The US State Department has updated policy guidance in their Foreign Affairs Manuel (FAM), clarifying how visas for offshore wind workers will be handled. Updated policy states that USCG does not consider offshore wind an “OCS activity” and that offshore wind workers shall be issued B visas for transit only. Issued B-1 visas will be notated “B-1 for Transit or Travel to the OCS for wind activities; not OCS activity.“
Prior to this policy change, offshore wind workers were unable to obtain B1/OCS visas which are widely used by foreign oil and gas workers in the Gulf of Mexico. Primary driver behind this was US Coast Guards’ view that offshore wind did not constitute “OCS Activity” as defined in the Outer Continental Shelf Lands Act (OCSLA).
Under the Outer Continental Shelf Lands Act (OCSLA), US law extends to the subsoil and seabed of the OCS, including “all artificial islands, and all installations and other devices permanently or temporarily attached to the seabed, which may be erected thereon for the purpose of exploring for, developing, or producing resources therefrom, or any … other device (other than a ship or vessel) for the purpose of transporting such resources. Once such a structure is erected on the OCS, it becomes a “point” covered by the coastwise trade laws. (ie the Jones Act).
When Congress enacted OCSLA, one of the law’s main purposes was to govern activities aimed at extracting oil, gas, and other resources from the seabed and offshore subsoil. Since wind farms are extracting resources from the wind, as opposed to the seabed or subsoil, it has been unclear whether OCSLA extends US law, including the Jones Act, to wind farm projects on the OCS.
With the State Department and Coast Guard taking the stance that offshore wind activity is not OCS activity – we are standing by anxiously to see how CBP rules on the applicability of OCSLA regulations to offshore wind projects.
If CBP follows suit with USCG and State Department – we could see the East Coast wind developments open up to unrestricted use of foreign flagged installation / support vessels.
Interesting times ahead !
Updated Visa policy can be found in the State Department’s Foreign Affairs Manual
9 FAM 402.2-5(C)(9) (U) B-1 Visa for Transit or Travel to the Outer Continental Shelf (OCS)
(CT:VISA-928; 08-20-2019)
a. (U) In General: Aliens seeking to transit or travel to the United States to access the U.S. Outer Continental Shelf (OCS) to join a unit that is engaged in OCS activity (to include a vessel, rig, platform, or other vehicle or structure) may qualify for a B-1 visa provided the alien is not otherwise ineligible for the B-1 visa and the applicant has a letter from the U.S. Coast Guard (USCG).
b. (U) “OCS activity” Defined: An “OCS activity” is defined in USCG regulations (33 CFR 140.10) as “any offshore activity associated with the exploration for, or development or production of, the minerals of the [OCS].” Generally speaking, this definition refers only to oil and gas activity occurring on the OCS; it does not include wind farm activities. See paragraph j below regarding other activities that may occur on the OCS which are unrelated to “minerals of the OCS” and for which no USCG letter would be issued.
c. (U) Manning Requirements or Restrictions: The Outer Continental Shelf Lands Act Amendments of 1978 (OCSLA) were enacted on September 18, 1978 and provide for certain documentary, registry, and manning requirements of all units operating on the OCS that are engaged in OCS activity, unless specifically excepted from such requirements. Units operating on the OCS and engaged in OCS activity must employ only U.S. citizens or lawful permanent residents (LPR) as members of the “regular complement of the unit” (which is defined in paragraph d below) unless otherwise authorized by the USCG as evidenced by a USCG letter. There are no citizenship restrictions on individuals who are not members of the “regular complement of a unit.” (See paragraph e below.).
d. (U) Members of the “regular complement of a unit”: Members of the “regular complement of a unit” means those personnel that are necessary for the routine functioning of the unit, including marine officers and crew; industrial personnel on the unit, such as toolpushers, drillers, roustabouts, floor hands, crane operators, derrickmen, mechanics, motormen, and general maintenance personnel; and support personnel on the unit, such as cooks, stewards and radio operators. (See 31 CFR 141.15(b).)
e. (U) Personnel who are NOT members of the “regular complement of a unit”: Aliens who are not considered to be members of the “regular complement of a unit” include specialists, professionals, or other technically trained personnel called in to handle emergencies or other temporary operations, and extra personnel on a unit for training or for specialized operation (i.e., construction, alteration, well logging, or unusual repairs or emergencies).
f. (U) OCS Letters Issued by the U.S. Coast Guard: The USCG will issue one of three types of letters. Each of the letters identified below may be accepted as evidence that the employer of personnel or the owner/operator of the unit has complied with the manning requirements explained above. In all cases, these letters authorize the employer of personnel or owner/operator of the unit to employ individuals who are not U.S. nationals or LPRs. These letters, however, are not evidence of factual employment, but only demonstrate compliance with the OCSLA manning requirements. Moreover, these letters should only be considered relevant for visa adjudication purposes when a unit is engaging in OCS activity on the OCS. The three letters are as follows:
(1) (U) Letter of Exemption (LOE): The LOE serves as certification from the USCG that an employer or owner/operator of a unit may employ individuals who are not U.S. nationals or LPRs on board the unit in the regular complement positions identified. The LOE is valid for 1 year. Without this letter, these positions would be required to be filled with U.S. citizens or LPRs.
(2) (U) Letter of Non-applicability (LOA): The LOA certifies that the unit is exempt from the OCSLA manning requirements. This means there are no restrictions on employment and, therefore, an employer of personnel or owner/operator may employ individuals who are not U.S. nationals or LPRs in every position on board the unit. The LOA does not include an expiration date.
(3) (U) Letter of Determination (LOD): The LOD certifies that the alien (or position the alien will be filling) has been determined by the USCG to not be part of the “regular complement of a unit.” The LOD is valid for a specified time.
(U) Note: If an applicant does not present a letter from the USCG, but you believe the applicant is joining a unit engaging in OCS activity, request an Advisory Opinion (AO) from CA/VO/L/A.
g. (U) An employer or an owner/operator who wishes to employ persons other than U.S. citizens or LPRs on a unit engaging in OCS activity on the OCS must make a request, in writing, to the USCG so that a determination can be made as to the applicability of the OCSLA manning requirements to that unit, personnel, or positions on the unit. The request should be addressed to:
COMMANDANT (CG-CVC)
ATTN: Office of Commercial Vessel Compliance
U.S. COAST GUARD
2703 Martin Luther King Jr Ave SE STOP 7501
WASHINGTON DC 20593-7501.
h. (U) Visa Validity: If issuance of a B-1 visa is approved, the visa may be issued for full validity as provided in the reciprocity schedule. (See 9 FAM 403.9-4 for general guidance on visa validity.) You are not required to limit validity to an expiration date listed in a USCG letter.
i. (U) Visa Annotation: If issuance of a B-1 visa is approved, you should annotate the visa with “B-1 for Transit or Travel to the OCS.”
j. (U) Other Activities on the OCS: Activities occurring on the OCS that do not involve “minerals of the OCS,” e.g. a wind farm project, would not be considered by the USCG to be an OCS activity and, therefore, an alien seeking a visa to transit or travel to the OCS would not have a USCG letter to present. Applicants seeking to transit or travel to the United States to join a vessel engaged in non-OCS activity, to include wind farm activity, are not subject to the requirements above. As the OCS is not within the “United States” for visa purposes, you may issue a B-1 visa to an alien who is otherwise eligible for the B-1 visa and who seeks to transit or travel to the OCS for non-OCS activity. The visa may be annotated, but should be distinguished from the annotation in paragraph i above. For example, the visa may be annotated as follows: “B-1 for Transit or Travel to the OCS for wind activities; not OCS activity.”
