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Matter of Rebelo, (1968) – THE FOURTH BIG CASE – THE B2 VISA EXCEPTION GETS A 2-PRONG TEST – WORKING AND SEEKING ADMISSION AS OCCUPATIONAL CREWMAN


Barcos Rebelo

Barcos Rebelo (Photo credit: Grumbler %-|)

In this series, MIA goes over the important cases that define the present legal atmosphere of the crewmember’s visa, the C1/D. In MIA’s last articles, we discussed the important effect of a crewmember visa designation: the inability to apply for Adjustment of Status (“AOS”) or Cancellation of Removal (“COR”).  Again, the two-prong inquiry in determining whether an alien was admitted as a crewman: the Court MUST examine both (1) the alien’s visa, as well as (2) the circumstances surrounding his entry into the U.S., to ascertain whether they entered in pursuit of their occupation as a seaman. This plainly ambiguous test leaves lots of room for factual differentiation on a case-by-case basis. Thus, to help flesh out the circumstances that have led to a ruling of eligibility or ineligibility, we have examined 19 key cases from the annals of crewmember case law.

In this case, Matter of Rebelo, the Court decides that:

ARRIVAL AS A WORKAWAY DOES NOT PRECLUDE “AOS” IF HE IS NOT (1) SERVING ABOARD A VESSEL IN A CAPACITY REQUIRED FOR ITS NORMAL OCCUPATION, OR (2) HE IS NOT SEEKING (AND THEREAFTER GAINS) ADMISSION TO THE U.S. BECAUSE OF HIS OCCUPATION IN THAT ROLE.

The Court took its holding from Quintero-Correa (see previous MIA article) regarding the coincidental seaman, and made a stiff 2-prong test. An alien who is admitted with a nonimmigrant visitor’s visa (B-2 visa) cannot be statutorily precluded from receiving adjustment of status as a crewman, because he did not seek or gain admission to the U.S. because of his occupation as a crewman. Similarly, if, like in Quintero-Correa, an alien was not serving aboard a vessel in order to maintain the vessel’s normal operation (e.g. passengers, workaways, etc.), then the alien cannot be denied AOS.

REBELO’S BACKGROUND TO THE U.S.

A crewman operates the ship's throttle in the ...

A crewman operates the ship’s throttle in the main engine room aboard the USS NEW JERSEY (BB 62). Behind him is the engine oil inspection station. The NEW JERSEY, after recently completing renovation and modernization, is undergoing sea trials prior to reactivated in January 1983. (Photo credit: Wikipedia)

Rebelo, the alien that brought the case, was a 59-year old man, and a native of Portugal. Rebelo had spent 25 years as a crewman by occupation, often as an engineer.

Rebelo arrived in the U.S. in 1965, with a B2 visa (a nonimmigrant temporary visitor for pleasure). Rebelo had obtained a B2 visa from an American Consul in Japan. Rebelo arrived as an engineer on a vessel, and was listed as a member of the crew on the vessel’s manifest. Upon presentation of the B-2, the U.S. authorized Rebelo to stay for 17 months, but Rebelo never left the U.S. thereafter.

MATTER OF QUINTERO-CORREA EXPANDED

When Rebelo applied for AOS, the U.S. denied him based on his 25-year history as a crewman. However, at trial, the Court held that Rebelo was still eligible for AOS, under the new 2-prong test. (NOTE: remember Matter of Quintero-Correa, discussed by MIA in a previous article, where the Court held that a workaway who enters on a B-2 visa could not be denied AOS as a crewman, be cause he was coincidentally, not occupationally, a seaman).

CONVINCE THE CONSULAR OFFICER YOU’RE NOT A CREWMAN

The Court found that he was not statutorily precluded from receiving adjustment of status, primarily because he had convinced a consular official that he was eligible for a visitor’s visa, and because he was properly admitted as such.

