56062/120
Decided by the Board February 19, 1942.
Contract Laborer — Skiing instructor.
A skiing instructor is not inadmissible as a contract laborer since his activities do not involve manual labor.
FOUND INADMISSIBLE BY BOARD OF SPECIAL INQUIRY:
Act of 1917 — Contract laborer.
Mr. Daniel J. Schrull, Board attorney-examiner.
STATEMENT OF THE CASE: On January 29, 1942, pursuant to authority contained in letters of June 6, 1941, and January 15, 1942, the alien appeared before a board of special inquiry at Sacramento, Calif., for the purpose of having his admissibility determined were he to apply for admission to the United States in possession of an appropriate immigration visa. The board of special inquiry found that he would be inadmissible under the provisions of section 3 of the Immigration Act of 1917 as an alien who would be entering in violation of the contract labor provisions.
DISCUSSION: The alien arrived in the United States at the port of New York on December 12, 1939, as a passenger ex-S.S. Rex and was admitted by a board of special inquiry on the following day as a temporary visitor for 6 months. On August 16, 1941, his temporary admission was extended to December 31, 1941, and he was permitted to continue his employment as a skiing instructor.
The applicant stated that he is a native and citizen of Switzerland, now 30 years of age and single. Although he described himself as of the German race on one occasion he now claims to be of the Swiss race and explains the inconsistent testimony in the following way:
Q. It is observed that you were shown in the record evidence as being of the German race. Are your parents natives of Germany?
A. They were both born in Switzerland, so were my grandparents both sides. I don't think we have any German. I therefore consider myself of the Swiss race. In San Francisco they asked me what race are you and I answered Swiss race. The officer said there is no such thing, you are either French or Italian or German, and being from the German-speaking part of Switzerland, I figured I was German race.
Since his entry he has been employed as a skiing instructor, mountain guide, and a Hollywood movie double for 1 month in a skiing scene. Since August 1941 he has been employed at Strawberry Lodge, El Dorado County (Calif.), as manager of the sports division, director of the ski school, and in "resort work." His present employment does not include "resort work." He has a 5-months' contract which expires at the end of April and added that following that time he will probably work out some kind of employment with one of his present employers, but that he has no definite plans at the present time regarding the future. He testified however that he never earned any money in the United States from sources other than those connected with skiing. He has no financial investment in any enterprise in the United States but added were it not for his present employment he believes he would nevertheless be seeking admission to the United States.
The following appears in the record:
Q. Is it or is it not a fact that there is little calling for ski instructors in this country for a goodly proportion of the year?
A. I have two seasons mountain guide work in the high Sierras and once at Timberline Lodge up in Mount Hood. If I have the permission to do so, there is plenty of opportunities in being Technical Adviser on Ski Ways, being representative for a ski manufacturer, or designing certain ski clothes. There is a great field of possibilities if I am accepted under a quota visa. So far I haven't done it because I knew I wasn't allowed to.
Q. Then do we understand if you were permanently admitted into the United States you would seek a field of employment other than that of ski instructor?
A. I would try to go in ski-equipment business and in business which is connected with ski sports, ski manufacturing, or I don't know exactly what I want but I probably would take a line or representative going into the ski-equipment business.
It should be borne in mind that the applicant is under contract until April 1942. When asked whether he would continue in his present employment for an indefinite period of time were he to return for permanent residence he replied that he would stay at Strawberry Lodge and that "if Strawberry goes over and the war does not affect it too much I would plan on being there next season again" under the same conditions although "they may be a little better." He stated that there are not sufficient American-born skiing instructors in the United States at the present time; that within a few years there will be enough of them, but that resorts are now having a difficult time obtaining such instructors.
Although the testimony of the applicant does not clearly and definitely define his desire regarding his occupational activitiés upon admission for permanent residence, we believe that the record establishes that he would continue as a skiing instructor and engage in activities associated therewith, under contract. There is nothing specific in the record to indicate that he would engage in manual labor unless his skiing activities involve such duties. It therefore is necessary to determine whether a skiing instructor and the activities relating thereto are contemplated by that portion of section 3 of the Immigration Act of 1917 that requires the exclusion from the United States of aliens "hereinafter called contract laborers, who have been induced, assisted, encouraged, or solicited to migrate to this country by offers or promises of employment, whether such offers or promises are true or false, or in consequence of agreements, oral, written, or printed, express or implied, to perform labor in this country of any kind, skilled or unskilled." [Italics supplied.]
