01-23327. Construction Work and the B Nonimmigrant Visa Classification

AGENCY:

Immigration and Naturalization Service.

ACTION:

Advanced notice of proposed rulemaking.

SUMMARY:

The Immigration and Naturalization Service (Service) is soliciting comments from the public on the issue of whether the term “building and construction work,” as used in 8 CFR 214.2(b)(5) should be defined in regulation, and if so how the term “building and construction work” should be defined. Definition of the term “building and construction work” may assist both the public and the Service in determining whether certain classes of aliens may be admitted as B-1 nonimmigrant visitors for business.

DATES:

Written comments must be submitted on or before November 19, 2001.

ADDRESSES:

Written comments must be submitted to the Director, Policy Directives and Instructions Branch, Immigration and Naturalization Service, 425 I Street, NW, Room 4034, Washington, DC, 20536. To ensure proper handling, please reference the INS number 2126-01 on your correspondence. Comments may also be submitted electronically to the Service at [e-mail]. When submitting comments electronically please include INS No. 2126-01 in the subject box. Comments are available for public inspection at this location by calling [phone] to arrange for an appointment.

FOR FURTHER INFORMATION CONTACT:

Craig Howie, Business and Trade Services Branch, Adjudications Division, Immigration and Naturalization Service, 425 I Street, NW., Room 3040, Washington, DC 20536, telephone [phone].

SUPPLEMENTARY INFORMATION:

What Is a B Nonimmigrant Alien?

The definition of a B nonimmigrant is an alien whose admission to the United States is based on a temporary visit for business (B-1) or a temporary visit for pleasure (B-2). Section 101(a)(15)(B) of the Immigration and Nationality Act (Act) defines the visitor classification as: An alien (other than one coming 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 or temporarily for pleasure.

What Are the Current Regulations and Internal Field Guidelines Governing the Admission of B-1 Nonimmigrant Visitors for Business?

The Service and the Department of State (DOS), which is responsible for the issuance of visas overseas to aliens seeking status as B-1 nonimmigrant visitors for business, operate under similar regulations and internal guidelines with respect to the classification of aliens as B-1 nonimmigrants. Based on precedent and administrative rulings, the Service and DOS have long interpreted section 101(a)(15)(B) of the Act to mean that an alien may enter as a B-1 nonimmigrant to perform activities necessarily incident to international trade or commerce. See Karnuth v. Albro, 279 U.S. 231, 243-44, 49 S.Ct. 274, 278 (1929) and Matter of Duckett, 19 I & N Dec. 493, 497 (BIA 1987).

8 CFR 214.2(b)(5) provides that aliens seeking to enter the country to perform building or construction work, whether on-site or in-plant are not eligible for classification or admission as B-1 nonimmigrants under section 101(a)(15)(B) of the Act; but alien nonimmigrants otherwise qualified as B-1 nonimmigrants may be issued visas and may enter for the purpose of supervision or training of others engaged in building and construction work, but not for the purpose of actually performing any such building or construction work themselves. The Service's Inspector's Field Manual (IFM), Chapter 15.4(b)(1)(B)(3) provides that an alien may enter the United States in B-1 nonimmigrant status to install, service or repair commercial or industrial equipment or machinery purchased from a company outside the United States or to train United States workers to perform such services. (However, in such cases the contract of sale must specifically require the seller to provide such services or training, and the alien must possess specialized knowledge essential to the seller's contractual obligation to perform the services or training and must receive no remuneration from a U.S. source. These provisions do not apply to an alien seeking to perform building or construction work, whether on-site or in-plant except for an alien who is applying as a B-1 for the purpose of supervising or training other workers engaged in building or construction work, but not actually performing any such building or construction work.) The DOS's Foreign Affairs Manual (FAM) at 9 FAM 41.31, Note 7.1 contains language nearly identical to that found in the Service's IFM.

