Interim Decision #1637 

MATTER OF Bortaxxx 

In Exclusion Proceedings 

A-11698112 

Decided by Board September S, 1966 

A returning resident communter who has been absent from the United States 

due to uncontrollable eir' en/not:anew; (personal illness), who had no Intention to abandon commuter status, and who, less than six months after he 

again became employable, bas applied for admission at the border ready 

and able to start work immediately, has not abandoned his commuter status, 

not orltitstnnding he is destined to new employment, and he Is admissible 

to the United States as a returning resident alien commuter. 

EXCLIMABLE : Act of 1952—Section 212(a) (20) [8 U.S.C. 1182(a) (20)1—

Immigrant without a visa. 

The special inquiry officer ordered applicant's admission as a 

commuter, after an absence of more than six months following the 

onset of a serious illness, to take up a. new employment, and certified 

the case to the Board. 

Applicant is a 38-year-old married male, born in France and a 

citizen of Italy, who was lawfully admitted to the United States 

for permanent residence nu May 12, 1905. Ho became a commuter 

on the basis of a position he obtained with the Chrysler Corporation in Detroit, Michigan. He worked steadily at this job until 

October 11, 1965, when he suffered a heart attack. He was hospitalized for 25 days and thereafter restricted in his activities, on 

doctor's orders, for several months. He was supported during that 

time by sick benefits received from the Chrysler Corporation. Applicant reported back to Chrysler on January 18, 1966,-ready for 

work, but it was found there was no work available that he could 

perform. 

On July 15, 1966, applicant presented himself at the border for 

admission as -a commuter, with a letter establishingthe immediate 

availability of a job for him at Marico Incorporated, in Southfield, 

Michigan. He was considered by the immigrant inspector not to 

be clearly admissible as a commuter, by virtue •Aif -haviug been with791 
Interim Decision #1637 

out employment in the United States for a period in excess of six 

months. 

The facts of the case and the applicable law are clearly set forth 

in the special inquiry officer's decision. Certification[ is requested 

for the clarification of a single point: 

Has a • commuter lost or abandoned his status where, after an interruption 

in employment of more than six months; brthight about by uncontrollable 

circumstances (in this case, his own serious illness), be seeks to return to 

work for a new employer? 

We believe the special inquiry officer is correct in holding, on the 

facts in this case, that commuter status has not been lost. The 

applicant discontinued employment on October 11, 1965, solely by 

reason of illness;' that he had no intention of abandoning his status 

or employment is evidenced by the fact that as soon as he again 

became employable, which was on January 18, 1966, he immediately 

reported back to his original employer, ready to go to work; •but 

was unable to do so solely because of conditions there. Less than 

six months elapsed between that time and the time that he presented 

himself at the border, ready to resume work, and with evidence that 

a new job was immediately available to him. 

The background and incidents of "commuter" status have been 

set forth thoroughly in Matter of Bailey, at. Dec. No. 1546, and 

Matter of Burciaga-Bakedo, Int. Dec. No. 1601. The cases hold, 

without exception, that commuter status is not lost by being out of 

employment for six months or more, provided -such discontinuance 

of employment is brought about by uncontrollable circumstances 

such as accident, illness or pregnancy (this has been extended, in 

the Buroicuja-Baleedo case, supra, to include the mother who is not 

working because of the illness of her child). The cases go even 

further and hold that the duration of the disability is ILIA be to 

included in the six-month period, which is tolled until the applicant 

becomes employable again, and starts running only from that time. 

To .what employment must the commuter return? The prevalent 

opinion seems to be that he must go back, within six months after 

he becomes employable again, to the job on which he was working 

at the onset of the disability, thereby demonstrating that he has not 

lost his position. (Cf. Matter of B—, A-4089813, C.O., June 26, 

1946, cited in Editor's note to 3 I. & N. Dec. 519, at 527; Matter of 

L—, 4 L & N. Dec. 454 (C.O. 1951).) 

We do not believe that thic is a valid or necessary requirement. 

In Matter of Bureiaga-Salceclo, supra, we held the applicant admissible when the record showed that she was coming to take up 

new employment within the time limit; hi Matter of F—, A-6778561, 

792 
Interim Decision #1637 

Deb. 21, 1949, cited in Editor's note to 3 I. & N. Dec. 519, at 

526, the applicant. came into the United States to take up temporary 

employment with his brother and was held to have retained his 

commuter status. 

When it became necessary for: the commuter to be admitted. for 

lawful permanent residence, employer was administratively equated 

with domicile: The following guidelines were set out: 

An alien granted the border crossing privilege may lose such right in much 

the same manner as en alien• who has been admitted for the purpose of 

residence may • lose the right- to reenter. For instance, an alien residing in 

foreign contiguous territory and enjoying the border crossing privilege abandons such right when be discontinues his employment in the United States 

and does not renew, or seek to renew, same within a period of six months. 

