INS Discusses Entry of Truck Drivers in B-1 Status

U.S. Department of Justice
Immigration and Naturalization Service


?HQINS 70/6.2.2????

Office of the Executive Associate Commissioner 425 I Street NW
Washington, DC 20536


?September 12, 2001????


MEMORANDUM FOR MICHAEL A. PEARSON
EXECUTIVE ASSOCIATE COMMISSIONER
OFFICE OF FIELD OPERATIONS

FROM: Michael D. Cronin(S)
Acting Executive Associate Commissioner
Programs

SUBJECT: Entry of Commercial Truck Drivers into the United States IFM Update
IN 00-30

This memorandum adds a new Chapter 21.13 to the Inspector's Field Manual (IFM) to include current policy guidance relating to the admission into the United States of alien truck drivers in the B-1 visitor for business classification. In this memorandum, the Immigration and Naturalization Service (INS) addresses a number of outstanding issues and decisions to clarify under what conditions alien truck drivers qualify for admission as B-1 nonimmigrants to the United States. These provisions are not all-inclusive, and may not cover all possible situations encountered at ports-of-entry, but apply to drivers seeking admission from either Canada or Mexico, provided all other entry requirements are met.

On January 11, 1999, the INS issued a memorandum entitled Leasing Agreements Between U.S. and Mexican Carriers. That memorandum outlined existing INS policy relating to commercial truck drivers. Most of those provisions are incorporated into this field manual chapter. The January 1999 memorandum contained a section relating to goods stored in a U.S. facility pending distribution in the United States. This memorandum and field manual revision hereby rescinds those specific provisions. The INS has determined that picking up goods at a storage facility in the United States and delivering them to another location in the United States, even if those goods entered the United States pursuant to a pre-existing delivery contract, is contrary to the Distribution provisions of the North American Free Trade Agreement (NAFTA) and the regulations at 8 CFR 214.2(b)(4). Such activity would constitute cabotage.

For questions regarding this memorandum, please contact Assistant Chief Inspector Joyce Broughman at (202) 514-3019.



The following new section is added to IFM Chapter 21:

21.13 Entry of Commercial Truck Drivers.

(a) General. The INS regulations and policies have long held that alien truck drivers may qualify for admission as B-1 visitors for business. Two BIA precedent decisions, Matter of Cote, 17 I&N Dec. 336, (BIA 1980) and Matter of Camilleri, 17 I&N Dec. 441, (BIA 1980), support the entry of commercial truck drivers as B-1 visitors to pick up or deliver cargo traveling in the stream of international commerce. These decisions provide that certain other activities that are "necessary incidents" of international commerce are also permissible under the B-1 classification. Drivers must meet all general entry requirements for the B-1 classification, including any applicable documentary and admissibility requirements.

(b) INS Regulations and NAFTA. The INS regulations at 8 CFR 214.2(b)(4) codify the Distribution provisions found in Appendix 1603.A of the NAFTA with respect to the admission of Canadian and Mexican citizens as B-1 business visitors. The NAFTA Distribution provision is based on applicable U.S. law, precedent decisions, and INS experience with the B-1 classification at the time the trade agreement was negotiated. The contiguous nature of the United States with Canada and Mexico and the importance of cross-border transportation prompted the need to develop explicit provisions regarding distribution of goods and passengers. Acceptable activities for B-1 nonimmigrants under the NAFTA are the same as those allowed for other B-1 nonimmigrants under current INS regulations, such as delivering or transporting products. The intent of the Distribution provision of the NAFTA Business Visitor category is to set forth transparent criteria for the admission of alien drivers transporting goods or passengers across the border, an activity that is international in scope - it is not to facilitate access to the domestic labor market. 8 CFR 214.2(b)(4)(i)(E)(1) defines the distribution activity as:

Transportation operators transporting goods or passengers to the United States from the territory of another Party or loading and transporting goods or passengers from the United States to the territory of another Party, with no unloading in the United States, to the territory of another Party. (These operators may make deliveries in the United States if all goods or passengers to be delivered were loaded in the territory of another Party. Furthermore, they may load from locations in the United States if all goods or passengers to be loaded will be delivered in the territory of another Party. Purely domestic service or solicitation, in competition with United States operators, is not permitted.)

(c) Key Principles Relating to Cabotage. Several General Counsel opinions have addressed certain aspects related to trucking. However, as the transportation industry grows and evolves, inspectors are faced with new and unique situations that did not previously exist and may not have been considered or addressed. Cabotage (carrying goods picked up at one point in the United States and dropping them off at another point in the United States), sometimes referred to as point-to-point hauling, is not a "necessary incident" of international commerce. Although this guidance cannot address every situation, there are several general principles to keep in mind when determining whether a trucking movement is a permissible B-1 activity versus an activity constituting cabotage or unlawful employment in the United States:

(1) The goods must be leaving or entering, and remain, in the stream of international commerce.

