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 11965 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, interruption of work due ta.uncontiol 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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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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