H-2 Seasonality: Demonstrating Temporary Need

Aug 1, 2024

Prospective H-2 employers must prove that their labor needs are either temporary or seasonal. This includes justifying why workers are needed during certain times and explaining the lack of need during the off-season. Both H-2 programs, temporary and seasonal need have a maximum duration of 10 months per employer, location, and occupation.

For H-2A visas, employers must submit a temporary need statement with sufficient proof and justification to show the following:

Temporary: A labor need lasting less than one year (up to 10 months).
Seasonal:
Linked to a specific time of year (i.e., recurring).
Driven by an “event or pattern” (e.g., growing season).
Requiring labor levels significantly higher than ongoing operations.

The H-2B program requires a detailed explanation and evidence for the number of workers requested for the contract period. There are two types of temporary needs:

Seasonal: Reflects the common understanding of a need that arises only during certain times of the year.
Peak Load: Similar to the H-2A definition of seasonal, it assumes year-round operations with a need to supplement the workforce during peak months. For instance, landscapers in temperate regions may experience a peak load in the spring, summer, and fall, but have business drop off in the winter months.

Important things to remember:

Industry-specific biases and regional considerations must be addressed carefully. For example:

First-time H-2B employers undergo higher scrutiny when entering the program.
Nursery operations in different climates, landscaping in temperate regions, and construction industries may have unique seasonal needs.
Seasonality depends on the employer's geographic location and occupation.
Employers may have different seasons if linked to distinct job roles or locations.
Petitions within the same Area of Intended Employment must have unique job descriptions to be accepted by the Department of Labor (DOL). This typically refers to the employer's place of business and surrounding areas within normal commuting distance where work will be performed, including the primary worksite and nearby counties.