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Proposed Rule

Construction Work and the B Nonimmigrant Visa Classification

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Information about this document as published in the Federal Register.

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ACTION:

Advanced notice of proposed rulemaking.

SUMMARY:

The Bureau of Consular Affairs (CA) is soliciting comments from the public on the issue of whether the term “building and construction work,” as used in 22 CFR 41.31(b)(1) 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 CA in determining whether certain classes of aliens may obtain visas 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 by mail to: Legislation and Regulations Division, Visa Office, Room L-603C, 2401 E Street, NW., Washington, DC 20520-0106, or e-mailed to visaregs@state.gov. Please reference the Public Notice Number for this notice.

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FOR FURTHER INFORMATION CONTACT:

Jeffrey Gorsky, Chief, Advisory Opinions Division, Directorate for Visa Services, Room L-603F, 2401 E Street, NW., Washington, DC 20520-0106; telephone 202-663-1187; or e-mail to gorskyjg@state.gov.

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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.

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What are the current regulations and internal field guidelines governing the admission of B-1 nonimmigrant visitors for business?

The Department of State (DOS), which is responsible for the issuance of visas overseas to aliens seeking to enter the United States as B-1 nonimmigrant visitors for business, has long interpreted section 101(a)(15)(B) of the Act to mean that an alien may obtain a visa 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 and Matter of Duckett, 19 I & N Dec. 493, 497 (BIA 1987).

22 CFR 41.31(b)(1) provides, in part, that the term “business * * * 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 B-1 nonimmigrant.”

The Department's Foreign Affairs Manual (FAM), Part 41.31, Note 7.1 on “Commercial or Industrial Workers” provides the following:

“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 the purpose of supervising or training other workers engaged in building or construction work, but not actually performing any such building or construction work.”

On May 24, 2001, the Department of State, after consultation with the Immigration and Naturalization Service (INS), disseminated a telegram to all diplomatic and consular posts providing that posts shall seek an advisory opinion when an alien is applying for a B-1 visa to engage in 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 painters (including the application of all surface coatings, no matter how applied); bridge, structural and ornamental ironworkers; plumbers and pipefitters; 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 is 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.”

The listed activities are not a definition of “building and construction work,” but rather a trigger for additional questions prior to visa issuance. A 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 the issuance of a visa.

Why is the Department of State considering defining the term “building and construction work” as used in the issuance of visas to B-1 nonimmigrant visitors for business?

The Department of State has never defined the term “building and construction work” in regulation. The Department believes that confusion may exist within the international business and construction community regarding what activities constitute “building and construction work” for the purposes of issuance of a visa to an applicant as a B-1 nonimmigrant visitor for business. In particular, the distinction between the installation of equipment, which is a permissible B-1 activity, and “building and construction work” has been difficult to draw. For example, large equipment is often designed to be an integral part of a building itself. Aliens working on such equipment might be viewed by some to be performing “building and construction work,” and by others to be merely installing equipment. The Department of State is very interested in exploring a definition of “building and construction work” that would clarify this gray area. Therefore, the Department seeks public comments on the question of whether a more specific regulatory definition of “building and construction work” is required, and if so how the term should be defined.

Will the Department of State adopt a definition of “building and construction work” that is already used by another Federal agency?

The Department of State 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 Department of State seeks comments from the public on the DOL definition, on any other Federal definition, on the definition of activities listed in the May 24 telegram which currently triggers closer scrutiny by consular officers, and welcomes new definitions of the term “building and construction work.”

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Dated: September 4, 2001.

Mary A. Ryan,

Assistant Secretary for Consular Affairs, Department of State.

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[FR Doc. 01-23488 Filed 9-18-01; 8:45 am]

BILLING CODE 4710-06-P