A-7367939
Decided by Central Office January 24, 1950 Decided by Board April 10, 1950
Immigrant — Status determined by employment here of a permanent character — Test.
1. A native/citizen of Candada, employed by the Canadian Pacific R.R. as a telegraph operator, who has exercised his seniority to fill a "bulletined" relief job which provides for 3 days' employment in Canada and 2 days' in the United States, cannot be said to be a temporary visitor for business under the circumstances of this case; he is considered an immigrant since he seeks to enter the United States regularly 2 days each week for an indefinite period to engage in employment which is of a permanent and continuing nature and which is to be performed at a fixed place of employment pursuant to a regular assignment.
2. The standard to be applied is not the expectancy of his employment because of the seniority rule or the terminology used to describe his employment, but rather whether the work to be performed here is considered to be of permanent duration at a fixed place of employment.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 — No immigration visa.
Executive Order 8766 — No passport.
BEFORE THE CENTRAL OFFICE
Discussion: Upon consideration of the entire record, the findings of fact and conclusions of law stated by the Board of Special Inquiry at the close of the hearing are hereby adopted. No exceptions have been submitted.
The appellant is a 35-year-old married male, a native and citizen of Canada. He is employed as a telegrapher by the Canadian Pacific R.R. As a result of the adoption of the 40-hour week by the railroad, the appellant has secured employment as an operator at Newport, Vt., as a telegrapher for 2 days a week by exercising his seniority rights. The appellant testified that the 2 days' work in the United States is relief duty performed while the regular operator has his days off. He stated that he also works as a relief operator in Canada for the remaining 3 days a week. The appellant testified that the employment in the United States is permanent as far as he knows, and it is evident that if the appellant did not perform the duties, someone else would be required to do so. The appellant testified that he was not in possession of a valid immigration visa or an unexpired passport. He was, therefore, excluded by the Board of Special Inquiry on the grounds stated in the caption.
Although telegraphers have been held not to be within the pale of the excluding provisions of the contract labor laws, their exemption therefrom does not relieve them of the necessity of complying with the documentary requirements of the immigration laws. Therefore, if the appellant is found to be an immigrant, he must present a valid immigration visa and an unexpired passport. The work that the appellant will perform in the United States is not of a temporary nature but rather by his own admission, it is considered to be of a permanent duration. The need for such work has risen as a result of the adoption of the 40-hour week and there is no indication that such adoption was on an experimental or temporary basis. Therefore, since the appellant will be entering the United States regularly and indefinitely for 2 days every week, it is concluded that his employment is of a permanent and continuing nature and he must be considered an immigrant. As previously indicated he does not possess the necessary documents for the admission of an immigrant into this country and, therefore, the excluding decision of the Board of Special Inquiry should be affirmed. However, such affirmation will be without prejudice to the appellant's reapplication for admission within 1 year.
Recommendation: It is recommended that the excluding decision of the Board of Special Inquiry be affirmed without prejudice to the alien's reapplication for admission within 1 year.
So ordered.
Discussion: This is an appeal from an order entered by the Acting Assistant Commissioner on January 24, 1950, affirming the appellant's exclusion on the above-stated grounds without prejudice to his reapplication for admission within 1 year. It is urged on behalf of the appellant that he seeks to enter the United States temporarily for business in connection with his employment by an international railroad as a telegraph operator and, therefore, is exempted from the documentary requirements of the Immigration Act of 1924.
The facts of the case are fully stated in the Acting Assistant Commissioner's opinion. Briefly they relate to a native and citizen of Canada employed by the Canadian Pacific R.R. as a telegraph operator who has exercised his seniority to fill a "bulletined" relief job which provides 3 days' employment in Canada and 2 days in the United States. It appears that this arrangement is necessary because of the variation in the hours of employment between telegraphers employed in the United States and those employed in Canada. The Board of Special Inquiry found the appellant's employment to be of a permanent nature by reason of the adoption of the 40-hour week by railroad telegraphers in the United States. He was excluded as an immigrant not in possession of the proper documents.
The appellant testified that he obtained the "swing job" by virtue of his seniority and "as far as I know that job is permanent." The appellant's representative, on the other hand, urges that the employment is in the nature of "extra work"; that the appellant will perform his duties until someone displaces him by reason of seniority; and that since the operators assigned to this type of work shift back and forth across the border, they should be considered as entering for temporary periods of time. The issue before us, therefore, is to determine whether the appellant's employment in the United States is of a permanent character or a temporary one.
As we see the problem, the standard to be applied is not the expectancy of the appellant's employment because of the seniority rule or the terminology used to describe his employment, but rather whether the work to be performed by the appellant in the United States is considered to be of a permanent duration at a fixed place of employment.
There is no question but that a telegraph office is a fixed place of employment. They do not travel from place to place across the border in the same manner as the crew which operates the train. The work performed by a telegraph operator is of a permanent and continuing nature which requires the regular assignment of personnel. The appellant seeks to enter the United States regularly 2 days each week for an indefinite period to engage in employment which is of a permanent and continuing nature and which is to be performed at a fixed place of employment pursuant to a regular assignment. Under these circumstances, it cannot be said that he is a temporary visitor for business. He is an immigrant and is required to present documents. The appeal will be dismissed.
Order: It is directed that the appeal be and the same is hereby dismissed without prejudice to the alien's reapplication for admission within 1 year.