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Asylum, Business Visas, Pleasure Visas, Work Visas

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.

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Discussion

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

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  1. Pingback: Matter of Rebelo, (1968) – THE FOURTH BIG CASE – THE B2 VISA EXCEPTION GETS A 2-PRONG TEST – WORKING AND SEEKING ADMISSION AS OCCUPATIONAL CREWMAN | Immigration Lawyer Miami - October 20, 2012

  2. Pingback: Matter of Rebelo, (1968) – THE FOURTH BIG CASE – THE B2 VISA EXCEPTION GETS A 2-PRONG TEST – WORKING AND SEEKING ADMISSION AS OCCUPATIONAL CREWMAN | The Mitochondrial Migrator - October 20, 2012

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Andrew John Bernhard, Esq.

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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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