UNCLASSIFIED (U)

9 FAM 402.8

(U) Crew D and c1/d Visas

(CT:VISA-920; 08-14-2019)
(Office of Origin: CA/VO/L/R)

9 FAM 402.8-1 (U) STATUTORY AND REGULATORY Authorities

9 FAM 402.8-1(A) (U) Immigration and Nationality Act

(CT:VISA-920; 08-14-2019)

(U) INA 101(a)(10) (8 U.S.C. 1101(a)(10)); INA 101(a)(15)(C) (8 U.S.C. 1101(a)(15)(C)); INA 101(a)(15)(D) (8 U.S.C. 1101(a)(15)(D)); INA 101(a)(38) (8 U.S.C. 1101(a)(38)); INA 252(a) (8 U.S.C. 1282(a)).

9 FAM 402.8-1(B) (U) Code of Federal Regulations

(CT:VISA-920; 08-14-2019)

(U) 22 CFR 41.41; 22 CFR 41.71.

9 FAM 402.8-2 (U) Classification codes

(CT:VISA-920; 08-14-2019)

a. (U) 22 CFR 41.12 identifies the following visa classification symbols for crewmembers in accordance with INA 101(a)(15)(D) and INA 101(a)(15)(C):

b. (U) Note: INA 101(a)(15)(D) defines D nonimmigrants under two separate sections, (D)(i) and (D)(ii), which are both described more fully below in 9 FAM 402.8-3. For visa purposes, regardless of whether an applicant qualifies under paragraph (D)(i) or (D)(ii) of INA 101(a)(15)(D), he or she is issued a "D" visa in NIV (there are not two separate visa categories in NIV).

9 FAM 402.8-3 (U) Classification as crewmember Under INA 101(a)(15)(D)

9 FAM 402.8-3(A) (U) Requirements for a D Visa Under INA 101(a)(15)(D)(i)

(CT:VISA-920; 08-14-2019)

a. (U) Under INA 101(a)(15)(D)(i), an alien crewmember is defined as an alien who:

(1) (U) is serving in good faith and in a capacity that is required for normal operation and service on board a vessel or aircraft.

(2) (U) intends to land temporarily;

(3) (U) intends to land solely in pursuit of his or her calling as a crewmember; and

(4) (U) intends to depart from the United States with the vessel or aircraft on which he or she arrived or some other vessel or aircraft. 

b. (U) You must determine that each of these four requirements are met, as discussed more fully below.

9 FAM 402.8-3(A)(1) (U) Normal Operation and Service On Board a Vessel or Aircraft

(CT:VISA-920; 08-14-2019)

a. (U) Normal Operation and Service: In determining whether the services of an alien are required for normal operation and service on board a vessel or aircraft, you must take into account the aliens responsibilities and activities on the vessel or aircraft on which he or she will be employed. Whether an alien is required for the normal operation and service on board a vessel turns on the function the alien performs rather than on whether the alien is employed by the owners of the vessel or by a concessionaire.

(U) NOTE: For example, a beautician or a lifeguard employed on board a luxury liner, an electrician employed on board a cable ship, or a chemist employed on board a whaling boat may be classifiable for as a D nonimmigrant as the services they provide are required for the normal operations of the vessels on which they serve.

b. (U) Contractors: The INA does not preclude contractors from qualifying as crewmembers, but you must determine for all D nonimmigrant visa applicants, including contractors, whether the service the applicant will provide is required for the normal operation of the vessel. In many cases, contractors travel on a ship as passengers and are documented as such on the ship's manifest indicating that they may not be required for the normal operation of the vessel. An applicant traveling as a passenger on a vessel or aircraft to the United States is not eligible for a D visa and must apply and qualify for a B1 visa, or some other visa.

(U) Example: An individual who comes on board a vessel to fulfill a contractual service or routine maintenance activity pursuant to an agreement between the vessel's owners and another person or company is not considered necessary for "the normal operation and service" of the vessel even though the service work may be essential to keeping the vessel in good repair. Such contract workers may be issued a B1 visa if otherwise found eligible for the B1 visa.  

c. (U) Applicants Not Employed as a Crewmember at the Time of Visa Application: An applicant may be issued a D visa even if he or she is not employed as a crewmember at the time of visa application. You must inform the crewmember that the visa may be used only if he or she is employed as a crewmember on the vessel or aircraft on which he or she arrives to the United States at the time of arrival to the United States.

