IN THE MATTER OF C----, 2 IN Dec. 374 (BIA 1945)
IN THE MATTER OF C----. In EXCLUSION Proceedings.
56172/981Board of Immigration AppealsExecutive Office for Immigration ReviewU.S. Department of Justice
Decided by Board October 10, 1945.
Contract Laborer — Section 3 of the act of February 5, 1917.
An alien seeking admission primarily to continue employment here as a machinist (manual laborer) is subject to exclusion under the contract labor provisions of the act of February 5, 1917, as one primarily induced to migrate in consequence of a contract of employment to perform such labor, it being immaterial that such employment had been acquired while the alien was here on a previous visit or that he already had performed such labor for a period of time pursuant to such contract of employment while here other than under a lawful immigrant status.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 — Immigration without immigration visa.
Act of 1940 — No visa, reentry permit, or border crossing card.
Act of 1917 — Alien contract labor.
BEFORE THE BOARD
BEFORE THE BOARD
Discussion: The appellant, a 32-year-old native and citizen of Canada, applied for admission at Buffalo, N.Y., on December 16, 1944, and after hearings on that day and on December 21, 1944, was excluded on the grounds above stated. His appeal is now before us for consideration.
The alien is married and has his home in Fort Erie, Ontario, Canada. He is regularly employed 5 days a week as a machinist at an airplane plant in that city. The local crossing privilege has been previously extended to him and on one of his trips to the United States, about the first of December 1944, he sought part-time employment in Buffalo for the purpose of supplementing his Canadian earnings. The local office of the United States Employment Service in Buffalo referred him to the General Engineering Co. of that city where he was hired as a machinist at 95 cents per hour. Since about December 1, 1944, the appellant has worked in Buffalo on Saturdays and Sundays of each week on the 7:30 a.m. to 4:00 p.m. shift, commuting to his place of employment from his home in Fort Erie.
When the alien applied for admission on December 16, 1944, his primary, and in fact his sole reason for seeking entry was to reportPage 375
for work at the General Engineering Co. He testified that were it not for that employmnet he would not then have sought admission. Clearly on this evidence, the appellant is not a nonimmigrant as defined by any subdivision, and in particular subdivision (2), of section 3 of the Immigration Act of 1924. He must therefore be found to have been an immigrant and since he did not have an immigration visa in his possession, he is inadmissible under section 13 of the 1924 act. In addition, his failure to present the documents required by section 30 of the Alien Registration Act of 1940 subjects him to exclusion under that provision.
With respect to the contract labor charge, section 3 of the act of February 5, 1917, provides, in part, for the exclusion of aliens "who have been induced, assisted, encouraged, or solicited to migrate to this country by offers or promises of employment, * * * or in consequence of agreements * * * to perform labor in this country." No question is raised in this case as to the nature of the labor to be performed by the appellant in the United States. It is clearly manual and of the type comprehended by the contract labor provisions of the 1917 act. The only issue is whether the alien's migration to this country is being induced, assisted, encouraged, or solicited by an offer or promise or in consequence of an agreement to perform labor here.
The fact that the offer, promise, or agreement may have been made while the appellant was in the United States on the occasion of his lawful admission as a local crosser is in our opinion of no moment in the consideration of this issue. To hold otherwise would mean that an alien residing in contiguous territory who entered the United States as a local crosser or surreptitiously and then obtained an offer or promise of employment or entered into an agreement to perform labor would not be inadmissible as a contract laborer after leaving the United States and applying for admission to proceed to his place of employment even though his sole purpose in seeking entry is to perform the labor contracted for; whereas if the same alien had obtained the same offer, promise, or entered into the same agreement while in foreign contiguous territory, he would be excludable as a contract laborer if he came in for the same purpose.[fn1] The wording and plain meaning of the statute do not warrant such a construction. Likewise the fact that an alien seeks admission primarily to resume employment previouslyPage 376
obtained while in this country other than under a lawful immigrant status[fn2] and which has continued for some time is immaterial.[fn3]
We believe that the proper rule to be adopted is that where the alien seeks admission primarily to accept an offer or promise to perform labor of the type covered by the contract labor provision or in consequence of an agreement to perform such labor, no matter where or when such offer, promise, or agreement was made, he is subject to the contract labor provisions. As we said above, the appellant's primary and in fact sole reason in seeking admission was to continue his employment acquired while in this country on a previous visit. The inducement for his migration is obviously the contract of employment which he entered into to work 2 days weekly as a machinist in the plant of the General Engineering Co. in Buffalo. He is inadmissible as a contract laborer.
Under substantially similar facts this Board reached a like conclusion in Matter of T----, 56155/695 (October 30, 1943), a decision which we reaffirm. Our holding in Matter of T----,
56235/243 (now A-5988732) (August 4, 1944), in which a similar issue was involved, was to the contrary. That holding is hereby overruled.
Findings of Fact: Upon the basis of all the evidence presented, it is found:
(1) That the appellant is an alien, a native and citizen of Canada;
(2) That the appellant's home is in Canada;
(3) That while in the United States on a visit about December 1, 1944, the appellant obtained part-time employment as a machinist in a Buffalo plant;
(4) That the appellant commuted to his place of employment twice weekly for a period of 2 weeks;
(5) That the appellant seeks admission to resume his employment as a machinist at the Buffalo plant;
(6) That the appellant's sole reason for seeking admission is to resume such employment;
(7) That the appellant is not in possession of a visa, reentry permit, or border-crossing card.Page 377
Conclusions of Law: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under section 13 (a) of the Immigration Act of 1924, the appellant is inadmissible in that he is an immigrant not in possession of a visa;
(2) That under section 30 of the Alien Registration Act of 1940, the appellant is inadmissible as not in possession of a visa, reentry permit, or border-crossing card;
(3) That under section 3 of the act of February 5, 1917, the appellant is inadmissible as a contract laborer, one who has been induced to migrate to the United States by reason of an agreement to perform labor in the United States.
Other Factors: The appellant's personal record appears to be satisfactory and the excluding decision will be affirmed without prejudice to a reapplication for admission within 1 year.
Order: It is ordered that the excluding decision be affirmed without prejudice to a reapplication for admission within 1 year.
[fn1] If the record evidence shows that the alien's primary reason for seeking admission is not because of the offer, promise, or contract of employment, but is his sincere desire to establish a home here, he would not be inadmissible as a contract laborer. (Matter of S----, 56107/838 (November 7, 1942).
[fn2] If an alien obtains an immigration visa, enters the United States as a permanent resident, obtains employment and thereafter commutes to his place of work from his home in foreign contiguous territory, he would not be excludable as a contract laborer. In that case his residence would be deemed to be constructively in the United States.
[fn3] If the evidence in this type of case shows that the alien has established a residence here in the meantime, illegal though it may be, there would be strong reasons for finding that the contract of employment is not the primary inducement for his migration and that he is therefore not subject to exclusion as a contract laborer.Page 378