the duration of their need for child care and household assistance. Similarly, plaintiffs' suspected inability to pay Ms. Rivas the salary stated in the petition, see R. at 3, in no way indicates that this is an offer of permanent, as opposed to temporary, employment. The fact that Ms. Rivas currently works for Mrs. Wilson's sister, again, reveals nothing about the Wilson's need for live-in help while their daughter is very young. The court is aware that these factors are legitimate areas of inquiry and concern in deciding whether to grant H-2 visas. They are indications of whether there are "unemployed persons capable of performing such service or labor . . . found in this country," § 1101(a)(15)(H)(ii), and are also probative of petitioner's good faith. See R. at 3. In this case, however, neither DOL nor INS based its denial on the availability of United States workers or on the existence of bad faith. The injection of these factors tainted defendants' certification denial, purportedly based on a failure to satisfy the "temporary" standard.
Plaintiffs have made a plausible case for their assertion that their need for live-in help is temporary, based on their daughter's youth. Once she is older, they reasonably anticipate that she will sleep through the night more consistently, and they will be willing to place her in a nursery school during the day. The court notes that plaintiffs' definition of "toddlerhood" has varied somewhat during the course of these proceedings. Originally, they sought Ms. Rivas' aid through December 1983, when Jennifer would be two, and now assert that their help is required through December 1984, when as a three-year-old she is likely to be "mature enough to attend nursery school." (Plaintiffs' Points & Authorities in Support of Summary Judgment at 4.)
The fact that plaintiffs cannot specify a date on which their need for the duties of a live-in employee will cease does not rob that need of its "temporary" character. The Wilsons have credibly established that their need will end in the "near, definable future." Artee, slip op. at 2. Defendants' denial of plaintiffs' petition to have Ms. Rivas classified as a temporary worker must therefore be reversed as arbitrary, capricious, and an abuse of discretion.
Defendants' denial of plaintiffs' petition to have Ms. Rivas classified as a temporary worker based on their purported failure to establish that the prospective employment was "temporary" must be reversed as arbitrary, capricious, and an abuse of discretion because defendants relied on factors which have no bearing on the duration of plaintiffs' need for live-in child care. Accordingly, the court will issue an order of even date herewith, granting plaintiffs' motion for summary judgment and denying defendants' motion for summary judgment, or in the alternative, to dismiss.
For the reasons stated in the accompanying opinion of even date herewith, it is by the court this 29 day of June, 1984,
ORDERED that plaintiffs' motion for summary judgment is granted; and it is
FURTHER ORDERED that defendants' motion for summary judgment, or in the alternative, to dismiss, is denied; and it is
FURTHER ORDERED that the court will retain jurisdiction over the issue of attorneys' fees and plaintiffs shall file a motion setting forth the basis for their claim of entitlement and detailing the amounts sought by July 16, 1984; and it is
FURTHER ORDERED that this case shall stand dismissed from the docket of this court.