Meaning of \"Temporary\" Work Under 8 U.S.C. § 1101(a)(15)(H)(ii)(b) ( 2008 )

Meaning of “Temporary” Work Under
8 U.S.C. § 1101(a)(15)(H)(ii)(b)
A regulation proposed by United States Citizenship and Immigration Services providing that “temporary”
work under the H-2B visa program “[g]enerally . . . will be limited to one year or less, but . . . could last
up to 3 years” is based on a permissible reading of 8 U.S.C. § 1101(a)(15)(H)(ii)(b) and is consistent
with the 1987 opinion of this Office addressing the meaning of “temporary” work under 8 U.S.C.
§ 1101(a)(15)(H)(ii)(a).
December 18, 2008
MEMORANDUM OPINION FOR THE ACTING GENERAL COUNSEL
DEPARTMENT OF HOMELAND SECURITY
Section 1101(a)(15)(H)(ii)(a) of title 8 of the United States Code permits aliens
to obtain visas (referred to as “H-2A” visas) to come “temporarily to the United
States to perform agricultural labor or services . . . of a temporary or seasonal
nature.” Section 1101(a)(15)(H)(ii)(b) similarly permits aliens to obtain visas
(referred to as “H- 2B” visas) to come “temporarily to the United States to perform
other temporary services or labor” if certain conditions are met. The regulation
applicable to H-2A visas defines temporary work to mean “[e]mployment . . .
where the employer’s need to fill the position with a temporary worker will,
except in extraordinary circumstances, last no longer than one year.” 8 C.F.R.
§ 214.2(h)(5)(iv) (2007). The regulation applicable to H-2B visas defines tempo-
rary work as “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,” 8 C.F.R. § 214.2(h)(6)(ii)(A); the employ-
er’s need “must be a year or less although there may be extraordinary circum-
stances where the temporary services or labor might last longer than one year.”
8 C.F.R. § 214.2(h)(6)(ii)(B).
United States Citizenship and Immigration Services (“USCIS”), the successor
within the Department of Homeland Security (“DHS”) performing the immigration
service and benefit functions of the Immigration and Naturalization Service (“INS”),
proposes to revise the regulation governing H-2B visas. The new regulation would
provide that “[e]mployment 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.” Changes to Requirements
Affecting H-2B Nonimmigrants and Their Employers at 99 (draft final rule to be
published in the Federal Register and codified at 8 C.F.R. § 214.2(h)(6)(ii)(B))
(“Draft Final Rule” or “Proposed 8 C.F.R. § 214.2(h)(6)(ii)(B)”); see also Changes
to Requirements Affecting H-2B Nonimmigrants and Their Employers, 73 Fed. Reg.
49,109, 49,121 (proposed Aug. 20, 2008). The regulation would further provide that
“[g]enerally, 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.” Proposed 8 C.F.R. § 214.2(h)(6)(ii)(B).
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You have asked whether the proposed regulation represents a permissible con-
struction of the statute, and whether such an interpretation would be consistent
with an earlier opinion of this Office addressing the meaning of “temporary” work
under a then-recent amendment to section 1101(a)(15)(H)(ii)(a). See Immigration
Reform and Control Act of 1986, Pub. L. No. 99-603, § 301, 100 Stat. 3359, 3411;
Temporary Workers Under § 301 of the Immigration Reform and Control Act, 11
Op. O.L.C. 39 (1987) (“Temporary Workers”). We conclude that USCIS’s pro-
posed rule is based on a permissible reading of the statute and is consistent with
our 1987 opinion. 1
I.
Section 1101 does not define “temporary” work for purposes of H-2A or H-2B
visas, nor does it indicate how long a position may last and still qualify as
“temporary” work. The statute simply provides that an alien may come “temporar-
ily” into the United States to perform “agricultural labor or services . . . of a
temporary or seasonal nature” under an H-2A visa or to perform “other temporary
service or labor” under an H-2B visa. 8 U.S.C. § 1101(a)(15)(H)(ii) (2006). In its
ordinary sense, “temporary” means “lasting for a time only; existing or continuing
for a limited time.” Webster’s Third New International Dictionary 2353 (1993).
As we noted in our earlier opinion, this definition makes clear that “temporary”
work lasts only “a limited period of time,” Temporary Workers, 11 Op. O.L.C. at
40–41 & n.5, but it does not tell us how limited that period must be. The legisla-
tive history of the statute is silent about the expected duration of “temporary”
work.
