Interim Decision 401500
IIA.TrEn or Sum
In Section 248 Proceedings
A-14678775--6
Decided by Acting Regional Commissioner August 95, .1965
Since eligibility of an alien within the United States for status as a treaty
trader under section 101(a) (15) (E), Immigration and Nationality Act, requires a showing that "substantial trade" is presently in existence between
his country and the United States, an application under section 248 of the
Act for change of noninimigrant status from visitor for business to that of
treaty trader, as agent in the United States for a Japanese company which
has authorized the consignment sale of business machines, is denied an
alien who has no office or inventories on band in the United States, has presented no evidence to indicate that he has negotiated or is in the process of
negotiating any contracts relative to his proposed trade, and has offered no
documents such as bills of lading, invoices or statements to indicate the current existence of any international trade in which he might be engaged.
Discussion: These cases are before the Regional Commissioner
on appeal from the District Director's decisions denying the applications.
The applicants are a 33-year-old male and his 29-year-old spouse,
both natives and citizens of Japan. They entered the United States
on September 5, 1964 at,which time they were admitted as visitors
for business for six months. On March 5, 1965 they applied for
changes of their nonimmigrant status to those of treaty traders in
order that the male applicant might act as an agent for a Japanese
company and arrange for the shipment and consignment sale of
American business machines to Japan.
The male applicant has submitted an affidavit wherein he alleges
that he has been appointed delusive agent in the United States for
the Unitrex Calculator Company, Ltd. of Japan and that in this
capacity he will act as an independent businessman purchasing used
business machines in the United States for consignment to the above
company who will locate buyers of such machines in Japan. He
further stated that he hoped to eventually arrange for the imports-
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don to the United States of adding machines manufactured in
Japan.
There was also submitted an undated statement, from the President of the Unitres Calculator Co., Ltd of Tokyo, Japan which
states in effect that the male applicant is authorized the consignment
sale of all import-export transactions of business machines of the
above company.
In an interview had with the male applicant on May 26, 1965, it
was developed that he had neither bought nor sold. any merchandise
in the United States and that he had merely looked over the field. of
used business machines in the United States. He stated that the
Unitrex Calculator Co., Ltd. which is capitalized at $20,000 acts as
sales agents for the Unitrex Sales Company of Japan who manufactures calculators. He indicated that the two firms are in no way
connected, even though there is a similarity in their names. He
stated that, although he is presently the import manager of the
Unitrex Calculator Company he has no authority to make binding
business deals or contracts for such company.
He expects as a. treaty trader to buy used cash registers after
ordered to do so by the Unitrex Calculator Co. and take them to
his brother-in-law's dry cleaning place in San Francisco where he
will inspect, repair and crate the machines for shipment to Japan.
In denying these applications the District Director found:
The Unitrex Calculator Company, Ltd., has neither purchased merchandise,
nor sold its products in the Witten States. linitrez Calculator Company prosCAW has no stocks of merchandise, inventories, warehouses, nor capitalization
in the United States. Unitrex Calculator Company, Ltd., in Japan is capitalized
at $20,000. It has not been established that Unitrex Calculator Company, Ltd.,
is a firm engaged in zubstantial international trade between the United States
and Japan; as required by the Immigration and Nationality Act.
Qn appeal applicants' counsel submits that the District Director's
decision would render the statute virtually meaningless since the
prevention of an alien from entering to initiate foreign trade would,
in effect, preclude such trade from ever beginning.
In order to qualify as a treaty trader under section 101(a) (15)
(p) of the Act, the applicant must establish that he seeks to be in
the United States to carry on substantial trade with Japan or that
he is here to develop and direct the operations of an enterprise in
which he has invested a substantial amount. It has been a longestablished rule that to acquire treaty trader status while in the
United States other than as an investor, the alien must show that the
trb.de is presently in existence. Tulsidat v. Insular Collector,
(1923) ; Tatar/a Hawk v. Nagle, 55 F. (2d) 623
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Interim Decision #1500
(ran). Existing trade includes successfUlly negotiated contracts
which call for shipment abroad of goods or for the purchase of
goods, in this country to be shipped abroad, even though no shipments have been made or received pursuant to such contracts. It
does not include transactions merely in the state of negotiation without the existence of a current actual volume of trade. Substantial
trade does not necessarily refer to the monetary value of the trans-
,
actions but rather to the volume of the trade.
The male applicant is the sales representative in the 'United
States. He has no office or inventories on hand in the United States.
He has offered no documents such as bills of lading, invoices or
statements to indicate the current existence of any international
trade that he might be engaged in. In fait he has presented no evidence to indicate that he has negotiated or is in the process of negotiating any contracts or commitments relative to his proposed trade.
On the record, neither applicant is classifiable as a treaty trader
because the trade in which the male applicant proposes to engage
has not reached. the stags of development contemplated by section
101(a) (15) (E) of the Immigration and Nationality Act. They
are, therefore, statutorily ineligible for the change of nonimmigrant
status' sought. Their appeals will. be nisrmikqed.
ORDER: It is ordered that the appeals be and the same 'are
hereby . dismissed.
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