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 liaisonbetween 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. InMatter 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 andsolicitation 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

159Interim 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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