Alien Commuters: U.S. Resident Status Without U.S. Residence

This is an important consideration because U.S. social security tax may be several thousand dollars higher than its Canadian counterpart. The exemption from U.S. social security taxation under the Totalization Agreement is not automatic, generally, one seeking the exemption obtains a Certificate of Coverage from Revenue Canada to present to the Internal Revenue Service (IRS). Additionally, an individual spending fewer than 183 days in a calendar year in the United States may be exempt from U.S. social security taxation. Practitioners may desire to refer a client who is considering assuming or abandoning "alien commuter" status to an international tax specialist for an assessment of the tax consequences of such a move. For more on the tax implications of commuter status, see box page 268.  

Problem Areas  

Alien commuters do not enjoy the full rights enjoyed by traditional permanent residents. There are three major limitations:

* Time spent in "alien commuter" status does not count toward residence requirements for naturalization purposes. 8 C.F.R. 211.5(C); 8 C.F.R. 316.5 (b)(3).  

* Alien commuters may not petition for immigration benefits on behalf of relatives. 8 C.F.R. 211.5 (c).

* INA 212(c) waivers (discretionary relief available to many permanent residents who have a continuous, unrelinquished U.S. domicile of seven years or more who have become excludable) are not available to alien commuters, as they do not have the U.S. domicile required for such relief. Matter of Garcia--Quintero, 15 I&N Dec. 244, (BIA 1975).

Procedural Considerations

Aliens in traditional LPR or SAW status may convert to commuter status and "commence" residing in a foreign contiguous territory; however, there are no rules or instructions regarding procedures to be followed in such cases. In practice, an alien commuter surrenders the alien registration card at the Port of Entry, along with Form I-90 application to Replace Alien Registration Card, three ADIT-style photographs, and a letter from an employer establishing qualifying regular and stable employment in the United States. The alien must write in after Item 2.e of Form I-90 the following. "I desire to become an alien commuter" (previous editions of Form I-90 had a box marked "Other" in which the above was written in, but this has been deleted from the current version). INS gives the alien a temporary card for entry to the United States. A new alien registration card reflecting "commuter" status is processed and sent to the alien in care of the U.S. employer.  

An alien entering the United States as a permanent resident for the first time who desires commuter status presents the following to INS officials at the border: the sealed visa envelope issued by the U.S. consulate, a letter requesting commuter status, and a letter from a U.S. employer verifying qualifying employment. The alien will be issued a Form I-551 coded to reflect "commuter" status.  

Alien commuters must satisfy the INS that, absent factors beyond their control, they have not been unemployed in the United Sates for more than six months at a time. To this end, every six months the INS requires proof of regular and stable U.S. employment from those in commuter status. Often this proof takes the form of a letter from a U.S. employer confirming continuing employment. An "alien commuter" may challenge loss of permanent resident status in exclusion proceedings.

An "alien commuter" may at any time abandon commuter status and take up actual residence in the United States. To do so, the alien file form I-90 to obtain a "green card" that is coded to reflect actual U.S. residence. 8 C.F.R.. 211.5(c); 8 C.F.R. 264.1(c)(2)(H). To become resident in the United States, the alien commuter must establish a residence in the United States and must have the intention to reside there permanently. Alien commuters engaged in seasonal work will be presumed to have taken up U.S. residence if they are present the United States for more than six months during any twelve-month period.

Alien commuters are required to present a valid Form I-151, I-551, or I-688 at the time of each entry into the United States, but they are not required to present an immigrant visa or passport after the initial entry. Aliens must also present a properly endorsed and dated Form I-178, Commuter Status Card, the document through which the INS monitors the date when the commuter must again present evidence of regular and stable employment in the United States. The I-178 Commuter Status Card is coded with the alien's "A" number and is also numbered 1 through 12 to reflect the month in which the alien must present evidence of regular and stable employment. It must be carried at all times while the alien is in the United States.

As previously noted, an alien commuter is precluded from petitioning for immigration benefits on behalf of relatives; however, if an alien originally enters the United States as a commuter and later converts to traditional LPR status, a qualifying spouse and children may follow to join. There is no statutory time limit within which a spouse or child may follow to join the principal alien. 9 Foreign Affairs Manual (FAM) 40.1, Note 7. Thus, if an alien opts for commuter status upon original entry to the United States and later abandons commuter status for regular permanent resident status, qualifying derivative relatives may "follow to join" the principal alien in the United States. Generally, to qualify as one following to join, the relationship between the principal and the derivative relative must have existed before the principal alien's original entry into the United States as a permanent resident. Matter of G-, 7 I&N Dec 731 (BIA 1958); 9 FAM 40.1, Notes 7.1, 7.2.-2. Should a spouse and children fail to qualify for status under the following to join rule, a lawful permanent resident who has abandoned commuter status and assumed residence in the United States may file immigrant visa petitions for dependents subject to quota backlogs.