Overall, the US Immigration Act of 1990 prohibits foreign crewmen from working as longshoremen while docked in ports in the US. However, it has a few exceptions as explained in the next section.
How Do I qualify for the three exceptions?
To qualify for D-1, you must be:
1. A foreign crewman loading or unloading hazardous cargoes for which the US Department of Transportation has issued appropriate safety and environment regulations.
2. A foreign crewman who works as longshoreman 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 crewmen to engage in such practices.
3. A foreign crewman where the ship on which you work is registered in a country, and is owned by nationals of a country, each of which does not disallow crewmen from performing longshore activities aboard U.S. vessels in its ports.
Caution: The Immigration 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.
What if there are NO bargaining agreements to qualify for the second exception?
In the absence of an agreement, the ship owner must file an attestation with the U.S. Department of Labor at least 14 days before the work is to be performed. The attestation must state that:
· The activity is permitted at the local port;
· There is no strike or lockout
· Such action is not intended to influence the outcome of a labor election, and
· A notice of the attestation has been provided to the bargaining representative of longshoremen in the local port.
Caution: 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.