'interim Decision #1546
MA t OF Bunn('
In Exelusion..Proceedings
A-13959431
Decided by Board August 9, 1966 and .7a/wary 6, 1966
An alien lawfully admitted to the United States for permanent residence but
living in Canada where he is daily employed full time, who, Elmo 1953, except for a short period, has entered, and will continue to enter, this country
in his spare time as a returning resident alien "commuter," regularly but not
'daily, to work as a carpenter for anyone who will employ him (some jobs
last about a month, some a few weeks), and who now seeks to enter in
such capacity, is admissible as a returning resident "commuter" notwithstanding his employment in the United States is only part-time, is self-employment, and Is not (lolly. •
FaCIATDABLE : Act of 1952—Section 212(a) (20) (8 U.S.C. 1182(a) (203—Immigrant without visa.
BEFORE THE BOARD
The special inquiry officer has certified his order admitting the
applicant to the United States as a commuter; no change will be
made.
Applicant, a 40-year-old married male, a native and citizen of
Canada; -after entering the United States with an immigrant visa
in 1953, returned to his home in Canada where he is and for the
past 16 yeais has been employed as a Canadian customs officer, but
has come to the United States in his spare time to work as a.
carpenter. For a short period he stopped corning, after he had been
warned by a United States immigration officer that his employment
in the United States may have been contrary to immigration laws;
however, on November 3, 1961 he again entered the United States
with an immigrant visa with the intention of pursuing his part - time
carpentry work in the United States. A. few days' work in Maine
was followed by s. period of unemployment for about a month. Employment in Vermont. of about four weeks was stopped when he
required an operation. After spending about two months recovering,
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Interim Decision .#1546
he sought to reenter the United:States to continue with his part-time
carpentry;: liumigrant inspector's ruling that he wa.s,not entitled
to enter as 'a commuter resulted, in this exclusion hearing.
The issues raised are whether the cominuter privilege should be
denied to the applicant because he also had a job in Canada or he-,
cause in the United, States -he- was self-employed rather than an
employee.: The special' biquiry officer finding no precedent for barring entry ordered :applicant admitted. .
A comniuter,is an alien.admittid to. the United States for permanent residence who despite- the fact that he is domiciled in foreigu
contiguous:territory and- often resides there is permitted. to enter
the United States as a re ,sident• alien to -work or to seek. work. To
maintain commuter states, .the alien must engage in work which
is permanent and stable, or, if, he is coming to seek work, it must be
of a similar, nature and it mint be obtained within six months of, his
entry. lf,the commuter stops working for other than health reasons,
he will lose bis commuter status unless he finds permanent and stable
employment within six months following the loss. Inability of the
alien to find employment because jobs are not available results in
loss of commuter status even though he enters regularly to seek
employment. . The commuter is also treated ess, a resident alien for
purposes of the report provision§ of the Mien Registration Alt.,
However, he is treated as a nonresident alien concerning naturalize:-
tion, Selective Seritic:e; and s the exclusion of nonresident aliens because their entry would lia'ke - an adverse - effect on Ainerican labor
(Matter of ,T—P—, 9 I.'&' N. Dec.-591; Matter of L—, 8 I. & N. Dec.
613; Matted , of hf D---15 , 8 L &N. Dec. 209).
— —
These precedents reveal that immigration statutes make no mention
of the commuter status; it is an administrative device originated in
1927 to- permit the continued entry of Canadian and Mexicap. nationals • 'domiciled in their native lands who had for years beer
coming to the. United States to work as nonimmigrants, but whose
continued• entry as nonimmigrants was made impossible by legisla- •
tion which classed all. persons e.taniug to the United States to perform labor-as immigrants: Congressional approval of the commuter
status is found 'in the fact that Congress has shown awareness of
the status .and has not criticized it, nor has it in recent legislation,
includedlconutouters in its. definition of nonimmigrants (Hatter of
&.N. Dec. 716)•
The bases. for the creation of the commuter status' are given as,
tke desire rtes maintain good international .relations, a, matter . of
reciprocity, the concern for the livelihood of aliens: who had been
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Interim Decision #1546
commuting to the United States for employment, the needs of
American industry, and the needs of communities which had grown
up in close proximity to each other on both sides of the border.
Elements of organized labor in the United States believe that the
existence of the commuter status is undesirable and unlawful: it is
argued that commuters depress wages and cause unemployment
among resident laborers whom Congress obviously desire to protect
'(Karnutil v. U.B. ex rel. Albro, 279 U.S. 231 (1929) ; Amalgamated
Meat Cutters cf Butcher Work v. Rogers,
186 F. Supp. 114 (D.C.,
1960)).
In establishing standards for the commuter status, it might be
urged as an original matter that the reasons which gave rise to the
commuter status would require consideration of the following matters: the nature of the employment, the need for the alien's services
in the United States, the ability of United States residents to obtain
similar services conveniently and reasonably, the sources of the
alien's income, and the effect upon him of barring him from entry;
however,,there are no laws or regulations imposing such tests—the
test which has been used considers the intent of the alien to continue
in the status, and whether the employment has been stable and
regular (Matter of 1—,
4 I. & N. Dec. 454). Intermittent employment has satisfied the requirement that employment be stable and
permanent (Matter of 1—P—,
9 I. & N. Dec. 591; Matter of Chaparro-Portilla, A-10532787 (January 8, 1964) (unreported) (domestic
work three days a week for part of the period; one day a week 'plus
an occasional additional day during week for rest of period)).
