0800-118322.
Decided by Board March 8, 1955.
Visitor for business — Section 101 (a) (15) (B) of Immigration and Nationality Act — Annual sale of Christmas trees.
Nonimmigrant status under section 101 (a) (15) (B) of the Immigration and Nationality Act is not established by an alien who seeks to enter the United States for a period of two weeks to sell Christmas trees previously purchased by her in Canada, where the evidence shows that she has engaged in such business for the preceding three years and intends to continue therein for an indefinite number of years in the future.
EXCLUDABLE:
Section 212 (a) (20) of the Act of 1952 — Not in possession of a valid, unexpired immigrant visa and valid passport.
BEFORE THE BOARD
Discussion: The case is before us on certification by the Acting Assistant Commissioner, Inspections and Examinations Division, of the order dated December 31, 1954, pursuant to 8 C.F.R. 6.1 (c).
The record relates to a native and citizen of Canada, 45 years old, female, who applied for entry into the United States at the port of Detroit, Michigan, on December 12, 1954, for the purpose of selling Christmas trees retail and wholesale at the Eastern Market in Detroit, Michigan, until December 25, 1954. The applicant and her husband had purchased Christmas trees in Burk's Falls, Ontario, Canada, for sale in the United States from the end of November until December 25, 1954, and have done so for the past three years. Apparently the applicant will remain in the United States for several weeks until the trees are sold. She however has no intention of abandoning her residence or domicile in Canada. She and her husband expect to continue in the seasonal business of selling Christmas trees for an indefinite number of years in the future. The question to be decided is whether the applicant is admissible as a nonimmigrant temporary visitor for business or whether she is to be regarded as an immigrant and required to present the necessary immigrant documents.
The term "immigrant" is defined in section 101 (a) (15) (B) as excluding 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 or temporarily for pleasure. The pertinent regulation of the Department of State, 22 C.F.R. 41.40 (b) sets forth that the term "business," as used in section 101 (a) (15) (B) of the act, refers to legitimate activities of a commercial or professional character. It does not include purely local employment or labor for hire. 22 C.F.R. 41.42 (b) provides that an alien applying for a visa as a nonimmigrant under the provisions of section 101 (a) (15) (B) of the act shall establish specifically that: (1) he has residence in a foreign country which he has no intention of abandoning; (2) he is not classifiable under any of the nonimmigrant categories defined in section 101 (a) (15) (F), (H), or (I) of the act; (3) he is proceeding to the United States temporarily for one of the purposes specified in section 101 (a) (15) (B) of the act; (4) he intends in good faith, and will be able, to depart from the United States at the expiration of a temporary stay; (5) he is in possession of a valid foreign visa or other form of permission to enter some foreign country upon the termination of his temporary stay; and that (6) he has made adequate financial provision to enable him to carry out the purpose of his travel to, sojourn in, and departure from the United States.
The definition in the present act as to a temporary visitor for business or pleasure differs but very little from the definition contained in section 3 (2) of the prior Immigration Act of 1924 which stated that when used in that act the term "immigrant" meant any alien departing from any place outside the United States destined for the United States except an alien visiting the United States temporarily as a tourist or temporarily for business or pleasure. The word "business" as used in section 3 (2) of the Immigration Act of 1924 was held to be limited to intercourse of a commercial character on the reasoning that Congress did not intend to admit aliens temporarily for business to engage in labor for hire in competition with the American workers whose protection it was sought to procure. The business for which the alien is coming must be temporary and not continuing or permanent in character; not only the visit but the business must be of a temporary character. Thus, the business has been held not to be of a temporary nature when the applicant while continuing to reside in foreign contiguous territory sought to enter daily to operate a restaurant in the United States; to peddle Mexican produce; to sell Canadian bread to retailers and consumers; or where entry was desired several times weekly to continue a business of 10 years' standing to sell and deliver to 340 subscribing customers in the United States 600 magazines each week of a foreign publication. In the latter case the regularity and permanence of the activity precluded a finding that the business was temporary.