A B1/B2 visa to the United States

A B1/B2 visa to the United States (Photo credit: Wikipedia)

The crew reaffirmed that an alien who happens to be serving as a crewman at the time of his entry is barred from AOS to permanent resident only if he has been inspected and admitted or paroled into the U.S. as such. Here, Rebelo was admitted as a B-2 nonimmigrant for pleasure, and not as a crewman, and thus was not ineligible for AOS based on his crewman status.

2-PRONG TEST OF THE DOUBLY COINCIDENTAL CREWMAN

The Court set up a 2-part test to determine whether an alien is a crewmember: (1) he must be serving aboard a vessel in a capacity required for its normal operation, and (2) he must be seeking (and gain) admission to this country because of his occupation in that role.

After consideration of these two factors, the Court held that the alien’s formal visa entry, decided by the consular officer, controlled, rather than the fact that he arrived as a listed crewman engineer, and that Rebelo was eligible for AOS.

This case was the last major ruling favorable to aliens. After 1968, the rules get stricter.

Next Case: Matter of Campton, (1970).

Until next time. Stay tuned.
Miami International Attorneys, P.L.
abernhard@miapl.com
P.O. Box 191057
Miami Beach, FL 33119
Tel: 786-566-1969.

For more answers to your questions, contact MIA at abernhard@miamivisahelp.com or Miami International Attorneys at www.miamivisahelp.com.

MIA

Miami International Attorneys, P.L.

President Obama and Former Governor Romney Clash on Immigration Reform During Debate


During the presidential debate last night, former governor and Republican candidate Mitt Romney battled with President Barack Obama on Obama’s current immigration policy and any plans Mr. Romney may have for the future.

Immigration

Immigration (Photo credit: lcars)

President Obama was particularly harsh on Romney regarding Romney’s professed position on

Mitt Romney in 2007 in Washington, DC at the V...

Mitt Romney in 2007 in Washington, DC at the Values Voters conference (Photo credit: Wikipedia)

immigration. Romney had originally taken a very hardline against immigration, criticizing President Obama’s reprieves for immigrant families. During the debate last night, Romney attempted to soften his line. Yet, Romney still promised reform of current immigration laws, if Romney is elected. In fact, Romney promised swift action against immigration: “I’ll get it done. First year,” Romney said.

Romney also supported a theory of self-deportation, which involves immigration laws so harsh that aliens will voluntarily leave rather than face the punishment. Romney stated that “self-deportation says let people make their own choice. What I was saying is, we’re not going to round up 12 million people, undocumented illegals, and take them out of the nation. Instead, let people make their own choice.” Perhaps it was an unfortunate use of the word “round up,” but Romney stood his ground.

Official photographic portrait of US President...

Official photographic portrait of US President Barack Obama (born 4 August 1961; assumed office 20 January 2009) (Photo credit: Wikipedia)

President Obama, taking the opposite side of immigration reform, stated that he supports citizenship for undocumented immigrants. Romney admitted that he does not support a pathway to citizenship for undocumented immigrants.

President Obama, a supporter of the DREAM Act, which promotes a pathway to citizenship for children brought into the U.S. at a young age, pointed out that Romney would veto the DREAM Act.

Romney also supported an Arizona law that required employers to use electronic federal verification to verify all of their workers. Kris Kobach, Romney’s key immigration adviser, is actually one of the authors of Arizona’s recent tough immigration laws.

How each candidate will pan out with immigrant and former alien voters will be seen soon enough.
Miami International Attorneys, P.L.
abernhard@miapl.com
P.O. Box 191057
Miami Beach, FL 33119
Tel: 786-566-1969.

For more answers to your questions, contact MIA at abernhard@miamivisahelp.com or Miami International Attorneys at www.miamivisahelp.com.

MIA

Miami International Attorneys, P.L.

