Commuter LPRs: Non-Resident 'Lawful Permanent Residents'

How many are there? No idea.

By Andrew R. Arthur on August 31, 2020

In a post last week on changes implemented by CBP at the ports of entry to dissuade non-essential travel over the U.S.-Mexican border, I referred to the "little-known subcategory of 'commuter''' lawful permanent residents (LPRs). Given the fact that LPRs are given green cards to actually live in the United States, this raises the question of why this category exists at all. The answer turned out to be much, much more complicated than I ever imagined.

Interestingly, LPRs "returning from a temporary visit abroad", are technically "special immigrants" as that term is defined in section 101(a)(27)(A) of the Immigration and Nationality Act (INA) . That is "interesting" because most "special immigrants" are aliens who were not LPRs to begin with, as USCIS's webpage on the subject explains, stating: "A special immigrant is a person who qualifies for a Green Card (permanent residence) under the United States Citizenship and Immigration Services (USCIS) special immigrant program." (Emphasis added.)

But section 101(a)(20) of the INA states: "The term 'lawfully admitted for permanent residence' means the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed." That means that LPRs already have green cards. (NB: this will not be the only time I refer to this provision.)

So why would LPRs be included with, among others, religious workers, special immigrant juveniles, and Iraqis who assisted the U.S. government as "special immigrants"? The answer to that question can be found in the foundational INA, the Immigration and Nationality Act of 1952.

Section 101(a)(27) therein originally defined "nonquota immigrant", during a time when a quota system by national origin (set forth in section 201 of the INA of 1952, and which originated in the Immigration Act of 1924) governed the issuance of immigrant visas. Section 101(a)(27)(B) of the INA of 1952 (logically) excluded from the quota returning LPRs, or else a number would be lost every time they were admitted.

The quota system was abolished by the Immigration and Nationality Act of 1965, ("nonquota immigrant" had been renamed "special immigrant" in the interim), but the reference to returning LPRs remained, an apparent vestige of a bygone age. But not as vestigial as it would seem.

The immigration laws apply differently to LPRs than they do to most aliens. LPRs can work here, return to this country from brief trips abroad, and live here indefinitely. In addition, different rules apply to their exclusion from the United States when they are at the ports of entry.

Under Supreme Court precedent, aliens in the United States are entitled to due process protections, but the Court has recognized that those rights are extremely restricted for arriving aliens seeking admission to the United States. They have no right to seek bond from the immigration court pending removal, and by statute, an arriving alien seeking admission bears the burden of establishing that he or she "is clearly and beyond doubt entitled to be admitted and is not inadmissible".

Under section 101(a)(13)(C) of the INA, however, an LPR is not regarded as seeking admission — and therefore is not subject to the aforementioned burden of proof — even if arriving at a port of entry from abroad, subject to certain exceptions. That provision was added to the INA by section 301 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA).

Among those exceptions are where the alien "abandoned or relinquished" LPR status, or "has been absent from the United States for a continuous period in excess of 180 days" (consistent with, and clarifying section 101(a)(20)(A) of the INA).

This is also consistent with the definition of "permanent" in section 101(a)(31) of the INA, and "residence" in section 101(a)(33) of the INA, both of which interpret the term "lawfully admitted for permanent residence" in section 101(a)(20) of the INA (set forth above). According to section 101(a)(31) of the INA:

The term "permanent" means a relationship of continuing or lasting nature, as distinguished from temporary, but a relationship may be permanent even though it is one that may be dissolved eventually at the instance either of the United States or of the individual, in accordance with law.

Section 101(a)(33) of the INA, in turn, states: "The term 'residence' means the place of general abode; the place of general abode of a person means his principal, actual dwelling place in fact, without regard to intent."

All of which brings me back to commuters. How, exactly, can an alien have a "permanent residence" abroad, and enter the United States on a regular (or as set forth below, semi-regular) basis, and still nonetheless be an LPR?

That is where it gets complicated (and convoluted). Included in its regulations implementing IIRIRA, the Clinton administration added 8 C.F.R. § 211.5, captioned "Alien commuters". That regulation was issued as part of an interim final rule (IFR), but it does not appear that there was a subsequent final rule, and the IFR never discusses the topic of LPR commuters at all — it simply creates the regulation.

That regulation provides than an LPR can live in a contiguous country and commute to work in the United States, and still be considered a "special immigrant" under section 101(a)(27) of the INA. Alternatively, an LPR can engage in seasonal labor in this country and still be presumed to have taken up residence here so long as that seasonal employment adds up to six months in the aggregate in any 12-month period.

If that commuter is unemployed for a continuous period of more than six months, he or she loses LPR status, even if the alien enters the United States for other purposes. An exception applies if the alien's employment was interrupted for reasons beyond his or her control, and the alien worked 90 days in the aggregate in this country in the 12 months before seeking admission.

As if admitting that commuter LPRs are not, you know, really LPRs, that regulation provides that residence outside of the United States does not count toward naturalization, and LPR commuters cannot petition for immigration benefits for their alien relatives as other LPRs can — at least until they move to a residence in this country.

If this rule appears to be unmoored from the INA to you, I would agree. And here, it gets more complicated.

