MATTER OF J-C-G-

Non-Precedent Decision of the Administrative Appeals Office

DATE: FEB. 28,2017

APPEAL OF CALIFORNIA SERVICE CENTER DECISION

PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER

The Petitioner, a construction company, seeks to extend the Beneficiaries' temporary employment as "cement masons" under the H-2B nonimmigrant classification for temporary nonagricultural services or labor. See Immigration and Nationality Act (the Act) section 10l(a)(15)(H)(ii)(b), 8 U.S.C. § 1101(a)(l5)(H)(ii)(b). The H-2B program allows a qualified U.S. employer to bring certain foreign nationals to the United States to fill temporary nonagricultural jobs. The Petitioner's service or labor need must be a one-time occurrence, seasonal, peakload, or intermittent.

The Director, California Service Center, denied the petition. The Director concluded that the Petitioner had not established an H-2B temporary need for the Beneficiaries' services based on a one-time occurrence.

On appeal, the Petitioner submits a brief and asserts that it has established eligibility for the benefit sought.

Upon de novo review, we will dismiss the appeal.

I. LEGAL FRAMEWORK

Section 101(a)(15)(H)(ii)(b) of the Act, 8 U.S.C. § 110l(a)(l5)(H)(ii)(b), defines an H-2B temporary worker, in pertinent part, as:

[A ]n alien having a residence in a foreign country which he has no intention of abandoning, who is coming temporarily to the United States to perform other temporary service or labor if unemployed persons capable of performing such service or labor cannot be found in this country ....

The regulation at 8 C.F.R. § 214.2(h)(6)(i)(A) largely restates this statutory definition, but further clarifies that employment of H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers. The scope of employment within the H-2B category is addressed at 8 C.F.R. § 214.2(h)(6)(ii):

Matter of J-C-G-

(ii) Temporary services or labor.-

(A) Definition. Temporary services or labor under the H-2B classification refers to any job in which the petitioner's need for the duties to be performed by the employee(s) is temporary, whether or not the underlying job can be described as permanent or temporary.

(B) Nature of petitioner's need. Employment is of a temporary nature when the employer needs a worker for a limited period of time. The employer must establish that the need for the employee will end in the near, definable future. Generally, that period of time will be limited to one year or less, but in the case of a one-time event could last up to 3 years. The petitioner's need for the services or labor shall be a one-time occurrence, a seasonal need, a peak load need, or an intermittent need.

(1) One-time occurrence. The petitioner must establish that it has not employed workers to perform the services or labor in the past and that it will not need workers to perform the services or labor in the future, or that it has an employment situation that is otherwise permanent, but a temporary event of short duration has created the need for a temporary worker.

(2) Seasonal need. The petitioner must establish that the services or labor is traditionally tied to a season of the year by an event or pattern and is of a recurring nature. The petitioner shall specify the period(s) of time during each year in which it does not need the services or labor. The employment is not seasonal if the period during which the services or labor is not needed is unpredictable or subject to change or is considered a vacation period for the petitioner's permanent employees.

(3) Peakload need. The petitioner must establish that it regularly employs permanent workers to perform the services or labor at the place of employment and that it needs to supplement its permanent staff at the place of employment on a temporary basis due to a seasonal or short-term demand and that the temporary additions to staff will not become a part of the petitioner's regular operation.

( 4) Intermittent need. The petitioner must establish that it has not employed permanent or full-time workers to .. perform the services or labor, but occasionally or intermittently needs

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temporary workers to perform serv1ces or labor for short periods.

II. TEMPORARY NEED

The Petitioner claimed a temporary need based upon a one-time occurrence for the Beneficiaries' services as cement masons from May 2016 to May 2017.

In response to the Director's request for evidence, the Petitioner elaborated upon its need for the Beneficiaries' services, as follows:

Petitioner is a general contractor that maintains a local work force that consists in part of masons, and therefore is in a permanent situation requiring cement masons . . . Petitioner can be profitable with its current work force, but it needs the beneficiaries to assist its local work force with the sudden increase in work necessitated by the procurement of large contracts totaling $1,228,250.00 In the petition, Petitioner provided construction contracts that all last less than 3 years. These are "independent and objective" evidence in regards to the duration of need. By definition, such a need is temporary and ends in the near, definable future as dictated by the contracts. Petitioner has and will continue to procure contracts to remain profitable. These projects can be completed with the Petitioner's local work force as has been done for years. However, so long as the large contracts are incomplete, creating an exceptionally elevated work load, the Petitioner needs to temporarily supplement its workforce.

The influx of large contracts has created a temporary event of short duration that necessitates the need of a temporary worker. Petitioner's statement is very clear about the need being tied to specific contracts with a finite period. These contracts were submitted with the original petition to show specifically that the contracts for services end between June 2016 and March 2018. Therefore, the Petitioner's need is to be an event of short duration that is far less than the three-year duration allowable within the regulations. 8 C.F.R. § 214.2(h)(6)(ii)(B). Petitioner's need is temporary because it is based on an event of short duration, and once the contractual services are completed as scheduled, Petitioner will no longer maintain a need for the beneficiary.

III. ANALYSIS

Upon review of the record in its totality and for the reasons explained below, we conclude that the Petitioner has not established that its need for the Beneficiaries' services qualifies as an H-2B temporary need based on a one-time occurrence.'

1 The Petitioner does not assert that it has a seasonal, peakload, or intennittent need. Therefore we will not discuss the Petitioner's eligibility under 8 C.F.R. §§ 214.2(h)(6)(ii)(B)(2)-(4).

