Through the H 2B program, employers can bring a temporary worker to the United States to fill temporary nonagricultural jobs such as landscaping, housekeeping, forestry and construction.
H 2B employers must demonstrate that their need for foreign workers falls under ‘temporary need’ defined by immigration law and that there aren’t any unemployed persons capable of performing such labor or service in the US. Federal Government US Citizenship and Immigration Services (USCIS) has maintained its policy on temporary need as specified under 8 CFR 214.2(h)(6)(ii)
Here is all you need to know about the temporary need requirement and the criteria followed by immigration services when adjudicating H 2B petitions.
What is a Temporary Need?
Temporary need for H 2B petitions is defined under 8 CFR 214.2(h)(6)(ii). The Federal Government USCIS makes the following considerations to determine whether the H 2B petitioner has demonstrated temporary need:
- The duties to be performed by the temporary workers are specified in the H 2B petition
- Whether the need for temporary services exists for the employment period requested
- Whether the employer requires the specified number of temporary workers to perform the job duties due to labor shortages.
How is Temporary Need Established?
The employer must demonstrate that its need for prospective workers’ services is temporary regardless of whether the underlying job is temporary or permanent.
USCIS requires the employer to demonstrate that their need is temporary by proving one of the following:
- A seasonal need
- A one-time occurrence
- A peak load need, or
- An intermittent need.
Establishing Seasonal Need
Seasonal need is a need customarily tied to a season of the year by a specific pattern or event and is cyclical.
The H 2B petitioner must specify the periods of the year when it does not require such labor or services.
Under the seasonal need requirement, the employment is deemed not seasonal if the time when the labor or services are not needed is subject to change, unpredictable or the vacation period for the petitioner’s permanent staff.
NOTE: Seasonal need is not necessarily limited to summer, fall, winter and spring. It could include legal events and seasons.
Establishing a One-time occurrence
According to the law, the petitioner must establish one of the following to satisfy the one-time occurrence requirement:
- They have not employed workers to perform the same job duties in the past and will not need workers for the same duty in the future.
- They have an otherwise permanent employment situation, but they had to hire temporary workers due to a temporary event lasting for a short duration.
Establishing Peak Load Need
To show peal load need, the petitioner must establish that it regularly employs permanent workers to perform the services and job duties at the place of employment and that it needs reinforcements in addition to its permanent staff temporarily.
The temporary need must be due to a short-term demand or a seasonal need, and the foreign H 2B workers will not constitute the employer’s regular operation.
Establishing Intermittent need
An H 2B applicant seeking to establish intermittent need must demonstrate that they have not employed permanent staff to perform the labor or services. Still, they intermittently need to hire foreign workers to complete the job duties or services for short periods.
What is the difference between Peak Load Need and Seasonal Need?
While the terms ‘short term demand and seasonal’ are in the definition of peak load need, there are some significant differences between these temporary needs.
However, a petitioner seeking to demonstrate peak load need must prove that they have permanent workers. Furthermore, a peak load need can recur multiple times in the same year.
On the other hand, a seasonal need can only be based on a season that extends for the same six months, year after year.
In some events, peak load needs can be unpredictable but seasonal need must be subject to change or unpredictable.
Temporary Need for H 2B Must End in a Definable Future
When proving temporary need, the employer must show that they need H 2B workers for a limited period. The maximum period for the need must be one year or less. The period of need depends on the employer applicant’s submission to USCIS, after which it grants a H 2B validity period not exceeding what is specified in the temporary labor certification (TLC).
But in the instance of a one-time occurrence, temporary need could reach three years.
Temporary Labor Certification (TLC)
When petitioning for H 2B temporary nonagricultural jobs, the employer must file their petition with valid temporary labor certification.
According to USCIS, an approved temporary labor certification is advisory. Still, it can constitute evidence that the employer has a temporary need.
In all instances, USCIS is the ultimate body that determines whether a petition fulfills the legal considerations of the Immigration and Nationality Act.
For more information about TLC application requirements, visit the Foreign Labor Certification Department of Labor and Foreign Labor Certification.
Guidance on a Detailed Statement of Need
When applying for a temporary need, the employer applicant must submit a detailed statement of need describing their temporary need.
