Interim..Decisioti #1601.
•
Manx& o>= Bunoraof.-SALonno
In Exclusion Proceedings
A-12699434•
Rea/46d by Board May 81, 20619
The absence from the United States of applicant (a returning resident "commuter") for more than 6 months to care for her seriously-ill child, which
may be egualea with absence as a result or inoaPacitation by her own Illness, did not result in loss of "commuter" status; although her job was
fMed by another worker 'during her absence, since she-resumed employment
in this country within a short time after abatement of the circumstances
causing her absence, she is admissible as a returning resident alien "commuter" to continue her employment •
Brotrinairx: Act of 1052—Section P 212(a) (20) ES U.B.C. 1182(a) (20)3—Im-
, migrant without, a visa.
The special inquiry officer certified to the Board his order requiring -applicant's' eidusion 'upon the ground that she was an immigrant
without a visa. The applicant will be ordered admitted.
,An alien lawfully admitted for permanent residence and who is
regularly employed in the United States but-resides in foreign contiguous territory is known as a. commuter (Matter of Bailey, Int.
Dec. No. 1546). " Some background for the commuter stews" will help
determine the caie'before us.
For generations 'prior to the Immigration. Act of 1924, native and
foreign-born citizens of foreign contiguous territory living there
came daily to work in the United States and then returned to their
homes. Immediately 'before the passage of the Immigration Act
of 1924, they hid been admitted as visitors on the basis of visitor's
visas which were valid fora year and were good for Successive applications for temporary admission. Passage of thee• 1924 Act raised a
question as to whether a commuter was an immigrant rather than
a visitor. The Aet termed an alien an immigrant unless lie proved
he was a nonimmigrant. (An immigrant needed: an immigrant visa
it was good for one entry only and could be issued only under restrictions not applicable to the issuance of .nonimmigrant visas.)
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Interim Decision #1601
The nonimmigrant category pertinent to this discussion was that of
the alien coming as a temporary visitor for "business". In this category the commuter was administratively first placed; permitting him
to follow his regular employment in the United States and reside in
foreign contiguous territory. Reluctance to disturb a long-standing
custom, and reluctance to affect the delicate balance which existed
between the United States and the contiguous countries dictated the
decision. However, the pressure of other factors soon brought a
change—there was a lack of specific law authorizing the_ entry of
commuters as nonimmigrants, foreign-born citizens of contiguous
territories who because of quota limitations could not obtain immigrant visas to enter the United. States were, nevertheless, entering
daily to work as commuters, and, there was rising unemployment in
the United States—these factors gave rise to an administrative ruling
that made the entry of commuters more difficult.
In 1927, it was administratively decided that under the 1021 Act
an alien coming to work in the United States must be considered as
an immigrant. (He could be admitted only if he had an immigrant
visa and applied for admission' for permanent residence.) Strict
enforcement of this ruling would have seriously affected the livelihood of many on both sides of the border, the functioning of border
cities, and the existence of friendly relations with the border nations.
A compromise arose which followed the form of the law yet permitted a limited continuance of the commuter status.• It was to treat
the commuter who obtained an immigrant visa as if lie lived in the
Unitrid States although he continued to live in the contiguous territory.
An alien lawfully admitted for permanent residence and domiciled
in the United States.could be issued a border crossing card which'
authdrizad'him to mike a temporary visit to foreign contiguous territory and to return to his home in the United States without presenting a_ new visa or other immigration document; therefore, why
not require the commuter to obtain an immigrant visa, admit him for
permanent residence, issue him a border crossing card, and then permit bim,.i.f.he did not desire to live in the United States, to return
to his home in foreign contiguous territory and to enter the United
States daily on his border crossing card on the theory that he was
returning from a •temporary visit to contiguous territory) This
arrangement 'was adopted in 1927.
