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Commuter Aliens

Written by Henry J. Chang

General

In certain circumstances, an alien lawfully admitted for permanent residence may commence or continue to reside in foreign contiguous territory and commute to his or her place of employment in the United States. There are basically two types of commuters:

  1. Those who commute regularly, normally entering at least twice weekly; and

  2. Those who enter to perform seasonal work for extended periods, but whose annual stay in the United States is for less than six months.

The latter type are referred to as "seasonal commuters", also known as seasonal workers.

A commuter alien entering to seek or resume employment is regarded as returning from a temporary visit abroad and, if other applicable requirements are met, can enter as a returning lawful resident. However, like other permanent residents, an alien commuter is excludable upon reentry if he or she is then found to be inadmissible.

This commuter alien status relates only to aliens who live in contiguous foreign countries and work in the United States.

Loss of Commuter Status

An alien commuter who has been out of regular employment in the United States for a continuous period of six months shall be deemed to have lost commuter alien status, notwithstanding temporary entries in the interim for reasons other than employment. An exception applies when employment in the United States was interrupted for reasons beyond the individual's control (other than lack of a job opportunity) or when the commuter can demonstrate that he or she has worked ninety days in the United States, in the aggregate, during the twelve-month period preceding the application for admission into the United States. A seasonal worker 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 six months, in the aggregate, during any continuous twelve-month period. Such an alien will no longer be eligible for commuter status.

Alien Commuters Not Entitled to Immigration Benefits

Although an alien commuter is considered to be a returning permanent resident for the purposes of reentry, periods of time in commuter status may not be applied towards the residence requirement for naturalization. In addition, commuter aliens may not petition for family members. However, when an alien commuter actually takes up residence in the United States, he or she shall no longer be regarded as a commuter and these restrictions will no longer apply.

A commuter alien who has resumed residence in the United States may facilitate proof of having taken up such residence by notifying the INS as soon as possible, preferably at the time of his or her first reentry for that purpose. The resident alien may then apply for issuance of a new alien registration receipt card ("green card") to show the change in status.


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