'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, ex- cept 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" notwith- standing his employment in the United States is only part-time, is self-em- ployment, and Is not (lolly. • FaCIATDABLE : Act of 1952—Section 212(a) (20) (8 U.S.C. 1182(a) (203—Immi- grant 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. Em- ployment in Vermont. of about four weeks was stopped when he required an operation. After spending about two months recovering, 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 bar- ring entry ordered :applicant admitted. . A comniuter,is an alien.admittid to. the United States for perma- nent 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 be- cause 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. na- tionals • '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 per- form 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 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 mat- ters: 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 employ- ment has satisfied the requirement that employment be stable and permanent (Matter of 1—P—, 9 I. & N. Dec. 591; Matter of Chapar- ro-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 aban- dned 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 com- muter status must be reasonable, substantial and probative and con- sidered in view of the fact that the commuters are technically re- garded as legally resident, aliens. Moreover : where commuters in- volved 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 adjudica- tion 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 regula- tion 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.)

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 ad- mitted 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 pur- pose, 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 law- fully 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 sustain- ing 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 em- ployment 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 employ- ment (two hours) that it would be fanciful to consider it stable employment, or 'eases involving the pretence of a ground of inad, naisbltyoperh."