• Comply with Visa Requirements to Work Offshore - or Else
  • October 10, 2005 | Author: Jonathan K. Waldron
  • Law Firm: Blank Rome LLP - Washington Office
  • Introduction

    All vessels operating and conducting activities on the United States Outer Continental Shelf ("OCS") are required to be U.S. crewed subject to certain exemptions. Foreign crewmen operating under these exemptions are required to obtain a special visa called an B-1 (OCS) visa. While this requirement has been in effect since the 1970s, enforcement of the B-1 (OCS) visa requirement took on new meaning following the events of September 11, 2001 and the implementation of enhanced security measures.

    Knowledge of the exemption and visa requirements is particularly critical due to the flurry of clean-up and repair activities following Hurricanes Katrina and Rita in the Gulf of Mexico. Vessel owners and operators have generally been familiar with the manning citizenship requirements, however, the process of applying for and securing the appropriate visa for the vessel's crew is of heightened interest to the Customs and Border Protection officials since 9/11. The following is a brief overview of the exemption request and visa application process. It is critical that the application process start early to ensure offshore operations are not adversely affected.

    Background

    Through the Outer Continental Shelf Lands Act and its amendments, Title 43 of the United States Code, sections 1331 - 1356, Congress announced that the United States Constitution and laws and civil and political jurisdiction of the United States are extended to the subsoil and seabed of the OCS and to all artificial islands, and all installations and other devices permanently or temporarily attached to the seabed. To this end, vessels conducting operations on the OCS must be documented under the laws of the United States and manned or crewed by citizens of the United States or aliens lawfully admitted to the United States for permanent residence.

    If a vessel and its crew do not meet this U.S. manning requirement, then the vessel owner or operator must apply for a manning citizenship exemption. To be granted the exemption, the applicant must be able to prove that citizens of a foreign nation have the absolute right to effectively control the vessel or that ownership of the vessel is over fifty percent foreign. Vessels intending to conduct operations on the OCS generally fall into two categories: (1) U.S.-flag vessels with a U.S. crew and other foreign citizens needed to perform emergency or specialist work on a temporary basis, or (2) a foreign-flag vessel with a foreign crew.

    Historically, foreign individuals working on vessels on the OCS were able to work on vessels conducting OCS operations with a crewmember / transit visa (C1 / D visa) due to limited enforcement of the B-1 (OCS) visa requirement. This visa was issued for persons desiring to enter the United States to join a vessel and/or serving as a crewmember on a vessel making a routine port call in the United States. Due to the increased security interests after 9/11 in monitoring individuals that enter the United States, persons engaged in OCS activities must now possess a B-1 (OCS) visa or they will not be allowed ashore in the United States.

    Exemption Process

    The application process to receive a citizenship exemption to use a foreign crew can be very time consuming. The application package is submitted to the Chief of the Coast Guard's Division of Foreign and Offshore Compliance. The application must, among other things, contain the following information or the package will be deemed incomplete and therefore delay the approval process.

    • Project Scope
    • Personnel
    • Vessel information
    • Contracts, subcontracts and/or bareboat charter agreements that affect ownership or control
    • Parent company public trading and registration documents
    • Public trading and registration documents for all companies in the chain of ownership
    • Affidavits identifying/certifying ownership, control, and nationality of shareholders and directors.

    Approval can often take 60 or more days depending on the complexity of a particular case. Following approval, the vessel owner can begin the process of obtaining B-1 (OCS) visas for their crew. Exemption requests to supplement a U.S. crew with additional individuals to provide specialist or technical skills (i.e. persons considered in addition to the "regular complement" of the vessel) must be sent to the local Coast Guard office for a determination.

    Visa Process

    Once an exemption package is approved, the Coast Guard issues a letter of exemption for the vessel. Based on this letter, a B-1 (OCS) visa may be issued for the purpose specified in the exemption letter. The amount of time it takes to be issued a B-1 (OCS) visa depends largely on the consulate through which the application is being processed. In addition to the exemption letter, the applicant for the visa must provide the following:

    • Payment of a non-refundable application fee
    • A completed visa application form DS-156 and DS-157 (when applicable)
    • A passport valid for travel to the United States and with a validity date at least six months beyond the applicant's intended period of stay in the United States
    • One passport size photo (not digital, taken within the last six months)
    • A comprehensive letter, or contract from the employer on the employer's letterhead (original) identifying the crew member and describing in detail the nature and function of the crew member's position

    Conclusion

    In order to avoid potential breach of contract actions and other operational delays, foreign vessel owners and operators should plan accordingly to submit manning citizenship exemptions requests in a timely manner since processing and approval normally takes between 60 and 90 days. To this end, it is strongly encouraged that U.S. counsel be sought as the exemption request process involves a detailed understanding of the vessel owner's corporate organization, the vessel's operational capabilities, and most importantly the legal framework which is used to analyze a request. Legal counsel should also be used to ensure that B-1 (OCS) visas are applied for and obtained for foreign crew members. Failure to secure not only the citizenship exemption, but also the proper B-1 (OCS) visas for a vessel's crew can result in fines, penalties, lengthy operational delays and personnel issues such as refusal to allow crewmembers ashore, meet a vessel, or deportation.