U.S. Citizenship and Immigration Services

MAlTER OF T-S-C-

APPEAL OF VERMONT SERVICE CENTER DECISION

Non-Precedent Decision of the Administrative Appeals Office

DATE: FEB. 26.2018

PETITION: FORM 1-129. PETITION FOR A NONIMMIGRANT WORKER

The Petitioner. a provider of cleaning. stalling. and managed services. seeks to employ the Beneficiaries as housekeepers under the H-2B nonimmigrant classification for temporary nonagricultural services or labor. See Immigration and Nationality Act (the Act) section IOI(a)(15)(11)(ii)(b). 8 U.S.C. § IIOI(a)(l5)(ll)(ii)(b). The II-2B program allows a qualified li.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. peak load. or intermittent.

The Director of the V crmont Service Center denied the petition. concluding that the Petitioner had not satisfied the regulatory requirements for an H-2B temporary peakload need.

On appeal. the Petitioner asserts that it satisfied the regulatory requirements for its peak load claim by a preponderance of the evidence.

Upon de no1'o review. we will dismiss the appeal.

I. LEGAL FRAMEWORK

Section IOI(a)( 15)(H)(ii)(b) of the Act de1ines an H-2B temporary worker. in pertinent pa11. 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-213 workers will not adversely affect the wages and working conditions of similarly employed U.S. workers. The scope of employment within the H-213 category is addressed at 8 C.F.R. § 214.2(h)(6)(ii):

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(ii) Temporwy serPices or /ahor.-

(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 he 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 tor the employee will end in the ncar. 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 J years. The petitioner"s need f{>r the services or labor shall be a one-time occurrence. a seasonal need, a peak load need. or an intermittent need.

(3) l'eakload need. The petitioner must establish that it regularly employs permanent workers to periorm 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 \>viii not become a part of the petitioner's regular operation.

II. TEMPORARY-NEED CLAIM

The record reflects that the Pe titioner provides ·'professional managed services .. to hospitality­industry clients. such as luxury hotels. casinos. vacation ownership properties. and malls. The record also reflects that the Petitioner has a services agreement with a corporation in Nevada to provide custodial and other cleaning services at its properties. which includes a contract to provide full-time year round staffing of housekeepers at and The Petitioner claims a peakload 11-28 temporary need l()r a total of 48 housekeepers asserting that it must supplement its permanent housekeeping statf at those locations from December 20 16 to September 2017. in order to meet an annually recurring upswing in the tourist trade.

The appeal brief includes this description of the Petitioner' s relationship with the workers that it assigns to the two hotels:

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[The Petitioner] is not a job contractor, rather they arc a direct employer of the housekeepers. Their housekeepers arc employed on a permanent basis at \-vorksitcs throughout the country. In this case. the Petitioner employees over 100 permanent full-time housekeepers at !the two 1 worksites year round. The Petitioner possesses a relationship with its employees that involves substantial. direct on-site. day-to-day supervision and control. lThe Petitioner] employs a Director of Housekeeping, a Housekeeping Office Manager. an Executive Housekeeper. 3 Housekeeping Supervisors. and 17 Floor Supervisors at the worksitc in order to provide substantial. direct. on-site. day-to-day supervision and control over its housekeepers. 1\n organizational chart was also provided in the initial and [request f()r evidence (Rfl: )"l submission. We also provided [the Petitioner's] Employee Handbook, New Hire Orientation Packet. Benctits Information, Onboarding Training ManuaL and a sample of the [Petitioncr" s ] Uniform to further demonstrate the employer-employee relationship between [the Petitioner] and its housekeepers.

The Petitioner tiled the petition as a sole employer, and its suppot1 letter asserts that its '"employees are paid, supervised, and trained by our management staff." The Petitioner asserts that it ··is exclusively responsible f~1r exercising substantial. direct, day-to-day control of the performance of the services and labor to be performed by its employees," that its ··managers are present at the worksite directing the work of our employees.'· and that '·fc]urrently. [it] has 328 employees ser\'ing the properties.

