MATTER OF M-I-, INC.

Non-Precedent Decision of the Administrative Appeals Office

DATE: JAN. 27,2017

APPEAL OF CALIFORNIA SERVICE CENTER DECISION

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

The Petitioner, a general construction contractor, seeks to extend the Beneficiaries' employment as carpenters under the H-2B nonimmigrant classification for temporary nonagricultural services or labor. See Immigration and Nationality Act (the Act) section 101(a)(15)(H)(ii)(b), 8 U.S.C. § 1101(a)(15)(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 peakload need for the Beneficiaries' services.

The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and asserts that the evidence in the record of proceeding was sufficient to establish its claim by a preponderance of the evidence.

Upon de novo review, we will dismiss the appeal.

I. LEGAL FRAMEWORK

Section 101(a)(15)(H)(ii)(b) ofthe Act, 8 U.S.C. § 1101(a)(15)(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 adds 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):

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(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 ~ill 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.

(I) 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 services or labor for short periods.

II. TEMPORARY NEED

In the Form 1-129, Petition for a Nonimmigrant Worker, the Petitioner stated that it is a 42-employee construction contracting company in The Petitioner claimed a temporary, peakload need and requested an extension ofH-2B status for six carpenters.'

The Petitioner indicated it engages in construction contracting services fo~r the U.S. military, the government, and commercial projects. The Petitioner claimed that it is currently undertaking five projects for the U.S. military and three projects in the private housing sector. The Petitioner claimed that it is currently experiencing a peakload demand for its construction services, and this need "is unpredictable because economy is driven by two unpredictable forces:

spending and international tourism arrivals." The Petitioner concluded by stating that in order to successfully carry out its construction projects, it has a temporary peakload need for the services of the Beneficiaries.

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 peakload need.

Before we delve into the specific requirements of the H-2B classification, we will address the Petitioner's contention regarding the Director's evaluation of the evidence. On appeal, the Petitioner asserts that the Director misapplied precedent decisions in the following passage of the decision: "[G]oing on record without independent and objective supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. See Matter of Soffici, 22 I&N Dec 158, 164 (Comm'r 1998) (citing Matter ofTreasure Craft ofCal(fornia, 14l&N Dec. 190 (Reg'! Comm'r 1972))."

The Petitioner claims these cases do not require "independent and objective documentary evidence" but rather that the Petitioner provide supporting documentary evidence to meet the burden of proof. The Petitioner is concerned that the Director applied a higher evidentiary threshold in her decision. But the Director's citation was preceded by the signal "See," which simply introduces an authority that supports but does not state the proposition.2 The Director's proposition follows from Matter of Soffici, and we find that the citation was proper.

1 In response to the Director's request for evidence, the Petitioner indicated that although the petition was originally filed for eight carpenters, two of those individuals, and have since returned ,to the Philippines. The Petitioner requested that these individuals be withdrawn from the instant petition.

''2 The Bluebook: A Uniform System of Citation R. 1.2, at 58 (Columbia Law Review Ass'n et al. eds., 20th ed. 20 15).

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Further, the. Petitioner has not demonstrated that the Director's ultimate determination to deny the petition was erroneous for the reasons stated herein. We follow the preponderance of the evidence standard as specified in Matter o.fChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). In evaluating the evidence, it directs us - and the Director - to determine the truth not by the quantity of evidence alone but by its quality. Id. Thus, in adjudicating this appeal, we have examined and weighed each piece of evidence for relevance, probative value, and credibility, both individually and within the context of the totality of the evidence, to determine whether the fact to be proven is probably true.

A. General Time Limit for Temporary Need

A petitioning employer must establish that its need is temporary in that it "will end in the near, definable future," generally "limited to one year or less." 8 C.P.R. § 214.2(h)(6)(ii)(B). The record reflects (1) that the Petitioner had two previously approved H-2B petitions for the Beneficiaries from January 2014 to January 2016, and (2) that the Petitioner filed the present petition to retain them from January 2016 to January 2017. Thus, the record indicates that its need for the Beneficiaries' carpentry services encompasses a continuous period of approximately 36 months.

