Temporary Workers Under § 301 of the Immigration Reform and Control Act ( 1987 )

Temporary Workers Under § 301 of the
Immigration Reform and Control Act
“Tem porary” work under § 301 o f the Immigration Reform and Control Act o f 1986, which
permits aliens to enter the United States tem porarily to perform “tem porary” services or labor,
refers to any job where the em ployer’s need for the employee is temporary. The nature o f the
underlying job and, in particular, whether the underlying job itself can be described as
permanent or tem porary, is irrelevant.
April 23, 1987
M e m o r a n d u m O p in io n f o r t h e C o m m is s io n e r ,
I m m ig r a t io n a n d N a t u r a l iz a t io n S e r v ic e
This responds to your request for our opinion on what constitutes “tempo­
rary” work under § 301 of the Immigration Reform and Control Act of 1986
(Act), to be codified as 8 U.S.C. § 1101(a)(15)(H)(ii). We believe that tempo­
rary work refers to any job where the employer’s need for the employee is
temporary, regardless of whether the underlying job can be described as
permanent or temporary. Because this conclusion differs in part from the
analysis proposed both by the Immigration'and Naturalization Service (INS)
and the Department of Labor, we set forth our analysis below in some detail.
The Immigration and Nationality Act has for many years included a provi­
sion permitting aliens to come “temporarily to the United States to perform
temporary services or labor.” 8 U.S.C. § 1101(a)(15)(H)(ii) (1982). These
aliens are known as “H2” workers. The 1986 Act amended § 1101(a)(15)(H)(ii)
to add a new section specifically covering agricultural workers. The statute
now covers:
(H) an alien having a residence in a foreign country which he
has no intention of abandoning . . . (ii) who is coming tempo­
rarily to the United States (a) to perform agricultural labor or
services. .. o f a temporary or seasonal nature, or (b) to perform
other temporary service or labor.
Id. (emphasis added).1 Agricultural workers who receive visas under this new
section are referred to as H2A workers.
1 A gricultural labor w ill be defined by the Secretary o f Labor and will include all the form s o f agriculture
listed in the Internal Revenue Code, 26 U.S.C § 3121(g), and the Fair Labor Standards A ct, 29 U.S C.
§ 203(f).
39
The INS and the Department of Labor have each drafted regulations imple­
menting this provision. The INS regulation would permit an alien to obtain an
H2A visa for any job in the United States for a period of up to three years, after
which the alien would have to depart for six months.2 Thus, INS would simply
define a “temporary” job as any job for up to three years. The Department of
Labor, in contrast, takes a somewhat stricter view by defining temporary to
exclude any permanent job which an employer needs to fill on a temporary
basis. Proposed Department of Labor regulation, Supplementary Information,
at 7. Under the Labor Department’s proposed regulation, “A year-round or
otherwise long-term job does not qualify as temporary.” Id.
In order to resolve the issue of how to define “temporary” work, we exam­
ined several sources: the statutory language, the legislative history, the dictio­
nary definition of “temporary,” and the case law. On the basis of our review,
we 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 begin our analysis with the language of the statute. As noted above, the
new language permits aliens to enter this country “temporarily” in order to
perform agricultural work “of a temporary or seasonal nature.” 8 U.S.C.
§ 1101(a)(15)(H)(ii)(a). The plain language of the statute thus requires that the
alien’s stay must be temporary and that the work must be of a temporary nature.
As a starting point, we believe that “temporary” means something other than
seasonal. Although seasonal work refers to tasks that are tied to one of the four
seasons, such as spring planting or fall harvesting, temporary work is not that
strictly limited. Moreover, it is clear, especially given the specific incorpora­
tion into the new section of the broad definitions of agriculture from the Tax
Code and the Fair Labor Standards Act, that every kind of agricultural work is
covered.3 See H.R. Rep. No. 99-682,99th Cong., 2d Sess. 80 (1986). The kind
of agricultural work listed in these statutes is extremely broad, covering, for
example, “all service performed . . . in connection with raising or harvesting
any agricultural or horticultural commodity,” including “management of live­
stock.” 26 U.S.C. § 3121(g). Neither the Tax Code nor the Fair Labor Stan­
dards Act definitions distinguish between agricultural jobs of a transient na­
ture, such as harvest work, and those of a permanent nature, such as caring for
livestock.4 Therefore, the language of § 1101(a)(15)(H)(ii)(a) permits all job
occupations within the agricultural field, not just seasonal ones, to be certified
as H2A jobs.
