basis other than marriage to the original K-1 visa sponsor, his ex-wife.

The court in a footnote explained however that this does not mean that an alien who fails to comply with the K-1 process is forever barred from getting legal immigrant or nonimmigrant status in the U.S. under otherwise applicable law.

Adjustment Applicant with Advance Parole Not Inadmissible

On April 17, 2012, the Board of Immigration Appeals ruled in a precedent decision that adjustment applicants who have accrued more than 180 days of unlawful presence and have a pending adjustment of status application and who leave the United States under advance parole will not be barred from returning to the U.S. because of such unlawful presence.

The decision has special significance for applicants who apply for adjustment of status under Section 245(i) or who are adjusting on the basis of marriage to a U.S. citizen.

The case was about a husband and wife who entered the U.S. temporarily but overstayed their visas by several years. The husband became the beneficiary of an approved employment-based immigrant petition filed before April 30, 2001, making him and his wife eligible for adjustment of status under Section 245(i).

In 2004, they filed their I-485 applications which remained pending for several years because of visa unavailability. They needed to go back to their home country to visit their aging parents but, since they did not want their adjustment applications to be deemed abandoned, they sought an advance parole from the USCIS. Their application for advance parole was granted and they were able to visit their parents several times.

They were of course shocked to find out that the USCIS denied their adjustment applications because of their trips to their home country, even though they had an advance parole. The reasoning of the USCIS was apparently that, since they had both been unlawfully present in the U.S. for one year or more, and they departed the United States within the last ten years, they were inadmissible because of the 10-year bar.

Removal proceedings were eventually brought against the spouses. They sought relief from the judge in the form of adjustment of status, but to no avail. The spouses were issued a deportation order.

On appeal, the BIA agreed with the spouses and said that a departure under a grant of advance parole was not the sort of departure that renders aliens inadmissible for prior unlawful presence of one year or more.

Generally, a valid visa is necessary before an alien may enter a U.S. port of entry. However, for humanitarian reasons or significant public benefit the immigration authorities may “parole” into the U.S. an alien without a valid visa.

In the case of advance parole, the parole is requested beforehand by the adjustment applicant, with the alien establishing his eligibility and worthiness for the benefit. It is then granted by the USCIS in advance, precisely with the expectation that the alien will be entering the U.S. for inspection without a valid visa in the future.

The advance parole is a discretionary humanitarian measure which tells the alien hat he can leave the United States without fear that his adjustment application will be deemed abandoned and that he will be paroled back into the United States.

This ruling may have far-reaching effects, particularly for those who were denied adjustment because a trip abroad under an advance parole triggered the unlawful presence bar. If they are still in the United States, it might be possible to have their applications reopened.

The BIA ruling, however, is limited only to the inadmissibility ground of unlawful presence, and only in cases where the adjustment applicant obtained advance parole. It is important to consult with an experienced immigration attorney before leaving the United States.

Eligibility for Adjustment of Status

Given the choice, many foreign nationals who are physically present in the United States choose adjustment of status over consular processing in becoming lawful permanent residents. Adjustment of status offers advantages over consular processing, including eligibility for employment authorization and permission to travel while the adjustment application is pending.

There are several ways to adjust status to permanent residence. Most common is the adjustment of status in Section 245(a) of the Immigration and Nationality Act (INA). To be eligible, the applicant must meet certain requirements at the time of filing. First, the applicant must have been inspected, admitted or paroled into the U.S.

Second, the applicant must also be admissible, that is, not subject to any of the inadmissibility grounds, including health-related grounds, public charge grounds, undocumented entry and immigration status violations, and previous removal or unlawful presence.

There must also be an immediately available immigrant visa for the applicant. Unless he/she is an immediate relative (spouse, parent or unmarried child under 21 of a U.S. citizen), the applicant must have an available visa based on his/her priority date and preference category, as indicated in the visa bulletins released by the Department of State every month.

Certain persons are barred from adjusting status. These include alien crewmen, visa waiver entrants except for immediate relatives, and employment-based immigrant visa applicants who are not in lawful status.