Matter of Quintero-Correa, (1964) – THE THIRD BIG CASE – THE B2 VISA EXCEPTION – ARRIVAL AS A WORKAWAY DOES NOT PRECLUDE “AOS” IF NO SEAMAN BACKGROUND – THE COINCIDENTAL SEAMAN


Visa Colombia

Visa Colombia (Photo credit: Wikipedia)

In this series, MIA goes over the important cases that define the present legal atmosphere of the crewmember’s visa, the C1/D. In MIA’s last articles, we discussed the important effect of a crewmember visa designation: the inability to apply for Adjustment of Status (“AOS”) or Cancellation of Removal (“COR”).  Again, the two-prong inquiry in determining whether an alien was admitted as a crewman: the Court MUST examine both (1) the alien’s visa, as well as (2) the circumstances surrounding his entry into the U.S., to ascertain whether they entered in pursuit of their occupation as a seaman. This plainly ambiguous test leaves lots of room for factual differentiation on a case-by-case basis. Thus, to help flesh out the circumstances that have led to a ruling of eligibility or ineligibility, we have examined 19 key cases from the annals of crewmember case law.

In this case, the Court decides that:

ARRIVAL AS A WORKAWAY DOES NOT PRECLUDE “AOS” IF THE ALIEN WORKAWAY HAD NO SEAMAN BACKGROUND, AND WAS ADMITTED AND POSSESSING UNEXPIRED B-2 PLEASURE NONIMMIGRANT VISA (THE COINCIDENTAL SEAMAN).

The Court indicated that an alien who was admitted with a nonimmigrant visitor’s visa (B-2 visa) was not statutorily precluded from receiving adjustment of status as a crewman, even though he arrived on board a vessel on which he had worked regular hours serving meals to the crew. The alien apparently came within the section 101(a)(10) definition of a crewman; however, he was not a seaman by occupation, he had obtained admission as a properly documented nonimmigrant visitor, and it was mere happenstance that he arrived in the U.S. after serving on board a vessel.

QUINTERO’S BACKGROUND TO THE U.S.

Quintero, the alien that brough the case, was a 21-year old man, and a native and citizen of Colombia.

The flag of Colombia. Esperanto: La flago de K...

The flag of Colombia. Esperanto: La flago de Kolombio. Español: Bandera de Colombia. Français : Drapeau de la Colombie. Italiano: Bandiera della Colombia. Nederlands: Vlag van Colombia. Polski: Flaga Kolumbii Português: Bandeira da Colômbia. Română: Steagul Columbiei. Русский: Флаг Колумбии. Slovenščina: Državna zastava Kolumbije. Construction sheet of Colombia national flag: 200px (Photo credit: Wikipedia)

Quintero arrived in the U.S. in 1962 with a valid unexpired nonimmigrant B-2 visa (temporary visitor for pleasure). Quintero made the trip from Colombia to the U.S. aboard a freighter (which ordinarily did not carry passengers) by paying a half-fare passage to the Master and working out the other half of his passage by serving meals to the crew and washing dishes after meals. He was authorized to stay for 8 months, but stayed afterwards.

MATTER OF GONCALVES BITES BACK

Quintero then applied for an Adjustment of Status (“AOS”) to permanent residency. The lower court originally held that because Quintero was “serving in any capacity on board a vessel” on arrival, he could not be eligible for AOS. (NOTE: remember Matter of Goncalves, discussed by MIA in a previous article, where the Court held that informal circumstances of entry may show that an alien is a seaman because he is “occupationally a seaman”).

OCCUPATIONALLY A SEAMAN VS. COINCIDENTALLY A SEAMAN?

The higher Court addressed whether the bar to relief applied only to persons who were occupationally crewmen (See Matter of Goncalves), or included a person such as Quintero whose only service as a crewman was in connection with the trip which brought him to the U.S.:

FACTUAL BACKGROUND OF THE COINCIDENTAL SEAMAN

The Bandeja paisa is the traditional dish of t...

