Maintaining Permanent Resident Status as a Commuter LPR

Maintaining Permanent Resident Status, myattorneusa.com

 

Introduction: Rules for Commuter Lawful Permanent Residents

A lawful permanent resident (LPR) may be permitted to live in Canada or Mexico and commute to the United States for work while maintaining LPR status. In this article, we will example the relevant statutes, regulations, and administrative and judicial guidance on the maintenance of LPR status for commuter LPRs from Canada or Mexico.

To learn about issues involving the abandonment of LPR status for non-commuter LPRs, please see our articles on the Department of State (DOS) rules [see article] and on relevant administrative and judicial precedent on the issue [see article].

Relevant Regulations Pertaining to the Maintenance of Status

The main regulations for commuter LPRs are found in 8 C.F.R. 211.5(a)-(c). The regulations explain the rules for when a commuter LPR may commute to the United States as a special immigrant as defined in section 101(a)(27)(A) of the Immigration and Nationality Act (INA). Section 101(a)(27)(A) defines as a special immigrant an “immigrant lawfully admitted for permanent residence, who is returning from a temporary visit abroad.” Under section 101(a)(13)(C), an alien who was admitted as an LPR will not be regarded as seeking admission upon reenter so long as he or she has not abandoned or relinquished LPR status or so long as he or she has not been absent from the United States for a continuous period in excess of 180 days. To learn more about when an LPR can be regarded as an alien seeking admission rather than as a special immigrant returning resident, please see our full article [see article].

Under 8 C.F.R. 211.5(a), an alien admitted as an LPR may reside in a foreign contiguous territory (Canada or Mexico) and commute to his or her place of work in the United States. The regulation states clearly that the alien “may commence or continue reside” in a foreign contiguous territory. This means that an alien who was residing in the United States while in LPR status may become a commuter LPR without relinquishing or abandoning LPR status. The regulation explains that, if the alien commuter is engaged in seasonal work, he or she 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 6 months, in the aggregate, in any continuous 12-month period. Nevertheless, the regulation is explicit that the commuter LPR's address report under section 265 of the INA must list his or her actual residence address even though that place of residence is not in the United States.

Under 8 C.F.R. 211.5(b), a commuter LPR who has been out of regular employment in the United States for a continuous period of 6 months “shall be deemed to have lost [LPR] status.” The commuter LPR will be deemed to have lost status even if he or she made temporary entries into the United States for reasons other than employment. However, the regulation lists two exceptions where the commuter LPR would not be determined to have lost status:

When the employment in the United States was interrupted for reasons beyond the commuter LPR's control and for reasons other than a lack of job opportunity; or
When the commuter LPR can demonstrate that he or she worked 90 days in the United States in the aggregate period preceding the application for admission into the United States.

If the commuter LPR is found to have lost status for being out of regular employment in the United States, his or her Form I-551, Permanent Resident Card, will become invalid and he or she will be required to surrender it to an immigration officer.

Department of State Guidance on the Maintenance of Status

The DOS's Foreign Affairs Manual (FAM) provides guidance to consular officers regarding commuter LPRs in 9 FAM 202.2-6(A)(g).

The FAM explains that a commuter LPR may present a valid Form I-551 instead of an immigrant visa and passport in order to cross the border to engage in his or her employment in the United States. The FAM makes clear that, so long as the alien is commuting to engage in “daily or seasonal work” that is “regular or stable” and is otherwise meeting the requirements in 8 C.F.R. 211.5, the alien may be treated as a special immigrant under section 101(a)(27)(A) of the INA rather than an applicant for admission.

Commuter Lawful Permanent Resident Cards

The Form I-551 for a commuter LPR will indicate that the LPR does not reside in the United States, but rather that he or she commutes from Canada or Mexico. This is explained both in section 51.2(c)(4) of the Adjudicator's Field Manual (AFM) and in section 21.8(b)(3) of the old Inspector's Field Manual (IFM). Because a Form I-551 indicates whether the LPR resides in the United States, the LPR must file a Form I-90 with the United States Citizenship and Immigration Services (USCIS) if he or she goes from commuter LPR status to residing in the United States, or if he or she goes from residing in the United States to commuter LPR status (see 8 C.F.R. 264.5(b)(5)).

Restrictions for Commuter Lawful Permanent Residents

While an LPR is allowed to maintain status while living in Canada or Mexico and commuting to work in the United States, 8 C.F.R. 211.5(c) explains that there are certain benefits commuter LPRs may not avail themselves of that are otherwise available to LPRs who reside in the United States.

