A-8863817 A-8863818.
Decided by Board December 28, 1955.
Nonimmigrant — Section 101 (a) (15) (B), Immigration and Nationality Act — Factors to be considered — Canadian farmers.
(1) In determining eligibility for admission as a temporary visitor for business, the significant factors for consideration are: (a) is there a clear intent on the part of the alien applicant to continue his foreign residence and not to abandon his existing domicile; (b) are the principal place of business and the actual accrual of profits predominantly in the foreign country; (c) are the various entries into the United States of a plainly temporary nature (although the business activity itself need not be temporary and may be long continued).
(2) Eligibility for nonimmigrant status under section 101 (a) (15) (B) of the Immigration and Nationality Act for the purpose of entering the United States for one day periods to sell produce in Detroit markets is established where the primary business of the aliens is farming in Canada and a substantial portion of the crops produced is disposed of in Canada or sold at wholesale in advance to factors and commission merchants in the United States. Additional retail trade in the United States to dispose of surplus not sold at wholesale is merely incidental to the principal business of bringing in produce as international commerce and does not change the fundamental purpose of the various entries.
EXCLUDABLE:
Act of 1952 — Section 212 (a) (20) — Aliens not in possession of valid unexpired immigrant visas and passports.
BEFORE THE BOARD
Discussion: These cases are before us on appeal from two decisions of the special inquiry officer at Detroit, Michigan, dated August 1, 1955, directing that the appellants be excluded from the United States on the above-stated ground. The issue in the cases is whether they may properly be classed as bona fide nonimmigrant visitors for business.
The subject B---- is a 48-year-old married male alien, a native and citizen of Canada. He resides on a farm in Ruthven, Ontario, with his wife and their one child. He has lived in that community all of his life. He owns a farm of 43 acres, on which he resides. His occupation is that of a farmer, growing fruits and vegetables.
The subject K---- is a 32-year-old married male alien, a native of Yugoslavia and a naturalized citizen of Canada. He resides with his wife and two children on a farm near Ruthven, Ontario, Canada. He jointly owns a 75-acre farm with his father and also rents 200 acres which he operates himself. His occupation is that of a farmer, raising fruits and vegetables.
Both the subjects applied for admission to the United States for the day to sell produce in Detroit. B---- has been coming here for 30 years for this purpose. K---- has been entering since 1941 to do so, though he originally stated he had only been doing it for six or seven years.
According to counsel, the farmers in and around Ruthven, Ontario, Canada, have been bringing their produce (radishes, onions, tomatoes, potatoes and melons) to the Detroit markets for generations. He has traced this practice back for 65 years, and asserts that it can be traced back much farther in history. He states that there are about 80 or 85 growers in the area at the present time, and that about 40 or 50 of them use the facilities in Detroit for disposing of their produce. He sets forth that some of them do so only occasionally, whereas others make it a regular practice. He claims that those who come here depend on the sales they make in Detroit markets solely to supplement the direct sales from their farms in Canada. He sets forth that this practice is only seasonal between the middle of May and mid-September, and that during the busy times the farmers enter the United States daily, while at other times they come in only once or twice a week. Finally, he urges that Canadian farmers should be permitted to continue this practice in view of the fact that they have to compete in their own domestic market with great quantities of American produce which finds its way into Canada.
B---- sells 40 percent of his crops wholesale in Canada and the remaining 60 percent he disposes of in Detroit. Of the latter, he sells 10 percent in advance to commission houses; he sells 80 percent wholesale to factors; and he sells 10 percent retail to housewives, etc. K---- sells 60 percent of his produce on the open market in Canada and he disposes of 40 percent in Detroit. Of the latter, he sells 70 percent in advance to commission houses; he sells 20 percent to factors; and he sells 10 percent retail.
The sales to factors are based on dealings over a long period which have resulted in an understanding that certain factors will have their needs, determined by orders received from their customers daily, satisfied by the subjects. As far as the subjects are concerned, these understandings are in the nature of verbal contracts. In other words, they look to certain factors to take their produce.
The subjects desire to sell all their produce wholesale, and resort to retail sales only to dispose of what they cannot sell otherwise. Generally speaking, the goods thus sold are perishable and would result in loss if not disposed of in this manner. In this connection, both subjects have state licenses to sell retail and pay the state's sales tax out of their profits.