The Bandeja paisa is the traditional dish of the Paisa Region. (Photo credit: Wikipedia)

To make it to the U.S., Quintero did not sign the articles of the vessel, he did not sleep in the crew’s quarters but in the state room assigned to the pilot, he did not associate with the crew members of the vessel when off duty, and he saw no other passengers and indicated that the ship carried none. He traveled by boat only to economize expenses. The boat manifest indicated that he was employed as a workaway, and though his name was originally listed on the crew list as a workaway, the inspecting immigration officer asked that his name be transferred from the immigration crew list to a separate passenger manifest. These facts showed that Quintero had no history of being occupationally a crewman.

6-PRONG TEST OF THE COINCIDENTAL SEAMAN

In order to create an exception to the rule against occupational seamen, the Court liberally construed the remedial statute, and reaffirmed 6 considerations:

(1) the alien had no background as a seaman;

(2) he was not classifiable as such under maritime law;

(3) he did not sign the ship’s articles;

(4) the immigration officer required that he be manifested as a passenger;

(5) he was in possession of a visitor’s visa and was admitted as such; and

(6) the deportation proceedings against him were conducted on the basis of his being a temporary visitor for pleasure who had remained longer.

After consideration of these factors, the Court held that the alien’s occupation controls rather than the particular manner of his arrival, and that Quintero was eligible for AOS.

A dishwasher containing clean dishes

A dishwasher containing clean dishes (Photo credit: Wikipedia)

This case set the stage for one of the only exceptions to the crewmember prohibitions.

Next Case: Matter of Rebelo, (1968).

Until next time. Stay tuned.
Miami International Attorneys, P.L.
abernhard@miapl.com
P.O. Box 191057
Miami Beach, FL 33119
Tel: 786-566-1969.

For more answers to your questions, contact MIA at abernhard@miamivisahelp.com or Miami International Attorneys at www.miamivisahelp.com.

MIA

Miami International Attorneys, P.L.

Matter of Goncalves, (1963) – THE SECOND BIG CASE – INFORMAL CIRCUMSTANCES OF ENTRY ARE ADDED TO FORMAL VISA CLASSIFICATION


In this series, MIA goes over the important cases that define the present legal atmosphere of the crewmember’s visa, the C1/D. In MIA’s last articles, we discussed the important effect of a crewmember visa designation: the inability to apply for Adjustment of Status (“AOS”) or Cancellation of Removal (“COR”).  Again, the two-prong inquiry in determining whether an alien was admitted as a crewman: the Court MUST examine both (1) the alien’s visa, as well as (2) the circumstances surrounding his entry into the U.S., to ascertain whether they entered in pursuit of their occupation as a seaman. This plainly ambiguous test leaves lots of room for factual differentiation on a case-by-case basis. Thus, to help flesh out the circumstances that have led to a ruling of eligibility or ineligibility, we have examined 19 key cases from the annals of crewmember case law.

Striking members of the Rockettes and Corps de...

Striking members of the Rockettes and Corps de Ballet picket outside Radio City Music Hall, October 1, 1967. (Photo credit: Kheel Center, Cornell University)

In this case, the Court decides that:

BECAUSE “ENTRY” IS NOT A FORMAL ADMISSION BUT PHYSICAL PASSING, THE COURTS MUST CONSIDER INFORMAL CIRCUMSTANCES TO DETERMINE WHETHER AN ALIEN IS A “CREWMAN,” AND THUS INELIGIBLE FOR AOS AND COR.

The Court indicated that an alien who was admitted to the U.S. as a “nonimmigrant-in-transit” is ineligible for COR because he was occupationally a seaman who was entering in pursuit of his calling as a seaman. The Court rejected the argument that the visa status in which an alien was admitted governed whether or not he had entered as a “crewman.”

GONCALVES’S BACKGROUND TO THE U.S.

Goncalves, the alien who brought this case, was a 43-year old married man, a native of the Cape Verde Islands, and a citizen of Portugal. He was a seaman employed on an American vessel, but while at sea, the owner of his ship sold the ship. Goncalves came back through the U.S. in-transit, so that he could ship back out on another ship. The U.S. admitted Goncalves in 1948 for that in-transit purpose. Goncalves searched for a ship to work on and ship out on, he searched for several months, but nobody was hiring. There was a strike. So Goncalves took a job in the U.S. doing other work.