III. ANALYSIS

The Director denied the petition on the implicit basis that the evidence did not establish that the housekeeping services for which the petition was filed were H-2B temporary services or labor as defined at 8 C.F.R. ~ 214.2(h)(6)(ii)(A). The Director stated (emphasis added):

In H-2B proceedinRS. it is the nature of the of the petitioner ·s need that determines whether the offered employment qual{/ies as temporary. USCIS must determine whether your company has a temporary need without regard for location or the needs of a particular clienl. As explained in USCJS's RFE. available records for your company's tiling history shows a year round need for the services of housekeepers. In more detaiL your company tiled a petition requesting authorization to employ 65 H-2B nonimmigrant aliens as housekeepers with the m LA, from 1\pril 25. 2016 to January 14. 2017. The instant petition requests authorization to employ 65 nonimmigrant aliens as housekeepers \Vith two clients.

and in Nevada· s region f() r the period of December 18. 2016. to September 15. 2017. The two petitions comhined shm1· your company ·s year round need fhr the services of' li-2B noninuniw·ant aliens to sen·e as housekeeJJers.

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On appeaL the Petitioner contends ""that the documentation submitted with [its response to the RFEJ was more than sufficient"' to establish its ll-28 peakload claim by a preponderance of the evidence.

A. Ultimate Conclusion

We have reviewed the total record. and. for the reasons explained below. we conclude that the Petitioner has not established that its need for the Beneficiaries' housekeeping services qualifies as an H-2B temporary peakload need. 1 We reached this conclusion by applying the ··preponderance of evidence" standard as enunciated in the precedent decision 1\,fatter of Chawathe, 25 l&N Dec. 369. 376 (AAO 201 0) (citing Afatler o/E-M-. 20 I&N Dec. 77. 79-80 (Comm·r 1989)). Accordingly. we examined 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 facts to be proven arc probably true - and we did so in the context of a de novo review. wherein we independently evaluated all of the evidence without deference to the Director's determinations.

We will now address the specitic grounds that the Petitioner argues for overturning the Director's decision.

B. Asserted Misunderstanding of the Payroll Records' Purpose

The Petitioner asserts that the USCIS Director misunderstood the purpose of the payroll documentation fhat it submitted with regard to its permanent workers. and the Petitioner generally describes the documentation - but it does not describe the nature of the misunderstanding. Also, whatever misunderstanding the Petitioner means to convey is not evident in the Director's decision. and we will not speculate as to the Petitioner's meaning. In any event we do not discern any material error in the Director's comments about documentary evidence.

C. Reference to Y car-Round Employment

Citing the ''place of employment" focus in the H-28 peakload temporary-need provisions at 8 C.F.R. ~ 214.2(h)(6)(ii)(B)(J), the Petitioner claims that the Director erred by referencing the petition for 65 housekeepers in Louisiana. The Petitioner reasons that the Director should not have considered the petition because it was liled tor "a completely different place of employment" than the locations specified in the instant petition. The Petitioner remarks that the area '"is not anywhere near Louisiana where the petitioner possesses a eli tTerent peak load need based on the busy tourist location of that season and is not the su~ject of this petition."

1 While not all items of evidence are discussed in this decision, we have considered all of the evidence in the record of proceedings.

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The H-28 peakload criterion at 8 C.F.R. § 214.2(h)(6)(ii)(8)(J) certainly does require the Petitioner to establish "the place of employment" as the location where it (I) regularly employs permanent workers to perform the services or labor and (2) needs to supplement its permanent staff. llowever. those requirements do not except H-28-peakload petitioners from the overarching definition of H-2B temporary labor and services at 8 C.F.R. § 214.2(h)(6)(ii)(A). That definition restricts the scope of H-28 temporary need to labor or services for which the petitioner's need - not just the underlying job for which the petition was tiled - is temporary. See also lvfatlcr ofArtce Corp .. 18 I & N Dec. 366 (Comm'r 1982).

To determine the temporariness of the need. we expand our consideration beyond the petition's particular job to also include what the record tells us about whatever the extent may be of the petitioner's need for the pertinent type of labor or services in the context of its business operations. After assessing the petitioner's need for the type of labor or services for which the petition was tiled. we measure that need under the H-2B need-duration limits at the main paragraph at 8 C.F.R. § 214.2(h)(6)(ii)(8). We interpret those provisions as generally limiting the duration of an H-2B qualifying need "to one year or less." except in the case of the "one-time-occurrence" category of need. See 8 C.F.R. § 214.2(h)(6)(ii)(B) and (B)(/). Applying this analytical framework to the total body of evidence in this case. we conclude that the Director's decision to deny the petition was correct.

