Interim Decision #1909
MATTER OF GENERAL DYNAMICS CORP.
In Visa Petition Proceedings
BIM—N-3448
Decided by Regional Commissioner August 28, 1968
Notwithstanding the petitioning corporation employs and has a continuing
need for the services of electronic design engineers, petition is approved to
accord 14 • electronic design engineers nonimmigrant classification under
section 101 (a) (15) (H) (ii), Immigration and Nationality Act, since they
are coming to perform "temporary services" within the meaning of that
section where their activity in the field of electronic design engineering
will be limited to design work on special testing equipment during a
critical peak production situation of not more than 6 months duration.
ON BEHALF OF PETITIONER: Joseph F. Shramek, Esquire
General Dynamics Corp.
Electronics Division
1400 North Goodman Street
Rochester, New York 14601
This matter is before the Regional Commissioner on appeal
from the decision of the District Director at Buffalo, New York
denying, the petitioner's request for the services of fourteen electronic design engineers.
The petitioning organization is one of the operating units of
General Dynamics and is engaged in the manufacture of military
electronics communications equipment. It desires to employ fourteen electronic design engineers of various nationalities for a period of six months. These prospective beneficiaries are presently
residing in the Montreal area and are, or have been until recently, employed by Canadair, a Canadian subsidiary of the parent concern of the petitioning organization. The remuneration offered is $98.00 per forty-hour workweek, plus a per diem
allowance for living expenses of $14.00. No provision is made in
the petition or labor certification for overtime employment. The
certification of the Bureau of Employment Security provides for
thirty positions for the period of time between June 17, 1968 and
December 17, 1968. It identifies the work on which the beneficiar-
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Interim Decision #1909
ies' services will be employed as the design of automatic electronic test equipment.
In the appeal brief and the oral argument offered in support of
this appeal the petitioning organization, through counsel, has furnished supplemental information which discloses that the
prospective beneficiaries have no interest in immigrating to this
country and that the services of the beneficiaries will be temporarily utilized by the petitioner in the design of special equipment
which is called for under two of the several contracts entered into
by the Air Force for the development of the F-111 military
plane. The beneficiaries of this petition, according to the supplemental information furnished by counsel, will be employees of
Canadair and will be paid in Canadian funds at their usual rate
of pay under their agreement with Canadair. It is counsel's belief
that there will be a monthly inter-divisional accounting for the
dollars expended by Canadair and that Canadair will be reimbursed by the Electronics Division of General Dynamics in Rochester, New York. These employees will be, according to counsel's
statement, working on the maintenance and support systems
which are prime units for the production of ground support systems which are prime units for the production of ground support
equipment, test stations, etc. for this plane. Counsel further contended that a peak production situation exists which involves
critical military procurement related to the F-111 program.
The pertinent portions of the Immigration and Nationality Act
which provide for petitions of this type are as follows:
Section 101. (a) As used in this Act-
… a *
(15) The term "immigrant" means every alien except an alien who is
within ono of the following classes of nonimmigrant aliens-
* a a a *
(H) an alien having a residence in a foreign country which he has
no intention of abandoning-
…
(ii) who is coming temporarily to the United States to perform
other temporary services or labor, if unemployed persons capable
of performing such service or labor cannot be found in this country;
In determining whether or not the positions for which the beneficiaries' services are desired are of a temporary or permanent
nature certain guidelines have been developed. (Matter of
M—S—H—,
8 I. & N. Dec. 460
, Matter of Contopoulos, 10 L & N.
Dec. 654, and Matter of Kowarski,
12 I. & N. Dec. 571
).
While it is important to know whether the positions are included within the petitioner's regular business operations, it is
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Interim Decision #1909
more important to ascertain whether the specific services which
the beneficiaries will provide are needed for a temporary period
or on a continuing basis. In the instant proceeding, the petitioner
employs a number of electronic design engineers. He has a; continuing need for the services of these engineers but the need for
the beneficiaries covered by this petition is of a different nature
and is for the very limited period of time of not more than six
months. While they will be working in the same field of activity,
their work will be limited to design work on special testing equipment during a critical peak production situation. The duration of
their employment and the work which will be assigned to them
will be on a phase of the project which, by necessity, must be
completed within the duration of their stay in the United States.
Their services are wanted for a temporary period of time and not
on a continuing basis.
From the evidence of record, including the supplemental information furnished by counsel in his brief and during oral argument, it is concluded that the beneficiaries of this petition have
residences in a foreign country which they have no intention of
abandoning; that they will be coming to the United States temporarily to perform temporary services as electronic design engineers; and, that unemployed persons capable of performing such
services cannot be found in this country.
It is ordered that this appeal be and the same is hereby sustained.
/1 is further ordered that the petition be and the same is
hereby granted.
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