If Congress has “directly spoken to the precise question at issue,” then the
“unambiguously expressed intent of Congress” must be given effect. Chevron,
U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984). But
where a statute is “silent or ambiguous with respect to the specific issue,” as
section 1101 is here, the question “is whether the agency’s answer is based on a
permissible construction of the statute.” Id. at 843; see also Smiley v. Citibank
(South Dakota), N.A., 517 U.S. 735, 740–41 (1996) (“We accord deference to
agencies under Chevron . . . because of a presumption that Congress, when it left
ambiguity in a statute meant for implementation by an agency, understood that the
ambiguity would be resolved, first and foremost, by the agency, and desired the
agency . . . to possess whatever degree of discretion the ambiguity allows.”). In
light of Congress’s silence, the question of how long a position may last and still
be considered “temporary” is one that Congress left to USCIS to answer. See
Rosete v. Office of Pers. Mgmt., 48 F.3d 514, 518–19 (Fed. Cir. 1995) (granting
1
This opinion memorializes informal advice that we provided to your Office in October 2007 and
to the INS in January 2003.
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deference under Chevron to agency’s interpretation of “temporary” under the Civil
Service Retirement Act). See generally INS v. Aguirre-Aguirre, 526 U.S. 415,
424–25 (1999) (“It is clear that principles of Chevron deference are applicable to
[the Immigration and Nationality Act].”).
We conclude that USCIS’s proposed rule represents a permissible construction
of 8 U.S.C. § 1101(a)(15)(H)(ii)(b) under Chevron. Although the proposed rule
specifies a time frame for the duration of temporary work—“[g]enerally . . . one
year or less, but . . . up to 3 years”—it emphasizes that the focus is on the employ-
er’s need for the worker and whether that need is temporary. The proposed rule
would make even clearer than the current rule that work will not be considered
“temporary” unless it is restricted to a “limited period of time” and the employer’s
“need for the employee will end in the near, definable future.” Proposed 8 C.F.R.
§ 214.2(h)(6)(ii)(B). This interpretation comports with the plain meaning of
“temporary” and the agency’s longstanding policy of focusing on the nature of the
employer’s need, see In re Artee Corp., 18 I. & N. Dec. 366 (1982), which our
1987 opinion viewed as required by the statute and courts have upheld as reasona-
ble. See Temporary Workers, 11 Op. O.L.C. at 41–42 (citing In re Artee Corp.);
Sussex Eng’g, Ltd. v. Montgomery, 825 F.2d 1084, 1090 & n.4 (6th Cir. 1987);
N. Am. Indus., Inc. v. Feldman, 722 F.2d 893, 901 (1st Cir. 1983); see also Seven
Star Inc. v. United States, 873 F.2d 225, 226 (9th Cir. 1989) (affirming INS denial
of visa under In re Artee Corp.); Blumenfeld v. Att’y Gen., 762 F. Supp. 24, 28 n.5
(D. Conn. 1991) (same); Wilson v. Smith, 587 F. Supp. 470, 473 (D.D.C. 1984)
(same); Volt Tech. Servs. Corp. v. INS, 648 F. Supp. 578, 582 (S.D.N.Y. 1986)
(describing this view of section 1101(a)(15)(H)(ii) as “correct” interpretation of
the statute). The proposed rule’s specification of a time frame for temporary
work—“[g]enerally . . . one year or less, but . . . up to 3 years”—is also within
USCIS’s discretion “[a]bsent clear congressional intent to the contrary.” Ceres
Marine Terminal v. Hinton, 243 F.3d 222, 227 (5th Cir. 2001). Employment for up
to three years may still be considered to “exist[] or continu[e] for a limited time,”
Webster’s Third New International Dictionary at 2353, as long as the employer’s
need for the worker is temporary. Although the word “temporary” is commonly
applied to periods of a year or less, 2 it has also been applied with some frequency
to periods of up to three years. 3
2
See, e.g., 2 U.S.C. § 72a(i) (2006) (authorizing congressional committees to procure “temporary”
services of consultants “not in excess of one year”); 5 U.S.C. § 3109 (2006) (authorizing agency heads
to procure “temporary” services of outside experts and consultants “not in excess of 1 year”); Pub. L.
No. 107-228, § 321, 116 Stat. 1350, 1380 (2002) (defining “temporary appointment” to mean an
“appointment that is limited by its terms to a period of one year or less”); 22 U.S.C. § 3949(a) (2006)
(defining as a “temporary appointment” in the foreign service an appointment “which is limited by its
terms to a period of one year or less”).