The sales to factors and at retail are made in the Western or Eastern Markets in Detroit, where the subjects rent stalls on a daily basis. Being Canadians, they are unable to rent stalls annually and can only use those not occupied for the day by American farmers who have rented them seasonally.
Section 101 (a) (15) (B) of the Immigration and Nationality Act defines a visitor for business as an alien having a residence in a foreign country which he has no intention of abandoning and who is visiting the United States temporarily for business. By pertinent regulation, 22 C.F.R. 41.40 (b), the term "business" as used in section 101 (a) (15) (B) of the act refers to legitimate activities of a commercial or professional character, not including, however, purely local employment or labor for hire. This regulation embodies the holding of the Supreme Court in Karnuth et al. v. United States ex rel. Albro, 279 U.S. 231, 241, to the effect that the term "business" as used in section 3 (2) of the act of 1924 was limited in application to intercourse of a commercial character. However, the exclusion of purely local employment or labor for hire in the regulation from the term "business" would not appear to preclude local employment or labor for hire which was incidental to legitimate activities of a commercial or professional character of a temporary nature. Significant considerations to be stressed are that there is a clear intent on the part of the alien applicant to continue the foreign residence and not to abandon the existing domicile; the principal place of business, and the actual place of eventual accrual of profits, at least predominantly, remains in the foreign country; while the business activity itself need not be temporary, and indeed, may long continue, the various entries into the United States made in the course thereof must be individually or separately of a plainly temporary nature, in keeping with the existence of the two preceding considerations ( Matter of G---- P----, A-7828235, 4 IN Dec. 217).
In Matter of G----, T-2680097, Int. Dec. No. 626, and Matter of M----, 0800/118322, Int. Dec. No. 689, a number of decisions are cited in which application for admission was sought as a nonimmigrant. The rationale of the decisions is sometimes not clear, but an attempt has been made to decide the cases in harmony with considerations laid down above. Sometimes the facts of the case are so intermingled that the question resolves itself into one of degree. Matter of M----, supra, would on the first glance appear analogous to the present case. In that case a Canadian woman sought to enter the United States for a period of two weeks to sell Christmas trees previously purchased by her in Canada for sale in the United States, a course of conduct she had engaged in for the preceding three years and intended to continue indefinitely in the future. During that period the appellant and her husband who was to assist her engaged in no business in Canada but their sole income was derived from the sale of the trees at wholesale and retail in this country. In view of the considerations of the regularly recurring seasonal nature of the business for an indefinite number of years, the sale of the trees and the conduct of the business solely in the United States, and the accrual of profits entirely within this country, it was concluded that the applicant's status in that case was not consistent with that of a nonimmigrant for business. That case is, however, to be distinguished from the instant case because in the cited case there was involved a purely local business not connected with any activity related to international trade or commerce. The purchase of Christmas trees in Canada was solely for the purpose of sale in the United States at a local level and the entire profits as well as the business activity were to accrue and to be undertaken entirely within this country.
In the instant case, however, the primary business in which these applicants are engaged is that of farming in Canada. A substantial portion of the crops produced is disposed of in Canada or sold at wholesale in advance to factors and commissioned merchants. The remainder which is sold in the United States is merely incidental to the bringing in of the produce in international commerce and constitutes a small portion of the business activity. The retail trade appears designed to dispose of the surplus not sold at wholesale in order to eliminate transportation back to Canada or to avoid spoilage. In this case, clearly, the applicants intend to continue their Canadian residence, and their principal place of business, as well as accrual of profit, is predominantly in Canada. The various entries into the United States are individually and separately of a plainly temporary nature in connection with their principal business which is intercourse of a commercial character. The sale at retail is a mere incident of the legitimate commercial activity of the applicants and the presence of such incidental sales at retail does not impair or change the fundamental purpose of the applicants in entering the United States, which is, to engage in business as defined in section 101 (a) (15) (B) of the Immigration and Nationality Act and 22 C.F.R. 41.40 (b). It is concluded that the applicants may properly be regarded as temporary visitors for business.
Order: It is ordered that the aliens be admitted as temporary visitors for business for periods not exceeding 24 hours at any one time.