We conclude. in particular. that the Director's consideration of the Petitioner's need for housekeepers at locations other than the worksites for which this petition was tiled was in keeping with the scope of inquiry set by the regulations at 8 C.F.R. § 214.2(h)(6)(ii)(A) and (B). We also conclude that the evidence supports the Director's detem1ination that the Petitioner's need for housekeeping services exceeded the regulations' limit to the duration of need that can qualify as 11-28 temporary.

D. Petitioner not a "Job Contractor"

The Petitioner's insistence that it is not a "job contractor" is correct. at least in the context of this particular petition 2 However. this distinction does not affect the outcome of the appeal.

The Department of Homeland Security (DI-IS) and the U.S. Department of Labor (DOL) jointly issued an interim final rule (IFR) governing DOL's certification for the employment of II-2B workers and enforcement of the obligations applicable to employers of such workers. 5,'ee Temporary Non-Agricultural Employment of 1-1-28 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).

2 We will not comment upon all of the Petitioner's contractual relationships throughout the country. as they are not part of the record.

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The IFR' s provisions have been published as current regulations. Those regulations at 20 C .F.R. part 655 specify certain restrictions and requirements on H-2B registration and temporary lubor certification (TLC) approval for a ··job contractor.'' ddined at 20 C.F.R. ~ 655.5 as:

[a] person. association, firm. or a corporation that [(I )J meets the definition of an employer and that ] ( 2) J contracts services or labor on a temporary basis to one o r more employers. vvhich [(3)] is not an aftiliate. branch or subsidiary of the job contractor and where [( 4 )] the job contractor will not exerci se substantial. direct day­to-day supervision and control in the performance of the services or labor to be perfom1cd other than hiring. paying and firing the workers.

Regarding registration of a job contractor as an H-2B employer - a preliminary requirement for applying for a TLC1

- the provision at 20 C.f.R. ~ 655.11(a)(4) requires that ajob contractor include with its registration f()rm all of the documentation specitied for all registration applicants plus documentation evidencing ""the job contractor's own seasonal need or one-time occurrence:·

Regarding the TLC process. the regulation at 20 C.F.R. ~ 655 .6(c) states that a job contractor ( 1) ·'will only be permitted to seck certification if it can demonstrate through documentation its own temporary need. not that of its employer-client(s):· and (2) '·will only he permitted to tile applications based on a seasonal need or a one-time occurrence:--'

We find that the decision denying the petition does not indicate that the Director considered the Petitioner as a job contractor. The deci sion neither describes the Petitioner as a joh contractor nor references any regulation. case law·. agency precedent decision. or policy standard specifically addressing job contractors. Rather. the decision rests upon the Director's application of the regulatory definition of H-2B temporary need at 8 C.F.R. ~ 214.2(h)(6)(ii)(;\) to what the record shows about the nature of the Petitioner· s business and its recourse to temporary housekeepers beyond the confines of this petition.

The Director's determination that the Petitioner's need to r temporary housekeepers did not qualify as H-28 peakload was correct. The combined periods of need expressed in the pet1tton and the one now before us- though tiled for work in different states and geographical areas indicate a more-than-one-year need for housekeepers. However, that period of need exceeds the regulatory year-or-less general limit at 8 C.F.R. ~ 214.2(h)(6)(ii)(H) set for all H-2B categories of temporary need except ''one-time occurrence" as described at 8 C.F.R. ~ 214.2(h)(6)(ii)(B)(l).

-' The introductory paragraph at 20 C.F.R. ~ 655.11 states: ··All employers. inc luding job contractors, that des ire to hire H-28 workers must establish their need for services or labor is temporary by tiling an H-18 Registralirm with the

NPC'" • Our discussion does not survey and address all of the DOL regulatory provis ions regarding job contractors.

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IV. CONCLUSION

The evidence of record does not substantiate the Petitioner's claim of an 11-28 peakload temporary need.

ORDER: The appeal is dismissed.

Cite as Mutter o(T-S-C-. ID# 492315 (AAO Feb. 26. 20 18)

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