3
See, e.g., 5 U.S.C. § 3161(a) (2006) (defining “temporary organization” to include entities that exist
for up to three years); id. § 3304a(a) (providing that “temporary” appointments in the competitive service
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Although the current and the proposed rules both indicate that temporary work
ordinarily would last one year or less, the proposed rule differs slightly from the
current one in two respects: first, the current rule (but not the proposed one)
specifies that the duration will exceed one year only in “extraordinary circum-
stances”; and second, the proposed rule (but not the current one) sets an upper
limit of three years “in the case of a one-time event.” These minor differences are
within the scope of USCIS’s interpretive discretion. Such changes are permissible
if USCIS “adequately explains the reasons for [its change] of policy . . . ‘since the
whole point of Chevron is to leave the discretion provided by the ambiguities of a
statute with the implementing agency.’” Nat’l Cable & Telecomm. Ass’n v. Brand
X Internet Servs., 545 U.S. 967, 981 (2005) (quoting Smiley v. Citibank (South
Dakota), N.A., 517 U.S. 735, 742 (1996)). “[R]egulatory agencies do not establish
rules of conduct to last forever . . . and . . . must be given ample latitude to adapt
their rules and policies to the demands of changing circumstances.” Motor Vehicle
Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42 (1983); see also
Rust v. Sullivan, 500 U.S. 173, 186–87 (1991); Chevron, 467 U.S. at 863–64. As
set forth below, we conclude that USCIS has “adequately explain[ed] the reasons
for [its change] of policy.” Nat’l Cable & Telecomm. Ass’n, 545 U.S. at 981
(internal quotation marks omitted).
We do not believe that USCIS’s proposed regulation for H-2B visas is imper-
missible because its time frame for “temporary” work would not be identical to
that used for H-2A visas: Temporary work for H-2B visas would “[g]enerally . . .
be limited to one year or less, but in the case of a one-time event could last up to 3
years,” Proposed 8 C.F.R. § 214.2(h)(6)(ii)(B), whereas temporary work for H-2A
visas would be limited to one year or less absent “extraordinary circumstances,”
8 C.F.R. § 214.2(h)(5)(iv) (2007). Our 1987 opinion, it is true, observed that
“[o]ne would expect . . . that ‘temporary’ would have the same meaning in both
§ 1101(a)(15)(H)(ii)(a) and (b),” because they are part of the same sentence.
Temporary Workers, 11 Op. O.L.C. at 41. But subclauses (a) and (b) involve
different (though related) classes of visas—H-2A visas apply to temporary
may last up to three years before conversion into career appointments); 7 U.S.C. § 6304(b)(6)(A) (2006)
(providing that “temporary” appointments to a board may last for up to three years); 16 U.S.C.
§ 5952(11)(A) (2006) (permitting the award of “temporary” concessions contracts with terms of up to
three years); 26 U.S.C. § 7805(e)(2) (2006) (allowing promulgation of “temporary” regulations for up to
three years); 38 U.S.C. § 7405(c)(3) (2000) (allowing certain “temporary” appointments to last up to three
years); 26 C.F.R. § 1.148-2(e) (2007) (allowing reinvestment of bond proceeds for “temporary periods” of
up to three years); 30 C.F.R. § 250.302 (2007) (defining “temporary facility” to include activities
conducted for up to three years); 49 C.F.R. § 555.15 (2007) (allowing “temporary” exemptions to last for
three years). Although the term “temporary” is sometimes applied to periods extending beyond three years,
see, e.g., 42 U.S.C. § 7651n(b)(2) (2000) (providing for “temporary” demonstration project of up to five
years); id. § 8321(e) (2000) (providing for “temporary” exemption of up to five years), USCIS may
reasonably determine that work lasting longer than three years is likely to be permanent rather than
temporary in nature. Cf. Temporary Workers, 11 Op. O.L.C. at 41 n.7.
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“agricultural labor or services,” H-2B visas to “other temporary services or labor,”
8 U.S.C. § 1101(a)(15)(H)(ii)(a), (b)—and thus may serve different purposes. If
USCIS’s explanation for the different treatment is reasonable, both rules may be
permissible interpretations of “temporary” work in 8 U.S.C. § 101(a)(15)(H)(ii)(a)
and (b). See Nat’l Ass’n of Cas. & Sur. Agents v. Bd. of Governors of Fed. Reserve
Sys., 856 F.2d 282, 286–87 (D.C. Cir. 1988) (upholding agency interpretation of
ambiguous statutory term that the agency had interpreted differently elsewhere in
the statutory subsection) (“The Board’s interpretation of Exemption D cannot be
successfully attacked as a matter of administrative law merely because the Board
has otherwise construed the two companion grandfather clauses.”); Common
Cause v. FEC, 842 F.2d 436, 441–42 (D.C. Cir. 1988) (similar); cf. Abbott Labs. v.