d. (U) Trainees: Aliens entering the United States as crewman trainees can be classifiable as nonimmigrant crewmen under INA 101(a)(15)(D). For example, some vessels are "training vessels" that are used for the purpose of training individuals as crewmen and such individuals being trained may be considered crewmembers whose service is required for the normal operation of the vessel.

e. (U) Dry Dock Work: INA 101(a)(15)(D) applies to crewmembers in service on board a vessel, it does not apply to workers coming to work on shore to effect repairs to the vessel while it is in dry-dock. Visa applicants seeking to do repair work under warranty may instead be classifiable B1 if otherwise eligible for the B-1 visa.

f. (U) Yacht Crew May be Classifiable as B1 or D Crewmember:

(1) (U) In General: Yacht crew may provide services on board a recreational commercial or yacht. Yacht crew who will provide services on board a recreational vessel are classifiable B1. Most yacht crew typically provide services on recreational vessels and are therefore classifiable B1 when traveling to the United States to provide services on board the yacht. Yacht crew who will provide services on board a commercial vessel and who meet the requirements under INA 101(a)(15)(D)(i) above are classifiable D.

(a) (U) A recreational vessel is primarily used for pleasure by the owner or a guest of the owner. Some private yacht owners maintain crews year-round even if the owners and/or the owners guests only use the yacht for periods of the year.

(b) (U) A commercial vessel is primarily used for commercial purposes, such as for transporting passengers or cargo for payment or other consideration.

(2) (U) Holding companies: Yachts may be owned by an individual or a holding company, such as an LCC. As long as the vessel is primarily used for pleasure by the owner or a guest of the owner, the vessel would be considered a recreational vessel. Similarly, many of the yacht crew are not directly employed by the owner, but by staffing companies contracted by the owner. In some cases, for various reasons including privacy or security, owners of recreational vessels may not wish for their identities to be widely known. For these reasons, it is possible that a legitimate employee of a recreational vessel may be unable to verify who the de facto owner is.

(3) (U) Chartered versus Non-Chartered Recreational Vessels: Whether a recreational vessel will be chartered in the United States, or has previously been chartered, whether in the United States or elsewhere, is irrelevant for visa classification purposes. For B1 visa eligibility, you must determine whether an applicant will be providing services on a recreational vessel based upon the applicants proposed purpose of travel at the time of entry into the United States.

(4) (U) Yacht Crew Providing Services on Both Recreational and Commercial Vessels: If the applicant can demonstrate that he or she regularly provides services on a recreational vessel and is also a crewmember, pursuant to 9 FAM 402.8-3 above, on a commercial vessel, you may issue both a B1 and D visa (as well as a C1 visa if the applicant qualifies pursuant to 9 FAM 402.8-5, below) to that applicant, assuming he or she is otherwise qualified in all respects for the visa classifications. You should likewise adjudicate private aircraft crew who are also crewmembers on commercial aircrafts on the same principle.

g. (U) Fishing Vessels: If the home port or operating base of a fishing vessel is in a foreign country, alien members of the crew are classifiable under INA 101(a)(15)(D)(ii). If the home port or operating base is in the United States, the applicant is not classifiable as a D nonimmigrant (except as described below in 9 FAM 402.8-3(B) below); instead the applicant would normally require an immigrant visa or different nonimmigrant visa classification.

(1) (U) INA 101(a)(15)(D)(ii) does not differentiate between U.S. and foreign flagged vessels; the prohibition against issuing D visas to crewmembers of fishing vessels which have home ports or operating bases in the United States applies equally to fishing vessels of all nationalities.

(2) (U) "Operating Base" Defined:

(a) (U) The term operating base is intended to cover places where the vessel takes on supplies regularly, where the cargo of the vessel is sold, or where the owner or master of the vessel engages in business transactions. It is not intended to cover those cases where fishing vessels occasionally come into ports in the United States for supplies.

(b) (U) Generally speaking, a fishing vessel which transacts business on a regular (though not necessarily frequent) basis will be considered as having an operating base in the United States. A single fishing vessel will often have more than one operating base.

(3) (U) "United States" Defined:

(a) (U) INA 101(a)(38) defines United States as the continental United States, Alaska, Hawaii, Puerto Rico, Guam, the Virgin Islands of the United States, and the Commonwealth of the Northern Mariana Islands.

(b) (U) American Samoa is not considered part of the United States in determining whether a fishing vessel has a U.S. home port or operating base.

