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ALIEN COMMUTERS: U.S. RESIDENT STATUS WITHOUT U.S. RESIDENCE
Greg Boos J.D.
An earlier version of this article appeared in the
1993-1994 Immigration & Nationality Law Handbook, American Immigration
Lawyers Association, Washington, DC, 1993.
Aliens admitted to the United
States as lawful permanent residents (LPRs) or as special agricultural
workers (SAWs) with temporary residence may reside in either Canada or Mexico
and commute to places of employment in the United Sates without loss of
immigration status. Such "alien commuter" status may be obtained either at
the time of original entry as a resident of the United States, or thereafter,
if the alien has LPR or SAW status.
This article reviews the
basics of alien commuter status as well as some of its associated benefits
and drawbacks. Practitioners can use the alien commuter category to add
creativity and flexibility to immigration options available to their clients
who reside in Canada and Mexico (particularly those whose employment is
relatively close to the border). Alien commuter status allows such clients to
retain their foreign residences and proximity to relatives and loved ones,
benefit from tax laws on concurrent business concerns in both the United
Sates and the home country, and for Canadians, maintain subsidized health
insurance coverage and other social benefits.
Status by
Tradition
Alien commuters enter the
United Sates as special immigrants (INA 101(a)(27)) - a privilege that does
not require actual residence in the United States if LPR status has not
previously been surrendered or otherwise lost. INA 101(a)(20). The ability to
live in a contiguous country and commute to work into the United States is
available to both daily and seasonal commuters.
Although there is no specific
statutory authority for alien commuter status, the Immigration and
Naturalization Service (INS) and predecessor agencies have traditionally
permitted resident aliens who reside in contiguous countries to commute to
work in the United States. (Note: Contiguous territory is any country sharing
a common boundary with the United States; because the nations and territories
of the Caribbean are considered "adjacent islands" their citizens are not
eligible for commuter status.) In 1985, the last year for which the INS
collected statistics, there were almost 50,000 alien commuters traveling
between the United States and Mexico, and approximately 7,500 between the
United Sates and Canada. With the recent publication of regulations
authorizing the expansion of dedicated commuter lanes and other programs to
speed border crossing by frequent, low risk travelers, alien commuter status
is likely to become even more attractive. For details of these regulations,
see the November 1, 1995 Immigration Law Report (ILR).
The administrative practice
underlying alien commuter status dates from 1927, when the Bureau of
Immigration, then a division of the Department of Labor, ruled that commuters
who became immigrants could cross the border without the usual residence
restrictions. According to Vol. IV, No. 13 of Interpreter Releases (May 2,
1927), prior to this ruling, non U.S. citizens who habitually crossed the
border could obtain identification cards that assured them easy entry and
exit, and were not required to conform with quota or other immigration
restrictions then in effect. After the Bureau of Immigration's 1927 policy
took effect, such aliens seeking to enter the United Sates for purposes of
employment had to do so as immigrants. Although native-born Canadians and
Mexicans were not subject to quota limitations because they were natives of
the Western Hemisphere, they were subject to literacy requirements - a burden
which fell more heavily on Mexicans than Canadians. The new policy had an
even greater impact on third country aliens resident in Canada or Mexico,
generally of European birth, who were subject to quotas. Nearly fifty years
later, the Supreme Court in Saxbe v. Bustos, 419 U.S. 65, 74, (1974),
upheld the administrative grant of "alien commuter" status based on
longstanding tradition and on Congressional acquiescence to the practice.
Current administrative
practice regarding alien commuters is set out in the form of regulations and
operations instructions (OIs), primarily 8 C.F.R. 211.5 and OI 211.3 and
211.4, which cover how alien commuter status may be gained and lost as well
as required documentation. These rules incorporate several administrative
court rulings that form the parameters of alien commuter status.
Key
Considerations
All alien commuters must have
employment in the United States that is "regular and stable." The INS
interprets this to mean that the commuter is not required to have full-time
employment, but may have part-time or even intermittent work if it is regular
and stable. An alien commuter who has been unemployed in the United Sates
continuously for more than six months may lose LPR status, despite any
entries made into the United States within that six-month period; however, if
the unemployment results from a reason beyond the alien's control, such as
illness, the alien does not lose resident status. Upon loss of LPR status,
the alien must relinquish Form I-151 or I-551, Alien Registration Receipt
Card, or I-688, Temporary Resident Card, to an immigration officer.
Potential
Benefits
In addition to enjoying
unrestricted employment authorization, some alien commuters residing in
Canada may avoid paying thousands of dollars in U.S. social security taxes by
seeking coverage under the Canadian Pension Plan. Both Canada and the United
States have social security systems that are supported through taxation and
afford benefits to their respective residents. The U.S.- Canada Totalization
Agreement rescues many people who are covered by the Canada Pension Plan from
paying U.S. social security tax for work performed in the United States,
although there is debate about whether the U.S. Medicare contribution must
still be paid by these individuals. Unlike the North American Free Trade
Agreement, the Totalization Agreement may also benefit third country
nationals who reside in Canada.