(2) Cargo that has its origin and final destination within the United States generally moves in the stream of domestic, rather than international commerce. The mere fact that goods originate from a foreign source does not make such goods "foreign" for purposes of the immigration laws. The goods must remain in the international stream of commerce - once they have come to rest, they assume a domestic character, including foreign goods that undergo a change, alteration, processing, or remanufacturing upon arrival in the United States.

(3) A driver bringing goods from Canada or Mexico may transport those goods to one or several locations in the United States, and may pick up goods from one or several U.S. locations for delivery to Canada or Mexico, but the driver may not load, haul, or deliver a cargo that has its origin and its final destination within the United States.

(4) The regulation focuses on the transportation of goods from one location to another and not the place where the goods are manufactured, processed or packaged. While the origin of the goods may be U. S. or foreign, the driver may not both pick up a shipment from one location and deliver that shipment to another location within the United States. Further, a driver may pick up goods in Canada or Mexico, regardless of whether they are foreign or U.S. made, and deliver them to a location in the United States.

(5) The entry of the driver must be for the purpose of an international movement of goods.

(6) Drivers may not engage in any activity that qualifies as local labor for hire.

(7) As with the application for admission of any nonimmigrant visitor, the burden of proof remains with the driver to establish eligibility for entry.

(d) Permissible Activities. In addition to the basic international deliveries and pick-ups discussed above, following are some other permitted movements and activities. These activities are not all-inclusive, but generally follow the same principles involving international commerce.

(1) Deadheading trailers. While delivering goods from Canada or Mexico to the United States, or picking up goods in the United States for delivery to Canada or Mexico, drivers may deadhead (pull empty) a trailer from one location to another within the United States, PROVIDED the deadhead trailer is either the one the driver came in with or the one he or she is departing with. The driver may not haul an empty trailer from one location to another within the United States (known as trailer spotting or repositioning) if the driver did not either bring that trailer in or take it out of the United States. Hauling an empty trailer that the driver does not either enter with or depart with is considered local labor for hire and alien drivers require employment authorization for this type of movement.

(2) Driving an empty tractor. Drivers may enter with an empty tractor to pick up a trailer for delivery to Canada or Mexico. They may drop a loaded trailer from Canada or Mexico at one location in the United States and then drive the empty tractor to another location in the United States to pick up a loaded trailer destined to Canada or Mexico. Drivers may also enter with an empty tractor to pick up a loaded trailer or goods previously brought from either Canada or
Mexico and left at the port-of-entry or a Customs warehouse or lot for government inspection or entry processing, and deliver that loaded trailer or goods to another point in the United States. The driver must present documentation or provide verification that the trailer or goods are under government control and that they originated outside the United States. Since it is the government itself that is hindering the driver from completing a continuous international move, this limited exception to the prohibition on both loading and unloading goods within the United States is permitted. For example, if clearance by a government agency such as the Department of Agriculture (USDA) is required before goods are delivered further within the United States, then the holding of the goods is part of the entry procedure and analogous to holding the goods for inspection at the port-of-entry. The goods remain in the international stream of commerce. An alien driver may be admitted to pick up the goods at the port-of-entry or USDA holding lot and deliver the goods to another point in the United States, even if that driver did not originally bring those goods to the United States. However, if clearance by the government agency is not required before the goods are delivered further within the United States, the holding of the goods is not part of the entry procedure. In this scenario, use of an alien driver to deliver the goods from a holding lot to another point in the United States is cabotage and deemed an impermissible B-1 activity.

(3) Back-Up and Relay Drivers. To promote highway safety or address emergency situations only, the INS allows certain limited movements that would otherwise be considered domestic or point-to-point hauling. Back-up or relay drivers employed by the same company may be admitted as B-1 nonimmigrants in order for drivers to comply with Federal regulations regarding the number of consecutive hours an individual is permitted to drive. These relay drivers may drive entirely domestic segments of an international delivery, provided the domestic portion of the trip is a necessary incident to the international nature of the trip. They need not enter with the vehicle, but must enter within a reasonable period of time before or after the



vehicle enters the United States. Drivers entering as relay drivers are considered to be entering for the purpose of an international movement.

(4) Tractor Replacements. For emergency or safety reasons, an alien driver may enter the United States with an empty tractor (bobtail) to replace a tractor already in the United States, such as when the tractor in the United States has broken down, or when the original driver needs to return to either Canada or Mexico for a medical or other emergency.

