Generally, a foreign national who is a permanent resident of the United States must reside permanently in the United States or else risk losing permanent resident status. However, persons who have been granted U.S. permanent resident status can live in Canada or Mexico, even though they have no actual residence in the United States, without losing permanent resident status or a “green card” 1 if they commute regularly to employment in the United States. Such persons are considered to be “alien commuters” or “green card commuters.” 2 Show
A. Qualifications for Alien Commuter Status Alien commuter status stems from a U.S. administrative practice dating back to at least 1927, of admitting commuters as immigrants and permitting them border-crossing privileges as returning residents afterwards, despite the lack of a permanent residence in the United States. While there is no statute covering the category, there are regulations concerning the special condition, primarily at 8 CFR 211.5 and 8 CFR 316.5. To become a commuter, the foreign national must have been granted permanent resident status in the United States, typically through an employment-based or a family-based sponsorship. Permanent resident status is defined as "the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed." 3 Alien commuters are considered to fall into the category of “special immigrants.” 4 1. Residing in Canada or Mexico Alien commuter status is available to residents of “foreign contiguous territories” sharing a common boundary with the United States. 5 Accordingly, it is limited to residents of Canada and Mexico. The regulations provide that the person may “commence or continue to reside” in either of those countries. Accordingly, the person can be any of the following:
However, the person must commute from Canada or Mexico and not from a third country that is not contiguous to the United States. 6 2. Working in the United States To qualify as an alien commuter, the person must have “regular and stable” employment in the United States. 7 Part time and intermittent work is acceptable if, on the whole, it is regular and stable. 8 However, there is no bright-line rule about how much time the person must spend or plan to spend in the United States to qualify as an alien commuter. Guidance from the State Department suggests that a person is either a “daily” commuter or a “seasonal commuter”: “Such alien may commute as a special immigrant, as defined in INA 101(a)(27)(A), to the alien's place of employment in the United States to engage in daily or seasonal work which, on the whole, is regular and stable.” 9 U.S. Citizenship & Immigration Services (“USCIS”) guidance, on the other hand, is less restricted: There are two types of commuters, those who commute regularly, normally entering at least twice weekly, and those who enter to perform seasonal work for extended periods, but whose annual stay in the United States is for less than six months.10 Presumably, a permanent resident who commutes to the United States less than twice weekly could still qualify as an alien commuter with evidence that he or she commuted “regularly” to engage in “regular and stable employment.” Commuting is not limited by distance from the border, and there is no limitation of where the person must live within the contiguous territory or where he or she must work within the United States. Accordingly, it would appear that the person could commute by land, air, or sea to the place of employment anywhere in the United States. Entries to the United States for purposes other than employment, however frequent the visits and for whatever duration, do not count for alien commuter status. 11 While occasional visits for nonbusiness purposes should be permitted, the person could lose permanent resident status if an immigration officer determined that he or she did not have regular and stable U.S. employment. In addition, an alien commuter who has ceased working in the United States for more than six months, except for circumstances beyond the person’s control, might lose permanent resident status and have to give up his or her green card unless he or she moved to the United States. The alien commuter must provide proof of regular and stable U.S. employment every six months. 12 B. Activities in the United States The alien commuter enjoys the following privileges of permanent resident status:
There are some limitations on the status. The alien commuter may not petition for permanent resident status for family members. However, if family members accompany the person to the United States in permanent resident status and one or more of them converts to alien commuter status, the others’ permanent resident status is not affected. One other limitation on the alien commuter is that the person does not accrue time toward becoming a naturalized citizen of the United States while an alien commuter. 14 C. Obtaining an Alien Commuter “Green Card” A person who seeks alien commuter status must first follow normal immigration procedure to be accorded status as an “immigrant” to the United States. He or she must apply for an immigrant visa and a green card. The application can be processed either through the USCIS or by a U.S. Consulate or Embassy abroad. Initially, in either case the person’s passport typically will be stamped to reflect normal immigrant status, that is, without reflecting alien commuter status, and the green card will be sent to the person later after it is processed. When the person enters the United States for the first time as an immigrant, he or she informs the U.S. Customs and Border Protection (CBP) immigration officer at the border crossing or airport that he or she intends to live in Canada or Mexico and to maintain status as an alien commuter. The CBP will have the person complete a Form I-178 every six months and provide evidence of regular employment in the United States. The green card will be annotated to reflect alien commuter status. A person already granted permanent resident status may apply for commuter status by filing a Form I-90 Application to Replace Permanent Resident Card, and indicating “I am a permanent resident who is taking up commuter status.” The form may be filed online. The applicant will need to be present in the United States for a biometrics appointment to process fingerprints and photographs. Once granted commuter status, the individual will receive a replacement green card with the code “C2” for commuter. Every six months, the commuter must appear at a port-of-entry to complete a form I-178 to CBP, and provide proof of both continuous employment in the United States, and residence in Canada or Mexico. D. Switching to “Regular” Permanent Resident Status An alien commuter who takes up residence in the United States is no longer regarded as a commuter. After deciding to reside in the United States, the person should file a new Form I-90 indicating, “I am a commuter who is taking up residence in the U.S.” E. Other Implications Immigration officers may ask all permanent residents returning to the United States about the length and nature of the trip abroad and about the ties and purpose for returning to the United States. A person without sufficient ties to the United States can be deemed to have abandoned permanent resident status, and the immigration officer can confiscate the green card. If you have questions about maintaining permanent resident status, contact us or a qualified U.S. immigration attorney. Adopting alien commuter status, or converting to full permanent resident status, also may have U.S.- or foreign-tax implications, including estate-planning implications. Persons considering such actions should consult a qualified international tax and/or estate planning attorney in our office or elsewhere about tax and other consequences.