In deciding how long such a job may be held on a “temporary” basis, we
referred to two sources. First, the dictionary definition of the word temporary
2 P roposed 8 C.F.R. § 214.2(h)(3)(vi)(B ). The D epartm ent o f A griculture has subm itted a b rie f statement
that it agrees w ith the INS proposal.
3 26 U .S.C . § 3121(g); 29 U.S.C. § 2 0 3 (0 -
4 T hus, w e disagree w ith the D epartm ent o f L abor’s apparent argum ent that H 2A w orkers may not fill
perm anent jo b s that an em ployer needs to fill on a tem porary basis — for exam ple, because the regular
A m erican em ployee has fallen ill or e x tra hands are needed during a busy period.
40
refers to a limited period of time.5 Second, we examined the existing INS and
Department of Labor regulations governing H2 workers. The Department of
Labor’s regulations for H2 workers state that temporary labor certifications
“shall never be for more than eleven months.” 20 C.F.R. § 655.206(b)(1).
Similarly, INS’s H2 regulations provide that the petition will be approved for
the length of the certificate issued by the Department of Labor (eleven months)
or, if no date is given on the certificate, “approval of the petition will not
exceed 1 year.” 8 C.F.R. § 214.2(h)(6)(i). Thus, although the regulations
provide for extensions,6 the basic rule for H2 petitions is that a “temporary” job
means one for a year or less.7
These regulations reflect the present administrative interpretation of the
word “temporary” under the H2 provision and are consistent with the common
meaning of the word “temporary.” One would expect that the same word would
have the same meaning within a single sentence — i.e., that “temporary” would
have the same meaning in both § 1101(a)(15)(H)(ii)(a) and (b). There is noth­
ing in either the language of the statute or the legislative history that would lead
us to question this otherwise self-evident proposition. Therefore, we believe
that the definition of temporary for H2A workers should be the same as that for
H2 workers: twelve months or less. It may be that there are unusual circum­
stances where a “temporary” job might last longer than a year.8 Nevertheless, a
blanket assumption that all jobs are “temporary” simply because the alien
cannot occupy a job — any job — for more than three years, as proposed by
INS, appears to us to be an interpretation not supported by the statute.9
In view of all these factors, we believe that in order to determine whether a
particular job is “temporary” within the meaning of § 1101(a)(15)(H)(ii)(a),
INS and the Department of Labor must focus upon the employer’s need. If an
employer makes a bona fid e application showing that he needs to fill a job on a
temporary basis, the work is “of a temporary or seasonal nature.” It is irrelevant
whether the job is for three weeks to harvest a crop or for six months to replace
a sick worker or for a year to help handle an unusually large lumber contract.
What is relevant is the employer’s assessment — evaluated, as required by
3 Tem porary is defined as “[Hasting for a tim e only; existing o r continuing for a lim ited time; not
perm anent; ephem eral; transitory.” Webster’s New International Dictionary 2S98 (2d ed. unabridged 1958).
6 8 C.F.R. § 214.2(b)(10) (extensions authorized in increm ents o f not more than tw elve months).
7 Indeed, the longer the em ployer needs a “tem porary” worker, the more likely it would seem that the job
has in fact becom e a perm anent one. Thus, we assume that INS takes an increasingly careful look at repeated
petitions for the same job. INS regulations already forbid extensions that w ould permit the alien to stay for
more than three years. 8 C.F.R. § 214.2(h)(10).
8 See Wilson v. Smith , 587 F. Supp. 470 (D.D.C. 1984) (H2 application approved for nanny until child was
old enough for day care).
9 M oreover, the blanket three-year provision threatens the integrity o f the Imm igration and N ationality Act,
which already has a provision for imm igrant visas for perm anent positions. 8 U.S.C. § 1153(a)(6). Because
the num ber o f these “sixth preference” visas is strictly lim ited (10 percent o f each year’s total visa quota),
em ployers w ould be strongly tem pted to call a permanent position temporary in order to fill it w ith an H2A
w orker. As one court observed:
T he IN S’s present interpretation o f [H2] prevents the likelihood o f so-called “tem porary”
workers from entering this country perm anently under the less rigorous standard o f [H2], rather
than applying properly as immigrants under the more stringent [sixth] preference classification.. . .