Karnuth v. United States ex rel. Albro, 279 U.S. 231, 241.
Matter of C----, 56172/725; Matter of R---- V----, 55977/752 (June 20, 1938).
Matter of R---- V----, idem.
Matter of G----, 56107/744 (October 9, 1942).
Matter of B----, 56038/402 (May 21, 1940).
Matter of C---- R----, 56158/342 (December 16, 1944).
An alien was found to be a temporary visitor for business who, while continuing to reside in Mexico, came across the border almost daily to pick up scrap paper here for which he paid and who returned on the same day to Mexico where he sold the scrap paper, earning his living by such transaction. This case laid down the following significant considerations to be stressed: (1) there is present a clear intent on the part of the alien applicant to continue the foreign residence and not abandon the existing domicile; (2) the principal place of business, and the actual place of eventual accrual of profits, at least predominantly, remains in the foreign country; (3) while the business activity itself need not be temporary, and indeed may be long continued, 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 existence of the two preceding considerations.
Matter of G---- P----, A-7828235, 4 IN Dec. 217 (C.O. 1950).
Matter of G---- P----, ( supra, note 7); Matter of G----, Int. Dec. No. 626 (1954). These cases cite the following instances in which it was held that the alien was entitled to the status of a temporary visitor for business: Matter of G----, A-7182159 (C.O., 1949), alien bought green peppers in Mexico and brought commodity to United States by truck, thereafter making deliveries in United States, performing the incidental manual labor as a sole operator since major portion of alien's time was not spent in the United States nor his major source of income earned in the United States; Matter of S----, A-6877300 (C.O., 1948), sales representative of Canadian advertising firm was admitted as temporary visitor for business to solicit accounts of long standing which would continue indefinitely in the future; Matter of McC----, A-7134304 (C.O., 1949), Canadian proprietor of general trucking business who entered the United States to unload fish which he had been doing for eight years because relatively short part of work day was spent in the United States; Matter of S----, A-7118993 (C.O., 1949), business activity by Canadian firm operating eleven trucks comprising the sale of Canadian-bought fish in New York with return load of fruit in New York at twice-weekly intervals; Matter of N---- Y----, A-6149811 (C.O., 1947), sales agent for Mexican banana exporting firm who entered frequently for 60-day periods to work with an American company to whom his firm sold bananas; Matter of C----, A-6811403, B.I.A., Dec. 15, 1948, 3 IN Dec. 407, trucker and peddler who seasonably bought potatos in Colorado for resale in Mexico; Matter of A----, A-7176002 (July 28, 1949, B.I.A.), Mexican customs broker subleased part of an office in the United States and spent several hours a day in the United States as convenience to shippers in connection with exportation of United States goods to Mexico but maintained principal place of business as licensed Mexican customs broker in Mexico.
In the instant case the seasonal trade in Christmas trees has existed for the past three years and is expected to continue indefinitely in the future. The applicant is assisted by her husband who buys the trees in Ontario, Canada, and has taken a leave of absence from his work as a fireman on the railroad for the months of November and December. The husband testified that he purchased the trees from various farmers who brought them to his place in Canada. It is to be noted that the sale of the trees at wholesale and retail takes place in the United States and the accrual of profit occurs entirely in this country. The trees are to be sold in the local market in Detroit. The applicant engaged in the Christmas tree business only in the United States; in Canada she is a housewife. In view of these considerations of the regularly recurring seasonal nature of the business for an indefinite number of years in the past and in the future, the sale of the trees and conduct of the business solely in the United States, and the accrual of profits entirely within this country, it is concluded on the basis of cited decisions that the applicant's status is not consistent with that of a nonimmigrant visitor for business within the provisions of section 101 (a) (15) (B) of the Immigration and Nationality Act.
Order: It is ordered that the appeal be and the same is hereby dismissed.