On June 21, 2001, the Service, in consultation with the DOS disseminated a supplementary internal guidance memorandum (the June 21, 2001 Memo) listing additional procedures to be followed in the inspection of Visa Waiver Program aliens seeking admission as B-1 nonimmigrant visitors for business and indicating an intention to perform certain activities. The June 21, 2001 Memo provides for the closer scrutiny of aliens who seek admission as B-1 nonimmigrant visitors for business under the Visa Waiver Program, and indicate an intention to perform any of the following activities:

(1) The installation, maintenance, and repair of: Utility services, any part or the fabric of any building or structure, and installation of machinery or equipment to be an integral part of a building or structure; or

(2) Work normally performed by laborers; millwrights; heat and frost insulators; bricklayers; carpenters and joiners; electrical workers; operating engineers (including heavy equipment operators); elevator constructors; sheet metal workers; teamsters; boilermakers; residential, commercial or industrial painters (including the application of all surface coatings, no matter how applied); bridge, structural and ornamental ironworkers; plumbers and pipefitters; roofers; plasterers and cement masons; or

(3) Work involving installation of assembly lines; conveyor belts and systems; overhead cranes, heating, cooling, and ventilation or exhaust systems; elevators and escalators; boilers and turbines; the dismantling or demolition of commercial or industrial equipment or machinery if the equipment or machinery is an integral part of a building or structure; whether on-site or in-plant; or

(4) Site preparation work and services installation (for example electricity, gas, water) and connection of such services to commercial or industrial equipment or machinery if the equipment or machinery is to be an integral part of a building or structure.

On May 24, 2001, the DOS, after consultation with the Service, had disseminated a cable to all diplomatic and consular posts providing that posts shall seek an advisory opinion when the alien is applying for a B-1 visa to engage in the activities listed above in the Service's June 21, 2001 Memo.

The listed activities are not a definition of “building and construction work,” but rather a trigger for additional questions at initial inspection and/or secondary inspection and prior to visa issuance. A Service inspector or consular officer may decide after consideration of all the facts that the activity to be performed does not constitute “building and construction work,” as that term is ordinarily understood and approve admission of the alien or the issuance of a visa.

Why Is the Service Considering Defining the Term “Building and Construction Work” as Used in the Admission of B-1 Nonimmigrant Visitors for Business?

The Service has never defined the phrase “building and construction” by regulation and has become aware of potential confusion regarding its proper interpretation and application for the admission of B-1 nonimmigrant visitors for business. The distinction between the installation and service of equipment, which is permissible B-1 activity, and engaging in building and construction, which is not, has been particularly difficult to discern. For example, where large equipment is designed as an integral part of a building, an alien installing and/or servicing such equipment raises the question whether he is engaged in “building and construction.” Therefore, the Service is exploring the possibility of defining “building and construction” in a manner that would clarify its application in such situations. The Service is seeking public comment on whether it should define “building and construction” by regulation and, if so, how that phrase should be defined. The Service also notes that it has taken into consideration the possible economic impact of this Advance Notice of Proposed Rulemaking. As previously noted, aliens admitted to the United States as B-1 nonimmigrant visitors for business are not eligible to engage in building and construction work for United States employers. Therefore, the Service does not believe that this Notice will have a significant impact upon United States entities.

Will the Service Adopt a Definition of “Building and Construction Work” That Is Already Used by Another Federal Agency?

The Service wishes to hear from the public on the issue of whether it should adopt another federal agency's definition of “building and construction work.” One example of a possible definition is the Department of Labor's (DOL) definition of construction at 29 CFR 5.2(j), Subtitle A. The Service seeks comments from the public on the DOL definition, on any other federal definition, on the definition of activities listed in the June 21, 2001 Memo which currently trigger closer scrutiny by both the Service and DOS, and welcome new definitions of the term “building and construction work.”

Executive Order 12866

This advanced notice of proposed rulemaking is considered by the Department of Justice, Immigration and Naturalization Service, to be a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review. Under Executive Order 12866, section 6(a)(3)(B)-(D), this advanced notice has been submitted to and reviewed by the Office of Management and Budget.

Dated: September 14, 2001.

James W. Ziglar,

Commissioner, Immigration and Naturalization Service.