A-7934792
Decided by Central Office February 19, 1951 Decided by Board March 14, 1951
Nonimmigrant status — Domestic servant — Section 3 (2) of the act of May 26, 1924-22 C.F.R. 61.136.
An alien, coming to work here temporarily as a domestic servant for a prospective employer temporarily here, is not admissible as a nonimmigrant under the provisions of Sec. 3 (2) of the Act of May 26, 1924 and 22 C.F.R. 61.136 under the circumstances in this case merely because she had previously worked for such employer abroad, inasmuch as her prospective employer had preceded her to this country by a period of six months during which period she was employed abroad by another employer.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 — No visa.
BEFORE THE CENTRAL OFFICE
(February 19, 1951)
Discussion: This record relates to a 22-year-old single female, native and citizen of Columbia who arrived at Miami, Fla., on January 10, 1951, by plane and applied for temporary admission as a visitor for a period of 6 months. She was found inadmissible on the ground stated above and excluded. She has appealed.
The appellant has presented a Colombian passport valid to December 16, 1952, also nonimmigrant visitor's visa issued Janaury 9, 1951, pursuant to section 3 (2) of the act of May 26, 1924. At the time of arrival she was unaccompanied. She testified however that she was destined to M---- P---- V----, Miami, Fla., where she intended to work and take care of the children for her employer for a period of 6 months.
The question under consideration is whether this appellant is admissible as a nonimmigrant visitor, domestic servant, within the provisions and interpretations of 22 C.F.R. 61.136, which reads as follows:
TEMPORARY VISITORS WHO WILL BE EMPLOYED IN THE UNITED STATES
(a) Passport visas may be granted to the following classes of aliens seeking to enter the United States temporarily for employment, provided they are able to qualify as bona-fide nonimmigrant temporary visitors within the meaning of section 3 (2) of the act:
(1) An alien domestic servant accompanying his American or alien employer, who is proceeding to the United States on a temporary visit, provided it is established that he will depart from the United States with or before his employer. * * *
The appellant testified that she was employed by the family to which she is now destined for a period of two years until they left for the United States in July 1950. She added that she wished to come with them at that time but that her parents would not grant their consent. It is not entirely clear whether the employers would have taken her along with them at that time because the testimony of the woman to whom she is now destined is to the effect that they were uncertain. When that employer was asked when she first decided to bring the girl to the United States to work for her she stated "when we came we were thinking about it, and now when my husband went back he made the arrangements." She was subsequently asked:
Q. Was it your intention and that of your husband to bring A---- G---- G---- with you to the United States when you came last year?
A. We wanted very much at that time bring her, but we couldn't for two reasons: We didn't know whether we were going to stay here in the United States or if we were going to Canada, and we couldn't get permission from her parents at that time.
We do not believe that this is the only feature in the case meriting discussion. The appellant testified that during the 6 months that the family to which she is now destined were in the United States, she was employed by another family in Colombia and that she was living in the household of that employer. It therefore does not appear that she is even destined to an individual who was her employer immediately preceding her arrival, but rather a person who was her employer some time in the past. Under these circumstances we believe that the appellant is an immigrant inasmuch as she is coming to the United States to engage in employment for hire and is excludable as one not in possession of an immigration visa. This is not overcome by the fact that her proposed employer is an alien temporary visitor who intends to depart in July 1951 and who has agreed to take the appellant back with her should she be admitted.
We believe that it is pertinent at this time to distinguish this case from Matter of L----, A-6911818 (C.O. July 22, 1948), in which 22 C.F.R. 61.136 was interpreted to encompass a situation where the alien employee did not accompany the employer but arrived 1 day later. In that case there was no break in the continuity of employment, there was no employment by any other employer, the applicant arrived the day following the arrival of her employers and did not accompany them merely because she did not have her immigration documents at the time her employers left Cuba the previous day. In that case and under those circumstances, it was held that the applicant met the requirements of the regulation set forth above. In the instant case the situation is tantamount to a new contract of employment subsequent to the entry of the prospective employer into the United States.
Upon consideration of the entire record, the findings of fact, and conclusions of law of the board of special inquiry are hereby adopted.
Order: It is ordered that the excluding decision be affirmed without prejudice to reapplication within one year when the alien is in possession of appropriate documents.
Upon consideration of the entire record: It is ordered that the appeal from the decision of the Commissioner be and the same is hereby dismissed.