I have been told that an alien who enters "in-transit" is categorically not eligible for adjustment of status. Is this true?
No, it is not.
What exactly is being "in-transit?
The easiest way to understand the concept of being in-transit is to think of your desire to travel from country A to country B. You are presently in country A, but there are no nonstop flights from A to B. In order to get to country B you must fly from country A to the United States to board a connecting flight to country B. You are considered to be "in-transit" while you are in the United States since the purpose of your entry into the U.S. is to transit to a third country (i.e. country B). In practical terms this generally means the only reason for entering the United States is to travel to another country after a brief layover, but in no instance to exceed more than 29 days from the date of arrival. A C-1 visa is required to be admitted to the U.S. as an alien in transit. If you have an additional reason for entering the United States e.g. visiting a friend, you must obtain an appropriate visa for doing so prior to your departure for the U.S. A C-1 visa may be issued in combination with other types of visas (e.g. a C-1/D for a crewman to join a ship temporarily located in the United States). Previously, an alien seeking to transit the United States and depart within 8 hours of his arrival in the U.S. was not required to have a visa. This program, known as Transit without Visa (TWOV), was suspended on August 2, 2003 due to security concerns. All aliens seeking to transit the United States must therefore now have a valid C-1 visa to do so.
Is an alien admitted "in-transit" eligible for adjustment of status (i.e. obtaining permanent residence without having to leave the United States)?
This is an area of the law that is often misunderstood by immigration officials and immigration attorneys alike. The restriction on eligibility for adjustment of status only applies to aliens admitted to the United States in-transit without a visa (TWOV). It does not apply, with limited exception, to an alien who has been admitted to the U.S. in-transit with a C-1 visa.
I was admitted to the United States TWOV. Can I apply for adjustment of status?
No. Applicable regulations provide that an alien admitted in-transit without a visa (TWOV) is ineligible for adjustment of status.
I was admitted to the United States as an alien in transit using a C-1 visa. Am I eligible for adjustment of status?
Generally speaking, an alien admitted to the U.S. with a visa (e.g. as a C-1 alien in transit) is eligible for adjustment of status. There are, however, some exceptions to this general rule as detailed below.
My visa was a C-1 (not a C-1/D) visa and I was admitted to the United States so I could transit to a third country, but I did not leave as planned.
This type of visa is often referred to as a "pure C-1." Under these circumstances you are eligible for adjustment of status. However, there may be an issue of pre-conceived intent and/or visa fraud which must be addressed since you did not leave as planned. Such a finding can render you inadmissible and therefore ineligible for adjustment of status.
My visa was a combination C-1/D and I was admitted to the U.S. using the C-1 portion of my visa. Am I eligible for adjustment of status?
It depends on the purpose of your trip. Crewmen are ineligible for adjustment of status. Under the law as interpreted by the Board of Immigration Appeals, you do not have to be admitted using a crewman's visa (D) to be considered a crewman. You can be admitted as a C-1 alien in-transit and still be considered a crewman and therefore ineligible for adjustment of status.
How do I know if I am classifiable as a Crewman even though I was admitted C-1?
If the purpose of your entry into the United States was to join a ship or other crewed vessel as a member of its crew then you are more than likely classifiable a crewman. For example, if you were required to present a letter from your employer (shipping line) at the time of your inspection you will be considered a crewman and ineligible for adjustment of status.
What if I was admitted C-1 and was supposed to join a ship but did not do so? Am I still considered to be a crewman?
Yes. Since your admission was contingent upon your joining a ship you are still considered a crewman.
I am a C-1 crewman, but I am married to a United States Citizen. Does this mean I am permanently ineligible for adjustment of status?
Believe it or not, no. Depending on the specific facts of your case you may be eligible for advance parole. An alien who is paroled into the United States is eligible for adjustment of status. As an application for adjustment of status is a continuing application and is adjudicated based upon the facts present at the time a decision is rendered, the fact that you were previously admitted to the United States as a crewman does not prevent you from being eligible for adjustment of status if you were to be successfully paroled.
Adjustment of Status with a C-1 visa is complex: Consult with an experienced immigration attorney.
C-1 visa issues are complex and are often misunderstood by both immigration officials and immigration attorneys alike. You should consult with an immigration attorney who has experience dealing with these issues for a full review of how your C-1 status effects your eligibility for adjustment of status and how best to proceed given the facts of your case.
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