56156/347
Decided by the Board November 12, 1943.
Contract laborer — Chorus dancer.
A professional chorus dancer is not inadmissible as a contract laborer.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 — Immigrant without immigration visa.
Act of 1917 — Contract laborer.
Mr. Thomas A. Hughes, Board attorney-examiner.
STATEMENT OF THE CASE: The appellant is a native and citizen of Canada, who applied for admission to the United States on October 19, 1943, at Montreal, Canada, for the purpose of fulfilling a contract to dance for 5 months in a chorus. She was found to be inadmissible by a board of special inquiry on the grounds stated above and has appealed from that decision.
DISCUSSION: The appellant has a contract to dance for a period of 20 weeks as a member of a chorus, at $42 per week, in Rochester, N.Y. She states that if her contract is renewed she will remain in the United States for as long as she has employment and would like to remain in the United States until 1945. She also indicated that she would like to establish a permanent residence in the United States.
The fifth proviso to section 3 of the Act of February 5, 1917, provides that:
The provisions of this law applicable to contract labor shall not be held to exclude professional actors, artists, lecturers, singers, nurses, ministers of any religious denomination, professors for colleges or seminaries, persons belonging to any recognized learned profession, or persons employed as domestic servants.
In ordinary use an actor is one who acts or takes part in any affair; a theatrical performer; a stage player.
A character in a play who goes through with a series of events on the stage without speaking, if such be his part in the play, is none the less an actor in it than one who, in addition to motions and gestures, uses his voice (1 Corpus Juris 1181; Daly v. Palmer, 6 F. Cas. No. 3552, 6 Blatch. 256, 264).
The act qualifies the word actor by requiring that the person must be a "professional" actor to be exempted from the operation of the contract labor provisions. In the case of United States ex rel. Deliannis v. Commissioner, 298 F. 449, the court stated:
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 the art and makes his living therefrom.
The appellant has pursued chorus dancing for the past 5 years for the purpose of earning a living. She also claims to have been a solo dancer. She is a professional and not an amateur dancer.
It is our opinion that one who performs as a dancer for the amusement of the public is an actor as is the person who performs in another capacity in a musical comedy or as a character in a play. The form of acting may differ in each case, but it is none the less acting. The definition contained in the case of Daly v. Palmer, supra, permits no distinction to be made between the "star" and the "spear bearer," both are actors, and likewise no distinction may be made between the "ballerina" and the "dancer" in the chorus.
Webster's New International Dictionary defines a dancer as one who dances, specifically, a professional performer of dances, and speaks of dancing as an amusement in which the movements of the persons are regulated by art, in figures and in harmony with music. It further points out that the mimetic dances developed dramatic performances. We do not believe that one who professionally performs the art of dancing is within the meaning of the word "laborer" for the statute refers to manual labor; nor do we think it was the intention of Congress to include such a person in the "ignorant, servile class of laborers," whose importation it sought to prevent.
We are, therefore, of the opinion that the appellant is not inadmissible as a contract laborer, but that she is an immigrant required to present an unexpired immigration visa.
FINDINGS OF FACT: Upon the basis of all the evidence presented, it is found:
(1) That the appellant is a native and citizen of Canada;
(2) That the appellant has applied for admission to the United States as a visitor on business for a period of 5 months;
(3) That the appellant intends to remain indefinitely in the United States and to accept employment as a chorus dancer;
(4) That the appellant has accepted a contract to dance as a chorus dancer in the United States.
CONCLUSIONS OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under the Act of February 5, 1917, the appellant is not inadmissible to the United States on the ground that she is a contract laborer, having been induced, assisted, encouraged or solicited to migrate to this country in consequence of an agreement, oral, written or printed, express or implied, to perform labor, skilled or unskilled, in the United States;
(2) That under the Immigration Act of May 26, 1924, the appellant is inadmissible to the United States in that she is an immigrant not in possession of a valid immigration visa and not exempted from the presentation thereof by said act or regulations made thereunder.
OTHER FACTORS: The appellant's mother, two brothers, and a sister reside in Canada.
ORDER: It is ordered that the excluding decision of the board of special inquiry be affirmed solely on the ground that the alien is an immigrant not in possession of a valid immigration visa, and without prejudice to her making reapplication for admission to the United States when in possession of the required documents.