UNCLASSIFIED TELEGRAM May 24, 2001 To: ALL DIPLOMATIC AND CONSULAR POSTS - ROUTINE Origin: VO From: SECSTATE WASHDC (STATE 92023 - ROUTINE) TAGS: CVIS, CMGT Captions: VISAS Subject: B-1 VISAS AND BUILDING/CONSTRUCTION WORK Ref: 9 FAM (22 CFR) 41.31(B) _________________________________________________________________ 1. IN SEVERAL RECENT CASES, THE ADMISSION OF CERTAIN B-1 NONIMMIGRANTS HAS BEEN CHALLENGED ON THE GROUNDS THAT THE B-1 NONIMMIGRANTS ARE PERFORMING BUILDING AND CONSTRUCTION WORK IN VIOLATION OF THE FAM GUIDANCE. THE FAM GUIDANCE PRECLUDES THE ISSUANCE OF B-1 VISAS FOR THE PURPOSE OF PERFORMING BUILDING AND CONSTRUCTION WORK. THE FOLLOWING IS PROVIDED TO CLARIFY EXISTING REGULATIONS, AND TO PROVIDE GUIDANCE REGARDING WHETHER B-1 VISAS CAN BE ISSUED WHEN THE APPLICANT MAY INTEND TO ENGAGE IN BUILDING OR CONSTRUCTION WORK. 2. THE REF FAM CITE STATES AS FOLLOWS: THE TERM "BUSINESS" FOR PURPOSES OF DETERMINING ELIGIBILITY FOR B-1 STATUS, "DOES NOT INCLUDE LOCAL EMPLOYMENT OR LABOR FOR HIRE. FOR THE PURPOSES OF THIS SECTION, BUILDING OR CONSTRUCTION WORK, WHETHER ON-SITE OR IN-PLANT, SHALL BE DEEMED TO CONSTITUTE PURELY LOCAL EMPLOYMENT OR LABOR FOR HIRE; PROVIDED THAT THE SUPERVISION OR TRAINING OF OTHERS ENGAGED IN BUILDING OR CONSTRUCTION WORK (BUT NOT THE ACTUAL PERFORMANCE OF ANY SUCH BUILDING OR CONSTRUCTION WORK) SHALL NOT BE DEEMED TO CONSTITUTE PURELY LOCAL EMPLOYMENT OR LABOR FOR HIRE IF THE ALIEN IS OTHERWISE QUALIFIED AS A B-1 NON-IMMIGRANT." 3. IN ADDITION, DEPARTMENT NOTES THAT FAM GUIDELINES ALLOW FOR THE ISSUANCE OF A B-1 VISA FOR AFTER-SALES SERVICES. 9 FAM 41.31 NOTE 7.1 STATES THAT AN ALIEN COMING TO THE UNITED STATES TO INSTALL, SERVICE, OR REPAIR COMMERCIAL OR INDUSTRIAL EQUIPMENT OR MACHINERY PURCHASED FROM A COMPANY MAY PERFORM SUCH SERVICES ON B-1 STATUS IF SUCH SERVICES ARE REQUIRED IN THE SALES CONTRACT AND MEET OTHER CONDITIONS SPECIFIED IN THE NOTE, SUCH AS THE POSSESSION OF SPECIALIZED KNOWLEDGE ESSENTIAL TO THE SELLER'S CONTRACTUAL OBLIGATION. NOTE 7.1(B), HOWEVER, FURTHER STATES THAT THE PROVISIONS FOR AFTER-SALES SERVICES DO NOT APPLY TO AN ALIEN SEEKING TO PERFORM BUILDING OR CONSTRUCTION WORK, WHETHER ON-SITE OR IN- PLANT, EXCEPT FOR THE PURPOSE OF SUPERVISING OR TRAINING OTHER WORKERS, BUT NOT ACTUALLY PERFORMING ANY SUCH BUILDING OR CONSTRUCTION WORK. 4. UNDER THE ABOVE FAM GUIDANCE, B-1 STATUS IS NOT APPROPRIATE FOR A VISA APPLICANT WHO WILL PERFORM BUILDING AND CONSTRUCTION WORK SUCH AS MASONRY, CARPENTRY, ROOFING, AND STEELWORK, UNLESS THE VISA APPLICANT WILL ONLY BE SUPERVISING OR TRAINING OTHER WORKERS AND NOT ACTUALLY PERFORMING THE BUILDING OR CONSTRUCTION WORK HIMSELF. FOR EXAMPLE, B-1 STATUS IS NOT APPROPRIATE FOR BUILDING AND CONSTRUCTION ACTIVITIES SUCH AS THE BUILDING OF ORNAMENTAL STRUCTURES FORMING PART OF RELIGIOUS TEMPLES, OR FOR VOLUNTEERS WHO WILL PERFORM BUILDING AND CONSTRUCTION WORK FOR CHARITABLE ORGANIZATIONS. FINALLY, B-1 STATUS IS NOT APPROPRIATE FOR A VISA APPLICANT WHO POSSESSES UNIQUE SKILLS AND WILL BE PERFORMING BUILDING AND CONSTRUCTION WORK, E.G. A MASTER STONEMASON, UNLESS THE VISA APPLICANT WILL ONLY BE SUPERVISING OR TRAINING OTHER WORKERS AND NOT ACTUALLY PERFORMING THE BUILDING OR CONSTRUCTION WORK HIMSELF. ALTHOUGH AN ALIEN MAY NOT ACTUALLY PERFORM BUILDING OR CONSTRUCTION WORK IN B-1 STATUS, HE MAY BE ABLE TO PERFORM SUCH WORK IN ANOTHER NONIMMIGRANT STATUS. FOR EXAMPLE, BUILDING OR CONSTRUCTION WORK MAY BE APPROPRIATE IN H2-B, OR OTHER STATUS. 5. IN ORDER TO ASSURE UNIFORMITY IN THE IMPLEMENTATION OF THE FAM GUIDANCE, AND IN ACCORDANCE WITH ESTABLISHED AGENCY PRACTICE, POSTS SHALL SUBMIT FOR AN ADVISORY OPINION ANY CASE IN WHICH THEY BELIEVE THE APPLICANT IS ELIGIBLE FOR B-1 STATUS BUT WHICH MAY INVOLVE THE ACTUAL PERFORMANCE OF BUILDING OR CONSTRUCTION WORK, INCLUDING CASES RELATING TO AFTER-SALES SERVICES DESCRIBED IN NOTE 7.1. CASES DO NOT HAVE TO BE SUBMITTED FOR AN ADVISORY OPINION WHERE THE CONSULAR OFFICER HAS DETERMINED THAT THE APPLICANT IS NOT OTHERWISE ELIGIBLE FOR B-1 STATUS. 6. CASES WHICH SHALL BE SUBMITTED FOR ADVISORY OPINIONS SHALL INCLUDE, BUT NOT BE LIMITED TO, ANY CASE WHERE THE STATE DEPARTMENT OFFICIAL BELIEVES THAT THE ALIEN IS APPLYING FOR A B-1 VISA TO ENGAGE IN: A. THE INSTALLATION, MAINTENANCE, AND REPAIR OF: UTILITY SERVICES, ANY PART OF THE FABRIC OF ANY BUILDING OR STRUCTURE, AND INSTALLATION OF MACHINERY OR EQUIPMENT TO BE AN INTEGRAL PART OF A BUILDING OR STRUCTURE; OR B. 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 C. 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 D. 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. 7. ALL AO REQUESTS SHOULD BE SLUGGED TO CA/VO/L/A. MINIMIZE CONSIDERED. POWELL |