Guidance on “Temporary Need” in H-2B Petitions

USCIS defines “temporary need” for H-2B petitions according to 8 CFR 214.2(h)(6)(ii). To determine whether the H-2B petitioner has a temporary need, USCIS analyzes:

• What duties the workers will perform, as specified in the petition;
• Whether the employer needs the number of temporary workers requested to perform those duties; and
• Whether the need extends throughout the employment period requested.

Four Bases for Establishing Temporary Need

Petitioners must demonstrate by a preponderance of the evidence that their temporary need is based on one of the following: a one-time occurrence, a seasonal need, a peakload need, or an intermittent need.

• One-time occurrence: The law requires a petitioner to show one of the following to establish a temporary need based on a “one-time occurrence”:
  • The petitioner has not employed workers to perform the services or labor in the past, and the petitioner will not need workers to perform this in the future; or
  • The petitioner has an employment situation that is otherwise permanent, but a temporary event of short duration has created a need for temporary workers. See 8 CFR 214.2(h)(6)(ii)(B)(1).
• Seasonal need: The law defines a “seasonal need” as a need that is “traditionally tied to a season of the year by an event or pattern and is of a recurring nature. The petitioner shall specify the period(s) of time during each year in which it does not need the services or labor. The employment is not seasonal if the period during which the services or labor is not needed is unpredictable or subject to change or is considered a vacation period for the petitioner's permanent employees.” See 8 CFR 214.2(h)(6)(ii)(B)(2).

A seasonal need may not necessarily be limited to the traditional four seasons (winter, spring, summer, and fall). Seasonal could include legal “seasons” (such as fishing seasons) and “events” tied to a season (such as the Christmas shopping season) as described by the definition.

• Peakload need: To establish a peakload need, the law requires a petitioner to “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.” (Emphasis added.) See 8 CFR 214.2(h)(6)(ii)(B)(3).

It is clear from the regulation that a peakload need must be of a limited duration. That does not mean that a peakload need may not recur on a periodic basis.

• Intermittent need: A petitioner claiming an intermittent need must establish that “it has not employed permanent or full-time workers to perform the service or labor, but occasionally or intermittently needs temporary workers to perform services or labor for short periods.” See 8 CFR 214.2(h)(6)(ii)(B)(4).

An example of an intermittent need might be a company that produces limited edition porcelain ware to commemorate a special event, but only from time to time and not on a fixed schedule. By definition, it is highly unlikely that a petition covering consecutive periods of time would meet this definition.

The Difference Between a Seasonal and Peakload Need

Although the definition of peakload need uses the phrase “seasonal or short-term demand,” there are significant differences between these two types of temporary needs. Unlike in the case of a seasonal need, a petitioner claiming a peakload need must demonstrate the existence of a permanent workforce. Moreover, a peakload need may recur at different times of the year and/or multiple times in the same year. On the other hand, a seasonal need might be based around a sports season that extends for the same six months, year after year. A peakload need would typically last for a shorter amount of time and may recur several months later during the same year (for example, during the Memorial Day weekend and again during Labor Day weekend). Depending on the facts of a specific case, a peakload need may also recur at the same time year after year. Generally, extension petitions covering consecutive periods of time without a significant break do not establish either peakload or seasonal need.

In some cases, peakload needs may be unpredictable in nature. In contrast, our regulations state that seasonal needs may not be unpredictable or subject to change.

Temporary Need Must End in the Near, Definable Future

Petitioners are responsible for demonstrating that the employer needs H-2B workers only for a limited period of time, meaning that the need will end in the near, definable future. Generally, this means that the maximum period of need must be one year or less. The precise period of need depends on the specific facts presented, and USCIS may not grant an H-2B validity period exceeding the validity period on the TLC. See 8 CFR 214.2(h)(9)(iii)(B).

However, in the case of a one-time occurrence, a temporary need could last up to 3 years. See 8 CFR 214.2(h)(6)(ii)(B). Depending on the facts, we may approve consecutive petitions to cover a continuous period of up to a total of three years.