Suppose the statement bears feasible reasons why the employer desires and needs to hire temporary workers to perform temporary labor or services for a determined period, temporary need may be granted.
However, the employer might be required to provide initial evidence and a statement of need.
How Does USCIS Evaluate Temporary Need Petitions?
Since intermitted, peakload, and seasonal needs recur, USCIS strives to ensure that the employer’s temporary need is legitimate.
Therefore, subsequent petitions extending beyond the maximum period specified by DOL in the TLC could mean more questions about the facts and reasoning behind the subsequent petition.
Except for one-time occurrence cases, USCIS will evaluate the petition, establish whether the employer has temporary need and deny the petition when:
- The employer applicant files several H 2B petitions continuously for a period exceeding the current maximum validity time specified in DOL’s TLC for the intended employment; or
- There is no spacing or little spacing in the application time frames
Prevailing Wage Guidance
The Immigration and Nationality Act requires that hiring foreign H 2B workers will not adversely affect the working conditions of similarly employed workers with permanent residence in the US.
To meet this quota, the Department of Labor and Homeland Security requires nonimmigrant workers’ wages must be the prevailing wage rate for the specific job classification.
Prevailing wage is the average wage paid to similarly employed laborers in the same job bracket.
As of January 4, 2010, employers can get the prevailing wage rate through application to the National Prevailing Wage Center or by using resourceful online sources like the Online Wage Library (OWL).
Guidance for Prevailing Wage Determination
The National Prevailing Wage Center (NPWC) applies prevailing wage determination policy guides to issue wage determinations for temporary non-agricultural work.
What is the Filing Process for prevailing wage determination?
For the H 2B program, the employer submits Form ETA-9141 to NPWC’s electronic filing FLAG System.
H 2B Program Overview
Before the US DOL issues H 2B certification to an employer, it must establish that:
- There are no qualified or adequate unemployed persons of permanent residence who can perform the duties the employer wishes to hire foreign workers for.
- By bringing in nonimmigrant workers to perform the temporary services, the employer does not adversely affect the working conditions and wages of other similarly employed US citizens.
For you to participate in the H 2B program, they:
- Must be an employer with a valid FEIN
- Must have a physical address of operations in the United States
- Must have a means for correspondence with the employment.
The employer’s job opportunity must be:
- Full time
- Temporary
- Non-agricultural services with specified areas of intended employment
Non-agricultural services covered under H 2B
The H 2B program covers jobs in the following categories:
- Landscape workers
- Construction laborers
- Forestry workers
- Food processors
Application for Temporary Employment Certification Requirements
The requirements for temporary employment certification on behalf of the employer include:
- A copy of any document or agent agreement showing the agent’s authority to represent the employer; and
- A copy of the Farm Labor Contractor Certificate of Registration if a requirement is made under the Migrant and Seasonal Agricultural Worker Protection Act (MSPA).
How to File a Job Order and H 2B Application?
Applicants must file a job order with the State Workforce Agency (SWA) and submit the H 2B application containing Form ETA-9142 and applicable supporting documentation 90 to 75 days before the date of need.
The H 2B application should then be submitted together with a copy of the job order filed with SWA to the Chicago National Processing Center.
The H 2B application can be filed electronically using the FLAG System. In your application package, make sure to include:
- Form ETA 9142B (H 2B temporary employment certification)
- The relevant appendices
- Prevailing Wage case tracking number issued by the National Prevailing Wage Center
- A copy of your job order
- Any applicable supporting documentation
If you cannot file electronically, you can send the H 2B program application package via mail to:
US Department of Labor Employment and Training Administration,
Office of Foreign Labor Certification,
Chicago National Processing Center,
11 W Quincy Ct Chicago,
IL 60604-2105
After the application is sent, it will be reviewed by SWA and Chicago NPC, and the employer will have the opportunity to address any deficiencies in the application and job order.
Each notification from these bodies will come with the next steps for the employer. This might entail posting notice of the job opportunity, conducting any recruitment or any other directive issued by the certifying officer.
In the Notice of Acceptance, the certifying officer will give a date for employment recruitment reports.
After receiving the initial recruitment report, CNPC will determine whether it can give a final determination. The final determination will be wired electronically to employer and, if applicable, the employer’s attorney or agent.
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