Introduction: Rules for Commuter Lawful Permanent ResidentsA lawful permanent resident (LPR) may be permitted to live in Canada or Mexico and commute to the United States for work while maintaining LPR status. In this article, we will example the relevant statutes, regulations, and administrative and judicial guidance on the maintenance of LPR status for commuter LPRs from Canada or Mexico. To learn about issues involving the abandonment of LPR status for non-commuter LPRs, please see our articles on the Department of State (DOS) rules [see article] and on relevant administrative and judicial precedent on the issue [see article]. Relevant Regulations Pertaining to the Maintenance of StatusThe main regulations for commuter LPRs are found in 8 C.F.R. 211.5(a)-(c). The regulations explain the rules for when a commuter LPR may commute to the United States as a special immigrant as defined in section 101(a)(27)(A) of the Immigration and Nationality Act (INA). Section 101(a)(27)(A) defines as a special immigrant an “immigrant lawfully admitted for permanent residence, who is returning from a temporary visit abroad.” Under section 101(a)(13)(C), an alien who was admitted as an LPR will not be regarded as seeking admission upon reenter so long as he or she has not abandoned or relinquished LPR status or so long as he or she has not been absent from the United States for a continuous period in excess of 180 days. To learn more about when an LPR can be regarded as an alien seeking admission rather than as a special immigrant returning resident, please see our full article [see article]. Under 8 C.F.R. 211.5(a), an alien admitted as an LPR may reside in a foreign contiguous territory (Canada or Mexico) and commute to his or her place of work in the United States. The regulation states clearly that the alien “may commence or continue reside” in a foreign contiguous territory. This means that an alien who was residing in the United States while in LPR status may become a commuter LPR without relinquishing or abandoning LPR status. The regulation explains that, if the alien commuter is engaged in seasonal work, he or she will be presumed to have taken up residence in the United States if he or she is present in the United States for more than 6 months, in the aggregate, in any continuous 12-month period. Nevertheless, the regulation is explicit that the commuter LPR's address report under section 265 of the INA must list his or her actual residence address even though that place of residence is not in the United States. Under 8 C.F.R. 211.5(b), a commuter LPR who has been out of regular employment in the United States for a continuous period of 6 months “shall be deemed to have lost [LPR] status.” The commuter LPR will be deemed to have lost status even if he or she made temporary entries into the United States for reasons other than employment. However, the regulation lists two exceptions where the commuter LPR would not be determined to have lost status: When the employment in the United States was interrupted for reasons beyond the commuter LPR's control and for reasons other than a lack of job opportunity; or If the commuter LPR is found to have lost status for being out of regular employment in the United States, his or her Form I-551, Permanent Resident Card, will become invalid and he or she will be required to surrender it to an immigration officer. Department of State Guidance on the Maintenance of StatusThe DOS's Foreign Affairs Manual (FAM) provides guidance to consular officers regarding commuter LPRs in 9 FAM 202.2-6(A)(g). The FAM explains that a commuter LPR may present a valid Form I-551 instead of an immigrant visa and passport in order to cross the border to engage in his or her employment in the United States. The FAM makes clear that, so long as the alien is commuting to engage in “daily or seasonal work” that is “regular or stable” and is otherwise meeting the requirements in 8 C.F.R. 211.5, the alien may be treated as a special immigrant under section 101(a)(27)(A) of the INA rather than an applicant for admission. Commuter Lawful Permanent Resident CardsThe Form I-551 for a commuter LPR will indicate that the LPR does not reside in the United States, but rather that he or she commutes from Canada or Mexico. This is explained both in section 51.2(c)(4) of the Adjudicator's Field Manual (AFM) and in section 21.8(b)(3) of the old Inspector's Field Manual (IFM). Because a Form I-551 indicates whether the LPR resides in the United States, the LPR must file a Form I-90 with the United States Citizenship and Immigration Services (USCIS) if he or she goes from commuter LPR status to residing in the United States, or if he or she goes from residing in the United States to commuter LPR status (see 8 C.F.R. 264.5(b)(5)). Restrictions for Commuter Lawful Permanent ResidentsWhile an LPR is allowed to maintain status while living in Canada or Mexico and commuting to work in the United States, 8 C.F.R. 211.5(c) explains that there are certain benefits commuter LPRs may not avail themselves of that are otherwise available to LPRs who reside in the United States. First, the regulation explains that an LPR cannot satisfy the residency requirements for eligibility for naturalization unless he or she actually resides in the United States. This means that time spent residing in Canada or Mexico in LPR status will not count toward