The Administrative Appeals Office recently withdrew the decision of the Director, Vermont Service Center and remanded the matter to him for further action and consideration.
In the aforementioned case, the Petitioner is a Mississippi Limited Liability Company supplying labor and industrial services for the marine and petroleum/chemical industries in the Mississippi Gulf Coast area. The Petitioner submitted a H-2B petition on behalf of three beneficiaries. Upon reviewing the record, the AAO found that the record did not support the director’s decision to approve the petition. Moreover, the AAO found two separate grounds for remanding the petition: (1) petitioner had not established a temporary need for the services of the three beneficiaries, and (2) petitioner had not established that the three beneficiaries possessed the minimum amount of experience necessary to perform satisfactory the job duties described in the present petition. These two specific issues were not raised by the director in his Notice of Findings (NOF) issued to the Petitioner; therefore, the case was remanded.
The regulations require the petitioner to submit documentation that the alien qualifies for the job offer as specified in the application for labor certification. In the present case, the application for alien employment certification indicated that the minimum amount of experience needed to perform the job duties is two years of experience for the job being offered. Upon careful review of the record by the AAO, no evidence was submitted illustrating the beneficiaries experience and/or qualifications. Absent proof of the beneficiaries’ experience, the petition may not be approved. Additionally, there is another reason as to why the petition cannot be approved. The petitioner sought approval of the proffered position as a peakload need. The regulation regarding peakload need provides that the petitioner must establish that it regularly employs permanent workers to perform the services or labor at the place of employment and that it needs to supplement its permanent staff at the place of employment on a temporary basis due to a seasonal or short-term demand and that the temporary additions to staff will not become a part of the petitioner’s regular operation. The director issued a request for evidence (RFE) to the petitioner requesting evidence that the petitioner’s need for the beneficiaries’ services is temporary. In response to the RFE, counsel for the petitioner sent a letter of intent to contract between another company and the petitioner, and a letter from the petitioner indicating that its client had a peakload need for temporary workers. Upon review of this evidence, the AAO concluded that the documentation presented in the record was insufficient to establish the actual H2B need asserted. The problem lies in the new information provided; the intent to contract letter was never alluded to or provided in the original petition for H2B temporary workers, and no other information was presented concerning the other company/client. Additionally, the petition sought 250 temporary workers, but has decreased to 3 workers without documentation as to why. Pursuant to case law, simply going on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Accordingly, the burden has not been satisfied by the petitioner and the AAO has afforded the petitioner another opportunity to provide evidence of the experience and temporary need for the H2B beneficiaries.
