IMMIGRATION LAW MONTHLY

Immigration Law Monthly

March 1997

I am planning to visit Europe this summer. I am working for a well-known semiconductor company which sponsored me for H-1 work permit. I have never been out of status during my student days. I am an Indian citizen. How likely is it for me to obtain my H-1 multiple entry in Canada or Mexico. Is one country preferable to other? Any particular consulate in Canada or Mexico which is more likely to grant H-1 visa?

Cuidad Juarez was once considered a good place for third country nationals (TCNs) to get their visas renewed. However, this situation has changed. Many TCN cases in Juarez are now being refused. Consular posts in Canada were once considered bad places for TCNs to apply for visas, at least relative to Cuidad Juarez. This situation has also changed. Currently, Canada is better than Mexico for TCN processing. However this does not necessarily mean that getting a visa in Canada will be easy.

The US consulate in Toronto is about as good as it gets in North America so that is the consulate I would recommend, at least today. Vancouver has always been notorious for refusing almost all TCN cases. As far as I know, this has not changed. There are other US consulates located in Canada which may still be okay (for example, Calgary was previously a good place for TCNs to go), but I don't have any current information on these posts.

I am a French citizen, living in the US, with an E-2 Visa, granted for a two year duration period. I intend to marry a young lady in Canada who has a 7 year old child. Both carry dual citizenship:Canadian and Polish. Could you please state what are my options for having them come and stay in the United States with me ? What are the practical steps to receive such privilege? The issue of dependents of E visas holders is rarely -- if ever -- discussed, and I would really appreciate your thoughts on this issue.

You are currently in E-2 status as a principal investor and national of France. The dependents (legal spouse and unmarried children and under 21) of E visa holders are entitled to accompany the principal alien to the United States for the same period of stay. The dependents of treaty traders and treaty investors must have visas but need not meet the nationality requirements which apply to the principal applicant. Therefore, the nationality of your spouse and child would be irrelevant, except with regard to your choice of consulate.

Once you are married, your spouse would be able to apply for a visa as an E-2 dependent status at a consulate, based on your current status. Assuming that you are not the father, the child will still be considered a dependent if, at the time the relationship is established, the step-child has not reached the age of eighteen. Therefore, once you are married your wife will be permitted to apply for an E-2 dependent visa for her as well.

Because they are both Canadian citizens residing in Canada, they can apply at a US consulate located in Canada once you are married. The US consulate in Toronto is the only consulate issuing E visas to principal investors but it may be possible to obtain an E-2 dependent visa from another consulate in Canada. If your (soon to be) wife and child intend to apply at a US consulate other than the one in Toronto, I recommend calling the post first. They could also apply at a consulate in Poland, but this is obviously less desirable.

I heard something about an "alien commuter" doctrine which allows someone to live outside the United States without losing his or her lawful permanent residence. Is this true?

Yes, it is true. Alien commuters are discussed in 8 CFR §211.5. Special commuter status relates only to aliens who live in contiguous foreign countries and work in the United States. According to 8 CFR §211.5(a), an alien lawfully admitted for permanent residence or a special agricultural worker lawfully admitted for temporary residence under section 210 of the Immigration and Nationality Act may commence or continue to reside in foreign contiguous territory and commute as a special immigrant defined in §101(a)(27)(A) of the Act to his place of employment in the United States. Such commutation may be daily or seasonal for employment which, on the whole, is regular and stable.

As indicated above, there are actually two kinds of commuters:

One type of alien commuter lives in Canada or Mexico and commutes across the border to work in the United States. While residence is preserved for abandonment of residence purposes, time spent in "alien commuter" status cannot be applied toward residence requirements for naturalization purposes.
The other type of alien commuter comes to the United States for extended periods as an agricultural worker, returning home when the seasonal employment ends. However, an alien commuter engaged in seasonal work will be presumed to have taken up residence in the United States if he is present for more than six months, in the aggregate, during any continuous 12-month period.

According to 8 CFR §211.5(b), 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 his residence status, notwithstanding temporary entries in the interim for other than employment purposes, unless his employment in the United States was interrupted for reasons beyond his control (such as serious illness, pregnancy, or disabling injury) other than lack of a job opportunity or he can demonstrate that he has worked ninety days in the aggregate during the twelve-month period preceding his application for admission into the United States.

A commuter who actually maintains a residence abroad will not qualify for other benefits accorded to lawful permanent residents under the immigration and nationality laws. Also, until he or she has taken up residence in the United States, an alien commuter cannot satisfy the residence requirements of the naturalization laws and cannot qualify for any benefits under the immigration laws on his own behalf or on behalf of his relatives.