U.S. - Visas For Foreign Seamen

August 2003

As from August 1, 2003, an Interim Rule published by the US Department of State will significantly effect how US visas are issued for foreign seamen. Under prior law, a personal appearance before a US consular officer was required in order to obtain a visa, but it left the question of a personal appearance by a non-immigrant applicant to be defined by regulation. The Department's regulations gave authority to a US consular officer to grant a personal appearance waiver ("PAW") for certain applicants, including foreign seamen who were non-immigrant applicants (e.g., crew changes, etc.).

Following September 11, 2001, the Department of State reviewed its visa application and issuance procedures and found a larger percentage of non-immigrant visa applicants than previously existed. As a result, the State Department decided to amend its regulation on PAW. Under the Interim Rule, US consular officers will no longer have the broad discretion under previous regulation to grant a PAW with respect to foreign crew visas.

The newly formed Department of Homeland Security ("DHS") has jurisdiction over implementation of the State Department's Interim Rule. The DHS is composed of former elements of 24 federal agencies, including INS, US Customs, and the Border Patrol.

In light of the Interim Rule, some guidance has been obtained from the DHS on visa issues that will arise in regard to an injured or ill foreign seaman who seeks medical treatment in the US and for foreign crew changes in the US.

Injured Or Ill Foreign Seamen

There is no question that an injured or ill foreign seaman will be given immediate medical treatment in the US without the need to first obtain a visa. In the event the US Coast Guard takes a sick or injured crewman to a US medical facility, it will notify the DHS. Alternatively, if the seaman is brought to a medical facility by the vessel's agent, the vessel's agent is obligated to notify the local office of DHS, in particular the Customs and Border Patrol ("CBP"). In most cases, the contact information for this office is the same as for the former INS office.

Once the CPB is aware that the foreign crew is in the US, it will perform an assessment of that individual. This assessment basically consists of three elements: (a) running the crewman's name through the terrorist watch list; (b) determining whether the crewman poses a flight risk; and (c) ensuring there is an actual medical emergency. On this latter point, different ports of entry in the US have had experience with different "scams." For example, in Miami the CPB is especially wary of "sick" or "injured" crew arriving on vessels from the Dominican Republic. If a crew member is claiming to be sick or injured, or otherwise behaving in a way consistent with other scams run in that port, suspicion will be raised significantly.

The first two considerations are the most important. If the crew is on the terrorist watch list, it is safe to assume that they will immediately be placed into custody and will be transferred to a secure medical facility. Assuming that the crew member is not on the watch list, the agent conducting the review will determine if the crew member poses a flight risk. This determination will take into account factors such as the crewman's ties to his home country, country of origin, criminal record, and other similar factors.

If the investigating agent believes the crew member does not pose flight risk, he or she will consult with a field supervisor in order to obtain approval for the issuance of a "medical parole." The medical parole will allow the crew member to remain in the US under his own recognizance. If, on the other hand, the investigating agent believes there is a flight risk, he may issue a "D-259 Order to Detain and Deport" to the Master and local Agent. This order will require the ship's agent to have the crew member watched and to ensure his exit from the US, as medical circumstances allow. Depending on the level of flight risk assessed by the investigating agent, an armed guard and/or bond may be required.

Foreign Crew Changes In The US

On the issue of foreign crew changes in the US, a crew transit visa will be required. For incoming crew, a C-1 transit visa is required, as is a letter from the steamship company, detailing the crewman's hire, report to vessel date, and expected date of departure. The immigration officer reviewing this material at the border should issue an I-94 (record of arrival in the US) with a restriction on how long the crewman can stay in the US. In practice the amount of time allowed may vary, as the rule calls for only enough time to get to the vessel, plus one day; while many officers routinely stamp "29 Days" (apparently, immigration officers often grant temporary paroles for this time period, and often just use the stamp rather than calculating and writing in the appropriate number of days).

For outgoing crew, the procedure is slightly different. For those crew in possession of valid D-1 visa (which would also permit shore leave), transit through the US can be done without further action (although the crew must present the valid D-1 to an immigration officer at the port of entry). For crew not in possession of valid D-1 visas, the local agent must complete a form I-408, Application to Pay Off or Discharge Alien Crewman (N.B. this form number may change on August 1). The immigration officer will determine the flight risk, if any, posed by the crew listed on the I-408 and may, in his or her discretion, require the ship's agent to provide guards. Generally speaking, the immigration officer will take into account the same factors as with the case of the sick or injured crew.

Despite the overall limitation on the use of PAW, the Interim Rule contains a number of provisions allowing for a PAW in certain circumstances. For example, persons who qualify under certain visa categories are not required to appear in person and may enter the US without a personal appearance. These categories are generally limited to persons on official diplomatic business and the like, and are unlikely to assist the typical foreign crewman. Persons of certain ages are allowed a PAW as are persons who within 12 months of the expiration of the person's previously issued visa are seeking re-admission to the US. In addition, a PAW may be available in certain "unusual circumstances" which are defined as including an "emergency or unusual hardship."

Overlaying the restrictive use of PAWs for foreign crew, is the Visa Waiver Program ("VWP"). This program allows residents of certain countries to enter the US and remain for up to 90 days for business or pleasure. (There are also specific treaties with countries such as Canada that govern the Visa issue.) According to the Bureau of Immigration and Customs Services ("BICS"), foreign crew who hail from countries participating in the VWP may take shore leave in the US without first obtaining a visa. However, should they elect to do so, these individuals must notify DHS and may have to present themselves in order to legally enter the US. The presentation would likely be at a local BICS office, airport, or may be waived altogether.

 

With thanks to Kirk Lyons of Lyons, Skoufalos, Proios & Flood, LLP for supplying this information.

The US Department of State has invited comments from the public on the Interim Rule. Comments received within 60 days after July 7, 2003, will be considered. Written comments may be submitted, in duplicate, to the Legislation and Regulation Division, Visa Services, Department of State, Washington, DC 20520-0106, or by E-mail to [email protected].