The Petitioner asserts that it has established that its need will end in the near, definable future because its construction projects "have an end point of less than three years." The Petitioner's need for carpenters, however, is for a continuous period that exceeds the regulation's year-or-less general limitation to qualify as "temporary" within the meaning of the H-2B program.

B. Peakload Need

To establish a peakload need, the record must 'satisfy all three prongs of 8 C.P.R. § 214.2(h)(6)(ii)(B)(3): (1) that the Petitioner regularly employs permanent workers to perform the services or labor at the place of employment; (2) 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 (3) that the temporary addition to its staff will not become a part of the Petitioner's regular operation. The record does not satisfy any of these prongs.

1. Regular Employment of Permanent Workers for the Services or Labor

The Petitioner has not established that it regularly employs permanent workers to perform carpentry labor. In the H-2B petition, the Petitioner indicated that it has 42 employees and provided copies of

· paystubs from March and April 2016 to substantiate the employment of approximately 18 individuals. Although these documents indicate that the Petitioner had employees during this time period, they do not substantiate that any of the individuals were, or continue to be, employed as carpenters. We note .the Petitioner's handwritten notation on the paystubs of one individual, indicating that the referenced employee was a carpenter. Absent additional evidence, however, this handwritten notation is insufficient to establish that the Petitioner employs carpenters on a regular basis. The paystubs submitted reflect only the payment of wages and labor costs, and do not indicate whether these individuals were permanent or temporary employees or their respective positions

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within the Petitioner's organization. The Petitioner has not sufficiently supplemented the record with copies of common business documents such as timekeeping records, or employment contracts to establish the workers' positions and their employment periods. We find the Petitioner did not demonstrate, by a preponderance of the evidence, that the Petitioner employs permanent carpenters on a regular basis.

2. Need to Supplement Permanent Staff

The\ Petitioner also has not established it needs to supplement its permanent staff at the place of employment on a temporary basis due to a seasonal or short-term demand. The Petitioner asserts that the U.S. military buildup and "an upswing in tourism" are contributing to an increase in military and tourism related construction projects. The record, however, does not establish that the Petitioner seeks to continue to supplement its staff to address either of those developments. According to the itinerary of services and construction contract documents, the Petitioner seeks to employ the Beneficiaries in projects such as the construction of three single-family homes and various projects on military bases, such as installing a power generator on the naval base. The record, however, does not include documentation demonstrating a causal connection between these projects for which the Petitioner filed this extension petition and either the military buildup or an upswing in tourism. 3

Further, even assuming the military buildup or an upswing in the tourism industry caused a spike in the number of its construction projects, the record does not substantiate a peakload need in this case. An employer must establish that it needs to temporarily supplement its permanent staff on a peakload basis "due to a seasonal or short-term demand." 8 C.F.R. § 214.2(h)(6)(ii)(B)(3). The record does not support a finding that the Petitioner's need for carpenters is due to a "seasonal or short-term" demand, regardless of which sector - military, tourism, or other - may be driving the

. b 4 present constructiOn oom.

An employer must establish that it needs to temporarily supplement its permanent staff on a peakload basis "due to a seasonal or short-term demand." 8 C.F.R. § 214.2(h)(6)(ii)(B)(3). Examples of this are seasonal fluctuations in business, such as for holidays or summer vacation season, when employers need additional staff for a limited period of time. The record does not support a finding that the Petitioner's need based on the current U.S. military buildup can be considered "seasonal or short-term" within the meaning of 8 C.F.R. § 214.2(h)(6)(ii)(B)(3). Specifically, as the construction-project demand for H-2B carpenters extends from approval of the first petition to the instant petition's employment end-date- that is, from January 2014 to December 2017 -we find that the Petitioner's claimed need to supplement its permanent staff is not due to a "seasonal" or "short-term" demand, defined in the regulations as generally 1 year or less. Any greater period would generally conflict with a "temporary need."

3 The record does not establish that the construction projects taking place on military installations are a result of the military buildup as opposed to matters of routine maintenance or upgrades. 4 While an H-28 petitioner must also substantiate its actual need for the number of workers specified in its petition, we need not address that issue where, as in the case before us, the Petitioner has not first established an H-28 temporary need for the labor or services in question.