There. *ere difficulties in treating a commuter as if he was a domiciled alien.. The alien- actually domiciled in the United States attempting to enter as a returning resident with a border crossing card
after a temporary visit outside the United States lost his right to
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Interim Decision #1601
reenter unless he established that he at allAimes maintained the
intention 4 returning to his domicile in the 'United States. The
commuter did not have a domicile in tharnited States and in many
cases had no intention of moving here, was he therefore to be unrestricted in his right to reenter/ The administrative solution was to
equate employment with domicile. Then whether the commuter was
entitled to enter with his border crossing card as a returning resident
turned nn whether he was employed in the United States and
whether he had ever abandoned the intention- of working in the
United States. This equality of treatment of the commuter and
domiciled alien resulted in the ruling that since the domiciled alien
lost his right to reenter the United States on a border crossing <mod
if he was absent more than six months, the commuter lost hisaight
to reenter, on a border crossing card if he was unemployed form ore
than six months. •
To treat the commuter as if he was a domiciled alien was a necessary if awkward fiction which permitted the practice to continue, but
it was at odds with the administrative desire to have commuters
make their homes in the United States. Soon rules' concerning inspection and entry arose which made the commuter realize that not
only would it be more convenient to live in -the' United States than
to commute, but that loss of the right to enter the United States as
a commuter could occur without his fault and even despite his intention to retain the right. Thus, the conclusive presumption arose that
a commuter unemployed in the United. States for more than six
months had abandoned his intention to enter as a commuter—he
could be readmitted to the United States to work only if he had a
new immigrant visa. This conclusive presumption, with one exception, applied. even though the commuter had retained the intention
to commute and even though he had entered. in the meantime to
search for employment. This treatment was in contrast to that given
the domiciled alien temporarily absent from the United States for .
more than six months; he, if he had not abandoned the intention to
return, could be readinitted as a returning resident upon a -waiver of
the documentary requireMents.
An exception to the conclusive presumption w as made iu the case
of the commuter 'outside the United States for more than six months
because of illness, accident, or pregnancy. With this background
in mind, we may consider the facts in the case before us and the precedent decisions.
In May 1961, the .applicant, a 35-year-old female alien, a native
and citizen of Mexico, was admitted to the United States for permanent residence; she took up residence in El Paso, Texas and became
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Interim Decision #1601 '
employed us a domestic. In October 1961 her employer. left the
area; the applicant moved across the border to-Mexico but -found
another job in the United States and continued entering daily -to
work .as a domestic. In December 1964, she stopped working to care
for her two year old child who had become ill. In the early part
- -
of the following month the child seemed to recover and the applicant
went back to work. A few days later the child became seriously
The applicant stopped working to care for the child, there being no
one else available. Her job was filled by another worker. The child,
afflicted, with bronchitis and later with hepatitis, was not free from
her afflictions until 'September 1965. In the following month, feel-
- ing that the child could be left in the care of others, the applicant
sought employment in the United States.. On DeceMber 14 1 1965 she
staffed working with Mrs. Allen ana thereafter came in daily to
employment as a doinestic. On December 22, 1965, she applied to
enter to work for Mrs. Allen, but was refused ,permission, by the
Service. On December 28, 1965, the special inquiry officer ruled in
an exclusion hearing that the applicant had lost her status as a commuter because she had been unemployed for more than six months.-
He held that the exception which saved the commuter status of an
alien unemployed because of illness did not .apply to the applicant
because, one, it had not been her own illness that incapacitated her
for:employment and, two, her employment had not been held open'
for her during the entire period that she had been unemployed.
The earliest published discussion touching the problem is. found
in an editor's note to Matter of 1)—C- 8 I. & N. Dec. 519, 526 7 -
(1949). The pertinent portion of the. note follows:
In Matter of 4-6778564, 0 0., Dec. 21, 1949, the Central Office stated:
"It is and has been the holding of this Service that an alien of the immigrant commuter ahem who has been out nf.employment in the United States
for 6 'months shall, notwithstanding temporary entries in the interim for other
than employment purposes, be deemed-, to have abandoned his status of residence in the United States (C. I. 110.6). It has been held, however, that 'In-'
tention'shall govern in such cases to the same extent that it governs in the
case of aliens who deiSart fiom the United States for other countries after
once havhig,been lawfully admitted' (O. 0. letter Nov. 16, 1927, 55470/637-A). 1
latile circumstances as serious ill- Thus,interpofwkd•uta.nciol
ness (Matter of B—, A-4089813 (0. a. June 26, 1946)), or because of pregnancy (-Matter of Mal—, 4-7687230 (0. 0. Sept 8,1948)), have been held•not,
to result in akandonment of" commuter's status. "
."In the• case nndei consideration, the appellant was not employed in the
United States since September 27, 1948, when he broke his arm, until August
,4, 1849, when be took up temporary employment In the United States with -his
' • • •, • .