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(b)(6)

Matter of J-C-G-

The Petitioner stated that it "is not basing its petition on it not having employed workers to perform the services or labor in the past and that it will not need workers to perform the services or labor in the future." The Petitioner further stated that it "maintains a local work force that consists in part of masons, and therefore is in a permanent situation requiring cement masons." Accordingly, the Petitioner acknowledges that it does not meet the first prong of 8 C.F.R. § 214.2(h)(6)(ii)(B)(J).

Further, the record also does not demonstrate the Petitioner's eligibility under the second prong of 8 C.F.R. § 214.2(h)(6)(ii)(B)(l). In particular, the Petitioner has not demonstrated that "a temporary event of short duration has created the need for a temporary worker."

The Petitioner stated that "[t]he influx of large contracts has created a temporary event of short duration that necessitates the need of a temporary worker." The Petitioner then identified four contracts and their performance dates, as follows:

1. 2. 3.

4. 2017.

residence, from March 2016 to August 2017. · alteration for storage units, from March 2016 to March 2018.

- repair of water seepage, from March 2016 to November

from April2015 to June 2016.

But the evidence of record does not corroborate the contracts' above-listed performance dates, thus undermining a critical component of the Petitioner's claim under the one-time occurrence basis. The record contains copies of the following contracts and their performance dates, as follows:

1. residence, entered into in March 2016, to be completed "within Three Hundred (300) working days upon receipt of Mobilization cost and Notice to Proceed."

2. · alteration for storage units, entered into in October 2015, to be completed "within TWO HUNDRED TEN (210) CALENDAR DAYS from commencement of construction."

3. - repair of water seepage, to be performed from October 2014 to March 2015.

4. entered into in March 2015, to be completed in August 2015.

The performance dates for the submitted contracts differ from the Petitioner's descriptions. The contract for the residence indicates that this project will end in approximately June 2017, not August 2017 as the Petitioner indicated. 2 The contract for indicates that this project will end in approximately May 2016 assuming a start date in October 2015, or if construction did not begin until March 2016, then it will end in approximately October 20 16; either

2 The June 20 !7 end date is based on a start date in March 20 !6, as indicated by both the contract's execution date and

the Petitioner's description.

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(b)(6)

Matter of J-C-G-

way, the end date is significantly short of the March 2018 termination date listed by the Petitioner. The contracts for and the projects terminated before the instant petition was filed; they both terminated in March 2015, not November 2017 and June 2016, respectively, as the Petitioner claimed. · The Petitioner has not reconciled these discrepancies.

The Petitioner must resolve any material inconsistencies in the record by providing competent, objective evidence pointing to where the truth lies. Unresolved material inconsistencies may lead to a reevaluation of the reliability and sufficiency of the other evidence submitted in support of the requested immigration benefit. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Without additional, consistent evidence of all the contracts to which the Petitioner will assign the Beneficiaries, the record does not corroborate the Petitioner's statements regarding its temporary need.

The record also does not corroborate the Petitioner's statements regarding its "sudden" procurement of"large" contracts. The Petitioner did not submit sufficient evidence demonstrating the company's financial and operational history. Nor did the Petitioner sufficiently demonstrate the significance of the residence contract, valued at $230,000, which is the only contract documented to last through the end of the requested validity period. While the Petitioner submitted its 2014 federal tax return, this document, without additional context, is insufficient to demonstrate the Petitioner's financial and operational history. Even when viewed in isolation, this tax return reflects the Petitioner's 2014 total gross income in receipts or sales as $1,052,500. The Petitioner has not sufficiently explained how the procurement of contracts purportedly totaling $1,228,250 (which has not been demonstrated here) would constitute a sudden and significant increase in business so as to create "an exceptionally elevated work load."

The Petitioner asserts that its need is temporary because "once the contractual services are completed as scheduled, Petitioner will no longer maintain a need for the beneficiaries." But under these circumstances, we cannot find that the Petitioner's need based on the length of construction contracts constitutes a "temporary event of short duration." 8 C.F.R. § 214.2(h)(6)(ii)(B)(l).

'

Read within the context of 8 C.F.R. § 214.2(h)(6)(ii)(B), a temporary event is an occurrence that will end "in the near definable future," like a World's Fair. To meet these conditions, a one-time event must have a start and end date and last no more than "3 years." ld. Here, the Petitioner affirms that it "has and will continue to procure contracts to remain profitable." The Petitioner's need for cement masonry services is not temporary and will continue to persist as long as the Petitioner's business continues to procure contracts in order to remain profitable. See Matter of Artee Corp .. 18 I&N Dec. 336, 368 (Comm 'r 1982) (as long as a shortage of required workers exists, the nature of the need for the position with the petitioner is such that the duties are not temporary and will persist). While the Petitioner claims that these projects have specific and quantifiable end dates, the Petitioner has not sufficiently explained why it would not need additional temporary workers after the completion of these projects to work on newly procured contracts. As discussed, the Petitioner has not established that it has "an exceptionally elevated work load" as claimed. Further, while the Petitioner claims

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Matter of J-C-G-

that "these projects can be completed with [its] local work force as has been done for years," the record of proceedings does not contain evidence of its local work force or operational history.

Accordingly, while the Petitioner's need for cement masons could possibly have been acceptable for a one-time occurrence under different circumstances, the record here does not support an H-2B classification here.

IV. CONCLUSION

The Petitioner has not established that it has a temporary need based on a one-time occurrence that will end in the near, definable future. The burden is on the Petitioner to show eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. Here, that burden has not been met.

ORDER: The appeal is dismissed.

Cite as Matter of J-C-G-, ID# 260206 (AAO Feb. 28, 2017)

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