(c) (U) NOTE: Crewmembers on a fishing vessel with a home port in American Samoa will be precluded from D visa classification if the vessel has an operating base in a place which falls within the INAs definition of "United States".

h. (U) Applicants Not Qualified for a D Visa: Applicants who are not required for the normal operation and service of a vessel, and thus do not qualify as crewmembers, are not eligible for a D visa. Such applicants will generally have to seek an approved petition from DHS in order to apply for an employment based nonimmigrant visa, if a petition-based classification is available for that purpose.

9 FAM 402.8-3(A)(2) (U) Intent to Land Temporarily in the United States

(CT:VISA-920; 08-14-2019)

a. (U) The applicant must intend to land in the United States temporarily to qualify for a D visa. In determining whether an alien seeks to land temporarily, you should consider the applicant's purpose and length of intended travel. See also 9 FAM 402.2-2(D) regarding temporary period of stay. You may also consider whether the vessel or aircraft on which the applicant will work as a crewman will depart the United States for a foreign port of place (see 9 FAM 402.8-3(A)(4) below).

b. (U) Note: INA 101(a)(15)(D)(ii) precludes the issuance of crew visas to aliens who seek to join fishing vessels having a home port or operating base in the United States, regardless of the nationality of the fishing vessel.  (But see 9 FAM 402.8-3(B) below.)

9 FAM 402.8-3(A)(3) (U) Intent to Land Solely as a Crewmember

(CT:VISA-920; 08-14-2019)

a. (U) In General: INA 101(a)(15)(D)(i) includes the requirement that an alien crewmember intends to land "solely in pursuit of his calling as a crewman." The Board of Immigration Appeals has described this as seeking admission to the United States (or for purposes of the FAM, seeking a D visa) because of an individual's occupation as a crewmember. This requirement only applies for D visa qualification, which triggers special rules under INA 252(a) for DHS to apply when admitting crewmembers; it does not preclude you from issuing a second nonimmigrant visa to D nonimmigrant visa holder, if qualified for the visa classification sought.

b. (U) Seafarer Identity Documents: Starting in 2005, many countries began issuing plastic credit-card sized Seafarer Identity Documents (SIDs) in lieu of seamans books.  While a SID or a seamans book is not required for a visa application, it may on a case-by-case provide evidence that an applicant is pursuing a calling as a crewmember.

9 FAM 402.8-3(A)(4) (U) Intent to Depart With Vessel, Aircraft, or Conveyance

(CT:VISA-920; 08-14-2019)

a. (U) Intend to Depart: To qualify for a D visa, a crewmember must intend to depart from the United States with the vessel or aircraft on which he or she arrived or some other vessel, aircraft, or conveyance. 

(1) (U) Entering or Clearing a Foreign Port or Place:

(a) (U) A vessel or aircraft must sail from the United States destined to a foreign port or place, and must actually clear such a foreign port or place to be considered to have departed the United States.

(b) (U) Aliens entering the United States solely to work on board vessels that do not travel to and clear a foreign port or place are unable to qualify under INA 101(a)(15)(D), because they cannot meet the departure requirement. 

(2) (U) Travel to International Waters Insufficient: Travel to international waters is insufficient for the purpose of departure, irrespective of the distance travelled by the vessel.  An alien on board a vessel which sails to sea and returns without entering or clearing at a foreign port will not be deemed to have departed from the United States.

(3) (U) Exception for Vessels Landing Temporarily in Guam or CNMI: There is an exception regarding fishing vessels having a home port or operating base in the United States landing temporarily in Guam or the Commonwealth of Norther Marianas Islands (see 9 FAM 402.8-3(B)below).

9 FAM 402.8-3(B) (U) Requirements for a D Visa Under INA 101(a)(15)(D)(ii) (Certain Fishing Vessels)

(CT:VISA-920; 08-14-2019)

a. (U) INA 101(a)(D)(i) does not extend crewman eligibility to individuals serving on a fishing vessel having its home port or an operating based in the United States. However, INA 101(a)(D)(ii) provides a limited exception for a crewmember on a fishing vessel having a home port or operating base in the United States if all of the requirements in paragraph b are met.

b. (U) Under INA 101(a)(15)(D)(ii), an alien crewman (crewmember) is defined as an alien who:

(1) (U) is serving in good faith and in a capacity that is required for normal operation and service aboard a fishing vessel having its home port or an operating base in the United States;

(2) (U) intends to land temporarily in Guam or the Commonwealth of the Northern Mariana Islands;

(3) (U) intends to land solely in pursuit of his or her calling as a crewmember; and

(4) (U) intends to depart from Guam or the Commonwealth of the Northern Mariana Islands with the vessel on which he or she arrived. 