Volt Technical Services Corp. v. INS , 648 F. Supp. 578, 581 (S.D.N.Y. 1986).
41
statute, by the Department o f Labor and the INS — of his need for a short-term
(as opposed to a permanent) employee. The issue to be decided is whether the
employer has demonstrated a temporary need fo r a worker in some area of
agriculture. The nature of the job itself is irrelevant. What is relevant is whether
the employer’s need is truly temporary.
This interpretation is supported in part by administrative and judicial inter­
pretations of the H2 provision. As was stated in the leading case of In re Artee,
18 1. & N . Dec. 366(1982):
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 tempo­
rariness of the position.
Id. at 367. In A rtee, the INS reversed a long-standing rule that the functional
nature of the duties of the job controlled its characterization in favor of
determining that eligibility for an H2 visa was controlled by “the intent of the
petitioner and the beneficiary concerning the time that the individual would be
employed.” Id. See also In re Ord, 18 I. & N. Dec. 285 (1982).
This position has been affirmed by the courts. Thus, in Wilson v. Smith, 587
F. Supp. 470 (D.D.C. 1984), the court held that a nanny was a “temporary”
worker because the parents o f the child only needed child care until the infant
was old enough for day care:
Plaintiffs have made a plausible case for their assertion that their
need for live-in help is temporary, based on their daughter’s
youth. . . . The Wilsons have credibly established that their need
will end in the “near, definable future.”
Id. at 473 (quoting Artee). The court did not focus on whether those engaged in
child care occupy a permanent job function, although they arguably do since
child care could be said to last at least until children enter high school. What the
court based its ruling on was its determination that the parents only needed the
nanny for a short period, until their child entered day care.
Similarly, in Volt Technical Services Corp. v. INS, 648 F. Supp. 578 (S.D.N.Y.
1986), the court adopted the Artee standard: a temporary job is one where “it is
clearly shown that the petitioner’s need for the beneficiary’s services or labor is
of a short, identified length, limited by an identified event located in time.” Id.
at 580. In doing so, the court recognized that aliens could be hired as engineers
— a permanent job description — if they were hired by a temporary help
service “to fill a specific contract with a client and the beneficiaries entered the
United States with the understanding that their employment was to be for a
temporary period.” Id. at 581.
Finally, in North American Industries, Inc. v. Feldman, 722 F.2d 893 (1st
Cir. 1983), the court discussed at some length the position of a man who
programmed and operated computerized lathes and high-speed gear cutters.
The underlying job was permanent. Indeed, the issue in the case was whether
42
the alien, having held the position as an H2 worker on a temporary basis, could
apply to hold it on a permanent basis using a “sixth preference” visa. As in the
other cases cited above, the U.S. Court of Appeals for the First Circuit noted
that “the INS has conceded that the needs of an employer should determine
whether a position offered an alien is temporary or permanent.” Id. at 900
(citing Artee).10
We understand that focusing on the employer’s need may encourage numer­
ous applications by employers to the Department of Labor and that it is often
difficult to distinguish between temporary and permanent jobs, especially if the
employer is not honest. Nevertheless, we believe a one-year limitation will
serve as at least a restraint, if not a disincentive, to dishonesty. We also believe
it best reflects Congress’ intent and will be administratively workable.
Conclusion
In determining what the word “temporary” means, we have relied on a
number of sources: the language of the statute, the legislative history, the
dictionary meaning of the word, the administrative interpretation of similar
language, and the relevant case law. Based on all of these factors, we believe
that the word “temporary” in 8 U.S.C. § 1101(a)(15)(H)(ii)(a) refers to any job
in agriculture where the employer needs a worker for a limited period of time,
generally of less than one year’s duration.
D o u g l a s W . K m ie c
Deputy Assistant Attorney General
Office o f Legal Counsel
10See also Hess v. Esperdy, 234 F Supp. 909 (S.D.N.Y. 1964); 9 Foreign Affairs Manual § 41 5 5 ,n .l7 .
43