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As noted above, the term "short-term" means generally 1 year or less. Any greater period would likely conflict with the overarching "temporary need" principle in the statute and as set forth further in 8 C.F.R. § 214.2(h)(6)(ii)(B). The issue being that a petitioner's repeated need for the same type of labor or services for projects to be performed over consecutive periods of time will not support an H-2B peakload-need extension claim unless there is a significant break in time between the end of one period of need and the beginning of the next. 5 Thus, even if the particular construction projects to which the Beneficiaries will be assigned have near and definable end dates (i.e., upon the particular projects ' completion dates), the Petitioner has not demonstrated that its staffing needs caused by the ongoing, long-term U.S. military buildup have a near and definable end.

Moreover, discrepancies in the contract documentation further cloud the asserted peakload need. For example, the itinerary and supporting documentation submitted in support of the H-2B petition indicates that project was scheduled for completion in early January 2016, the month the instant petition was filed. Moreover, projects and indicate completions dates in early 2017, one to two months after the filing date of this petition. Based on this information, it appears that at least three of the claimed projects for which the services of the Beneficiaries would be needed would be completed almost immediately after the filing of the extension request, therefore raising questions regarding whether a legitimate need exists for workers during the requested time period.

Finally, we note that on appeal, the Petitioner submits a new list of projects and supporting documents which identify numerous new projects recently acquired by the Petitioner. The documentation submitted demonstrates that most of these projects were proposed and accepted at various times during 2016 after the petition was filed. The acquisition of these new contracts subsequent to the petition' s filing further indicates that the need for the services of the Beneficiaries is ongoing and not the result of a short-term demand.

3. Temporary Addition of Workers

We further find that the Petitioner has not demonstrated that the temporary additions to its staff will not become a part of its regular operation. The record reflects that the Petitioner (1) has been employing the Beneficiaries as carpenters under the prior H.,2B petition, and (2) filed the present petition to retain them for an additional year. As the record indicates nearly 3 continuous years of dependence upon these H-2B carpenters to meet its contract needs, the Petitioner has not established that the Beneficiaries would not become a part of its regular operations.

5 Generally, extension petitions covering consecutive periods of time without a significant break do not establish either peak load or seasonal need. USC IS Guidance, Guidance on "Temporary Need" in H-2B Petitions (Apr. 13, 20 16), https://www.uscis.gov/working-united-states/temporary-workers/h-2b-non-agricultural-workers/guidance-temporary­need-h-2b-petitions (last vi sited Jan. 25, 20 17).

Matter of M-1-, Inc.

IV. ONE-TIME OCCURRENCE

.The Petitioner did not file this petition on the basis of a one-time-occurrence temporary need under 8 C.F.R. § 214.2(h)(6)(ii)(B)(l). Still, in the interests of shedding some light on that criterion, we will evaluate. the petition through this alternate basis to qualify for H-2B nonimmigrant visas. To establish a one-time occurrence, the record must establish either (1) that the employer 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 (2) that the employer has an employment situation that is otherwise permanent, but a temporary event of short duration has created the need for a temporary worker. 8 C.P.R. § 214.2(h)(6)(ii)(B)(l). We find that the Petitioner has satisfied neither prong.

There is insufficient evidence of record to establish that the Petitioner regularly employs carpenters. To support its claimed peakload need, the Petitioner asserts simply that "it regularly employs a permanent staff of U.S. workers," but does not substantiate in th~ record that any of these workers are carpenters or that it has regularly employed carpenters in the past. The Petitioner's handwritten notation denoting "carpenter" on one of the employees' pay~tubs is in~ufficient. Therefore, we do not find sufficient evidence for a one-time occurrence under the first prong.

With regard to the second prong, the record does not contain sufficient evidence of a temporary event of short duration. 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." While the Petitioner's nearly 3-year need for carpenters may possibly be acceptable for a one-time occurrence under appropriate circumstances, the record here does not support an H-2B classification under the one-time occurrence ground.

We will address the Petitioner's position on appeal that "a temporary need can last up to three years," and that "[t]his one-time event which can last up to three years is not restricted to one-time occurrences."