Under the rules of the U.S.-
Canada Totalization Agreement, self-employed persons are taxed according to
their place of residence, while those who are employed by others are normally
taxed based on place of employment. Alien commuters resident in Canada may be
employed by others are normally taxed based on place of employment. Alien
commuters resident in Canada may be employed in both Canada and the United
States. Additionally, when employees are transferred from one country to the
other on a temporary assignment of five years or less, they may be still
taxed according to their place of normal employment. Thus, self-employed
commuters, commuter employees of Canadian businesses transferred to work in
the United States for less than five years as well as commuters who work for
both a U.S. business and a Canadian business may, under some circumstances,
remain exclusively subject to Canada Pension Plan payments and seek exemption
from U.S. social security taxes.
This is an important
consideration because U.S. social security tax may be several thousand
dollars higher than its Canadian counterpart. The exemption from U.S. social
security taxation under the Totalization Agreement is not automatic,
generally, one seeking the exemption obtains a Certificate of Coverage from
Revenue Canada to present to the Internal Revenue Service (IRS).
Additionally, an individual spending fewer than 183 days in a calendar year
in the United States may be exempt from U.S. social security taxation.
Practitioners may desire to refer a client who is considering assuming or
abandoning "alien commuter" status to an international tax specialist for an
assessment of the tax consequences of such a move. For more on the tax
implications of commuter status, see box page 268.
Problem
Areas
Alien commuters do not enjoy
the full rights enjoyed by traditional permanent residents. There are three
major limitations:
* Time spent in "alien
commuter" status does not count toward residence requirements for
naturalization purposes. 8 C.F.R. 211.5(C); 8 C.F.R. 316.5 (b)(3).
* Alien commuters may not
petition for immigration benefits on behalf of relatives. 8 C.F.R. 211.5
(c).
* INA 212(c) waivers
(discretionary relief available to many permanent residents who have a
continuous, unrelinquished U.S. domicile of seven years or more who have
become excludable) are not available to alien commuters, as they do not have
the U.S. domicile required for such relief. Matter of Garcia--Quintero,
15 I&N Dec. 244, (BIA 1975).
Procedural Considerations
Aliens in traditional LPR or
SAW status may convert to commuter status and "commence" residing in a
foreign contiguous territory; however, there are no rules or instructions
regarding procedures to be followed in such cases. In practice, an alien
commuter surrenders the alien registration card at the Port of Entry, along
with Form I-90 application to Replace Alien Registration Card, three ADIT-style
photographs, and a letter from an employer establishing qualifying regular
and stable employment in the United States. The alien must write in after
Item 2.e of Form I-90 the following. "I desire to become an alien commuter"
(previous editions of Form I-90 had a box marked "Other" in which the above
was written in, but this has been deleted from the current version). INS
gives the alien a temporary card for entry to the United States. A new alien
registration card reflecting "commuter" status is processed and sent to the
alien in care of the U.S. employer.
An alien entering the United
States as a permanent resident for the first time who desires commuter status
presents the following to INS officials at the border: the sealed visa
envelope issued by the U.S. consulate, a letter requesting commuter status,
and a letter from a U.S. employer verifying qualifying employment. The alien
will be issued a Form I-551 coded to reflect "commuter" status.
Alien commuters must satisfy
the INS that, absent factors beyond their control, they have not been
unemployed in the United Sates for more than six months at a time. To this
end, every six months the INS requires proof of regular and stable U.S.
employment from those in commuter status. Often this proof takes the form of
a letter from a U.S. employer confirming continuing employment. An "alien
commuter" may challenge loss of permanent resident status in exclusion
proceedings.
An "alien commuter" may at any
time abandon commuter status and take up actual residence in the United
States. To do so, the alien file form I-90 to obtain a "green card" that is
coded to reflect actual U.S. residence. 8 C.F.R.. 211.5(c); 8 C.F.R.
264.1(c)(2)(H). To become resident in the United States, the alien commuter
must establish a residence in the United States and must have the intention
to reside there permanently. Alien commuters engaged in seasonal work will be
presumed to have taken up U.S. residence if they are present the United
States for more than six months during any twelve-month period.
Alien commuters are required
to present a valid Form I-151, I-551, or I-688 at the time of each entry into
the United States, but they are not required to present an immigrant visa or
passport after the initial entry. Aliens must also present a properly
endorsed and dated Form I-178, Commuter Status Card, the document through
which the INS monitors the date when the commuter must again present evidence
of regular and stable employment in the United States. The I-178 Commuter
Status Card is coded with the alien's "A" number and is also numbered 1
through 12 to reflect the month in which the alien must present evidence of
regular and stable employment. It must be carried at all times while the
alien is in the United States.
As previously noted, an alien
commuter is precluded from petitioning for immigration benefits on behalf of
relatives; however, if an alien originally enters the United States as a
commuter and later converts to traditional LPR status, a qualifying spouse
and children may follow to join. There is no statutory time limit within
which a spouse or child may follow to join the principal alien. 9 Foreign
Affairs Manual (FAM) 40.1, Note 7. Thus, if an alien opts for commuter status
upon original entry to the United States and later abandons commuter status
for regular permanent resident status, qualifying derivative relatives may
"follow to join" the principal alien in the United States. Generally, to
qualify as one following to join, the relationship between the principal and
the derivative relative must have existed before the principal alien's
original entry into the United States as a permanent resident. Matter of G-,
7 I&N Dec 731 (BIA 1958); 9 FAM 40.1, Notes 7.1, 7.2.-2. Should a spouse and
children fail to qualify for status under the following to join rule, a
lawful permanent resident who has abandoned commuter status and assumed
residence in the United States may file immigrant visa petitions for
dependents subject to quota backlogs.
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