In 1952, the U.S. found Goncalves deportable for overstaying his admission. Instead of departing, Goncalves married a woman in 1954. This woman mistakenly believed herself a U.S. citizen and filed for Goncalves’s visa. Unbeleivably, the U.S. granted this visa in 1962, not catching the mistake. Goncalves then petitioned for an AOS, which the U.S. rejected based on his entry as an informal seaman in transit to ship on another vessel. In other words, he never received a formal designation as a crewman, but the U.S. denied him as a crewman anyway.

IN TRANSIT, NOT AS CREWMAN, IS NOT AN ARGUMENT TO STAY

Ellis Island as seen from Liberty Island, New ...

Ellis Island as seen from Liberty Island, New York City (Photo credit: Wikipedia)

Goncalves argued that he was admitted in transit, rather than as a crewman, and therefore could not be a crewman barred from relief. His argument relied on the technical status of C-1 versus D visas, and that only alien crewmen who were formally admitted to the U.S. under the law barring crewmen from AOS. The Court rejects this argument. Formality does not govern the decision.

WHAT IS ENTRY, EXACTLY?

The Court first analyzed the meaning of “entered.” For Goncalves, the word “entry” meant any physical passing from a foreign place to the U.S. whether legally or illegally made, except a passing made under the terms of a parole. The Court disagreed, deciding that the INA law did not require the meaning of “entry” to be limited to these formal terms. “Entry,” the Court said, did not only mean the formal admission of a crewman as such by a Service official. If the law only included those that formally entered as a crewman, then nobody would ever enter formally as a crewman (they would want to keep their AOS options open, as those who illegally entered into the U.S. would not be barred from relief).

The Court held that the intent of Congress was to bar all occupational seamen who entered by reason of their occupation.Seamen have a very special access to the U.S. that can be abused. In light of this problem, it mattered little to the Court that an alien is admitted as a crewman and deserts his ship, or that he deserted the ship without being permitted to land as a crewman, or that he, as is common-place, was brought to the U.S. as a passenger or workaway to reship as a seaman on another vessel.

Immigrants just arrived from Foreign Countries...

Immigrants just arrived from Foreign Countries–Immigrant Building, Ellis Island, New York Harbor. (Half of a stereo card) (Photo credit: Wikipedia)

Accordingly, because Goncalves entered in pursuit of his calling as a seaman, he was ineligible for AOS.

This case set the stage for denying eligibility to adjust status if you enter as a formally designated crewmember, or if you enter simply under the circumstances of a crewmember.

Next Case: Matter of Quintero-Correa, (1964).

Until next time. Stay tuned.
Miami International Attorneys, P.L.
abernhard@miapl.com
P.O. Box 191057
Miami Beach, FL 33119
Tel: 786-566-1969.

For more answers to your questions, contact MIA at abernhard@miamivisahelp.com or Miami International Attorneys at www.miamivisahelp.com.

MIA

Miami International Attorneys, P.L.

Visas – Info on Each Visa Available

Andrew John Bernhard, Esq.

Welcome to MiamiVisaHelp.com’s Blog!

Welcome to MiamiVisaHelp.com’s law blog … discussing everything visa from the perspective of those that have a need, desire, or tendency to move from country to country for the purpose of work, survival, education, living, play, and everything in between. Please feel free to send Andrew John Bernhard, Esq. a message! We are always trying to enhance your experience, and help all of us movers, migrators, immigrants, ex-pats and travelers have an easier, happier, and more satisfying experience in the often confusing world of U.S. Immigration. Please feel free to visit our friends at USImmigrationMiami.wordpress.com and TheMitochondrialMigrator.wordpress.com to see more from similar minded people like yourself! Most of all…ENJOY! - Andrew John Bernhard, Esq.

Miami Visa Help by Miami International Attorneys focused on immigration law in Miami and South Florida, discussing visas, citizenship, green cards, and immigration law news