Background

   On March 11, 1998, Employer filed forms ETA 750A and 790 seeking to fill ten positions of "Livestock Worker (Swine)" for the period of July 1, 1998 until June 30, 1999 (AF 27-39). On March 25, 1998, the CO issued a letter proposing to deny Employer's application on the grounds that Employer failed to offer the prevailing wage and because "[t]he duties of the job . . . are not temporary and there is no reason given to substantiate the notion that the job is temporary and a continuing need will not exist for workers to do the same job beyond the ending date of need." (AF 23-25). Thus, the CO instructed Employer as to how it could correct the deficiencies or defend its position. Employer timely responded, accepting the CO's findings as to the prevailing wage and providing documentation of its expansion plan along with a letter from Employer attesting to its temporary need for the petitioned for workers (AF 14-22). Employer states that its expansion plan makes it necessary to hire about 23 employees in a relatively short period of time, and given the lack of a local hiring pool, it needs to temporarily supplement its workforce with alien labor (AF 30). Employer anticipates being able to replace the alien workers over time, but cannot do so in the short-term. On May 13, 1998, the CO denied the application (AF 10-11). The CO accepted Employer's offer to amend the prevailing wage, but denied the application pursuant to §655.100(c)(2)(ii) on the grounds that the job is permanent.

Employer's Brief

   Employer, through counsel, argues that because its need is temporary, the application should be certified (Employer's Brief at 1-2). Employer recites the definitions set forth in the regulations at §655.100(c)(2)(i) and (iii), as well as the Department of Labor's H-2A Program Handbook in support of this position. Further, Employer asserts that it has met its burden of showing that its need is temporary (Employer's Brief at 3-4). Employer explains that it is about to undergo an expansion of business, and because the expansion is into areas that are not highly populated, it needs temporary workers. Employer expects that it will have to hire outside of the state and re-locate workers, a task which it cannot do prior to establishing itself and the new facility in the new area. Employer also argues that it is error for the CO to substitute his judgment for Employer's in deciding what Employer's needs actually are. Lastly, Employer argues that the application should be accepted because a prior, identical application had been accepted, although not pursued.

Solicitor's Brief

   The Solicitor, as counsel for the CO, argues that Employer's application and arguments fail because it merely asserts a need for 364 days of labor but does not tie the period to a predictable event (Solicitor's Brief at 5 citing Kentucky Tennessee Growers Ass'n, Inc., et al., 98-TLC-1 and 2, slip op. at 6 (Dec. 16, 1997)). The

Solicitor also argues that Employer's need does not qualify as "temporary" nor does it qualify as a "one-time occurrence" because, as stated by Employer, it has 6 years of experience in this business and continually has difficulty in fulfilling its hiring needs. (Solicitor's Brief at 4-6). Quoting Matter of Artee Corp., 18 I. & N. Dec. 366 (Comm. 1982), the Solicitor frames the inquiry as "[i]t is the nature of the need for the duties to be performed which determines the temporariness of the position. The primary question in determining whether Newsham's need is temporary is whether Newsham can establish that it has not employed livestock workers in the past and will not need the services of livestock workers in the near, definable future. (Solicitor's brief at 5 citation omitted). Further, the Solicitor argues that Newsham's claims of "a worker shortage does not transform a need for permanent workers into one for temporary workers under the H-2A program." Id. at 6 citing Volt Svs. Corp. v. I.N.S., 648 F.Supp. 578, 581 (S.D.N.Y. 1986); Sussex Eng'g v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert denied, 485 U.S. 1008 (1988).

The Regulations

   The regulations governing H-2A nonimmigrant, temporary agricultural employment define "of a temporary or seasonal nature" as follows:

Labor is performed on a seasonal basis, where, ordinarily, the employment pertains to or is of the kind exclusively performed at certain seasons or periods of the year and which, from its nature, may not be continuous or carried on throughout the year. A worker who moves from one seasonal activity to another, while employed in agriculture or performing agricultural labor, is employed on a seasonal basis even though he may continue to be employed during a major portion of the year.

* * *

A worker is employed on "other temporary basis" where he is employed for a limited time only or his performance is contemplated for a particular piece of work, usually of short duration. Generally, employment, which is contemplated to continue indefinitely, is not temporary.

§655.100 (c)(2)(ii) (citing 29 C.F.R. §500.20). The regulations go on to define "temporary" as

. . . any job opportunity covered by this subpart where the

employer needs a worker for a position, either temporary or permanent, for a limited period of time, which shall be for less than one year, unless the original temporary alien agricultural labor certification is extended based on unforeseen circumstances pursuant to §655.106(c)(3) of this part.

§ 655.100(c)(2)(iii).

52 Fed. Reg. 20,497 - 20, 298 (1987) (interim final rule June 1, 1987) (emphasis added).

   The regulatory history does not closely examine the meaning of the word "seasonal". It is indicated, however, that the meaning ascribed to the word "temporary" "will not be a problem for much of agriculture, which uses

workers on a seasonal basis." Id. at 20, 497. The regulatory history also indicates that: "Of course, with respect to truly 'seasonal' employment, it is appropriate and should raise no issue for an employer to apply to DOL each year for temporary alien agricultural labor certification for job opportunities recurring annually in the same occupation." Id. at 20,498.

   Hence, a temporary agricultural labor certification application must be accompanied by a statement establishing either: (1) that an employer's need to have the job duties performed is "temporary" -- of a set duration and not anticipated to be recurring in nature; or (2) that the employment is seasonal in nature that is, employment which ordinarily pertains to or is of the kind exclusively performed at certain seasons or periods of the year and which, from its nature, may not be continuous or carried on throughout the year. See §655.100 (c)(2)(ii) (citing 29 C.F.R. §500.20).

it is found that the wages and working condition of the job offer are such that it will not adversely effect the wages and working conditions of U.S. workers similarly employed, then the second issue is addressed; that is, whether there are sufficient U.S. workers in the labor market to fill the petitioned for positions. Employer's argument that it needs the workers because of the limited workforce in the area of intended employment is premature.

   Further, I do not find that the employment is seasonal in nature because it is continuous and may be carried on throughout the year. See §655.100 (c)(2)(ii) (citing 29 C.F.R. §500.20). Acknowledging that agricultural work, by definition is seasonal and recurring in nature, when seeking the benefits of this program, the work cannot be of the sort that may be carried on throughout the year. Employer is seeking temporary labor certification for 364 days, for workers to work through two entire breeding and farrowing cycles, at two different farms because of an anticipated hiring problem. However, Employer does not explain how it determined that it would be able to fulfill its hiring needs from the domestic market in one day short of one-year, rather, than in six months or one breeding and farrowing cycle. Maybe after staffing the first new facility, Employer would discover that it was easier to hire U.S. workers than it anticipated. Employer has failed to establish that the work is either "temporary" or "seasonal", and the application suggests an artificial termination of employment in an attempt to qualify the work as temporary rather than permanent.

   Based upon my review of the record for legal sufficiency, I find that the CO has set forth a legally sufficient basis for denying this application for temporary alien agricultural labor certification (for H-2A workers). Conversely, Employer has not asserted a legally sufficient basis for the application to be granted. Accordingly, I must affirm the CO's denial of temporary alien labor certification.

   The determination of the Certifying Officer in the above case is hereby AFFIRMED.

   SO ORDERED.

       JOHN M. VITTONE
       Chief Administrative Law Judge