Section 245(k) allows employment-based adjustment applicants who are present in the U.S. pursuant to a lawful admission but who have incurred unlawful status (i.e., engaged in unauthorized employment, fell “out of status”, or otherwise violated the terms of their stay) to adjust status if the total period of their unlawful status is not more than 180 days.

If there is a ground for ineligibility under Sec. 245(c) or if the applicant entered the U.S. without inspection, he may still adjust status if he can benefit from Sec. 245(i). This means that he must be the beneficiary of an approvable immigrant visa petition or labor certification application filed on or before April 30, 2001. If it was filed after January 14, 1998 but on or before April 30, 2001, the foreign national must have been physically present in the U.S. on December 21, 2000.

There are, however, ineligible aliens or those who many not adjust status in any case. For example, one who is admitted to the U.S. as a fiancé(e) (K-1 status) may adjust status only through marriage to the K visa petitioner, and the marriage must take place within 90 days of the fiancé(e)’s entry to the U.S.

Another provision of the INA that allows a path to permanent residence is through the registry provision of the INA. This is available to those who entered the U.S. illegally or are present in the U.S. without lawful status. The applicant must have entered the U.S. before January 1, 1972 and continuously resided here since that time. He also must be of good moral character and not ineligible for citizenship, except for the five-year permanent residence requirement, and not subject to inadmissibility for terrorism, criminal and security grounds, or for alien smuggling.

An adjustment application is usually made to the USCIS but if the applicant is under removal proceedings, the application is made before the immigration judge. Adjustment is a discretionary benefit so even if the applicant meets the eligibility requirements, it may be denied if the USCIS or the immigration judge determines that the applicant does not deserve a favorable exercise of discretion.

Proposed Waiver Rule Expected to Benefit Thousands

The Department of Homeland Security on January 6, 2012 announced that it is proposing a rule that will allow spouses and children of U.S. citizens, who are ineligible to adjust status, to apply for a provisional waiver in the U.S. before leaving to process their immigrant visa application abroad. Under the current law, waivers are filed outside the United States.

This was in response to recommendations made by advocacy groups, including the American Immigration Lawyers Association.

Under the law, those who were unlawfully present in the U.S. for more than 180 days but less than one year face a 3 year bar to reentry. If the unlawful presence reached 1 year or more, the bar is 10 years. This bar takes effect when the alien departs from the U.S. If the inadmissibility due to unlawful presence is waived, the bar will not apply.

Adjudication of waivers could take anywhere from three months to several years. If the alien applies for the waiver abroad, he/she will be separated from his/her family in the United States. If the waiver is denied, unless an appeal is successful the alien may have to spend the rest of the 3 or 10 year period overseas and away from his/her family.

This proposal will benefit thousands of families. Stateside processing will bring undocumented immigrants out of the shadows by encouraging them to apply for a green card and file for a waiver while they remain in the United States. It will also streamline the waiver process.

To qualify for the waiver, the alien must establish that he/she is the immediate relative of a U.S. citizen and that the denial of the waiver would result in extreme hardship to a qualifying relative. The qualifying relative must be a U.S. citizen spouse or parent.

Note that only immediate relatives are covered, so sons and daughters over 21 years of age of U.S. citizens, as well as siblings of U.S. citizens, are not affected by this rule change. The rule also will not apply to family members of lawful permanent residents.

The proposal is also limited to waiver of unlawful presence. It does not include waiver of other inadmissibility grounds such as fraud or misrepresentation and criminal conviction. Aliens subject to these inadmissibility bars must obtain a waiver under the normal procedure, i.e. depart the United States and file a waiver application after a finding of inadmissibility at the U.S. consulate.

Since the proposed rule is quite narrow, it is important to seek the guidance of competent counsel before applying for the provisional waiver and leaving the United States.

While this new procedure will keep families together and reduce the time that they are separated, there is no reason why the DHS should not cover adult children of U.S. citizens, and spouses and children of LPRs under the proposal. Hopefully they will be included in the final rule expected to be released this year.

When is a Crewman Allowed to Adjust Status?

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.

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