April 1, 2005
The flag a yacht flies is not the most important credential when clearing U.S. immigration. The yacht’s home port is the guiding criteria, and it must be foreign if a captain wants to employ crew with B1/B2 visas.
That’s what captains, crew and industry professionals heard at an eye-opening Connection seminar with Jack Garofano, assistant director of field operations for U.S. Customs and Border Protection in Miami.
A 36-year veteran of U.S. immigration, Garofano took attendees back to the roots of the Immigration and Nationality Act (INA), which was originally passed in 1952 but has been amended over the years. It is still the basis of immigration law in the United States, and he explained the nuances of the law that have frustrated and confused yacht crew for years.
The most surprising fact for attendees is the reality that the INA requires a vessel employing crew holding B1 visas to have a foreign home port, not necessarily just a foreign flag.
"That’s why you hear all the problems at Waxy’s," said Garofano referring to the Ft. Lauderdale bar popular with yacht crew. "The home port of the vessel is the governing issue in the law, not the flag."
For many yachts, the home port and the flag are of the same country, so the distinction is a matter of semantics. But many other megayachts fly flags of convenience and consider home to be somewhere else.
Garofano was careful to note that just like an employee who may travel a lot on business and rarely go home, a yacht can cruise the world and rarely visit its home port. But it must have a home port somewhere that can be substantiated with such proof as slip fees, membership in the local yacht club, a mailing address for important mail such as credit card bills, etc.
"You’ve got to be able to prove where it is," he said. "You’ve got to be able to prove that that’s my home and I don’t have a home anywhere else."
The issue is important because many foreign-flagged vessels actually make their homes in the United States. Those foreign-flagged vessels with U.S. home ports cannot legally employ crew with B1/B2 visas, Garofano said.
"With a U.S. home port, you can employ the C-1/D visa people, but not B1/B2," he said. "The key test is not what flag you fly but what is the home port. If it’s not foreign, you will have trouble hiring B1 crew."
Garofano made no mention of whether there would be added enforcement of this little-known part of the law, nor did he mention what penalties, if any, a captain or yacht owner would be subject to should an immigration official determine they cannot employ crew with B1 visas.
But that was the thought on everyone’s lips after the seminar, which was hosted by The Triton and held last month in Miami Beach as part of the Seatrade Cruise Shipping Conference.
"We were all surprised to hear that home port takes precedence over flag or country of registry. This was news to everyone, I think," said Anita Warwick, manager of the luxury yacht division at MHG Marine Benefits, an insurance company. "No foreign vessel I know of has been asked where their home port is when clearing in crew."
Garofano went further to note that someone with a B1 visa (basically, a non-immigrant alien) must work for a foreign employer.
"A U.S. entity cannot directly employ a B1 crew member," he said. "A vessel with a U.S. home port cannot employ B1 crew members."
Seeing stunned faces in the audience Garofano noted, "This is nothing new in terms of the law and what’s permissible."
"Every time you come into contact with us and get into it with us, this is why," he said. "You either have a foreign home port or you don’t."
In addition to explaining the home port distinction, Garofano also noted the basic premise under which immigrations officers operate.
U.S. Customs and Border Protection (CBP) considers everyone coming into the United States (except citizens and permanent residents) an immigrant, meaning they intend to stay.
"The way the law is written, everyone who comes to the U.S. is presumed to be an immigrant," he said. "It’s up to the person to demonstrate that they are not an immigrant.
"When you talk to a CBP officer, keep in mind that one of the things that governs how they act is that they presume you are an immigrant," he said. "People misunderstand what the role of the officer is. They have to decide very quickly if you are an immigrant or a non-immigrant."
The two most common visas for non-immigrants among yacht crew are B1/B2 and C-1/D. B1 visas are given to someone whose purpose for coming to the United States is to work. These visas are for more than 30 days but less than 180 days. B2 visas are for visitors who don’t intend to work and are generally good for up to 180 days. C-1/D visas are similar but for lengths of time up to 29 days.
If a crew member comes through CBP with a B1/B2 visa and a letter from a captain that he or she is employed on a yacht, the crew member should make sure that the CBP officer notes that they are coming in on the B1 visa, Garofano said. One attendee recounted how a crew member had such a letter but the immigration officer granted entry to the United States under B2 status.
"That’s incorrect," Garofano said. "And that’s a fairly serious error. If that individual goes on a vessel and works, that person is in violation of the status under which they entered."
After leaving the port of entry, there are two ways to correct that error, he said: go foreign and come back and hope the next immigration official marks the visa correctly, or make an application to convert the status from B2 to B1. But that could take a while, he said.
The best solution is to not leave the port of entry and bring the error to the attention of the port director, who likely will be able to correct the error immediately, Garofano said.
"The onus is on crew to know this is an error and to fix it," he said. "Talk to the port of entry because that’s where the error occurred."
B1 visas can be extended, and the simple act of filing for the extension (form I-539) permits the non-immigrant to stay beyond the visa’s 180 days. Garofano was careful to note that visa holders should know when their visas expire.
"It used to be that nobody knew if you overstayed your visa," he said. "Those days are gone. The one thing you don’t want is to get caught staying beyond your authorized term of admission."
The application for extension could take months to determine, but as long as it was filed while the non-immigrant was still in legal status, he or she can legally remain in the United States beyond their visa.
If the extension application is approved, the extension begins from the visa’s expiration date, not from the date the approval comes through.
If it is denied, the non-immigrant must leave the United States as soon as possible, but no later than 180 days after the original visa’s expiration. If not, that non-immigrant will be barred re-entry to the United States for three years once he/she leaves. There can be a fine for the employer because this person continued to work without the proper immigration status.
"There’s some responsibility as the master, but the real responsibility in terms of consequences falls on the individual," Garofano said.
Another process that Garofano said often causes clashes between crew and CBP officers is the basic procedure of how a non-citizen can come to the United States. There are two steps: getting the visa and actually entering.
Getting the visa occurs overseas at an embassy or consulate, he said. The people who issue visas there work for the U.S. Department of State, not immigration. Their job is to screen the visa requests, determine if a visa can be issued and if so, under what classification.
The second part of the process occurs at a U.S. border. A visa only allows its holder to make an application for admission; it doesn’t guarantee admission, Garofano said. The CBP officer in the United States actually makes the decision if the visa holder gets in, under what category and for how long.
When applying for entry with a B1 visa, Garofano suggested crew know the details of their vessel and be able to substantiate them. Bring a letter from the captain, bring a photo of the yacht ("It can’t hurt") and bring the itinerary.
"Put a coherent story together, and get your facts straight," he said. "That’s not to say make up a story, but get it straight so the officer can understand what you plan to do here. It just makes it easier for them to determine what to do with you."
Contact Editor Lucy Chabot Reed at lucy@the-triton.com.
About the Author