(U) Note: You must determine that each of these four requirements are met, as discussed more fully below.

c. (U) See 9 FAM 402.8-3(A)(1)-(A)(4) generally for guidance on the above requirements.

d. (U) Note: An alien who meets the above requirements in paragraph b will be considered to have departed from Guam or the Commonwealth of the Northern Mariana Islands after leaving the territorial waters of Guam or the Commonwealth of the Norther Mariana Islands, without regard to whether the alien arrives in a foreign state before returning to Guam or the Commonwealth of the Northern Mariana Islands.

9 FAM 402.8-4 (U) Other Considerations

9 FAM 402.8-4(A) (U) Coasting Officers

(CT:VISA-920; 08-14-2019)

a. (U) An alien seeking to enter the United States as a coasting officer is not qualified for a D visa because he or she is not required for the normal operation of the vessel and must be documented with a B1 visa.

b. (U) What is a Coasting Officer: A coasting officer temporarily fills-in when an officer of a foreign vessel is granted home leave. The vessel remains in U.S. ports during this time. The coasting officer may then step-in temporarily to relieve an officer of another vessel, thereby repeating the process with another vessel of the same foreign line.

9 FAM 402.8-4(B) (U) Strikes

(CT:VISA-309; 03-21-2019)

(U) Strikes: If an alien will perform service on board a vessel or aircraft at a time when there is a strike or lockout in the bargaining unit of the employer in which the alien intends to perform such service, you must seek an advisory opinion from the Advisory Opinions Division (CA/VO/L/A) before issuing a D visa, unless you find that 1) the alien was employed for at least one year before the date of the strike or lawful lockout commenced; 2) has served as a qualified crewman for such employer at least once in each of 3 months during the 12-month period preceding such date; and 3) seeks to continue to perform service as a crewmember to the same extent and on the same routes as before the strike, in which case an AO is not required.  The AO may be submitted formally via NIV or informally via email.

9 FAM 402.8-4(C) (U) Nationality of Vessels or Aircrafts

(CT:VISA-920; 08-14-2019)

(U) Foreign crewmembers may be accorded D visas regardless of the nationality of the vessel on which they are employed, provided all other requirements for D classification are met.  The vessel or aircraft's nationality or registration is almost completely irrelevant for the purposes of visa adjudication and is not synonymous with the vessel or aircraft's "home port".

9 FAM 402.8-5 (U) C1 Visa for CREWMEMBER Traveling to Join a Vessel or Aircraft in THE United States

(CT:VISA-920; 08-14-2019)

a. (U) A crewmember traveling to the United States as a passenger to join a vessel or aircraft is classifiable C1 as an alien in transit. DHS regulations limit admission into the U.S. for C1 nonimmigrants to a 29-day period. An applicant for a C1 visa must meet all the requirements outlined in 9 FAM 404.4-4.  You should normally issue C1 visas for the full validity possible under the appropriate reciprocity schedule.

b. (U) Combined C1/D Visas: You may issue a crewmember a D visa concurrently with a C1 visa for use in future applications for admission to the United States if the applicant meets all of the requirements for both visa classifications. (See 9 FAM 402.8-8 below.)

9 FAM 402.8-5(A) (U) Lightering Crewmembers

(CT:VISA-920; 08-14-2019)

a. (U) Background on Lightering: You may encounter applicants seeking C1/D visas who indicate that they will engage in "lightering." Lightering is consistent with D nonimmigrant classification. However, lightering crewmembers often do not arrive to the United States on the lightering vessel and therefore must be admitted to the United States in some other nonimmigrant status or enter via parole in order to join the lightering vessel.

(1) (U) Lightering is the transferring of cargo (often crude oil) to or from a larger vessel by a smaller vessel when port facilities are not able to accommodate larger vessels. 

(2) (U) Lightering activities typically take place both within and outside the "United States" as defined in INA 101(a)(38). See 9 FAM 402.8.3(A)(1) paragraph g(3) above. Therefore, lightering crew cannot be admitted to the United States as a B1 nonimmigrant if they intend to engage in lightering in the United States (for example, by offloading crude oil at a U.S. port) given the prohibition against skilled or unskilled labor on a B1 visa.

