Interim Decision #2480 

MATTER OF SAMARIUS INDUSTRIES, INC. 

In Visa Petition Proceedings 

HAR—N-3684 

Decided by Regional Commissioner March 16, 1976 

Notwithstanding beneficiary was previously employed by petitioner in the specified position as a permanent employee, and notwithstanding petitioner has an eventual need to 

fill the position with apermanent employee, petition to accord beneficiary nonimmigrant 

classification as a temporary worker under section 101(a)(15)(11)(ii) of the Immigration 

and Nationality Act, as amended, as a stained glass bender and teacher of this art, is 

granted since ii. has been established that the beneficiary's services will be temporary in 

nature as they will be utilized only to train other workers who will perform this function 

permanently and the training duties are not of an on-going nature but of a one year 

specified duration. 

II BEHALF OF PETITIONER: Antonio Robaina, Esquire 

205 Church Street 

New Haven, Connecticut 06510 

This matter is before the Regional Commissioner on appeal from the 

denial of the petition for the reason that it was not established that the 

services to be performed by the beneficiary are temporary. 

The petitioner, Samarius Industries, Inc., is engaged in the manufacture of "Tiffany-type" lamps. It presently has 58 employees with an 

annual gross income of approximately $1,000,000. The petitioner proposes to employ the beneficiary as a stained glass bender and teacher of 

this art for a reriod of one year. The Department of Labor has issued a 

certification to the effect that qualified persons to fill this position are 

unavailable and made it valid for the period from February 2, 1976 to 

December 31, 1976. 

The beneficiary is a 48-year-old native and citizen of Ecuador presently residing in Ecuador. The record indicates that the beneficiary, 

while in an unlawful status in the United States (of which the petitioner 

was unaware), was employed by the petitioner from April 1972 to 

December 1975. 

On appeal and in oral argument it was urged that the beneficiary's 

services are indeed temporary in that the position he will be filling will 

be temporary in nature and is not one of production employment which 

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will be continued through the firm's subsequent operation. The petitioner urges that the beneficiary will be used to train two other employees in the art of stained glass bending. He will initiate training with 

one individual upon his arrival in the United States and begin the 

training of the second individual approximately two months later. The 

petitioner submits that the agreement between it and the beneficiary is 

temporary, that the contract entered into on November 25, 1975 contemplates his employment for only one year. The petitioner urges that 

because artisans with the required knowledge are limited it is essential 

that the beneficiary's services be utilized to train other workers who will 

perform this function permanently. 

The petitioner assured the training of the United States workers 

could be completed in the time requested. They must learn to perform 

the following duties: 

Knowledge of bending properties of stained glass imported and domestic of all available 

colors in regard to temperature and maximum sag. Knowledge of annealing brass. 

Program production for maximum efficiency of kiln. Knowledge of necessary controls, 

manual and electrical, for temperature of bend and anneal of stained glass. Visually 

inspected glass prior to bend, during bend and after bend. Load glass and brass into 

molds on continuous chain and unload when completed. Order glass from cutting 

department to insure maximum efficiency of kiln. Fuse ceramic paint to clear glass while 

bending and cool properly to avoid defects in paint. Maintain stock of annealed brass 

band and accessories for other departments. Maintain molds and prepum mold release 

chemicals as required. Inspect kiln visually and listen for any problem and resolve any 

problems. 

In the case at hand the petitioner urges that he his not sought labor 

certification in behalf of the beneficiary for a permanent position nor 

does he intend to employ the beneficiary on a continuing basis. 

It has been held that'to be eligible for admission as a nonimmigrant 

under section 101(a)(15)(H)(ii) of the Act the beneficiary must be coming 

to the United States to perform duties of a temporary nature as distinguished from work of a continuing or permanent character. In the 

Matter of Contopoutos, 10 I. SE N. Dec. 654, it was held that where the 

position itself is permanent in nature the grant of nonimmigrant status 

under section 101(2)(15)(H)(i1) is precluded notwithstanding the limitation of time placed on the beneficiary's services. 

It has been further held in the Matter of University of Oklahoma, 14 

I. & N. Dec. 213 that determinations as to whether the beneficiary has a 

residence abroad which he has no intention of abandoning or is otherwise a bona fide nonimmigrant are not requisite to approval of an' "H" 

classification; rather such determinations are for the consular officer 

when the beneficiary applies for his visa abroad and for the immigration 

officer when he applies for admission or for a change of nonimmigrant 

status pursuant to section 248 of the Immigration and Nationality Act. 

After a careful review of the entire record it is concluded that the 

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petitioner on appeal has credibly established that the position for which 

the beneficiary's services are sought is one temporary in nature within 

the interpretation of law and rationale of Matter of Contopoulos, supra. 

Accordingly, the bases for denial have been overcome and the district 

director's decision will, therefore, be reversed and the petition approved. 

It is ordered that the appeal be sustained and the petition be approved. 

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