Interim Decision #2934 

MATTER OF ARTEE CORPORATION 

In Visa Petition Proceedings 

LOS-N-46504 

Decided by Commissioner November 24, 1982 

(1) In determining whether an alien is coming "temporarily" to the 1.1pIted States to 

"perform temporary services or labor" as required by section 101(a)(15)(H)(1) of the Act, 

8 U.S.C. 1101(aX15)(HXii), the test is whether the need of the petitioner for the duties 

to be performed is temporary. It is the nature of the need, not the nature of the duties, 

• that is eontrniling. 

(2) Matter of Contopoulos, 10 1&N Dec. 659 (R.C. 1964), uverniled. 

(3) Because the business of a temporary help service is to meet the temporary needs of 

many clients, the nature of the petitioner's needs for the beneficiary is More or less 

continuous. Where as hare there is a current shortage of the particular skill, the 

petitioner's neeti•to supply this employee to its clients is ongoing, not temporary as 

required by section 101(a)(15)(H)(ii). 

ON BEHALF OF APPLICANT: John A. Joannes, Esquire 

3600 Wilshire Boulevard, Suite 1914 

Los Angeles, California 90010 

This case is before the Conunissioner on certification of the Regional 

Commissioner's decision of June 2, 1982. 

The petitioner is seeking to classify the beneficiaries under-section 

101(a)(15)(H)(ii) of the Act, 8 U.S.C. 1101(aX15)(1/)(ii), as machinists. 

The• petitioner providea temporary help to technically-oriented firms. 

The sole issue in this case is the temporary need of the petitioner for 

the services of the beneficiary. In a situation involving a "temporary 

help" service, the Service has found that such a service is qualified to be 

and remains the actual employer of the beneficiary. See Matter of Smith, 

12 I&N Dec. 772 (D.D. 1968). The petitioner in this case is a temporary 

help service and I agree with the Regional Commissioner that it qualifies as a petitioner and is the actual employer of the beneficiaries. The 

Regional Commissioner found that, because of the current wide-spread 

shortage of machinists in the United States, the nature of the employment offered must be viewed as permanent and not temporary. The 

decision examined the use of the beneficiaries' services by the customer 

of the help service in reaching this conclusion. I at not believe that this 

is the proper view of the employment situation involved. The test of the 

366 
Interim Decision #2934 

true nature of the temporary need for the position lies in examination of 

the temporary need of the temporary help service, not ita customers. 

Section 101(1)(15)(H)(ii) defines an 11-2 temporary worker as an alien 

"who is coming temporarily to the United States to perform temporary 

services or labor, if unemployed persons capable of performing such 

services or labor cannot be found in this country. . ." As noted in Matter 

of Contopoulos, 10 I&N Dec. 654, 657 (Acting R.C. 1964)," .. .both the 

coming to the. United States and the performance of service or labor 

must be temporary, the term 'temporary' being used twice." The nature 

of the duties-to be performed were controlling, not the intent of the 

petitioner and the beneficiary concerning the time that the individual 

beneficiary would be employed in that position. 

The Service now views this interpretation as incorrect. It is not the 

nature or the duties of the position which must be examined to determine the temporary need. It is the nature of the , need for the duties to 

be performed which determines the temporariness of the position, Under 

this interpretation the key question in Contopaalos is: "Can the petitioner credibly establish that she has not employed a mother's helper in 

the past and that her need for a mother's helper will end in the near, 

definable future?" Likewise, in the instant case, the primary question 

becomes: "Can Artee establish that they have not employed machinists 

in the past and will not need the services of machinists in the near, 

definable future?" Here, as in Contopoulos, we are considering the 

second temporary requirement of the statute which concerns the position itself and not the first requirement which relates to the intent of the 

alien to enter for a temporary period. The function of a temporary help 

service is to provide for the fluctuating needs of other enterprises for 

specified services. In this case the petitioner provides technically-oriented 

personnel of a skilled nature to industries requiring such services. The 

customers of the petitioner do not have a steady need for a specific 

number of employees. Their business fluctuates and in so changing, 

their personnel needs change. To meet, their needs, the customers of the 

petitioner turn to the petitioner to provide temporary help. While it is 

true that the temporary help may be needed for periods of 2 to 3 years, 

it is also true that shorter periods can be involved and that the need of 

the customer may not continue_ 

The situation of a temporary help service differs, however. The business of a temporary help service is to meet the temporary needs of its 

clients. To do this they must have a permanent cadre of employees 

available to refer to their customers for the jobs for which there is 

frequently or generally a demand. By the very nature of this arrange-

:dent, it is obvious that a temporary help service will maintain on its 

payroll, more or less continuously, the types of skilled employee moat in 

demand. This does not mean that a temporary help service can never 

367 
Interim Decision #2934 

offer employment of a temporary nature. If there is no demand for a 

particular type of skill, the temporary help service does not have a 

continuing and permanent need. Thus a temporary help service may he 

able to demonstrate that in addition to its regularly employed workers 

and permanent staff needs it also hires workers for temporary positions. 

For a temporary help service company, temporary positions would 

include positions requiring skill for which the company has a nonrecurring demand or infrequent demand. 

There is currently a wide-spread-shortage of skilled machinists in the 

United States. Because of this shortage, the petitioner, as a prudent 

business measure, has ensured that it can supply machinists to its 

customers. Its need to supply machinists to its customers is ongoing. 

Therefore, as long as this universal, shortage of machinists exists, the 

nature of the need for the position with the petitioner is such that the 

duties are not temporary and will persist as long as the shortage. 

In the absence of evidence that the petitioner has a non-recurring or 

infrequent demand for skilled machinists, the following order is entered: 

ORDER: The petition is denied.