(3) (U) Some contracted lightering work is not completed within 29 days. Individuals who intend to engage in lightering activity for more than 29 days, and who will not depart the United States for a foreign country during that period, are not eligible for admission to the U.S. as a C1 nonimmigrant because C1 nonimmigrants are limited to a maximum of 29 days. (See 8 CFR 214.2(c).) You should not issue a C1 nonimmigrant visa to an applicant who only intends to engage in lightering activity that will always exceed 29 days, and where the vessel will not depart for a foreign port, during the validity of the visa sought. A C1 nonimmigrant visa is consistent with intent to join a lightering vessel that will complete its contract work in 29 days or less, provided the applicant intends to depart the United States for a foreign location within that 29 day period. In addition, lightering crewmembers are not eligible for a conditional permit to land temporarily (see INA 252) as such landing permits are also generally limited to a 29 day period. Lightering crewmembers may apply for parole at the port of entry, which CBP may grant on a case-by-case basis.

b. (U) Issuing C1/D Visa to Qualified Applicants: If you find that a visa applicant is eligible for a D visa as a crewmember and 1) intends to engage in lightering for 29 days or less and depart; or 2) during the validity of such visa, the applicant may seek to enter the United States to engage in lightering activities for more than 29 days if granted parole by CBP at the POE, you may issue a C1/D visa. The C1 visa will allow the alien to travel to the United States as a passenger on a vessel or aircraft. You must be satisfied that the applicant will only seek admission to the United States on his or her C1/D visa for permissible C1/D activities.

c. (U) Annotation and Case Notes:

(1) (U) Annotation: You should annotate the C1/D visa of qualified lightering crew "visa not valid for lightering activities exceeding 29 days," unless the applicant intends to work on a vessel that will depart for a foreign port.

(2) (U) Case Notes: In order to properly document the applicant's representations made at the time of visa interview, you should enter notes in the applicant's record about the applicant's statements regarding lightering activities that the applicant anticipated during the period of visa validity.

d. (U) Requesting Supporting Documentation: At your discretion, you may require that an applicant present letters from an employer to confirm the scope, duration, and location of the applicant's anticipated work and whether the lightering vessel will depart the United States for a foreign port.

e. (U) Prior Parole: C1/D applicants who have previously been granted parole are not automatically ineligible for a visa. CBP may have granted parole to the alien for the purposes of joining a lightering vessel and engaging in lightering activities. You may ask the applicant about their encounter with CBP. If the applicant is eligible for the C1/D visa, you may issue the visa despite the prior grant of parole.

9 FAM 402.8-6 (U) No Derivative Visa for Dependent(s) of crewmembers

(CT:VISA-920; 08-14-2019)

(U) A spouse, child, or other alien who wishes to accompany a crewmember entering the United States as a nonimmigrant under INA 101(a)(15)(D) must independently be able to qualify for another visa classification, such as B1/B2.  Statutorily, there is no dependent visa classification for D visa aliens. As D crewmembers must be crewmembers of the vessel or aircraft on which they arrive to be granted landing rights as D nonimmigrants, and because D nonimmigrants are granted shore leave for a maximum of 29 days, you should carefully scrutinize all D applicants, as well as their family members seeking to accompany or join then, to determine their eligibility for the visa classification sought. Many vessels do not allow for family members to accompany crewmembers while on duty.

9 FAM 402.8-7 (U) Visa Validity and Reciprocity

(CT:VISA-920; 08-14-2019)

a. (U) Full Validity D Visas Encouraged: You should normally issue a D visa for the full period of validity and the number of applications for admission indicated by the applicable reciprocity schedule.

b. (U) Full Validity, Combined C1/D Visas:

(1) (U) A full validity C1/D visa should be issued whenever possible, including for first-time crewmembers.

(2) (U) You should issue a combined C1/D visa whenever reciprocity allows, even if the C1 visa is only for use in future applications for admission to the United States. Crewmembers often travel by means other than their assigned vessel to their next assignment or home for vacation.

(a) (U) Where the reciprocity schedule lists the same number of applications and period of validity for both C1 and D visas, you must issue a single combination C1/D visa in lieu of separate concurrent C1 and D visas.

(b) (U) When the reciprocity schedules for C1 and D visas differ with regard to the number of applications or period of validity permitted in each category, you must issue separate C1 and D visas both for full validity. Two fees are required when printing separate C1 and D visas.

9 FAM 402.8-8 Unavailable

(CT:VISA-920; 08-14-2019)

a. Unavailable

b. Unavailable

c. Unavailable

UNCLASSIFIED (U)