In the leading case of Church of the Holy Trinity v. United States, 143 U.S. 457, the court was called upon to determine whether the Act of February 26, 1885, applied to an alien residing outside of the United States who contracted to move into the United States and enter the service of a society as rector or minister. The court answered the question in the negative. It recognized that a literal interpretation of the broad language of the pertinent section of the statute was contrary to the intent of Congress. The section read as follows:
* * * That * * * it shall be unlawful for any * * *, corporation, in any manner whatsoever, to prepay the transportation, or in any way assist or encourage the importation or migration of any alien * * * into the United States * * *, under contract or agreement, * * * to perform labor or service of any kind in the United States, * * *. [Italics supplied.]
The title of this act is:
An act to prohibit the importation and migration of foreigners and aliens under contract or agreement to perform labor in the United States, its Territories and the District of Columbia.
Thus it will be noted that the title to the act does not include the words "or service of any kind" found in the body of the act. In interpreting, the court said:
Obviously the thought expressed in [the title to the act] reaches only to the work of the manual laborer, as distinguished from that of the professional man. No one reading such a title would suppose that Congress had in its mind any purpose of staying the coming into this country of ministers of the gospel, or indeed, of any class whose toil is that of the brain. The common understanding of the terms labor and laborers does not include preaching and preachers; and it is to be assumed that words and phrases are used in their ordinary meaning (p. 463).
From this expression and others it appears that the court considered the act limited in that respect. It is significant to observe, in this connection, that the pertinent section of the act under consideration in the instant case does not use the words "or service" but merely contains the phrase "to perform labor in this country of any kind." Since only the word "labor" is used it is reasonable to interpret the term as the Supreme Court did in the case previously cited, that is, "manual labor."
We are then called upon to determine whether the proposed skiing activities of the applicant, per se, involve manual labor. From our knowledge of the type of work that would be performed by such a person we could probably take judicial notice of the fact that his duties would not involve manual labor. We will not, however, content ourselves with this, but, in the absence of court decisions squarely on point, will consider administrative interpretations and rulings.
On April 6, 1937, the Immigration and Naturalization Service held that professional tennis, football, baseball, hockey, and soccer players applying for admission as such, were not to be considered as amenable to the excluding provisions of the contract labor law (Circular No. 95). On July 12, 1937, a similar application of the law was made with respect to professional boxers (Circular No. 134). If these activities, involving the actual physical participation in the specified forms of sport, do not involve manual labor, can it be said that teaching any of these sports would? Asking the question supplies its own answer. Should a contrary decision be reached in the case of a skiing instructor?
A point almost identical to the instant one was decided by the Deputy Commissioner, Legal Branch of the Immigration and Naturalization Service, on May 13, 1941 ( In re E---- W---- (56036/369)). That decision notes that a petition was presented requesting permission to import an alien for employment as a figure-skating instructor during the period of the summer ice season at Lake Placid. After noting that the petition stated the shortage of such persons in the United States, the Deputy Commissioner said:
Though the alien is a professional artist, apparently she is entering the United States, not to perform as such, but to instruct the less talented. Since her admission is not sought pursuant to her profession, she cannot be admitted as an artist. However, as an instructor, she is not of that class of aliens excluded by the alien contract labor law.
He ordered that the alien be considered as not subject to the excluding provisions of the alien contract labor law.
We believe that like decision should be made in the instant case.
FINDINGS OF FACT: Upon the basis of all the evidence presented and upon the entire record in this case, it is found:
(1) That the applicant is an alien, a native and citizen of Switzerland, of the Swiss race;
(2) That the applicant arrived in the United States at the port of New York on December 12, 1939, as a passenger ex-S.S. Rex and was admitted by a board of special inquiry on the following day as a temporary visitor for 6 months;
(3) That the temporary admission of the applicant was extended to December 31, 1941, up to which date he was permitted to continue his employment as a skiing instructor;
(4) That the applicant desires to depart to Canada for the purpose of obtaining an immigration visa for permanent residence in the United States;
(5) That a contract exists under the terms of which the applicant would be reemployed as manager of the sports division and director of the ski school, activities which are connected with skiing instruction, at Strawberry Lodge, El Dorado County, Calif.
CONCLUSION OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
That under section 3 of the Immigration Act of 1917 the alien would not be inadmissible to the United States as a contract laborer.
OTHER FACTORS: The applicant stated that his assets in the United States consist of an automobile valued at $500 and about $300 in cash. At one point he testified that his parents and a brother reside in Switzerland, but elsewhere stated that his only close relative in Switzerland was his mother. He adds that he was never arrested.
ORDER: It is ordered that the decision of the board of special inquiry be and the same is hereby reversed.
It is further ordered, That the alien be found admissible to the United States when in possession of an appropriate immigration visa.