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Houston Lawyer tries to explain that the use of B-1 Visas are OK on building bridge in Dallas - (2/12/2010)

This is the first justification that the use of B-1 Visitor Visas are appropriate for welding and erecting this bridge. As represented in the letter, this is not a construction project and no American Workers are being displaced.

If no qualified American Workers could have been found, then the H-2B Visa process should have been followed for this project.

It seems the lawyer didn't mention all the FAM Notes or Immigration Statutes in the letter related to construction. Below is the regulations and State Dept. FAM Notes that should apply to this bridge and any other construction projects, whether or not it is skilled or unskilled labor. The B-1 Visa is not appropriate for this project.

B-1 Visas for Business Applications

8CFR Part 214
§ Sec. 214.2(b)(5) Visitors --

(1) General. Any B-1 visitor for business or B-2 visitor for pleasure may be admitted for not more than one year and may be granted extensions of temporary stay in increments of not more than six months each, except that alien members of a religious denomination coming temporarily and solely to do missionary work in behalf of a religious denomination may be granted extensions of not more than one year each, provided that such work does not involve the selling of articles or the solicitation or acceptance of do nations. Those B-1 and B-2 visitors admitted pursuant to the waiver provided at §


(5) Construction workers not admissible. 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. However, 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 or construction work, but not for the purpose of actually performing any suc h building or construction work themselves.

Immigration & Nationality Act

INA: ACT 101 - DEFINITIONS Sec.101(a)(15)(b)

Sec. 101. [8 U.S.C. 1101] (a) As used in this Act-

(15) The term "immigrant" means every alien except an alien who is within one of the following classes of nonimmigrant aliens


(B) 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;

TITLE 22 - FOREIGN RELATIONS
CHAPTER I - DEPARTMENT OF STATE
SUBCHAPTER E - VISAS

PART 41 - VISAS: DOCUMENTATION OF NONIMMIGRANTS UNDER THE IMMIGRATION AND NATIONALITY ACT, AS AMENDED

subpart d - TEMPORARY VISITORS 41.31(b)

41.31 - Temporary visitors for business or pleasure.

(a) Classification. An alien is classifiable as a nonimmigrant visitor for business (B1) or pleasure (B2) if the consular officer is satisfied that the alien qualifies under the provisions of INA 101(a)(15)(B), and that: (1) The alien intends to leave the United States at the end of the temporary stay (consular officers are authorized, if departure of the alien as required by law does not seem fully assured, to require the posting of a bond with the Attorney General in a sufficient sum to ensure that at the end of the temporary visit, or upon failure to maintain temporary visitor status, or any status subsequently acquired under INA 248, the alien will depart from the United States); (2) The alien has permission to enter a foreign country at the end of the temporary stay; and (3) Adequate financial arrangements have been made to enable the alien to carry out the purpose of the visit to and departure from the United States.

(b) Definitions. (1) The term business, as used in INA 101(a)(15)(B), refers to conventions, conferences, consultations and other legitimate activities of a commercial or professional nature. It does not include local employment or labor for hire. For the purposes of this section building or construction work, whether on-site or in plant, shall be deemed to constitute purely local employment or labor for hire; provided that the supervision or training of others engaged in building or construction work (but not the actual performance of any such building or construction work) shall not be deemed to constitute purely local employment or labor for hire if the alien is otherwise qualified as a B1 nonimmigrant. An alien seeking to enter as a nonimmigrant for employment or labor pursuant to a contract or other prearrangement is required to qualify under the provisions of 41.53. An alien of distinguished merit and ability seeking to enter the United States temporarily with the idea of performing temporary services of an exceptional nature requiring such merit and ability, but having no contract or other prearranged employment, may be classified as a nonimmigrant temporary visitor for business.
212.1(e) of this chapter may be admitted to and stay on Guam for a period not to exceed fifteen days and are not eligible for extensions of stay. (Paragraph (b)(1) revised 1/1/94; 58 FR 69210)

9 FAM 41.31 N7 ALIENS TRAVELING TO UNITED STATES AS VISITORS FOR BUSINESS

(CT:VISA-1235; 06-25-2009)

a. Aliens who desire to enter the United States for business and who are otherwise eligible for visa issuance, may be classifiable as nonimmigrant B-1 visitors provided they meet the criteria described in 9 FAM 41.31 N8 through 9 FAM 41.31 N11. Engaging in business contemplated for B-1 visa classification generally entails business activities other than the performance of skilled or unskilled labor. Thus, the issuance of a B-1 visa is not intended for the purpose of obtaining and engaging in employment while in the United States. Specific circumstances or past patterns have been found to fall within the parameters of this classification and arelisted below.

b. It can be difficult to distinguish between appropriate B-1 business activities, and activities that constitute skilled or unskilled labor in the United States that are not appropriate on B status. The clearest legal definition comes from the decision of the Board of Immigration Appeals in Matter of Hira, affirmed by the Attorney General. Hira involved a tailor measuring customers in the United States for suits to be manufactured and shipped from outside the United States. The decision stated that this was an appropriate B-1 activity, because the principal place of business and the actual place of accrual of profits, if any, was in the foreign U.S. Department of State Foreign Affairs Manual Volume 9 - Visas 9 FAM 41.31 Notes Page 6 of 32 country. Most of the following examples of proper B-1 relate to the Hira ruling, in that they relate to activities that are incidental to work that will principally be performed outside of the United States.

c. You may encounter a case involving temporary employment in the United States, which does not fall within the categories listed below. You should submit such cases to the Office of Legislation, Regulations, and Advisory Opinions Division (CA/VO/L/A) in accordance with the procedures in 9 FAM 41.31 N12 for an advisory opinion proper application of the law.

9 FAM 41.31 N10 OTHER BUSINESS

ACTIVITIES CLASSIFIABLE B-1

(CT:VISA-701; 02-15-2005)

While the categories listed below generally may be classified under the proper applicable nonimmigrant class, i.e., A, E, H, F, L, or M visas, you may issue B-1 visas to otherwise eligible aliens under the criteria provided below.

9 FAM 41.31 N10.1 Commercial or Industrial Workers

(CT:VISA-701; 02-15-2005)

a. An alien coming to the United States to install, service, or repair commercial or industrial equipment or machinery purchased from a company outside the United States or to train U.S. 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 visa applicant 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.

b. These provisions do not apply to an alien seeking to perform building or construction work, whether on-site or in-plant. The exception is for an alien who is applying for a B-1 visa for supervising or training other workers engaged in building or construction work, but not actuallyperforming any such building or construction work.

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