56156/551
Decided by the Board December 16, 1943.
Contract laborer — Professional singer.
One under contract to come to the United States to sing with an orchestra at a salary is a professional singer and as such is not inadmissible as an alien contract laborer notwithstanding that she had never sung professionaly before.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1917 — Alien contract laborer.
Mr. Max Wilfand, Board attorney-examiner.
STATEMENT OF THE CASE: The appellant, a 22-year-old native and citizen of Canada, was accorded a hearing before a board of special inquiry at Montreal, Province of Quebec, Canada, on November 23, 1943, to determine her admissibility to the United States. The board of special inquiry, by a majority vote, excluded her on the ground above stated and her appeal is now before us for consideration.
DISCUSSION: The appellant seeks admission to the United States in possession of a section 4 (c) immigration visa and a valid Canadian passport in order to begin her career in the United States as a professional singer. She is under contract with one Danny White of Boston, who is apparently in the amusement business in that city, and is to be employed by him as a "principal singer" at $65 weekly, minus 10 percent. The contract period is 6 months with an option to her employer. During that time the appellant will be a "blues" singer with an orchestra. The contract is the standard form contract of the American Guild of Variety Artists. Though it states that the appellant is a member of this organization and that both parties will abide by the constitution, bylaws, rules, and regulations of the Guild, she has not yet joined but expects to become a member when she arrives in the United States and begins her employment.
The majority of the board of special inquiry concluded that the appellant is inadmissible as a contract laborer, in which recommendation the Central Office apparently concurs. For the past 5 years the appellant has been employed as a photography model. She has never sung professionally and has never had any training or done any studying in music. She has sung at private house parties and at some school concerts. Danny White heard her sing at one of these parties and as a result the contract under consideration was executed by them.
Section 3 of the Act of February 5, 1917, excludes from the United States "persons * * * who have been * * * solicited to migrate to this country * * * in consequence of agreements * * * to perform labor in this country * * *." It is clear that the appellant has been solicited to migrate here by reason of an agreement to perform labor in the United States. One issue to be determined is whether she is to perform "labor" within the meaning of the Act of February 5, 1917. The purpose of the contract labor provision is "to arrest the bringing of an ignorant, servile class of foreign laborers into the United States under contract to work at a low rate of wages, and thus reduce other laborers engaged in like occupation to the level of the assisted immigrant" ( Scharrenberg v. Dollar Steamship Co., 245 U.S. 122, 126; see also Church of the Holy Trinity v. United States, 143 U.S. 457). "This provision of the statute does not refer nor apply to persons whose work requires mental, rather than merely manual effort, as its dominant element" ( Ex parte Gouthro, 296 Fed. 506; see also Ex parte Aird, 276 Fed. 954; Holy Trinity Church v. United States, supra). Manual labor, as the term is ordinarily used and in its accepted meaning, refers to labor that is performed with one's hands, and that requires physical exertion ( Russell Flour Feed Co. v. Walker, 148 Okla. 164; Arizona Eastern R. Co. v. Matthews, 20 Ariz. 282; City of Atlanta v. Hatcher, 31 Ga. App. 633). To sing is "to produce, especially in a proper or skilled manner, tones generated by vibrations of the vocal chords and resonated by the various cavities of the mouth, nose, etc." ( Webster's New International Dictionary, second edition.) We feel that it could hardly be contended that a singer performs such manual labor as to bring him or her within the excluding provisions of the contract labor clause of the Act of February 5, 1917.
It should be further noted that the fifth proviso of section 3 of the Act of February 5, 1917, excepts professional singers from the contract labor provision of said section. As used in this proviso, "the term `professional' is applied to one undertaking or engaging for money as a means of subsistence in a particular art. It is opposed to amateur and, as used in the statute, refers to one who pursues an art or makes a living therefrom ( United States ex rel. Deliannis v. Commissioner of Immigration, 298 F. 449, 450; see also United States ex rel. Liebmann v. Flynn, 16 F. 2d 1006, 1007). The Central Office of the Immigration and Naturalization Service is of the opinion that the appellant does not come within the fifth proviso because she is not now and never has been a professional singer. That the appellant has never worked as a professional singer is unquestioned. However, in applying the contract labor provisions of the Act of February 5, 1917, we are not primarily concerned with what work, occupation, or profession the alien performed prior to his or her application. Our function is to determine whether the labor to be performed in the United States brings the alien within the excluding provisions of the contract labor clause or within its exceptions. The alien's past employment may be relevant in this inquiry, but only as an aid in determining the type of work he will perform in this country.
The appellant is under contract as a principal singer. That is a type of work to be performed by her in the United States. Whether she is a good or a bad singer, experienced or inexperienced, likely to be successful or unsuccessful, is not for us to determine. In our opinion the work to be performed by her in the United States establishes her future status as a "professional singer" within the meaning of the fifth proviso of section 3 of the Act of February 5, 1917. Hence, even if we were to say that she is subject to the contract labor provisions of said act, she would be exempted therefrom under the fifth proviso. We shall now order her admission.
FINDINGS OF FACT: Upon the basis of all the evidence presented, it is found:
(1) That the appellant is an alien, a native and citizen of Canada;
(2) That the appellant seeks admission to the United States pursuant to an agreement to work here as a principal singer at $65 weekly, minus 10 percent.
CONCLUSIONS OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under section 3 of the Act of February 5, 1917, the appellant is not inadmissible as a contract laborer who has been solicited to migrate to the United States by reason of an agreement to perform labor here;
(2) That under the fifth proviso of section 3 of the Act of February 5, 1917, the appellant is exempted from the contract labor provisions of the said act by reason of the fact that she is to be employed in the United States as a professional singer.
ORDER: It is ordered that the appeal be sustained and the appellant admitted for permanent residence.