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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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 

2The 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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