OPFERKUCH

Interim Decision #2739




                            MATTER OF OPFERKUCH

                            In Exclusion Proceedings
                                    A-22953714
                       Decided by Board April 11, 1979

A salaried "project specialist" who plans to enter the United States three to six times
  during a period of 18 months to serve as a liaison between his employer in Canada and
  a Texas corporation, who never solicits business in the United States, and who has as
  his sole purpose the gathering of pertinent information for a company in which he is
 not an officer or principal, comes within the definition of a nonimmigrant business
 visitor as that term is defined under section 101(a)(15)(B) of the Immigration and
 Nationality Act, 8         11U1(a)(15)(B). Matter of Neill, 15 MN Dec. 331 (BIA 1973),
 distinguished.
EXCLUDABLE:    Act of 1952—Sec. 212(a)(14) [8 U.S.C. 1182(a)(14))—Not in possession of
                             a valid unexpired labor certification
                           Sec. 212(a)(20) [8 U.S.C. 1182(a)(20)1—Immigrant—not in
                             possession of a valid unexpired immigrant visa
ON BEHALF OF APPLICANT:                             ON BEHALF OF SERVICE:
  George P. Doyle, Esquire                            George Indelicate
  Doyle, Denman & D'Amico                             Appellate Trial Attorney
  10 Ellicott Square Building
  Buffalo, New York 14202

By: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members


   This case presents an appeal from a decision of the immigration
judge on November 27, 1978, ordering that the applicant be excluded
and deported from the United States. The appeal will be sustained.
   The applicant is a citizen of West Germany and a landed immigrant
in Canada who seeks admission to the United States for 2 or 3 days as a
business visitor. He is a salaried "project specialist" for Holderbank
Consulting, Ltd., a Canadian corporation founded to sell its expertise
in fields related to cement manufacturing. The applicant allegedly
never solicits business in the United States, but rather is a coordinator
liaison between Holderbank and Kaiser Cement and Gypsum Corporation in San Antonio, Texas, examining facilities there and relaying
information back to his employer in Canada. It is anticipated that he
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would be required to enter this country as a liaison three to six times
during the contract period of a maximum of 18 months. It would
appear, therefore, that he expects to be employed in the United States
for less than 8 percent of his working year.
  Placing reliance upon our decision in Matter of Neill,

(BIA 1975), the immigration judge found that the applicant's intended
activity is a personal service in the United States, independent of any
other commercial activity, and not within the definition of "business"
as defined in section 101(a)(15)(B) of the Immigration and Nationality
Act, as amended, 8 U.S.C. 1101(a)(15)(B). Counsel contended, both in
his appeal brief and at oral argument, that the Neill case is totally
distinguishable from the instant case.
  Section 101(a)(15)(B) of the Act defines a nonimmigrant business
visitor as—
  an alien ... having a residence in a foreign country which he has no intention of
  abandoning and who is visiting the United States temporarily for business.—
The term "business" as used in. section 101(a)(15)(B) has been held not
to include ordinary labor for hire, but is limited to intercourse of a
 commercial character. See Karnuth v. U.S. ex rel. Albro, 

 (1929); Matter of Hira, 

 (BIA 1965,1966; A.G. 1966).. We
 are persuaded that the applicant does in fact come within the above
 definition and thus qualifies as a nonimmigrant visitor within the
purview of section 101(a)(15)(B) of the statute.
   In Matter of eill, supra, a principal in a Canadian engineering fi:rm,
then earning approximately 30 percent of its income from clie:nts
located in the United States, averaged one or more trips a week to this
country in connection with his practice. In concluding that the applicant was not engaged in "business" as that term is used in section
101(a)(15)(B) of the Act, we found that his professional activities in the
United States went "well beyond functions which can be described as
necessary incidents to international trade or commerce." We further
found that he was "regularly performing personal services in the
United States independent of any other commercial activity." The
Board ordered his exclusion and deportation from this country, pursuant to section 212(a)(20) of the Act, 8 U.S.C. 1182(a)(20).
   Upon review of the record, we are in agreement with the contention
of counsel for the applicant that this case is clearly distinguishable
from our earlier decision in the Neill case. The latter case concerned
the active participation by a principal in the firm in negotiation and
solicitation of business in this country while ostensibly here for consultation purposes only. We are satisfied that in the present case, the
applicant's sole purpose in coming to this country would be to gather
pertinent information for a company in which he is not an officer or

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principal. Accordingly, the appeal will be sustained and the applicant
granted temporary admission into the United States.
  ORDER: The applicant is permitted to enter the United States for
such periods of time, and under such conditions, as the District
Director may impose.




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