'The L (Operation Instruction or antra Service memorandum) and the
O. 0. (Central Ofilde Of the Service). letter cited contain na additional pertinent information.
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Interim Decision #1601
brother. He has, however, presented corroborative evidence that he was incapacitated during this period until march 0, 1949. Actually, thetefore, he
was employable only for a period subsequent to that date and the 6-month
period should begin to toll [sic] thereafter. Since be effected his admission
to the United States on September 4, 1949, .a period less than 6 months, it
is concluded that he liar not thereby lost or abandoned his commuter% status.
As be is in possession of a valid border-crossing identification card his appeal
will be sustained."
Matter of B , suprci, concerned a Canadian citizen who commuted
—
from 1920 to September 24, 1945 when he became ill; he was bed-.
ridden for about six months. Over seven months later (May 12,
1946) he applied for admission. as a commuter for the purpose of
resuming his employment. The Service relying on the two rules governing the cases of commuters (that a commuter out of employment
for six months, shall be deemed to have abandoned his status of residence in the United States and that intention governs to the same extent that it .governs in the case of domiciled aliens who depart for
other countries) held: '
* • * It is apparent, then, that when the appellant took ill in September
1045, nu did not lose his job with the Pere Marquette Railroad Company.
Having been granted."sick leave" [for the entire period of his illness], be has
remained in the employment of his company And can' return to active employment at any time within the limits of his leave of absence. Nor is there
anything in the record to show that it was the appellant's intention to abandon
,
his employment or his status as a commuter. Having been employed by the
same company for over 25 years, it is not' likely that he intended M make a
change. In fact, he testified that he•was kept from his employmept solely because of his illness. Upon a review of all the evidence in this case, -it may be
fairly • concluded that, despite his physical absence from his emploment,
the appellant did not lose his _ commuter's statute and that he is eligible to
resume the same.
Matter of MoM—, supra, concerned a Canadian citizen who was a
commuter from April 5, 1946 to about November 7, 1947 when she
stopped wailing because she was expecting the birth of a child. The
alien applied for admission on May 20, 1948 as a returning resident
to work; she was excluded on the ground she had.lost her commuter
status and required a new visa to enter the United States. On appeal,
the Service ordered her admitted as a returning resident if she obtained a 'waiver of docunientary requirements. The Service stated:
The facts presented establish that the appellant has not worked in the
United States since November. 7, 1947, a period of more then six months, during which time she has lived in Canada. However, the facts show that she
gave birth to a child on December 14, 1947 and has been receiving medical
attention for herself and child and could not resume employment although, at
all times, it appears she intended to return to the United States and resume
employment. In the situation; it is found-that the appellant did not abandon
hey legal residence in the -United States by her absence of more than six
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Interim Decision #1601
months in Canada from November 1947 to about April or May 1949, as her
absences were due to her illness and the care of her infant child. Matter of
Williams, A-4235728 (C.O. 1947) ; Matter of lames, A-6388053 (BIA, 1947).' .
The next published decision touching upon the issues is Matter of
1—, 4 I. & IC. Dec. 454 (C. 0. 1951). 1, —, 'working for one employer, commuted from 1927 to June 19, 1950 when he became ill;'
he recovered on December 7, 1950 and when he applied for admission
on December 26, 1950 to resume 'his employment was excluded as
having lost his commuter status by being out of work for more than
six months. On appeal the Service stated :
… • The •salient points to be considered in determining abandonment of
commuter's status are intention and loss of employment. Thus it has been
held that a commuter remains entitled to -such classification, notwithstanding
an absence of 6 nionths from this country and interruption of his work here
for that long, if his employmentt job, or position has not been lost and if the
,
interruption 'was due to such =controllable circumstances as serious ill-.
ness.
