Interim Decision #2783
MATTER OF COTE
In Exclusion Proceedings
A-20873404
Decided by Board March 6, 1980
A Canadian citizen truck driver of a United States firm who seeks to deliver automobiles
manufactured in Canada into the United States and to pick up automobiles in the
United States and transport them back to Canada is admissible to the United States as
a visitor for business under section 101(a)(15)(1B) of the Act as the transportation
function he performs is a necessary incident to international trade and the unloading
of automobiles in the United States by the applicant is merely incidental to his
primary purpose of transporting them into the Country.
EXCLUDABLE:
Order: Act of 1952—Sec. 212(a)(20) [8 U.S.0 1182(a)(20)] — Immigrant — no visa
ON BEHALF OF APPLICANM ON BEHALF OF SERVICE
Sam Bernsen, Esquire George Indeliento
1000-16th Street, N.W. Trial Attorney
Washington, D.C. 20036
By Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members
In a decision dated September 15, 1978, an immigration judge admitted the applicant to the United States as a nonimmigrant visitor for
business under section 101(a)(15)(B) of the Immigration and Nationality Act, 8 U.S.C. 1101(a)(15)(B). The Immigration and Naturalization
Service has appealed. The appeal will be dismissed.
The applicant is a native and citizen of Canada and resides in
Canada. At the time of the hearing, he was 30 years old. He is employed
by Anchor Motor Freight Inc., as a truck driver.
Anchor Motor Freight, Inc. (Anchor Freight), is a Delaware
corporation and a wholly-owned subsidiary of Leaseway Transportation., Inc., of the United States. The parent corporation controls
Leaseway Limited of Canada, which in turn is the parent corporation
of Charlton Transport Limited, Quebec (Charlton). Licenses for transportation of General Motors vehicles in the United States are owned by
Anchor Freight; the licenses for transportation of General Motors
vehicles in Canada are owned by Charlton. A lease agreement exists
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Interim Decision #2783
between Anchor Freight and Charlton for use of each other's facilities,
including transportation licenses, trucks owned by Charlton, trailers
owned by Anchor Freight, and the truck drivers employed exclusively
by Anchor Freight.
Anchor Freight employs 132 drivers. Approximately 90 percent of
them are United States citizens or permanent residents. The applicant
is one of 12 to 15 Canadian citizen drivers employed pursuant to the
labor-management agreement with the International Brotherhood of
Teannsters which requires the employment of Canadian as well as the
United States drivers' Canadian drivers are assigned only shipments
destined to cross the border between the United States and Canada.
They are not assigned to transport automobiles from one point in the
United States to another.
The applicant's employment is as follows. He travels from his home
in Canada to Anchor Freight's track terminal in Champlain, New
York, where he obtains a tractor-trailer. From the terminal he
proceeds to St. Therese, Quebec, Canada, where he loads the trailer
with new General Motors automobiles. The applicant returns to Champlain, New York, receives his manifest, and proceeds to deliver the
automobiles to various dealerships in New York and New Jersey.
Delivery requires 3 to 5 days, after which the applicant either returns
to the terminal at Champlain and repeats the route just described or
goes to Tarrytown, New York, to pick up a load of automobiles and
transport them to St. Therese, Canada.
The applicant may work up to 70 hours per week. Of that time, 4 to 8
hours are expended in Canada, and the remainder, extending over 3 to
5 days, is expended in the United States. For this work, the applicant
receives a contract price for hauling the load and mileage for pulling
the trailer empty. He is paid by Anchor Freight in Canadian funds by a
check drawn on a Canadian bank.
On appeal, the Service contends that the applicant is not admissible
under section 101(a)(15)(B) of the Act because he is seeking to enter
the United States to perform local employment for hire, and not as a
visitor for business. The Service contends that the applicant's employment is manual labor, not intercourse of a commercial character, and
that the respondent must have an, immigrant visa in order to pursue it.
As evidence that the applicant is engaged in local employment for hire,
the Service points to the following factors. The applicant works for a
United States corporation. He drives to the United States to begin
work. His truck is maintained in the United States, as are his employment records. Most of the work that he does is in the United States,
and he spends most of his work week in the United States.
The Union has voiced no opposition to the applicant's admission.
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Interim Decision #2783
in response to the Service's contentions, the applicant submits that
his activities have been gonstrued in previous administrative decisions
io be "business" within the meaning of 101(a)(15)(B) of the Act. He
contends that it has been the Immigration and Naturalization Sery
lee's policy to admit truck drivers to the United States as visitors for
busineas (B-1) for years,° and that the Service should be estopped from
enforcing a change in that policy against the applicant because the
service advised Anchor Freight that its drivers would be admissible to
the United States as nonimmigrant visitors for business (B-1) and that
Anchor Freight has relied on that advice. He also contends that the
change in policy is invalid because it was not accomplished in accordance with the Administrative Procedure Act'
Section 101(a)(15)(B) of the Act defines a nonimmigrant visitor for
business by implication, as:
[Ajn alien (other than one coining for the purpose of study or of performing skilled or
unskilled labor or as a representative of foreign press, radio, film, or other foreign
information media coming to engage in such vocation) 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
nat to include ordinary labor for hire, but to include only intercourse of
a commercial character. See v. U.S. rel Aibro, 279 U.S. 231
(1929); Matter of Hire,
11 I&N Dec. 824 (BIA 1965, 1966; A.G. 1966);
Matter of P—,
8 I&N Dec. 206 (BIA 1958). However, an alien need not
be considered a "businessman" to qualify as a business visitor, if the
function he performs is a necessary incident to international trade or
commerce. Matter of Hira, supra; See Matter of W—,
6 I&N Dec. 832
(3IA 1955); Matter of R ,
3 I&N Dec. 750 (BIA 1949).
—
We find that the applicant is engaged in "business" within the
meaning of section 101(a)(15)(B) of the Act because the function he
performs is a necessary incident to international trade. Although the
applicant is an employee, as opposed to an independent businessman,
he is actively engaged in the transportation of automobiles across the
international boundary. That transportation is an essential link in
International trade_ Unloading of the automobiles by the applicant is a
2 The applicant submitted copies of prior Operations Instructions 2I4(b), which reflect
that truck, bus, and van drivers and helpers engaged solely in international transport
and incidental loading and unloading at terminal points were admissible to the United
States as nonimnhlgrant visitors for business (B-1) at least between June 3, 1953, and
sometime after December 1, 1956. Counsel for the applicant contends that the provision
wits deleted from the Operations Instructions not because of a change of policy, but in a
move to reduce the volume of the Operations Instructions. The Service has not disputed
the content of the provision or counsel's explanation for its deletions.
As our decision is favorable to the applicant, we will. not address his contentions
individually.
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Interim Decision #2788
necessary function of delivery and is merely incidental to the primary
purpose of transporting them into the United States. See Matter of
R—, supra. Although the applicant's trips are frequent—almost continuous each is temporary for a business purpose, and after each, the
—
applicant intends to return to Canada.
Accordingly, the applicant is admissible as a nonimmigrant visitor
for business.
ORDERS The appeal is disinissed.
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