A-8863062.
Decided by Board December 28, 1955.
Nonimmigrant — Section 101 (a) (15) (B), Immigration and Nationality Act Canadian truck driver employed by United States firm.
A Canadian citizen, residing in Canada, who is employed as a truck driver by a Detroit firm but paid wages in Canadian funds for buying fish in Canada or picking up fish previously purchased by his employer by telephone and delivering it to his employer in the United States, and who does no unloading, is eligible for nonimmigrant status under section 101 (a) (15) (B) of the Immigration and Nationality Act since his activities in transporting the fish are incidental to international trade or commerce. (Cf. Matter of B---- and K----, A-8863817-8, Int. Dec. No. 751.)
EXCLUDABLE:
Act of 1952 — Section 212 (a) (20) — Not in possession of valid, unexpired immigrant visa and passport.
BEFORE THE BOARD
Discussion: This matter comes forward on appeal from the order of the special inquiry officer, dated July 28, 1955, finding the appellant to be inadmissible on the ground stated above.
The appellant, a Canadian citizen, seeks to enter the United States as a nonimmigrant temporary visitor for business. He resides in Canada with his wife and children and desires to enter the United States only for a period of one to two hours.
The appellant testified that he has been employed as a truck driver by the United Fish Distributors of Detroit, Michigan, for the past four years. He is paid $80 a week in Canadian funds. His duties consist of driving a truck and buying fish in Canada. The truck, which is registered both in Canada and in Michigan, is kept in Canada. The appellant enters the United States each morning with a load of fish, remaining only for one to two hours. He picks up the fish from fisheries in various ports on the Canadian side of Lake Erie. Eighty-five percent of this fish has been purchased in advance over the telephone by his employer and the appellant buys the remainder from individual fishermen. He does not deliver the fish to other dealers in the United States nor does he unload the fish in Detroit but this is done by others. The appellant intends to continue this employment indefinitely.
The term "business' as used in the phrase "temporary visitor for business" in section 101 (a) (15) (B) of the Immigration and Nationality Act is defined in 22 C.F.R. 41.40 (b) as legitimate activities of a commercial and professional character, which term, however, does not include purely local employment or labor for hire. Significant considerations to be evaluated are: Whether there is a clear intent on the part of the alien applicant to continue his foreign residence and not to abandon the existing domicile; whether the principal place of business and the actual accrual of profits permanently remains in the foreign country; and whether, despite the fact that the business activity itself may be long continued, the various entries into the United States made in the course thereof are individually and separately of a plainly temporary nature in keeping with the existence of the two preceding considerations ( Matter of G---- P----, A-7828235, 4 IN Dec. 217).
Somewhat similar situations have previously received consideration. Thus, in footnote 3, Matter of G----, T-2680097, Int. Dec. No. 626, reference was made to two somewhat analogous cases, Matter of McC----, A-7134304, and Matter of S----, A-7118993. The former involved the Canadian proprietor of two trucks, bearing Michigan license plates, engaged in hauling general merchandise. The trucks were loaded with fish in Canada along the shores of Lake Erie and made deliveries almost daily to a warehouse in Detroit for unloading, the alien performing none of the duties connected with the unloading. A maximum of one to one and a half hours were spent in the United States. Admissibility as a nonimmigrant was predicated upon the finding that the alien's activities were regarded as intercourse of a commercial character of a nature to promote international trade; that his activities were strictly limited to a brief interval of approximately one hour during which he drove his truck to Detroit for unloading and that the transaction was of a temporary nature. In Matter of S----, supra, the applicant was employed as a truck driver by a Canadian firm which operated eleven trucks, seven registered in Canada and four registered in the United States. His truck was loaded with fish in Montreal and unloaded in New York, then loaded with fruit in New York which was unloaded in Montreal. The truck driver made about two trips to New York a week and was not concerned with the loading or unloading of the truck except in the case of an early arrival of fish. The finding of admissibility as a nonimmigrant was based upon the fact that at no time did the alien reside in the United States but continued to reside in Canada where he was paid and where all expenses for subsistence and maintenance were defrayed.
The instant case presents facts which are somewhat similar. The appellant maintains his residence in Canada and has no intention of residing permanently in the United States. He comes to the United States only for brief periods of one to two hours per day. All of his work appears to be performed in Canada in connection with the picking up and buying of fish, the greater portion of which is ordered in advance over the telephone by his employer, and he does no unloading in the United States in connection with the trucking of the fish. While he appears to be paid in the United States, he is paid in Canadian dollars. Under the circumstances the activities of the appellant appear to be concerned mainly and principally with transporting fish between Canada and the United States constituting international intercourse of a commercial character. The local activities appear to be merely incidental to the international trade or commerce. All of the appellant's activities, except for one or two hours, occur in Canada and even the truck, which bears both Michigan and Canadian license plates, is garaged in Canada. It is concluded that the appellant is admissible as a visitor for business.
Order: It is ordered that the appeal be sustained and that the appellant be admitted as a temporary visitor for business for temporary periods not exceeding 24 hours at any one time.