… His position of employment has not been lost and according to evidence submitted his job is still being held open for him. His absence from
this country from June 1950 was due to his serious illness and there was no
intention on his part to abandon his commuter's stet* The record therefore
establishes that applicant has had the status of a permanent resident of the
United States for at least seven consecutive years and that he has not abandoned such status. His absence was due to uncontrollable circumstances and
he is seeking to enter the United States as a returning resident to resume the
employment which is available to him.
The latest published decision is Matter of M—D—S-
& 8 I. .h N. Dec. 200 (1958). 311 —D — S, a native and
national of Canada, whose case was considered with two`other unrelated cases, entering for permanent residence on November-26, 1957,
returned to 'Cinada and for two weeks commuted daily to employment in Detroit, Michigan. She stopped' working to be with her
husband who was seriously ill; he passed away a few days later. She
did not enter for the next nine months 'because she had lost the services of the housekeeper ,who cared for her child and was unable to
'Both opinions are very brief; neither discusses the law. In. Matter of
Williams, the alien commuted to his work from 1923'to October 1046 when a
heart attack confined him to his home in Canada. Be sought to reenter to
resume employment on June 1•, 1947. During the entire period of his illness
he was carried on sick leave. The Service without stating a reason found him
to be a returning resident. In Matter of James, the alien •ommuted to employment for live months to May 1040 then stopped for a reason not , 0110V711 but
-
perhaps dim to her pregnancy since the *order authorizing admission in January
1947 as a returning resident states, "It appears that her husband - has now
succeeded in finding living quarters in the United States. and the appellant
intended to join him during January IAA after the -birth of her child."
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- Interim Decision #1001
find another. A month, 'alter securing a housekeeper, she applied
for admission to take employment with either her former employer
or another individual, both having solicited her services. The clues-
- tion then arose as to whether she was still a cominiiter. Making a.
creneral review of the commuter situation, the Board citing Matter
*of D—C—, supekpointed out (at pp. 212-3) that there is a tolling
of the six-month period during the disablement of a commuter who
had not lost his job. The Board distinguished the cases before it
from Matter of L—, swpra,loy'pointing out that L— had not last
his job and the aliens had. However, the Board did.not treat the
aliens as disabled commuters biit in each case ordered the aliens excluded on the ground that they had lost commuter statue beep,use
they had been unemployed for more than six months.
We answer in the affirmative the question as to whether the illness -
of the applicant's child should excuse her absence from the United.
States. In the one case discussing the situation it is shown that the
illness of a child is an important factor. , In Matter of McM =,,
supra, the applicant who had given birth in December but had not
applied for admission until the followine, May was ordered admitted
• as a commuter, although absent more than six months, on the finding
that she had "been receiving medical attention for herself and child"
and that her absence was "due to her illness and the care cf her infant child." (Emphasis supplied.) Indeed it is clear here that the
long and dangerous illnesses of the applicant's child, her duty, and.
her natural affection created a. situation which has effectively incapacitated her for employment as would have either a broken member
in her own body or the carrying of the child in pregnancy .(see
Mendelsohn v. Dulles., 207 F.2d 37 (D.C. Cir. 1953) ; Maher of M—,
5 I. & N. Dec. 598). The applicant should therefore be consideed
as though she were an alien incapacitated by her own illness.
We have seen that the rule as to the disabled commuter iithat intention governs to the same extent it does in the ease of a domiciled
alien (Matter of F— footnote at pp. 526-7,,3 I. & N. Dec.). Since
the test for the domiciled alien is.whether he intended to abandon
domicile, the test for the employed commuter who becomes disabled
is whether he intended to abandon his employment.
Applicant's admission should be ordered. Within a, short time
after the disabling•circumstances'which prevented her from continuing her employment were removed, she resumed employment in the
°Ikea States. She now desires to enter to continue with her employment.
ORDER: It is ordered that the admission of the applicant as a
commuter be authorized. .
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