Interim Decision #2739 

MATTER OF OPFERKUCH 

In Exclusion Proceedings 

A-22953714 

Decided by Board April 11, 1979 

A salaried "project specialist" who plans to enter the United States three to six times 

during a period of 18 months to serve as a liaison between his employer in Canada and 

a Texas corporation, who never solicits business in the United States, and who has as 

his sole purpose the gathering of pertinent information for a company in which he is 

not an officer or principal, comes within the definition of a nonimmigrant business 

visitor as that term is defined under section 101(a)(15)(B) of the Immigration and 

Nationality Act, 8 11U1(a)(15)(B). Matter of Neill, 15 MN Dec. 331 (BIA 1973), 

distinguished. 

EXCLUDABLE: Act of 1952—Sec. 212(a)(14) [8 U.S.C. 1182(a)(14))—Not in possession of 

a valid unexpired labor certification 

Sec. 212(a)(20) [8 U.S.C. 1182(a)(20)1—Immigrant—not in 

possession of a valid unexpired immigrant visa 

ON BEHALF OF APPLICANT: 

George P. Doyle, Esquire 

Doyle, Denman & D'Amico 

10 Ellicott Square Building 

Buffalo, New York 14202 

ON BEHALF OF SERVICE: 

George Indelicate 

Appellate Trial Attorney 

By: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members 

This case presents an appeal from a decision of the immigration 

judge on November 27, 1978, ordering that the applicant be excluded 

and deported from the United States. The appeal will be sustained. 

The applicant is a citizen of West Germany and a landed immigrant 

in Canada who seeks admission to the United States for 2 or 3 days as a 

business visitor. He is a salaried "project specialist" for Holderbank 

Consulting, Ltd., a Canadian corporation founded to sell its expertise 

in fields related to cement manufacturing. The applicant allegedly 

never solicits business in the United States, but rather is a coordinator 

liaison between Holderbank and Kaiser Cement and Gypsum Corporation in San Antonio, Texas, examining facilities there and relaying 

information back to his employer in Canada. It is anticipated that he 

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Interim Decision #2739 

would be required to enter this country as a liaison three to six times 

during the contract period of a maximum of 18 months. It would 

appear, therefore, that he expects to be employed in the United States 

for less than 8 percent of his working year. 

Placing reliance upon our decision in Matter of Neill,15 I&N Dec. 381 

(BIA 1975), the immigration judge found that the applicant's intended 

activity is a personal service in the United States, independent of any 

other commercial activity, and not within the definition of "business" 

as defined in section 101(a)(15)(B) of the Immigration and Nationality 

Act, as amended, 8 U.S.C. 1101(a)(15)(B). Counsel contended, both in 

his appeal brief and at oral argument, that the Neill case is totally 

distinguishable from the instant case. 

Section 101(a)(15)(B) of the Act defines a nonimmigrant business 

visitor as— 

an alien ... 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 not 

to include ordinary labor for hire, but is limited to intercourse of a 

commercial character. See Karnuth v. U.S. ex rel. Albro, 279 U.S. 231 

(1929); Matter of Hira, 11 I&N Dec. 824 (BIA 1965,1966; A.G. 1966).. We 

are persuaded that the applicant does in fact come within the above 

definition and thus qualifies as a nonimmigrant visitor within the 

purview of section 101(a)(15)(B) of the statute. 

In Matter of eill, supra, a principal in a Canadian engineering fi:rm, 

then earning approximately 30 percent of its income from clie:nts 

located in the United States, averaged one or more trips a week to this 

country in connection with his practice. In concluding that the applicant was not engaged in "business" as that term is used in section 

101(a)(15)(B) of the Act, we found that his professional activities in the 

United States went "well beyond functions which can be described as 

necessary incidents to international trade or commerce." We further 

found that he was "regularly performing personal services in the 

United States independent of any other commercial activity." The 

Board ordered his exclusion and deportation from this country, pursuant to section 212(a)(20) of the Act, 8 U.S.C. 1182(a)(20). 

Upon review of the record, we are in agreement with the contention 

of counsel for the applicant that this case is clearly distinguishable 

from our earlier decision in the Neill case. The latter case concerned 

the active participation by a principal in the firm in negotiation and 

solicitation of business in this country while ostensibly here for consultation purposes only. We are satisfied that in the present case, the 

applicant's sole purpose in coming to this country would be to gather 

pertinent information for a company in which he is not an officer or 

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Interim Decision 112739 

principal. Accordingly, the appeal will be sustained and the applicant 

granted temporary admission into the United States. 

ORDER: The applicant is permitted to enter the United States for 

such periods of time, and under such conditions, as the District 

Director may impose. 

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