[Federal Register Volume 66, Number 182 (Wednesday, September 19, 2001)]
[Proposed Rules]
[Pages 48223-48224]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-23327]


 ========================================================================
 Proposed Rules
                                                 Federal Register
 ________________________________________________________________________
 
 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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 

  Federal Register / Vol. 66, No. 182 / Wednesday, September 19, 2001 / 
Proposed Rules  

[[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 [email protected]. 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 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 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