Using the controlling test, we find that the alien here has not abandned his intention to continue in the commuter status. We find that
the frequency and regularity of the respondent's employment in the
United States while he was able to work is sufficient to satisfy the
requirement that his employment be stable and permanent. No
change will be made in the order of the special inquiry officer.
We would point out that evidence required to terminate commuter status must be reasonable, substantial and probative and considered in view of the fact that the commuters are technically regarded as legally resident, aliens. Moreover : where commuters involved are aliens who have been coming to the United States for a
period of time, and are, applying to come to or to seek employment,
we would assume in view of the time elapsing before final adjudication is made, that they will be paroled into the United States during
the pendency of the appeal.
Interbn'Decisio'n 'iE1'546
ORDER: It is oiclered that no chanb be made in the Order of
the special inquiry officer.
BEFORE TILE BOARD
The Service moving for reconsideration of the Board's order of
August 9, 1965 which affirmed the special inqUiry officer's action
admitting, the applicant as a commuter asks that the applicant be
excluded. The motion -will be denied. . •
Counsel contends the motion was not timely filed. We find there
was an incomplete Ming within the time granted because there was
a failure to file proof with the Board of timely service of the motion
on counsel. We shall take the matter by certification. ...The regulation provides in pertinent part that the Service officer—
shall cause one copy of the motion (for reconsideration] to be served upon the
alien or party affected, as provided in Part 292 of this chapter, and 'halt
cause the record in the case and one copy of the motion to be filed directly
with the Board, together with proof of service upon the alien or other party
affected (8 CPR 3.8(c)).
This regulation requires the motion to be filed "together" with
proof that service has been madaupon the alien. Thus, there is no
more reason to permit untimely service of the motion on the alien
than there is to permit untimely service of the motion on the Board.
That service of the motion on the applicant was untimely is clear.
The Service was granted until September 20, 1965 to perfect its
motion. The Board was served with a copy of the motion on this
date; however, counsel was served by mail eight days later and proof
of such service was not filed with the Board until October I. 1965_
In view of the importance attached by the Service to the motion we
shall take it by certification. 1 (We shall consider applicant's reply
brief which also was not timely filed since it should have been filed
by October 9, 1965"but was filed October 13, 1965. The reply brief
states that the motion is defective under the regulations in that it
is not based upon new matter and that the Service has cited no
authority directly supporting its views.)
'Compliance with 8 CPR 3.8(c) imposes no difficult burden on the Service.
Here. for example, there could have been compliance had a copy of the mo-
`Bon been mailed to the applicant on the day the motion was served on the •
Board (S CPR 292.5). (If the Service believes that in the interest. of justice
personal service of the motion should be made even though there has been
' timely service by Mail,. the Service should notify the Board of its belief; the
Board may then delay consideration Of the motion until personal service Is
,
made.)
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interim Decision #1546
The facts have been fully stated in previous orders. The-question
is what conditions an alien must meet to acquire andkeep the right
to come to the United States as a commuter—a person living in
foreign contiguous territory who regularly comes to the United
States to work.
The right of an alien to work in the United States is, with
exceptions not pertinent here, confined, to those who have been admitted for permanent residence; however, it does not, follow that
such an alien must reside in the United State's ::he may, if he desires,
continue or begin to make his home in: foreign "contiguous territory
and commute to emplo,yment in the United States. There being an
absence of statute or regulation setting standards for commuters, we
reviewed the eases and history and- found, that to be considered a
commuter, it was- necessary that the alien who had been lawfully
admitted for permanent residence take •egular employment in the
United States, hav4 the -continuing intentionlo come for such purpose, and have no break in employMent for;as long as, six months
(unless the unemployment was caused by illness).. Applying the
rules to the instant case, we found that the, special inquiry officer
had properly ordered tli.e admission of the applicant—an alien lawfully admitted for permanent residence but. living in Canada where
lie is daily employed, and who, except for a short period, has entered
.since 1953, and will continue to enter in hiq spare time, regularly
but not daily, as a self-employed carpenter to work for anyone who
will employ him (some jobs last about a month some a few weeks).
He seeks to enter, now in, the same capacity. The Service contends
that the applicant is inadmieqible because the conditions which must
be met by a commuter and are not met by him, are that he enter
,
daily, that the employment in the, United States be full time, and
that the employment be not self-employment.
The Service Ands its conditions-not in authority directly sustaining its position—Ahe Service cites no case holding that part-time
employment., or intermittent employment, or self-employment, or
employment requiring less• than daily entries prevents one from
being a commuter—but in general expressions concerning stable employment in cases in which the issue concerned unemployment for
six months MI the par!* .of an alien who had been coming daily, or
cases involving the alisenc,e of any employment, or so little employment (two hours) that it would be fanciful to consider it stable
employment, or 'eases involving the pretence of a ground of inad,
naisbltyoperh."
470
