Introduction: Matter of Hira, 11 I&N Dec. 824 (BIA 1966 aff’d by A.G. in 1966)

In 1965 and 1966, the Board of Immigration Appeals (BIA) entered two decisions in the Matter of Hira. The Board held that an alien who entered the United States as a B1 visitor for business and took the measurements of and orders from customers on behalf of his employer in Hong Kong did not, based on the facts and circumstances, render himself ineligible for B1 classification. The Board’s decision in Matter of Hira was affirmed in full by then-Attorney General Nicholas Katzenbach on September 30, 1966 [PDF version]. Matter of Hira is an influential decision in the context of what constitutes permissible business activities for B1 visitors for business, serving as the basis for the U.S. Department of State’s (DOS’s) guidance to consular officers in its Foreign Affairs Manual (FAM).

In this article, we will examine the Matter of Hira decisions and their continuing relevance today in the B1 context.

The Matter of Hira Decisions

The respondent, a native and citizen of India, was originally admitted to the United States as a visitor for business on or about September 14, 1963. He was authorized to remain in the United States until March 14, 1964. The respondent applied for an extension of temporary stay on August 26, 1964, “for further study of the market.” The respondent’s application was granted on August 27, 1964. His new period of stay was set to expire on April 14, 1965. Prior to his deportation proceedings, the respondent was last admitted to the United States as a visitor for business on February 12, 1965, and was authorized to stay until April 14 under the extension that had been granted several months earlier.

On March 2, 1965, more than one month before his authorized period of stay was slated to expire, the respondent was served with an order to show cause, initiating deportation proceedings against him. The respondent’s deportation hearing was held on March 25, 1965. The special inquiry officer found the respondent deportable and granted his application for voluntary departure. The respondent appealed from the special inquiry officer’s decision to the BIA.

The Board listed the facts concerning the nature of the respondent’s employment that were not in dispute:

The respondent, in behalf of his employer, Mohan’s Ltd., of Hong Kong [a tailor company], travels to various cities in the United States taking the customer’s measurements.
The purchase price of the merchandise is sent to the employer in Hong Kong, either by the respondent or directly by the customer.
The respondent testified that he does not solicit customers in the United States but takes orders only from persons who contact him as a result of the literature distributed by his employer in this country making known his itinerary, the items he has available for sale and in what hotel he may be contacted.

The respondent further testified that he worked on a straight salary basis with an additional allowance for living and business expenses. He testified that he received no percentage of the value of orders which he took in the United States, but that he might receive a bonus for those orders upon return to Hong Kong. He stated that his employer sent his salary to his parents in India while he was in the United States. He testified that his parents paid for his living expenses while he was in the United States. The respondent had no other income other than the income he received from his employment.

The government had charged that the alien’s use of the terms “study the United States business market” and “further study of the business market” were intended to be vague or misleading. The alien denied this. He stated that he understood “further study of the business market” to be what he would be doing in the United States — that is, he would be learning about the United States market in order to determine how much more business his employer could hope to do in the United States and what kinds of colors and fashions would be appealing to their American customers. The Board noted that the record indicated that the respondent’s employer purchased American textiles.

The respondent also noted that his employer obtained customers through its catalogues and customers had to take their own measurements in order to make an order. By performing the measurements himself, the respondent explained that he could forestall future complaints that ordered clothes did not fit well.

The Board also noted that the respondent’s absence to Canada on February 12, 1965, was only for a few hours and he was properly admitted with his valid B1 visa.

The question before the Board was whether the alien’s activities constituted “business” for purpose of being a “temporary visitor for business,” and not skilled or unskilled labor, which would be prohibited in the B1 category. The Supreme Court of the United States held that the term “business” in the statute included only “intercourse of a commercial character” and, that by excluding the performance of “labor,” it was intended to protect American labor. Karnuth v. United States, 279 U.S. 231 (1929) [PDF version]. Citing to its own precedents, the Board listed the primary considerations for determining whether a B1 visitor is in fact a bona fide nonimmigrant for business:

There must be a clear intent on the part of the alien to continue the foreign residence and not abandon the exiting domicile;
The principal place of business and the actual place of the eventual accrual of profits, at least predominantly, remains in the foreign country;
The business activity itself need not be temporary, and may indeed long continue;
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 proceeding considerations.

Regarding the instant case, the Board was satisfied that the respondent was engaged in “business” for B1 purposes, that is, “intercourse of a commercial character.” It noted that the respondent’s salary was paid to him in Hong Kong, and that no funds accrued to the respondent in the United States. The consulate which granted the B1 visa to the respondent was aware that he was an order taker from Hong Kong. The Board also found that the respondent’s visit to the United States was of a temporary character.

