A-7177141
Decided by Board September 29, 1949
Alien contract labor — Section 3 of the Immigration Act of 1917 — Applicability of excluding provisions to a moving van helper, working for a Canadian concern, engaged in international trade.
An alien helper on a moving van coming here from Canada merely to help load and unload the van as an incident to delivery of household goods, may be considered a nonimmigrant and not subject to exclusion under the alien contract labor provisions of section 3 of the Immigration Act of 1917, where he is regularly employed by a Canadian concern, a common carrier of household goods, whose business is preponderantly international in character and which is subject to the regulations of the Interstate Commerce Commission requiring, among other things, that such employee be aptly skilled for this work.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 — No immigration visa.
Executive Order 8766 — No passport.
Act of 1917 — Contract laborer.
BEFORE THE BOARD
Discussion: This record is before us on appeal from an order entered by the Assistant Commissioner, May 27, 1949, affirming the appellant's exclusion at the port of Detroit, Mich., on the above-stated grounds. Counsel on appeal urges that the appellant is entitled to enter as a nonimmigrant temporary visitor for business.
Briefly, the pertinent facts establish that the appellant is a native and citizen of Canada, male, 57 years of age, who arrived at the port of Detroit, Mich., on April 28, 1949, and sought admission as a temporary visitor for business, a helper on a truck engaged in the moving of household effects between this country and Canada and vice versa. He is employed by the E.W. Lancaster Co., Ltd., of Windsor, Ontario, Canada, and has been so employed since 1932 or 1933. He enters the United States several times a week to load or unload furniture. He remains in the United States on these occasions for approximately 3 to 4 hours. He is employed on an hourly basis and is paid by the E.W. Lancaster Co. in Canadian currency.
The Assistant Commissioner, inter alia, finds the appellant excludable under section 3 of the 1917 act, which provides, in part, for the exclusion of aliens "who have been induced, assisted, encouraged, or solicited to migrate to this country by offers or promises of employment, * * * or in consequence of agreements * * * to perform labor in this country." The Commissioner relies upon a previous interpretation of the above-quoted contract labor provisions wherein it was held that while alien operators of trucks engaged in international drayage from Canada are admissible, such privilege does not extend to accompanying aliens, whether employees of the truck operators or not, who enter for the purpose of unloading or loading commodities at points in the United States ( Matter of D---- 55976/55 (1937)).
The alien's representative has informed this Board that international motor common carriers of household goods, such as the appellant's employer, are under strict supervision of the Interstate Commerce Commission; that the type of service rendered and the provisions of the Commissioner's regulations require employees who possess skilled knowledge for handling fragile articles of high value and who must be of a character, temperament, and habit to best assure satisfactory performance of their duties; that such common carriers generally have a comparatively small turn-over in van driver and helper personnel, and that there are no restrictions on the services of helpers on United States moving equipment operating in Canada.
The evidence establishes that the van driver and his helper (the appellant) merely deliver and unload household effects in the United States which have had their origin in Canada or, vice versa, they pick up a load in the United States for delivery in Canada. It is alleged that 85 percent of the business is international. This Board has held that where an alien seeks admission primarily to accept an offer or promise to perform labor of the type covered by the contract labor provision or in consequence of an agreement to perform such labor no matter where or when such offer, promise or agreement was made, the alien is subject to the contract labor provisions of the statute ( Matter of C----, 56172/981, Oct. 10, 1945). There is no question but that in the instant case the labor to be performed within the United States is clearly manual and of the type comprehended by the contract labor provisions of the 1917 act.
An alien, to be ineligible to admission to the United States as a contract laborer under section 3 of the Immigration Act of 1917, must have been induced to migrate primarily by reason of an offer, promise or agreement to perform labor in the United States. The applicant, however, engages in no other labor while in the United States and returns immediately to Canada upon the completion of his assigned task. The loading or unloading while in the United States is necessarily a function of delivery and is merely incidental to the primary purpose of this peculiar type of international trade, namely, the final and safe delivery of household effects. It is noted that the appellant in the instant case is paid in Canadian currency in Canada by a Canadian concern and that his employment by the Canadian concern originated in Canada.
Because of the particular skill required and the regulations under which these common carriers operate, we think that the appellant, a duly qualified employee of a common carrier engaged in international trade, functions as an operating crew member in the same manner as the driver of a truck or the operating crews on trains or vessels (also common carriers) which cross our international boundaries from contiguous territory. It is concluded, therefore, that since the appellant seeks entry primarily for the purpose of consummating delivery, whether it be in Canada or in the United States, and the labor performed in loading or unloading is merely incidental to this primary purpose, he may be properly considered as a nonimmigrant and not within the excluding provisions of the alien contract labor law, so long as he engages in no labor in the United States other than the loading or unloading incidental to final delivery. The appeal will be sustained. The appellant's admission will be authorized as a nonimmigrant temporary visitor for business without a consular visa.
Order: It is directed that the appeal be and the same is hereby sustained, the alien to be admitted as a nonimmigrant temporary visitor for business under section 3 (2) of the Immigration Act of 1924.