Young, 920 F.2d 984, 987 (D.C. Cir. 1990) (“[I]t is not impermissible under
Chevron for an agency to interpret an imprecise term differently in two separate
sections of a statute which have different purposes.”); Comite Pro Rescate De La
Salud v. Puerto Rico Aqueduct & Sewer Auth., 888 F.2d 180, 187 (1st Cir. 1989)
(Breyer, J.) (concluding that EPA may interpret the same language found in
different parts of a statute to mean different things where its interpretive authority
is implicit in the statutory scheme).
The policy rationale you have offered, see Changes to Requirements Affecting
H-2B Nonimmigrants and Their Employers, 73 Fed. Reg. at 49,115; see also Draft
Final Rule at 56–64, supports different treatment of the H-2A and H-2B visa
programs and adequately explains the need for changing the DHS H-2B visa
regulation. DHS has indicated that temporary work under the H-2B program is
much more likely than work under the H-2A program to involve a non-seasonal
project, such as the construction of an office building, industrial facility, bridge, or
a ship, which will have a definable end point but may require more than one year
to complete. 73 Fed. Reg. at 49,115. The current H-2B rule’s requirement that
employers provide evidence of extraordinary circumstances in order to employ
temporary workers on a project longer than one year is thus impractical because it
does not correspond to a prevalent need for H-2B workers. See id. Applying a
general one-year limit to the H-2A visa program may not be similarly impractical
in light of the largely seasonal nature of temporary work performed under that
program. See Draft Final Rule at 58–59. USCIS thus could reasonably conclude
that a more flexible rule that generally limits temporary work to one year but
allows it to last up to three years better comports with the nature of temporary
work in the H-2B context than in the H-2A context. Moreover, even after DHS
promulgates its new H-2B visa regulation, its H-2A and H-2B visa rules would
still be similar in essential respects: under both, temporary work would depend on
the nature of the employer’s need and ordinarily would last for only one year, but
could last longer. Although the H-2A visa regulations do not expressly provide for
temporary employment lasting up to three years, those regulations recognize that
an employer’s need for a temporary worker may last longer than one year, and
potentially as long as three years, if an employer can show that “extraordinary
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circumstances” have created a longer-term (but still temporary) need for the
position. See 8 C.F.R. § 214.2(h)(5)(iv)(A).
II.
We also conclude that the proposed regulation is consistent with our 1987
opinion addressing “temporary” work under 8 U.S.C. § 1101(a)(15)(H)(ii)(a). Our
earlier analysis of the meaning of “temporary” work was based in significant part
on “the present administrative interpretation of the word ‘temporary’” set forth in
then-current Department of Labor and INS regulations for H-2 visas, see Tempo-
rary Workers, 11 Op. O.L.C. at 41, and this qualification suggests that our
conclusion was subject to change if the agencies revisited their interpretation, as
USCIS now proposes to do. 4 Moreover, the INS had asked for “our opinion on
what constitutes ‘temporary’ work” under 8 U.S.C. § 1101(a)(15)(H)(ii)(a),
Temporary Workers, 11 Op. O.L.C. at 39, and we provided our view of the best
reading of the statute, in the context of existing regulations, rather than the range
of permissible agency interpretations. See id. at 43 (“[W]e believe a one-year
4
The Department of Labor and INS regulations that we relied upon in our 1987 opinion have since
been revised. USCIS has defined “temporary work” in 8 U.S.C. § 1101(a)(15)(H)(ii)(b) as employment
where the employer’s need lasts only one year absent extraordinary circumstances. 8 C.F.R.
§ 214.2(h)(6)(ii) (2007). By regulation, USCIS requires H-2B visa petitioners to obtain a certification
of the Department of Labor that qualified U.S. workers are not available and the use of non-U.S.
workers will not adversely affect the wages and working conditions of similarly employed U.S.
workers. Id. § 214.2(h)(6)(iv)(A). To implement that requirement, the Department of Labor has
adopted a procedure providing that “[a]s a general rule, the period of the employer’s need must be 1
year or less, although there may be extraordinary circumstances where the need may be for longer than
1 year.” Dep’t of Labor, Procedures for H-2B Temporary Labor Certification in Nonagricultural
Occupations at 2 (Nov. 10, 1994) (“Labor H-2B Procedures”) (attachment to General Administration
Letter No. 1-95) (available at http://wdr.doleta.gov/directives/attach/GAL1-95_attach.pdf, last visited
Aug. 15, 2014). Neither the existing USCIS rule defining “temporary” work nor the Department of
Labor procedures conflicts with our conclusion today. As noted above, USCIS may change its
definition of “temporary,” provided it explains its reasons for the change and the change is within the
range of permissible interpretations of the statute. Moreover, USCIS, not the Department of Labor, has
statutory responsibility to administer and interpret 8 U.S.C. § 1101(a)(15)(H)(ii)(b). See 8 U.S.C.