Intention shall govern in such-cases to the same extent that it governs in the 

cases of aliens who depart from the United States for other countries after 

once having been admitted.' (Emphasis supplied.) 

Thereafter, a definite standard was set up, to the effect that when 

a commuter had been out of employment in'the United States for 

six months, he was to be deemed to have abandoned his status of 

residence in the United States. 2 

In the earliest case we have seen in which an equitable solution 

was sought -for the probleni of the commuter whose absence -of more 

than six months from employment was due to illness, the Central 

Office, in reliance upon the above, stated: 

From a perusal of the foregoing, it is evident that the salient points which 

determine abandonment of commuter's status are (1) intention and (2) ions 

of employment in the United States. Matter of B—, supra. 

It then went on to hold that even when it was established that 

there was no intent to abandon, it must also be shown that the 

previous employment was not lost. 

Aside from the question of whether "discontinues his employment" and "has been out of employment" are exact equivalents of 

"loss of employment," we believe- that the reading by the Central 

Office of the two guidelines, in the above case, was erroneous. The 

thrust of those documents was that discontinuance of employment 

without seeking to renew same within six months was to be deemed 

abandonment of commuter status, but that actual intention was 

to govern as to whether there had been such an abandonment, in 

the same way that it did for resident aliens who were absent from 

the United States for longer than the --permitted periods. The 

Central Office letter November 16, 1927, 55470/537–A. cited in Editor's Note 

to 3 I. & N. Dec. M. 

"O.I. 110.6, cited in Editor's note to 3 I. & N. Dec. 510. 

793 
Interim Decision #1637 

discontinuance "of employment was regarded as prime evidewe of 

the intention to abandon, and soon became a conclusive presumption 

of abandonment, except for the aliens whose nonemployrnent was 

due to the uncontrollable circumstances set forth above. It was 

not a separate and further factor that had to be disproved along 

with intent. 

There are many reasons why the interpretation in Matter of B—, 

supra, should not govern. First, it negates the concept of the tolling 

of the six-month period during actual disability, and its commencement only after the alien has once again become employable. If 

the alien who had been disabled and away from his work for more 

than six months could return only to his original position, what 

need would there be for a six-month period thereafter! He would 

have a job waiting and available for him, and would need only a 

tolling of the period of actual disability which exceeded six months. 

Second, it frustrates the purpose for which the tolling was 

evolved, namely, the assistance of the alien. who has been seriously 

ill or disabled for a substantial period of time. Very few employers, 

.outside of government or the major industrial organizations, are 

able or willing to keep a position open for a person who has been 

out ill for more than six months. Thus, the alien whose resources, 

physical, moral and financial, have been drained by a lengthy period 

of illness, with smaller income and larger expenses, who comes back 

to his employer in the hope of resuming his prior position, and is 

dealt the blow of learning there is no longer a job for him, is, 

if this interpretation is to -be followed, immediately dealt the equally 

serious blow of losing commuter status, and if there is an exclusion, 

he may be unable to apply for admission to the United States for 

a full year thereafter. • 

Third, it places the commuter who has been ill, and whose absence 

of more than six months has in effect-been "forgiven" by the tolling 

of the period until he is again employable, under a disability not 

borne by his fellow commuter who has not been seriously ill. The 

latter is not restricted to any one job or to any one employer. If he 

is displeased with a particular position, or is laid off because of 

lack of work, or even fired for cause, he can seek new employment 

wherever he can find it, and so long as he is not out of work for 

six months, there is no question of abandonment of his commuter 

status. But; if the Matter of B — interpretation is to govern, the 

commuter who has been ill, and had his absence during illness forgiven, ostensibly to place him on an equality with his fellow commuters, is restricted to applying for Work with his former employer, and if nothing is available there, possibly he might be 

794 
Interim Decision #103T 

considered to have maintained his status if a position were to open 

up for him with his former employer before the expiration of the 

six-month period.. He does not have the normal freedom to explore 

the labor market that his healthy colleague has, and to take work, 

which he urgently needs, wherever he can find it. 

We do not believe that such results were ever intended or desired. 

Where, as here, there was no intention to abandon commuter status, 

the pertinent absence was caused wholly by uncontrollable circumstances, and the applicant appeared at the border ready and able 

to start work immediately, less than six months after he became 

employable again, there has been no abandonment of commuter 

status despite a change in employment. 

ORDER: It is ordered. that no change be made in the order of 

the special inquiry officer. 

795