With three exceptions, Immigration Act of 1990 prohibits alien crewmen from working as longshoremen while docked in ports in the U.S.
The first exception allows alien crewman to load or unload hazardous cargoes for which the U.S. Department of Transportation has issued appropriate safety and environmental regulations.
The second exception allows alien crewman to work as longshoremen where this is the prevailing practice. This may be demonstrated by a collective bargaining agreement which covers at least 30% of the longshoremen, and which allows foreign crewman to engage in such practices. Where there is no such agreement, the ship owner must file an attestation with the U.S. Department of Labor. The attestation must be filed at least 14 days before the work is to be performed, and must state that: (1) the activity is permitted at the local port; (2) there is no strike or lockout; (3) such action is not intended to influence the outcome of a labor election; and (4) a notice of the attestation has been provided to the bargaining representative of longshoremen in the local port. Such attestations must be renewed on a yearly basis. Penalties may be imposed for a material misrepresentation or for an employer’s failure to meet a condition of the attestation.
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The third exception covers alien crewmen where the ship on which they work is registered in a country, and is owned by nationals of a country, each of which does not prohibit crewmen from performing longshore activities aboard U.S. vessels in its ports.
The act also bars aliens from working aboard air and sea carriers during the course of a labor dispute unless the employer shows that the alien was employed prior to the labor dispute and is continuing to work in the same capacity.
Persons who entered the U.S. as crewmen are barred from applying for many immigration benefits in the U.S. including adjustment of status to permanent residence and cancellation of removal.
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Carl Shusterman served as an INS Trial Attorney (1976-82) before opening an 8 attorney firm specializing in immigration law. He is a Certified Specialist in Immigration Law who has testified as an expert witness before the Senate Immigration Subcommittee. Carl as featured in the February 2018 edition of SuperLawyers Magazine.
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