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WILSON v. SMITH

June 29, 1984

LEE R. WILSON, et al., Plaintiffs,
v.
WILLIAM FRENCH SMITH, Attorney General of the United States, et al., Defendants



The opinion of the court was delivered by: RICHEY

 Before the court are plaintiffs' motion for summary judgment and defendants' motion for summary judgment, or in the alternative, to dismiss. There are no disputed issues of material fact. Plaintiffs, a husband and wife, are seeking a judgment pursuant to 28 U.S.C. § 2201, 8 U.S.C. § 1329, and 28 U.S.C. § 1331 declaring that Teresa Rivas is qualified as a nonimmigrant temporary worker as defined by 8 U.S.C. § 1101(a)(15)(H)(ii):

 
The term "immigrant" means every alien except . . . an 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 temporary services or labor, if unemployed persons capable of performing such service or labor cannot be found in this country . . . .

 The court finds that plaintiffs are entitled to approval of their petition for classification of Ms. Rivas as a temporary worker ("H-2") to care for their young child during her toddlerhood, and therefore will grant plaintiffs' motion for summary judgment.

 BACKGROUND

 Lee and Luz Wilson are a married couple with one daughter, Jennifer, born December 15, 1981. Both plaintiffs work outside their home, including some overtime, and wish to have their daughter cared for at home during her toddlerhood. They tried unsuccessfully to locate a live-in worker to assist with child care, cooking, and housework by advertising in the Washington Post over a three-day period. Ms. Rivas, a Salvadoran national, does similar work for Mrs. Wilson's sister, who lives in El Salvador. Mrs. Wilson, her sister, and Ms. Rivas agreed that Ms. Rivas could come to the United States to help the Wilsons for one year and then return to the sister's employ. (See Sra. de Ayala's December 1982 letter to Mrs. Wilson; Employment Agreement between the Wilsons and Ms. Rivas, January 26, 1983.) On January 26, 1983, plaintiffs filed an application for temporary labor certification on behalf of Ms. Rivas with the Department of Labor ("DOL"), seeking certification that there were not qualified, willing, and available United States workers to fill the position of temporary housekeeper/child caretaker for the period of the child's toddlerhood.

 Certification was denied two months later on the grounds that the job duties were "permanent and ongoing in nature." On April 5, 1983, plaintiffs pursued their claim with the Immigration and Naturalization Service ("INS") by filing a Petition to Classify Alien as a Temporary Worker. That petition was denied by the Acting District Director, on behalf of the Attorney General, on June 7, 1983, because plaintiffs had not shown that the employment would be temporary.

 The Wilsons then filed a timely administrative appeal on June 24, 1983. After a substantial delay apparently caused by INS's repeated failure to process plaintiffs' submission, *fn1" a final decision was rendered on March 15, 1984, affirming the District Director and dismissing the appeal without prejudice. Although critical of the examinations conducted by DOL and the District Director, the Associate Commissioner determined the petitioners did not establish the temporary nature of their need for Ms. Rivas' services. R. at 2. *fn2" This court, reviewing that conclusion to determine whether it is arbitrary, capricious, or an abuse of discretion, Richards v. INS, 180 U.S. App. D.C. 314, 554 F.2d 1173, 1177 (D.C. Cir. 1977); Pesikoff v. Secretary of Labor, 163 U.S. App. D.C. 197, 501 F.2d 757, 761 (D.C. Cir.), cert. denied, 419 U.S. 1038, 42 L. Ed. 2d 315, 95 S. Ct. 525 (1974), finds that the District Director's decision should have been reversed and the petition for temporary certification should have been granted.

 DEFENDANTS APPLIED THE CORRECT LEGAL STANDARD

 The standards for temporary labor certification are set out at 8 C.F.R. 214.2(h)(3)(i):

 
Either a certification from the Secretary of Labor or his designated representative stating that qualified persons in the United States are not available and that the employment of the beneficiary will not adversely affect the wages and working conditions of workers in the United States similarly employed, or a notice that such a certification cannot be made, shall be attached to every nonimmigrant visa petition to accord an alien a classification under [§ 1101(a)(15)(H)(ii).]

 Plaintiffs' petition has been rejected repeatedly -- by DOL, by the Acting District Director of INS, and on administrative appeal -- for one reason alone: because plaintiffs did not show that the proposed employment would be "temporary." The test for whether a job is temporary as opposed to permanent is "the nature of the need for the duties to be performed," Matter of Artee Corporation, Interim Decision 2934 (November 24, 1982)(emphasis added). This is a more flexible standard than previously applied under Matter of Contopoulous, 10 I&N Dec. 654 (1964), where the focus was on the nature of the position, and its permanence, rather than on the duration of petitioner's need. R. at 3.

 DEFENDANTS ABUSED THEIR DISCRETION IN APPLYING THE LEGAL RULE IN THIS CASE

 Although DOL and INS repeatedly articulated the correct standard from Artee for assessing whether a job is "temporary," their obvious reliance on unrelated factors renders defendants' decision ...


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