INS Seeks Comment on Bs and Construction Work

[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

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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]
BILLING CODE 4410-10-M