td width="100%">[Federal
Register: September 19, 2001 (Volume 66, Number 182)]
[Proposed Rules]
[Page 48223-48224]
From the Federal Register Online via GPO Access
[wais.access.gpo.gov]
[DOCID:fr19se01-10]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the
public of
the proposed issuance of rules and regulations. The purpose of
these
notices is to give interested persons an opportunity to
participate in
the rule making prior to the adoption of the final rules.
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[[Page 48223]]
DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Part 214
[INS No. 2126-01]
RIN 1115-AG15
Construction Work and the B Nonimmigrant Visa Classification
AGENCY: Immigration and Naturalization Service.
ACTION: Advanced notice of proposed rulemaking.
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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 insregs@usdoj.gov. 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 (202)
514-
3048 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
(202) 353-8177.
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
[[Page 48224]]
painters (including the application of all surface coatings, no
matter
how applied); bridge, structural and ornamental ironworkers;
plumbers
and pipe fitters; 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.
[FR Doc. 01-23327 Filed 9-18-01; 8:45 am]