[Federal Register Volume 66, Number 182 (Wednesday, September 19, 2001)]
[Proposed Rules]
[Pages 48224-48225]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-23488]


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DEPARTMENT OF STATE

Bureau of Consular Affairs

22 CFR Part 41

[Public Notice 3783]


Construction Work and the B Nonimmigrant Visa Classification

ACTION: Advanced notice of proposed rulemaking.

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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 [email protected]. Please 
reference the Public Notice Number for this notice.

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 [email protected].

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.

[[Page 48225]]

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.''

    Dated: September 4, 2001.
Mary A. Ryan,
Assistant Secretary for Consular Affairs, Department of State.
[FR Doc. 01-23488 Filed 9-18-01; 8:45 am]
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