We disagree with the Petitioner's reasoning that the use of the phrase "one-time event" in 8 C.P.R. § 214.2(h)(6)(ii)(B)'s main paragraph differs from the temporary need "one-time-occurrence" category. Title 8 C.F.R. § 214.2(h)(6)(ii)(B), as modified in December 2008 and in effect today, reads as follows (emphasis added):

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.

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The Department of Homeland Security (DHS) inserted the modified language in the H-2B final rule published in the Federal Register on December 19, 2008. For additional information, see Changes to Requirements Affecting H-2B Nonimmigrants and Their Employers, 73 Fed. Reg. 78104-01 (December 19, 2008) (to be codified at 8 C.F.R. pt. 204,214, and i15).

As noted in the related supplementary information in the Federal Register, this final rule amended the regulatory definition of "temporary services or labor" so that an H-2B petition's approval period could last up to 3 years without the Petitioner having to establish "extraordinary circumstances." However, as evident above, the final rule's modified language states a general rule that employment beyond 1 year is not temporary in nature. In the case before us, it is indisputable that, by its extension petition, the Petitioner is seeking to extend the overall employment period of carpenters beyond 1 year.

Further, consonant with common usage, we interpret "event" and "occurrence" as synonymous. See, e.g., Webster's Third New International Dictionary 788, 1561 (2016); Roget's II, The New Thesaurus 339, 645 (1980). Thus, the presence of the two phrases does not establish what the Petitioner claims. We find that, naturally read in the context of the whole regulation at 8 C.F.R. § 214.2(h)(6)(ii), "one-time event" and "one-time occurrence" mean the same thing, and, therefore, that the general limitation of 1-year applies to all claimed H-2B temporary needs except those satisfying the criteria ofthe one-time-occurrence category at 8 C.F.R. § 214.2(h)(6)(ii)(B)(1).

We refer the Petitioner to the following cautionary comment in the Federal Register supplementary information referenced above: "While a petitioner need no longer demonstrate 'extraordinary circumstances' to justify an H-2B petition validity period of longer than one year, the 3-year maximum validity period is not intended to be a default, but would be available only where the petitioner can demonstrate a specific and typically one-time need for the worker's services for that period oftime." !d. at 78118.

We further note that on April29, 2015, DHS and the U.S. Department of Labor (DOL) jointly issued an interim final rule (IFR) governing DOL's certification of the employment of nonimmigrant workers in temporary or seasonal non-agricultural employment and enforcement of the obligations applicable to employers of such nonimmigrant workers. See Temporary Non-Agricultural Employment of H-2B Aliens in the United States, 80 Fed. Reg. 24042 (Apr. 29, 2015) (to be codified at 8 C.F.R. pt. 214, 20 C.F.R. pt.655, 29 C.F.R. pt. 503). Notably, the IFR's supplementary information addresses the possibility of accommodating up to a 3-year period of temporary need only in the context of a one-time occurrence as defined at 8 C.F .R. § 214.2(h)( 6)(ii)(B)( 1 ). See id., at 24055-24056. Finally, the regulatory provisions at 20 C.F.R. § 655.6(b) on temporary need promulgated through the IFR plainly recognize that only an H-2B "one-time occurrence" need could provide a basis for approving an H-2B temporary-need petition where the petitioner's need would exceed 8 C.F.R. § 214.2(h)(6)(i)(A)(ii)(B)'s general temporary-need limitation of 1 year or less.

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The provisions at 20 C.P.R. § 655.6(b)'state:6

The employer's need is considered temporary if justified to the CO as one of ~the following: A one-time occurrence; a seasonal need; a peakload need; or an intermittent need, as defined by DHS regulations. Except where the employer's need is based on a one-time occurrence, the (certifying officer] will deny a request for an H-2B Registration or an Application for Temporary Employment Cerf!fication where the employer has a need lasting more than 9 months.

Therefore, we find that the general limitation of 1-year applies to all claimed H-2B temporary needs except those satisfying the criteria of the one-time-occurrence category.

V. CONCLUSION

The Petitioner ·has not established that it has a temporary need, whether peakload or 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 M-1-, Inc., ID# 181273 (AAO Jan. 2i, 2017)

6 We understand th~t U.S. DOL's H-2B regulations generally do not apply to We reference this IFR because, as a

joint DHS/DOL regulation, it reflects DHS ' s agreement with the IFR's provisions.

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