P

MATTER of P

In EXCLUSION Proceedings

A-11163038
Decided by Board December 3, 1958

Nonimmigrant—Visitor for business—Canadian salesman eligible to enter
United States temporarily to solicit orders.
Employee of a Canadian firm who comes to United States about four times a
year for 2-week periods to sell plastic bags to United States customers is
eligible for admission as nonimmigrant visitor for business where his em-
ployer's principal place of business is in Canada, the accrual of profits from
LIm w solo takes pincc in Canada, Li commissions from sales in the United
States are a minor part of his over-all income, and each of his entries is
plainly of a temporary nature.

RecTIrn nrs. r Act of 1952—Section 212(a) (20) (8 U.S.C. 1182(a) (20) —Immi-
grant not in possession of a valid immigrant visa.

BEFORE THE BOARD

Discussion: The case comes forward on appeal by the Acting
District Director, Helena, Montana, from the decision of the special
inquiry officer dated July 10, 1958, ordering that the applicant be
admitted to the United states as a temporary visitor for inisimi,s
for a period not to exceed 14 days.
The applicant is a native of Scotland, national of Great Britain,
a permanent resident of Canada, who seeks admission to the United
States as a temporary visitor for business under the provisions of
section 101(a) (15) (B) of the Immigration and Nationality Act.
As a British resident of Canada he is exempt under the provisions
of S CFR 212.1 from the necessity of presenting a passport or visa.
The question to be determined is whether the applicant qualifies as a
nonimmigrant.
The applicant testified that he has never resided in the -united
States and has no intention of residing here but intends to continue
to make his home with his wife and family in Calgary, Alberta,
Canada, where he is employed as a salesman for a firm which manu-
factures polythylene and cellophane bags. Ile desires to enter the
United States temporarily as a visitor for a period of 10 days or
2 weeks for the purpose of selling the cellophane bags as part of

200
his employment for the Canadian firm. His selling territory in the
United States embraces customers in the States of Montana, Idaho,
Oregon, California and Washington. These customers are produce
packers whom lie calls on for the purpose of selling them these bags
as he has in the past 2 years. He enters the United states for this
purpose 3 or 4 times a year for a period of 10 days to 2 weeks. The
applicant is paid a commission of four-and-a-half per cent and earns
approximately $1000 a year on the sales he makes in the United
States. The employer testified that it would not be profitable to
engage a salesman in the United States to sell these products since
there is not enough business to warrant ouch employment.
Under the provisions of section 101(a) (15) (B) of the Immigra-
tion and Nationality Act a nonimmigrant visitor is defined as an
alien having a residence in a foreign country which he has no in-
tention of abandoning and who is visiting the United States tempo-
rarily for business or temporarily for pleasure. The applicant satis-
fies the first part of this definition and the remaining question is to
whether he is a visitor for business. The term "business" as used in
section 101(a) (15) (B) refers to legitimate activities of a commer-
cial or professional character but does not include purely local
employment or labor for hire (22 CFR 41.40 (b)). Innumerable
cases have arisen, some of which present borderline situations which
require a determination as to whether the applicant is a nonimmi-
grant or en immigrant Previous cases have laid down the follow-
ing significant considerations to be stressed: (1) there is a clear
intent on the part of the alien applicant to continue the foreign
residence and not abandon the existing domicile; (2) the principal
place of business and the actual place of eventual accrual of profits,
at least predominantly, remains in the foreign country; (3) while
the business activity itself need not be temporary, and indeed may
be long continued, the various entries into the United States made
in the course thereof must be individually or separately of a plainly
temporary nature in keeping with the existence of the two preceding
considerations.'
Both the special inquiry officer and the Service representative at
oral argument have cited a number of cases to sustain their respec-
tive positions. None of the cited cases appears to be particularly
helpful. Analyzing the facts in the instant case, there is no doubt
of a clear intent on the part of the alien applicant to continue his
foreign residence and not abandon his existing Canadian domicile.
The principal place of business of the firm which employs him is
in Canada and it appears that the applicant is paid in Canada. The
actual accrual of profits from his work (or wages) appears to take
-.1fatter of • P—, 4 I. & N. Dee. 217; Matter o1 G—, G I. & N. Dee.
255; Mattel- of 6 I. & N. Dec. 533.

207
place in Canada. Since he is a full-time salesman the amount of
commissions he earns from sales in the United States would appear
to constitute a minor port of his total income. There is no doubt
that each separate entry is of a plainly temporary nature in keeping
with the existence of the two previous considerations. His situation
appears to be similar to that of a sales representative of a Canadian
advertising firm who was admitted as a temporary visitor for busi-
ness to solicit accounts of long standing which would continue
indefinitely in the future? It is believed that the entry of the
applicant is in furtherance of international trade or commerce and
that he may properly be regarded as a nonimmigrant. The order
of the special inquiry officer will be affirmed.
Order: it is ortleted that the appeal be dismissed and that the
order of the special inquiry officer dated July 10, 197;8, admitting
the applicant as a temporary visitor for business for a period not
to exceed 14 days be and the same is hereby affirmed.
Matter of 0 , 6 7. & X Dec. 255, 257, footnote 3, citing Matter of S—,
A-68773(79. Bee also unreported Matter of H---, A-7142296 Pone 17, 1949),
and motto, of ,5-7142287 (Tune 22, 1949), In which Canadian farmers
coming here for 2 days to solicit orders or raroicro and bar dealers iu Bangor.
Maine, for purchases of bay obtained in Canada were held to be coming tem-
porarily to do business of a commercial nature which was not permanent or
continuing, although both had been here a number of times before.

Otis