Interim Decision #2934
MATTER OF ARTEE CORPORATION
In Visa Petition Proceedings
LOS-N-46504
Decided by Commissioner November 24, 1982
(1) In determining whether an alien is coming "temporarily" to the 1.1pIted States to
"perform temporary services or labor" as required by section 101(a)(15)(H)(1) of the Act,
8 U.S.C. 1101(aX15)(HXii), the test is whether the need of the petitioner for the duties
to be performed is temporary. It is the nature of the need, not the nature of the duties,
• that is eontrniling.
(2) Matter of Contopoulos, 10 1&N Dec. 659 (R.C. 1964), uverniled.
(3) Because the business of a temporary help service is to meet the temporary needs of
many clients, the nature of the petitioner's needs for the beneficiary is More or less
continuous. Where as hare there is a current shortage of the particular skill, the
petitioner's neeti•to supply this employee to its clients is ongoing, not temporary as
required by section 101(a)(15)(H)(ii).
ON BEHALF OF APPLICANT: John A. Joannes, Esquire
3600 Wilshire Boulevard, Suite 1914
Los Angeles, California 90010
This case is before the Conunissioner on certification of the Regional
Commissioner's decision of June 2, 1982.
The petitioner is seeking to classify the beneficiaries under-section
101(a)(15)(H)(ii) of the Act, 8 U.S.C. 1101(aX15)(1/)(ii), as machinists.
The• petitioner providea temporary help to technically-oriented firms.
The sole issue in this case is the temporary need of the petitioner for
the services of the beneficiary. In a situation involving a "temporary
help" service, the Service has found that such a service is qualified to be
and remains the actual employer of the beneficiary. See Matter of Smith,
12 I&N Dec. 772 (D.D. 1968). The petitioner in this case is a temporary
help service and I agree with the Regional Commissioner that it qualifies as a petitioner and is the actual employer of the beneficiaries. The
Regional Commissioner found that, because of the current wide-spread
shortage of machinists in the United States, the nature of the employment offered must be viewed as permanent and not temporary. The
decision examined the use of the beneficiaries' services by the customer
of the help service in reaching this conclusion. I at not believe that this
is the proper view of the employment situation involved. The test of the
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true nature of the temporary need for the position lies in examination of
the temporary need of the temporary help service, not ita customers.
Section 101(1)(15)(H)(ii) defines an 11-2 temporary worker as an alien
"who is coming temporarily to the United States to perform temporary
services or labor, if unemployed persons capable of performing such
services or labor cannot be found in this country. . ." As noted in Matter
of Contopoulos, 10 I&N Dec. 654, 657 (Acting R.C. 1964)," .. .both the
coming to the. United States and the performance of service or labor
must be temporary, the term 'temporary' being used twice." The nature
of the duties- to be performed were controlling, not the intent of the
petitioner and the beneficiary concerning the time that the individual
beneficiary would be employed in that position.
The Service now views this interpretation as incorrect. It is not the
nature or the duties of the position which must be examined to determine the temporary need. It is the nature of the need for the duties to
,
be performed which determines the temporariness of the position, Under
this interpretation the key question in Contopaalos is: "Can the petitioner credibly establish that she has not employed a mother's helper in
the past and that her need for a mother's helper will end in the near,
definable future?" Likewise, in the instant case, the primary question
becomes: "Can Artee establish that they have not employed machinists
in the past and will not need the services of machinists in the near,
definable future?" Here, as in Contopoulos, we are considering the
second temporary requirement of the statute which concerns the position itself and not the first requirement which relates to the intent of the
alien to enter for a temporary period. The function of a temporary help
service is to provide for the fluctuating needs of other enterprises for
specified services. In this case the petitioner provides technically-oriented
personnel of a skilled nature to industries requiring such services. The
customers of the petitioner do not have a steady need for a specific
number of employees. Their business fluctuates and in so changing,
their personnel needs change. To meet, their needs, the customers of the
petitioner turn to the petitioner to provide temporary help. While it is
true that the temporary help may be needed for periods of 2 to 3 years,
it is also true that shorter periods can be involved and that the need of
the customer may not continue_
The situation of a temporary help service differs, however. The business of a temporary help service is to meet the temporary needs of its
clients. To do this they must have a permanent cadre of employees
available to refer to their customers for the jobs for which there is
frequently or generally a demand. By the very nature of this arrange-
:dent, it is obvious that a temporary help service will maintain on its
payroll, more or less continuously, the types of skilled employee moat in
demand. This does not mean that a temporary help service can never
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offer employment of a temporary nature. If there is no demand for a
particular type of skill, the temporary help service does not have a
continuing and permanent need. Thus a temporary help service may he
able to demonstrate that in addition to its regularly employed workers
and permanent staff needs it also hires workers for temporary positions.
For a temporary help service company, temporary positions would
include positions requiring skill for which the company has a non-recurring demand or infrequent demand.
There is currently a wide-spread-shortage of skilled machinists in the
United States. Because of this shortage, the petitioner, as a prudent
business measure, has ensured that it can supply machinists to its
customers. Its need to supply machinists to its customers is ongoing.
Therefore, as long as this universal, shortage of machinists exists, the
nature of the need for the position with the petitioner is such that the
duties are not temporary and will persist as long as the shortage.
In the absence of evidence that the petitioner has a non-recurring or
infrequent demand for skilled machinists, the following order is entered:
ORDER: The petition is denied.