§ 1103(a)(1) (2006). The Department of Labor procedures make clear Labor’s intent for the policy to
conform to USCIS’s standards for determining the temporary nature of a job offer, not independently to
define the nature of temporary work, see Labor H-2B Procedures at 2 (noting that procedures
“conform[] DOL standards for determining the temporary nature of a job offer under the H-2B
classification with those of INS”). Indeed, in the preamble to proposed amendments to its regulations,
Labor has stated that it “defers to the Department of Homeland Security and will use [its] definition of
temporary need as published in [its] Final Rule on H-2B” and thus “will consider a position to be
temporary as long as the employer’s need for the duties to be performed is temporary or finite,
regardless of whether the underlying job is temporary or permanent in nature, and as long as that
temporary need . . . is less than 3 consecutive years.” Labor Certification Process and Enforcement for
Temporary Employment in Occupations Other Than Agriculture or Registered Nursing in the United
States (H-2B Workers), and Other Technical Changes at 26, 33 (draft final rule to be published in the
Federal Register).
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limitation . . . . best reflects Congress’ intent and will be administratively worka-
ble.”). Under Chevron, an agency construction of a statute must be sustained if it is
reasonable, even if a better construction of the statute exists. See 467 U.S. at 843–
44 & n.11; accord Nat’l Cable & Telecomm. Ass’n, 545 U.S. at 980 (“If a statute
is ambiguous, and if the implementing agency’s construction is reasonable,
Chevron requires a federal court to accept the agency’s construction of the statute,
even if the agency’s reading differs from what the court believes is the best
statutory interpretation.”). Because USCIS’s policy judgment is based on a
reasonable interpretation of an ambiguous statute, our earlier assessment of the
statute’s “best” reading, in the context of the regulations in effect at the time, 11
Op. O.L.C. at 41, cannot displace USCIS’s interpretation, as set forth in its
proposed regulation. Cf. Nat’l Cable & Telecomm. Ass’n, 545 U.S. at 982–83
(“Only a judicial precedent holding that the statute unambiguously forecloses the
agency’s interpretation, and therefore contains no gap for the agency to fill,
displaces a conflicting agency construction.”).
Finally, our 1987 opinion recognized that “temporary” work could last for
longer than one year, as we stated that temporary work was “generally of less
than one year’s duration.” Temporary Workers, 11 Op. O.L.C. at 43 (emphasis
added); see also id. at 40 (“[W]e have concluded that temporary work under
§ 1101(a)(15)(H)(ii)(a) includes any agricultural work where the employer needs
a worker for, as a general rule, a year or less.”). We acknowledged that there
may be “unusual circumstances where a ‘temporary’ job might last longer than a
year.” Id. at 41. This understanding, like the current definitions of temporary
work for H-2A visas under 8 C.F.R. § 214.2(h)(5)(iv) and for H-2B visas under
8 C.F.R. § 214.2(h)(6)(ii)(B), is not inconsistent with the proposed rule, under
which temporary work will “[g]enerally . . . be limited to one year or less, but in
the case of a one-time event could last up to 3 years.” Proposed 8 C.F.R.
§ 214.2(h)(6)(ii)(B).
Our 1987 opinion did reject a proposed INS regulation that would have permit-
ted aliens to stay in the United States for up to three years for purposes of tempo-
rary work. See Temporary Workers, 11 Op. O.L.C. at 41. However, that proposed
rule differed significantly from the current proposal: the INS rule would have
permitted an alien to obtain an H-2A visa for any job in the United States for a
period of up to three years without regard to the nature of the employer’s need. See
id. at 40. We concluded that a “blanket assumption that all jobs are ‘temporary’
simply because the alien cannot occupy a job—any job—for more than three
years . . . appears to be an interpretation not supported by the statute.” Id. at 41 &
n.9. That is not true of USCIS’s proposed rule, which would classify work as
“temporary” only where the employer’s need for the worker is temporary.
JOHN P. ELWOOD
Deputy Assistant Attorney General
Office of Legal Counsel
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