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Law & Forms, Work Visas

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.

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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.

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