In 1974, in Saxbe v. Bustos, the Supreme Court considered a suit against the administrative commuter LPR rule brought by the United Farm Workers Organizing Committee (UFWOC). For those who are not familiar, the UFWOC was organized by Cesar Chavez and others to organize for farmworkers' rights.

Specifically, the UFWOC was challenging the administratively created "practice of giving alien commuters the documentation and labor certification benefits of classification as immigrants 'lawfully admitted for permanent residence' who are 'returning from a temporary visit abroad'", a practice that did not then appear in the regulations.

The UFWOC contended that those commuters really fell into the category of temporary nonimmigrant workers under then-section 101(a)(15)(H)(ii) of the INA (a predecessor to today's H-1B and H-2B visas), and therefore should have had to prove that there are no unemployed workers who could do the jobs they were coming to do. The Court, using some interesting logic, concluded that those aliens were immigrants, not nonimmigrants, so that requirement did not apply.

The Court then turned to the question of whether they were "special immigrants" under section 101(a)(27) of the INA, "that is, whether commuters are 'lawfully admitted for permanent residence' when they have no actual residence in this country."

Again, interestingly, the Court concluded that the term "lawfully admitted for permanent residence" in section 101(a)(20) of the INA referred to "a status or privilege which need not be reduced to a permanent residence to be satisfied, so long as that status has not changed."

Craftily, the Court held that while an applicant for permanent residence had to state whether he or she intended to live here permanently, "the Act does not declare or suggest that the status will be denied him, if he does not intend to reside permanently here." I guess that is technically true, but it sort of defeats the purpose of asking the question. The Court then concluded that commuter LPRs "can be viewed as 'returning from a temporary visit abroad'" — failing to add that it is a visit to a residence where they actually live, have families (if any), and keep their stuff.

Lest you think that Justice Douglass, writing for the majority, made this all up out of whole cloth, you would be (to some degree) mistaken. In fact, the idea of commuter LPRs actually went back to a specific date, April 1, 1927, when the then-Bureau of Immigration issued General Order No. 86. He explained:

Under the order, commuters were required to gain admission as immigrants before they could have border crossing privileges. The order provides that "[a]liens who have complied with the requirements of this General Order governing permanent admission will be considered as having entered for permanent residence."

Because Congress was apparently (in intervening years) aware of the practice, the Court held it had, in essence, adopted it (logic that would likely not hold much weight with at least four of the current justices). And, Justice Douglas noted, the Board of Immigration Appeals (BIA) had held that the INA of 1952 did not affect the practice, as some had argued.

The Court then found that there was no difference between daily commuters and seasonal commuters (likely the target of the UFWOC), and ending the practice would disrupt tens of thousands and affect communities on both sides of the border. So he dismissed the UFWOC's petition for declaratory and injunctive relief against the practice.

Justice White, writing for himself and Justices Brennan, Marshall, and Blackmun, was having none of it. He began:

The Court, in reaching an interpretation of the immigration statutes which permits a finding that daily and seasonal commuters from Mexico and Canada are "special immigrants" not subject to documentation and numerical restrictions upon entry to this country, contravenes one of the cardinal principles of statutory construction: "administrative practice does not avail to overcome a statute so plain in its commands as to leave nothing for construction." ... In light of the characteristics of the aliens whose status is in question and the ordinary meaning of the very specific terms Congress used in these immigration statutes, this principle applies with force here.

To no avail, however, as he was writing in dissent.

The Board of Immigration Appeals (BIA) had to tiptoe around Bustos in its decision in Matter of Kane, where it found that an LPR from Jamaica who returned to her home country for 11 months every year to run a lodging house (her source of income), and came to the United States for one month per annum to a room she rented by the week, had abandoned her status.

It concluded that the Court in Bustos had meant to limit its determinations to daily commuters and seasonal workers ("because of the singular history" of LPR commuters' status), and left it at that, relying instead on the actual language of sections 101(a)(31) and (33).

It continued, however, distinguishing between an LPR with "continuing and substantial ties with this country through his employment", and the one hand, and "one who has no ties of residence or employment, either because he has abandoned them, or because he never had them in the first place" on the other. The BIA may have been able to find such a distinction, but under the INA, neither was truly a "lawful permanent resident".

None of this really explains, however, where the commuter LPR regulation, 8 C.F.R. § 211.5, came from to begin with. IIRIRA, which it purported to implement, made no reference to either seasonal or commuter LPRs. Again the only pertinent provision in that act, section 301, which amended section 101(a)(13)(C) of the INA, never mentions it, and the word "commuter" appears exactly one time in IIRIRA as a whole — referring to "commuter" pilot lanes at ports of entry. Nor is there any reference in the conference report for that bill.

It was as if the Clinton administration simply took IIRIRA as an opportunity to codify a 22-year-old five-to-four Supreme Court decision (and an almost 70-year-old administrative rule).

By the way, at the time it issued Bustos, there were 42,000 daily LPR commuters from Mexico, 10,000 from Canada, and some 8,300 seasonal commuters, by INS's estimate. How many are there today? I have no idea, because DHS does not publish statistics on this unique cohort of "non-resident permanent resident aliens."