ARTEE COPORATION
18 I. & N. Dec. 366 (1982)
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Rule of Law:
When determining whether a position qualifies as temporary for an H-2B visa, the controlling test is the nature of the petitioning employer's need for the duties to be performed, not the nature of the duties themselves or the temporary needs of the petitioner's clients. A temporary help agency's continuous need to supply workers for a skill in high demand is considered a permanent, not temporary, need.
Facts:
- Artee Corporation is a temporary help service that supplies skilled, technically-oriented personnel to other firms.
- Artee sought to hire foreign nationals to work as machinists.
- The clients who use Artee's services have fluctuating and temporary needs for machinists for periods that could last from short-term to 2-3 years.
- At the time, a widespread shortage of skilled machinists existed in the United States.
- Due to this shortage, Artee Corporation had an ongoing business need to have machinists available to supply to its various clients.
Procedural Posture:
- Artee Corporation, the petitioner, filed a visa petition to classify alien beneficiaries as H-2B temporary workers.
- The Regional Commissioner denied the petition, finding the employment to be permanent.
- The case was certified to the Commissioner for a final decision on appeal.
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Issue:
Does a temporary help service's ongoing need to supply its clients with workers in a high-demand field, like machinists, qualify as a temporary need for services under section 101(a)(15)(H)(ii) of the Act?
Opinions:
Majority - Commissioner
No. A temporary help service's ongoing need to supply workers in a high-demand field to its various clients constitutes a permanent need and does not qualify as temporary for H-2B visa classification. The statute requires that both the alien's intent to stay and the position itself be temporary. The proper test for the temporariness of the position is not the nature of the duties, but the nature of the petitioner's need for those duties. While Artee's clients may have temporary needs, Artee's own business model, especially during a labor shortage, requires it to maintain a 'permanent cadre' of machinists 'more or less continuously' to meet frequent client demands. Therefore, Artee's need is ongoing and permanent, not temporary. This decision overrules the previous standard in Matter of Contopoulos, which incorrectly focused on the nature of the duties performed.
Analysis:
This decision established a new, employer-centric test for determining the temporariness of a position in H-2B visa petitions, shifting the focus from the job's duties to the employer's specific need. It significantly impacts temporary help agencies by making it difficult for them to hire foreign workers for roles that are in chronic high demand, as their business model relies on a continuous, rather than a time-limited, need for such workers. The ruling clarifies that the petitioner's own operational needs are paramount, regardless of the temporary nature of its clients' projects. This precedent forces petitioners to prove their need will end in the 'near, definable future.'
