A-7728848 (56172/802)
Decided by Board January 19, 1945.
Visitor for Business — Section 3 (2), Immigration Act of 1924.
An alien coming to this country for a temporary stay as a visitor for business under the provisions of section 3 (2) of the Immigration Act of 1924 must be considered an immigrant when the work she intends to engage in is of a permanent rather than of a temporary nature.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 — No immigration visa.
BEFORE THE BOARD
Discussion: The subject, a native citizen of Canada, 21 years of age, applied for admission into the United States as a temporary visitor for business for a period of 6 months on November 8, 1944, at Montreal, P.Q., Canada. She was not in possession of an immigration visa but presented a Canadian passport valid until July 30, 1945, and a temporary visitor's visa No. 1891 issued by the American consulate general at Montreal on November 7, 1944, but, following a hearing before a Board of Special Inquiry on November 8, reopened on the following day, she was excluded on the above designated grounds. She appealed.
The appellant testified that she came to the United States on August 22, 1943, as a temporary visitor for 20 weeks and received two extensions of said admission, the last expiring on October 28, 1944. She departed from the United States, however, on September 11, 1944, because of illness but now desires admission to resume her dancing career in this country. She presented a contract from the individual who had previously employed her in this country, providing for 6 months of consecutive work as a dancer at a weekly salary of $47.50 net and she testified that this contract will be effective on whatever date she inserts therein. She further testified that her engagement is to dance in a chorus at various places in the State of New York and that when this 6 months' contract has run she intends to return to Canada for a rest. She admitted that she had previously stated that she would not accept any more contracts beyond the then existing 20 weeks' engagement but added that it was difficult to refuse the man who employed her.
The appellant also testified that she has no intention of making her home in the United States since "It takes too much trouble," that "First of all you have to have security to do that, somebody has to sign for you" and that "I wouldn't leave my mother." It is concluded, therefore, that she intends to come to this country at this time for a temporary period of 6 months only, but it would appear that she is, nevertheless, classifiable as an immigrant in view of the type of work which brings her to this country.
Section 3 (2) of the Immigration Act of May 26, 1924, excepts from the classification of "immigrant" aliens "visiting the United States temporarily as a tourist or temporarily for business or pleasure" (8 U.S.C. 203) and the term "business" as used herein has been construed by the Supreme Court of the United States to be limited in application to intercourse of a commercial character ( Karnuth et al. v. U.S. ex rel. Albro, 279 U.S. 231, 241). Furthermore, the Board of Review, in considering when an alien may be classed as a visitor entering temporarily for business concluded that section 3 (2), supra, "requires that not only the visit but the business of an alien entering temporarily for business shall be of a temporary character" ( Matter of R---- V----, 55977/752 (June 20, 1938); see also Matter of B----, 56038/402 (May 21, 1940)) and that "employment for hire is not `business' as contemplated by section 3 (2) of the 1924 Immigration Act" ( Matter of R----, 56022/296 (June 7, 1940) (now G----6289055).
Based on the above cited precedents, this Board has held that an alien crossing daily into the United States for the purpose of buying and selling limes in this country is not a visitor for business ( Matter of G----, 56107/744 (Oct. 9, 1942)); that an alien crossing periodically into the United States for the purpose of selling in this country magazines published and purchased in Mexico is not a visitor for business ( Matter of C---- R----, 56158/342 (now A-6022743) (Dec. 16, 1944)); Matter of C----, 96172/725 (Dec. 16, 1944); and that an alien desiring admission to accept permanent employment with an American concern is not a visitor for business irrespective of the alien's assertion that he does not intend to reside in this country permanently ( Matter of S----, 56172/204 (Sept. 2, 1944)). It is similarly concluded that the appellant is not a bona fide visitor for business, regardless of her intended temporary stay, inasmuch as the work she will engage in is of a permanent rather than a temporary nature (see Matter of B----, 56156/347 (Nov. 12, 1943)).
Findings of Fact: Upon the basis of all the evidence, it is found:
(1) That the appellant is an alien, a native citizen of Canada;
(2) That the appellant seeks temporary admission into the United States as a visitor for 6 months;
(3) That the appellant resided in the United States as a visitor from August 22, 1943, to September 11, 1944, fulfilling dancing contracts.
(4) That the appellant has a contract from the same person who previously employed her, providing for 6 months' consecutive work as a dancer in the United States;
(5) That the appellant is not in possession of an unexpired immigration visa.Conclusion of Law: Upon the basis of the foregoing findings of fact, it is concluded:
That under section 13 (a) of the Immigration Act of May 26, 1924, the appellant is inadmissible to the United States as an immigrant not in possession of an unexpired immigration visa.
Other Factors: The appellant is single and has no relatives in the United States. She testified that her only arrests have been for being in a house where liquor was being sold without a license and for being intoxicated and that on these occasions she was fined $31 and $5 or $6, respectively.
There is nothing in the record to indicate that she would be an undesirable resident of the United States and, accordingly, the present action of this Board will be without prejudice to a reapplication within 1 year when in possession of appropriate documents.
Order: It is ordered that the excluding decision of the Board of Special Inquiry be affirmed without prejudice to a reapplication within 1 year for admission when in possession of appropriate documents.