The Board further explained its reasoning. “If the respondent were engaged in taking orders for suits at a wholesale level from large distributors, there would be no questioning his [eligibility for B1] status.” The Board found that the fact that the respondent was taking orders from and measurements of individual prospective customers, rather than orders at the wholesale level, did not negatively affect his eligibility for B1 classification. “The labor for the orders taken by the respondent is performed in Hong Kong and there appears to be no conflict with local labor.”

For these reasons, the Board sustained the respondent’s appeal and terminated the deportation proceedings against him. The Board denied the government’s motion to reconsider in a subsequent decision, standing by its reasoning in its initial ruling in favor of the respondent. In the second decision, the Board referenced a list of activities it found amenable to B1 classification in its prior decision in Matter of G-, 6 I&N Dec. 255, 257 n..3 (BIA 1954) [PDF version].

After the second decision, the Board certified both of its Matter of Hira opinions to the Attorney General for his review. The Attorney General affirmed both of the Board’s decisions in their entirety, making Matter of Hira an Attorney General precedent decision. The significance of this designation is that the Attorney General is chiefly responsible for the interpretation of the immigration laws, and the Board derives its authority from the Attorney General.

Matter of Hira Distinguished in 1980 Precedent Decision

The Board significantly distinguished Matter of Hira in its 1980 decision in Matter of Camilleri, 17 I&N Dec. 441 (BIA 1980) [PDF version]. The issue in Matter of Camilleri was whether Matter of Hira’s requirement that “[t]he principal place of business and the actual place of the eventual accrual of profits, at least predominantly, remains in the foreign country” was applicable to a case involving a B1 employee of a common carrier who was engaged in international trade or commerce. That prong in Matter of Hira derived from the Central Office precedent decision in Matter of G-P-, 4 I&N Dec. 217 (C.O. 1950) [PDF version]. The B1 nonimmigrant in Matter of Camilleri was a Canadian truck driver employee (owner-operator) of a U.S. firm delivering goods manufactured in Canada to a terminal in the United States and picking up goods to be sold in Canada. The Board concluded that the disputed prong in Matter of Hira was not applicable to employees of common carriers engaged in international trade or commerce. It noted that past precedent indicated that individuals since at least 1937 were routinely admitted in the United States as temporary visitors for business for the purpose of loading and unloading commodities. “The second consideration of Hira is intended to insure that only applicants engaged in international business-as opposed to local employment-are admitted to the United States as nonimmigrant visitors for business.” Because the B1 nonimmigrant in Matter of Camilleri was engaged in business of an international character, the Board found that his case was distinguishable from Matter of Hira.

In 1993, the Immigration and Naturalization Service (INS) General Counsel issued an opinion taking the position, based on Matter of Hira and Matter of Camilleri, that “[a] B-1 nonimmigrant who picks up and delivers international cargoes … may not pick up within the United States any cargo which is to be delivered in the United States.” Genco Op. No. 93-95 (Dec. 28, 1993) [PDF version].

Reliance on Matter of Hira in the Foreign Affairs Manual

The Department of State (DOS) uses its Foreign Affairs Manual (FAM) to provide guidance to consular officers on adjudicating visa applications. At 9 FAM 402.2-5, the FAM discusses Matter of Hira in the context of adjudicating applications for B1 visas:

It can be difficult to distinguish between appropriate B-1 business activities, and activities that constitute skilled or unskilled labor in the United States that are not appropriate on B status. The clearest legal definition comes from the decision of the Board of Immigration Appeals in Matter of Hira, affirmed by the Attorney General. Hira involved a tailor measuring customers in the United States for suits to be manufactured and shipped from outside the United States. The decision stated that this was an appropriate B-1 activity, because the principal place of business and the actual place of accrual of profits, if any, was in the foreign country. Most of the following examples of proper B-1 relate to the Hira ruling, in that they relate to activities that are incidental to work that will principally be performed outside of the United States.

The FAM not only cites to Matter of Hira as the “clearest legal definition” of what constitutes permissible business activities in B1 status, it expressly states that its list of examples derives from the definition provided in Matter of Hira. Thus, Matter of Hira not only remains good law, but it is also important in understanding the current DOS posture in considering whether an application for a B1 visa is approvable.

Conclusion

Matter of Hira remains an important decision in delineating what constitutes “business” in the B1 context. With limited exceptions, such as the one articulated for common carriers in Matter of Camilleri, all prongs of the test articulated in Matter of Hira apply in B1 applications.

B1 visa applications are adjudicated on a case-by-case basis. Individuals may work with an experienced immigration attorney to ensure that their proposed activities are permissible business activities for B1 purposes. B1 nonimmigrants in the United States should always err on the side of caution and consult with an experienced attorney in the event of any ambiguity as to whether a certain activity is permissible for B1 purposes.

We discuss travel visas including B1, B2, and the Visa Waiver Program (VWP) in our growing section on travel visas [see category].