(5) Yard Moves. An alien driver may "spot" or "shunt" an empty trailer (other than the one he came in with) within a yard or lot only if moving the trailer from one location in the yard to another is a necessary incident to that driver's international commerce, i.e. the driver must move the empty trailer out of the way in order to complete an international delivery to that warehouse door or loading dock.

(6) Trailer Switches. An alien driver delivering goods from Canada or Mexico to a point in the United States (or traveling in the opposite direction) may meet at a drop yard or other location and switch trailers with another driver also delivering goods from Canada or Mexico to a different point in the United States (or traveling in the opposite direction), so that, for instance, the drivers may make their deliveries closer to their home in Canada or Mexico, or so that one driver can meet a tighter delivery schedule. Both drivers must continue in an international move. On the other hand, a driver coming from Canada or Mexico may not switch trailers with a Canadian or Mexican driver coming from a point within the United States, when the driver coming from within the United States will only be returning to another point in the United States. In other words, both drivers must either enter or depart the United States with a load.

(7) Necessary Incidents. Drivers may perform activities that are "necessary incidents" of international commerce, or a necessary function of delivery, such as loading or unloading international cargo. In addition to loading and unloading, the driver may participate in activities to secure or level the cargo, as needed. For instance, an alien driver delivering a portable dwelling or prefabricated parts may unload the dwelling or prefabricated parts and any required supporting foundation shipped with the dwelling. As part of the delivery, the driver may secure the dwelling or prefabricated parts of a building as necessary, but may not be involved in building, construction, or other activities such as clearing or leveling the site, sealing seams, installing steps, or hooking up utilities. Drivers may not return to U. S. job sites to unload, move or affix previously delivered parts of a building.

(8) Alien Drivers Paid by U.S. Carriers. U.S. carriers may hire an alien truck driver to engage in cross-border trucking activity into and out of the United States. These drivers may be paid by the U.S. carrier, provided that the alien driver is engaged solely in the international delivery of goods and cargo to or from the United States. Regardless of the terms of the hiring or any contract between the U.S. company and the driver, the alien driver may not engage in domestic carriage of goods without specific INS employment authorization. The alien driver


must have an established foreign residence and must affirm that he or she does not plan to immigrate to the United States or abandon his or her foreign residence. Prior to entry, the driver must obtain any applicable entry documents.

(e) Activities Not Permitted. In addition to certain prohibitions discussed above:

(1) Drivers may not pick up goods at one U.S. location and deliver those goods to another U.S. location, except as discussed above. In addition, on January 11, 1999, the INS issued a memorandum entitled Leasing Agreements Between U.S. and Mexican Carriers that included paragraphs relating to picking up goods stored in a U.S. facility pending distribution in the United States. The INS has determined that picking up goods at a storage facility in the United States and delivering them to another location in the United States, even if those goods entered the United States pursuant to a pre-existing delivery contract, is contrary to the Distribution provisions of the NAFTA and the regulations at 8 CFR 214.2(b)(4). Such activity would constitute cabotage. This chapter supersedes that memorandum.

(2) Drivers may not reposition an empty trailer between two points in the United States when the driver did not either enter with or depart with that trailer.

(3) Drivers may not "top up" an international shipment with U.S. domestic shipments.

(4) Drivers may not pick up goods at one location in the United States and travel through Canada or Mexico to deliver those goods to another location in the United States, i.e. a driver may not pick up goods in Washington State and then drive those goods through British Columbia to deliver them in Alaska. That is essentially the same as a driver picking up goods in Washington State and driving through Oregon to deliver the goods in California. The determining factor is the action of the driver picking up goods in one location in the United States and delivering the same goods to another location in the United States.

(5) Drivers may not directly solicit shipments for deliveries while in the United States.

(f) Disparity with Customs Regulations. In February 1999, the U.S. Customs Service revised its regulations to permit certain foreign-based commercial vehicles to engage in
transportation of goods between points in the United States, when such transportation is either immediately prior to, or subsequent to, an international move. While the INS recognizes the disparity between what is now permitted under Customs regulations for the entry of equipment and goods and what is permitted for the driver under current immigration regulations, it is important to note that the NAFTA provisions and the immigration statutes governing the entry of drivers are more restrictive than those under which the U.S. Customs Service operates, and do not allow as much flexibility in the regulatory and policy process. Both the NAFTA provisions and precedent decisions interpreting the visitor for business statute expressly forbid point-to-point hauling within the United States. The fact that foreign equipment may be permitted under Department of Transportation or Customs Service regulations to operate within the United States in domestic service does not permit the employment of foreign drivers who are not authorized by INS to accept employment in the United States. A U.S. carrier that employs an alien truck driver without appropriate employment authorization to transport goods that move within the stream of domestic commerce may be subject to civil and/or criminal penalties under section 274A of the INA.


cc: Office of Policy Directives and Instructions