XVII.-COMMUTERS Historical Background, Legal Challenges, and Issues Prepared for the Select Commission on Western Hemisphere Immigration by The Immigration and Naturalization Service United States Department of Justice COMMUTERS The aliens referred to as "commuters" are those aliens who have been lawfully accorded the privilege of residing permanently in the United States but who choose to reside in foreign contiguous territory and commute to their place of employment in the United States. The Service does not maintain statistics on the number of aliens who commute to work in the United States, but a sample count taken in January 1966 revealed that on the day the count was taken more than 53,000 aliens entered as commuters. Of these, more than 42,000 entered over the Mexican border. There follows a detailed analysis of the historical background and current status of the commuter program and a brief outline of the various issues which have been raised both in and outside the Government relating to commuters. Historical background Commuters-Background People have commuted across both borders of the United States to work since the borders were established. Until 1921 there were no numerical limitations on immigration and aliens were free to come to employment in this country so long as they did not infringe the contract labor restrictions or fall within the classes of aliens excluded by law. When numerical limitations were placed on immigration in 1921, aliens resident in Mexico and Canada for more than 1 year were exempted from those restrictions and no special problems involving commuters were encountered before 1924. The temporary legislation of 1921 was succeeded by the Act of May 26, 1924, which established a permanent system of quota allocation and control. While natives of Western Hemisphere countries were not subject to the quota limitations, immigrants from those countries were thereafter required to obtain and present immigrant visas to enter the United States. In administering the 1924 Act, commuters were first considered temporary visitors for business and were free to continue to come to their employment in this country. However, on April 1, 1927, the immigration authorities reversed their former position and declared that aliens coming to work in the United States were to be classified as immigrants.1 This interpretation by the immigration authorities was immediately challenged in the courts but in 1929 it was upheld by the Supreme Court.2 In studying the problem at that time, the immigration authorities concluded that Congress had not intended to interfere with the established pattern of regular border crossings by workers from Mexico or Canada who commuted to jobs in the United States. While such aliens could obtain immigrant visas without difficulty, they would be faced with an impossible task if they were required to obtain a new visa for each daily reentry. Consequently, the immigration authorities devised a border crossing identification card which could be used by aliens who frequently cross the international boundary. The issuance and use of such border crossing cards received express sanction by the Congress in the Alien Registration Act of 1940. 3 Thus a commuter was able to procure an immigrant visa and subsequent lawful admission as an immigrant. Thereafter he would obtain a border crossing identification card, and with that card he could enter each day to go to his job as returning to his immigrant status in the United States. This arrangement was in harmony with the established good-neighbor policy with Mexico and Canada, facilitated travel across the Mexican and Canadian borders, and avoided serious dislocations in the border areas. The commuter program was well known to the Congress and was discussed and endorsed, by implication, in the comprehensive study by the Senate Judiciary Committee which preceded enactment of the 1952 Immigration and Nationality Act.1 Nothing in the Immigration and Nationality Act or its legislative antecedents indicated that the Congress was dissatisfied with the commuter program or desired to change it in any way." In June 1963 Subcommittee No. 1 of the Committee on the Judiciary of the House of Representatives made a comprehensive study of commuter workers and there was no indication that the committee was dissatisfied with the commuter program as it was then administered by the Service. The commuter program is an administrative application of the legislative design to our Mexican and Canadian border areas. It is a unique arrangement which has functioned for almost 40 years and its special character is aptly described in the following excerpt from a decision of the Board of Immigration Appeals: "The commuter situation manifestly does not fit into any precise category found in the immigration statutes. The status is an artificial one, predicated upon international relations maintained and cherished between friendly neighbors." Acquisition of commuter status The first step in attaining commuter status is to achieve a lawful admission to the United States as an immigrant. Like all immigrants, the commuter must apply for an immigrant visa and must meet all of the requirements of the Immigration and Nationality Act. He must obtain a labor certification to show that there is a shortage of workers in the United States in his particular occupation and that his entry will not adversely affect wages and working conditions of U.S. residents. Upon admission, his entry as an immigrant is recorded and in due course he receives an alien registration receipt card, form I-151, colloquially known as a green card. This alien registration receipt card certifies his admission to the United States as an immigrant and under current regulations, it can be presented as an entry document following temporary Rule 3, subdividison Q, Par. 1, Immigration Rules of Jan. 1, 1930. S. Rept. 1515, 81st Congress, 2d sess., p. 535. Exclusion proceedings, A-7675485: Decided by the Board Mar. 16, 1954. (5 I&N Dec. 716). Study of Population and Immigration Problems, Administrative Presentations III, Admission of Aliens into the United States for Temporary Employment and Commuter Workers, Special Series No. 11, Committee on the Judiciary, Subcommittee No. 1, House of Representatives. absences from the United States of less than 1 year. Under present procedures, the card has replaced the special border crossing identification card which at one time was issued to commuters. The commuter is readmitted upon presentation of his form I-151 when coming from his home in Mexico or Canada to his employment in the United States. Like all aliens, he is not infallibly assured of a right of reentry, since if at any time he applies for admission to the United States there is a ground of inadmissibility, he can be excluded. While infrequent, a number of such cases develop each year. Retention of Commuter Status An alien is entitled to commuter status only if he has a permanent and stable job in this country. If he does not have such a job, commuter status is not acquired. If, after he has acquired commuter status, he is out of employment in the United States for more than 6 months, he is deemed to have abandoned his commuter status, even though he may have made temporary reentries during that period for other than employment purposes. However, the commuter status will not be lost if the employment in the United States has been interrupted by uncontrollable circumstances such as serious illness, pregnancy, or disabling injury.9 LEGAL CHALLENGES The first legal challenge to the commuter program arose out of a strike at the Peyton Packing Co. plant in El Paso, Tex., in 1960. Under the then existing law, the Secretary of Labor certified that the admission of aliens for employment at the struck plant would adversely affect wages and working conditions in the United States. The Immigration Service enforced the certification except with regard to aliens who had been lawfully admitted for permanent residence and who were returning from a temporary absence, since such aliens were exempt from the bar to readmission by the statute. The Service held that commuters were within this exempt class. In the court case the presiding judge took issue with the latter conclusion. He reviewed the commuter program and took no position as to its legality. However, he held that commuters could not be regarded as returning residents for the purposes of the certification. In his view a contrary holding would "make a shambles" of the aim of the provisions of law designed to provide safeguards for American labor. The presiding judge's decision was rendered in denying the Government's motion for dismissal of the complaint and for summary judgement. However, when a proposed final judgement was presented, the presiding judge declined to issue a mandatory order against the Attorney General, since by that time the case virtually had become moot and no appeal was taken.10 More recently a direct assault on the commuter program was made in a law suit by a union and a number of its members challenging the legality of the commuter 78 CFR 211.1 Exclusion proceedings A-11152100, decided by the Board May 11, 1960. (8 I&N Dec. 643 (1960)). • Exclusion proceedings A-11135619, A-1132260, A-10367389, decided by the Board Dec. 12, 1958. (8 I&N Dec. 209 (1958)). 10 Amalgamated Meat Cutters v. Rogers, 186 F. Sup. 114 (D.C. 1960). |