meeting the residency requirement for naturalization eligibility. Second, a commuter LPR “cannot qualify for any benefits under the immigration laws on his or her own behalf or on behalf of his or her relatives” other than as specified in 8 C.F.R. 211.5(a). This means, for example, that a commuter LPR may not confer status upon a relative so long as he or she does not reside in the United States. The regulation explains that,when an alien takes up residence in the United States, he or she will no longer be regarded as a commuter LPR. A commuter LPR who moves to the United States is advised to notify the USCIS as soon as he or she takes up residence in the United States. The regulation explains that it is preferable that the LPR do so at the time of his or her first entry into the United States after changing his or her country of residence. Once a commuter LPR takes up residence in the United States, he or she will be eligible to accrue qualifying residency toward eligibility for naturalization and to petition to confer status on eligible relatives. It is important to remember that 8 C.F.R. 264.5(c)(5) requires a commuter LPR taking up residence in the United States, or an LPR who had a residence in the United States becoming a commuter LPR, to apply for a replacement Form I-551. Supreme Court and Administrative PrecedentThe law regarding whether commuter LPRs were eligible to return to the United States as special immigrants under section 101(a)(27) of the INA was unclear prior to 1974. In 1974, the Supreme Court resolved the issue in Saxbe v. Bustos, 419 U.S. 65 (1974) [PDF version], holding that LPR commuters could be considered as returning from a “temporary visit abroad” when entering the United States to work, and they were, therefore, classifiable as special immigrants. Saxbe v. Bustos applies equally to both daily and seasonal commuters. In reaching its decision, the Court's majority parsed the term “lawfully admitted for permanent residence,” finding that, in accordance with section 101(a)(20) of the INA, it means having “the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant … such status not having changed.” The Court explained that the statute does not require an LPR to reside in the United States to be classifiable as a special immigrant. Rather, the Court focused on the privileges accorded by LPR status, which it listed as follows: 1. LPRs may remain in the United States indefinitely; 2. LPRs may work in the United States; 3. LPRs may return to the United States after a temporary visit abroad; 4. LPRs have the privilege of establishing a permanent residence in the United States. Accordingly, the Court held that both seasonal and daily commuters from Canada and Mexico may be classifiable as special immigrants, since “returning” to the United States to work is a return from a “temporary visit abroad.” The current regulatory scheme is imbued with the principles of Saxbe v. Bustos. The regulations and DOS guidance that we discussed in the previous sections set the rules for when a commuter LPR's return follows from a “temporary” trip abroad and when circumstances are such that the return is not from a temporary trip, resulting in the loss of LPR status. In the Matter of Kane, 15 I&N Dec. 258 (BIA 1975) [PDF version], the Board of Immigration Appeals (BIA) held that Saxbe v. Bustos only applies in the context of commuter LPRs, and it does not have broader application to other LPRs. For other LPRs, the primary issue is whether the LPR maintained the subjective intent to maintain his or her permanent residence in the United States when making a trip abroad. However, the Board did hold in Kane that Saxbe v. Bustos did establish the principle that, in general, the regulatory phrase “unrelinquished lawful permanent residence in the United States” (now found in 8 C.F.R. 211.1(b)(3)) “can have reference to something less than a permanent dwelling place in the United States.” Please see the links in the introduction to this article to learn more about general issues regarding the abandonment of LPR status. Conclusion: Commuter Lawful Permanent ResidentsThe regulations make clear that it is possible to maintain LPR status while commuting from a place of residence in Canada or Mexico in order to work in the United States. Commuter LPRs must be aware of the work requirements in the United States in order to maintain LPR status. If a commuter LPR has an uncertain employment situation or an issue that may prevent him or her from working, he or she should consult with an experienced immigration attorney immediately concerning what he or she may need to do in order to maintain LPR status. LPRs who hope eventually to apply for citizenship or to petition to confer status onto a spouse or child will be required to take up an actual place of residence in the United States. If an LPR is changes from being a commuter LPR to an LPR who lives in the United States, or from living in the United States to becoming a commuter LPR, he or she should consult with an experienced immigration attorney for guidance on what such a move would mean for his or her immigration status, and for assistance in ensuring that he or she properly completes the requisite documentation with the USCIS. Resources and Materials:Kurzban, Ira J. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: AILA Publications, 2014. 1204, Print. Treatises & Primers. |