First, the regulation explains that an LPR cannot satisfy the residency requirements for eligibility for naturalization unless he or she actually resides in the United States. This means that time spent residing in Canada or Mexico in LPR status will not count toward meeting the residency requirement for naturalization eligibility.

Second, a commuter LPR “cannot qualify for any benefits under the immigration laws on his or her own behalf or on behalf of his or her relatives” other than as specified in 8 C.F.R. 211.5(a). This means, for example, that a commuter LPR may not confer status upon a relative so long as he or she does not reside in the United States.

The regulation explains that,when an alien takes up residence in the United States, he or she will no longer be regarded as a commuter LPR. A commuter LPR who moves to the United States is advised to notify the USCIS as soon as he or she takes up residence in the United States. The regulation explains that it is preferable that the LPR do so at the time of his or her first entry into the United States after changing his or her country of residence. Once a commuter LPR takes up residence in the United States, he or she will be eligible to accrue qualifying residency toward eligibility for naturalization and to petition to confer status on eligible relatives.

It is important to remember that 8 C.F.R. 264.5(c)(5) requires a commuter LPR taking up residence in the United States, or an LPR who had a residence in the United States becoming a commuter LPR, to apply for a replacement Form I-551.

Supreme Court and Administrative Precedent

The law regarding whether commuter LPRs were eligible to return to the United States as special immigrants under section 101(a)(27) of the INA was unclear prior to 1974. In 1974, the Supreme Court resolved the issue in Saxbe v. Bustos, 419 U.S. 65 (1974) [PDF version], holding that LPR commuters could be considered as returning from a “temporary visit abroad” when entering the United States to work, and they were, therefore, classifiable as special immigrants. Saxbe v. Bustos applies equally to both daily and seasonal commuters. In reaching its decision, the Court's majority parsed the term “lawfully admitted for permanent residence,” finding that, in accordance with section 101(a)(20) of the INA, it means having “the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant … such status not having changed.” The Court explained that the statute does not require an LPR to reside in the United States to be classifiable as a special immigrant. Rather, the Court focused on the privileges accorded by LPR status, which it listed as follows:

1. LPRs may remain in the United States indefinitely;
2. LPRs may work in the United States;
3. LPRs may return to the United States after a temporary visit abroad;
4. LPRs have the privilege of establishing a permanent residence in the United States.

Accordingly, the Court held that both seasonal and daily commuters from Canada and Mexico may be classifiable as special immigrants, since “returning” to the United States to work is a return from a “temporary visit abroad.” The current regulatory scheme is imbued with the principles of Saxbe v. Bustos. The regulations and DOS guidance that we discussed in the previous sections set the rules for when a commuter LPR's return follows from a “temporary” trip abroad and when circumstances are such that the return is not from a temporary trip, resulting in the loss of LPR status.

In the Matter of Kane, 15 I&N Dec. 258 (BIA 1975) [PDF version], the Board of Immigration Appeals (BIA) held that Saxbe v. Bustos only applies in the context of commuter LPRs, and it does not have broader application to other LPRs. For other LPRs, the primary issue is whether the LPR maintained the subjective intent to maintain his or her permanent residence in the United States when making a trip abroad. However, the Board did hold in Kane that Saxbe v. Bustos did establish the principle that, in general, the regulatory phrase “unrelinquished lawful permanent residence in the United States” (now found in 8 C.F.R. 211.1(b)(3)) “can have reference to something less than a permanent dwelling place in the United States.”

Please see the links in the introduction to this article to learn more about general issues regarding the abandonment of LPR status.

Conclusion: Commuter Lawful Permanent Residents

The regulations make clear that it is possible to maintain LPR status while commuting from a place of residence in Canada or Mexico in order to work in the United States. Commuter LPRs must be aware of the work requirements in the United States in order to maintain LPR status. If a commuter LPR has an uncertain employment situation or an issue that may prevent him or her from working, he or she should consult with an experienced immigration attorney immediately concerning what he or she may need to do in order to maintain LPR status. LPRs who hope eventually to apply for citizenship or to petition to confer status onto a spouse or child will be required to take up an actual place of residence in the United States. If an LPR is changes from being a commuter LPR to an LPR who lives in the United States, or from living in the United States to becoming a commuter LPR, he or she should consult with an experienced immigration attorney for guidance on what such a move would mean for his or her immigration status, and for assistance in ensuring that he or she properly completes the requisite documentation with the USCIS.

Resources and Materials:

Kurzban, Ira J. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: AILA Publications, 2014. 1204, Print. Treatises & Primers.