By regulation, all H-2B petitions must be submitted with an approved TLC. See 8 CFR 214.2(h)(6)(iii)(C) and (vi)(A). USCIS regulations state that an approved TLC is advisory in nature. Nevertheless, an approved TLC may support a finding that the employer has a temporary need. In all cases, USCIS has the ultimate authority to determine whether a petition satisfies the requirements of section 101(a)(15)(H)(ii)(b) of the Immigration and Nationality Act. See 8 CFR 214.2(h)(6)(iii)(A). It is therefore our responsibility to ensure that the need is actually temporary according to current law and policy.

At the time DOL adjudicates a TLC application, it may not have the same information that we have at the time that we examine the Form I-129, Petition for a Nonimmigrant Worker. If an adjudicator determines that initial evidence, including an approved TLC, does not support a finding of temporary need according to the law, the adjudicator may request that the petitioner provide additional evidence to establish the employer’s temporary need.

Approving a Different Type of Temporary Need than the Need Listed on the TLC

USCIS may approve an H-2B petition as long as the petitioner has established by a preponderance of the evidence that the need for workers is a one-time occurrence, a seasonal need, peakload need, or intermittent need. Because the approved TLC is advisory, we may approve the petition even if we determine the type of temporary need the petitioner has is different than the need certified by DOL on the approved TLC. For example, if the TLC was approved based on a peakload need rather than a seasonal need, we may still approve the H-2B petition for a seasonal need if the evidence establishes that the employer’s need meets the definition of a seasonal need.

Petitioners must submit a detailed statement describing their temporary need. If this statement contains sufficient details about the employer’s operations and need for the workers to perform temporary services or labor during a finite period of time, it may be sufficient to establish temporary need, depending on all the facts presented in the case. In some cases, however, the regulations specifically require a petitioner to provide initial evidence in addition to the detailed statement of need. For example, if the approved TLC requires certain education, training, experience, or special requirements, a petitioner must also submit additional documentation with the petition to demonstrate that the beneficiary meets those requirements. See 8 CFR 214.2(h)(6)(vi)(C). We will also consider other documentation provided in support of the employer’s temporary need as supplementary evidence when deciding whether a statement is sufficiently detailed.

In all cases, it is the quality and probative value of the information provided in the statement that will be determinative, not merely the quantity of that information. For instance, if the statement contains inconsistencies or is inconsistent with other evidence in the case, we may need to issue a Request for Evidence to determine whether the employer’s need is in fact temporary in nature. The adjudicator is the finder of fact, and it is within the adjudicator’s discretion to determine whether the statement presented is sufficiently detailed to conclude that the petitioner has met its burden of establishing temporary need.

Any petitioner who submits a skeletal petition will not meet the burden of proof.

With the limited exception of certain H-2B positions on Guam and in the Commonwealth of the Northern Mariana Islands (CNMI) as discussed in Volume 2, Part I, Chapter 11 of the USCIS Policy Manual, USCIS evaluates all H-2B petitions for whether the employer has a temporary need, and it is the petitioner’s burden in all cases to establish a temporary need. Our adjudicators look at the totality of the evidence in each case when adjudicating H-2B petitions. Therefore, no single fact alone will determine whether an employer’s need is temporary.

As we evaluate all the evidence in a case, we may determine certain facts indicate that the employer’s need is not temporary. However, the mere fact that a petitioner has previously sought workers for the same or a similar position does not, by itself, mean that we will find that there is no temporary need.

Evaluating Petitions

Because seasonal, peakload and intermittent needs typically recur, USCIS must ensure that an employer’s needs are, in fact, temporary in nature. Therefore, if a petitioner files a subsequent petition that extends beyond the current maximum period that DOL may issue on a single TLC, we look at the totality of the facts and may question the subsequently filed petition.

Except for cases involving a one-time occurrence, we will evaluate whether the employer has a temporary need and possibly deny a petition if:

1. A petitioner files multiple H-2B petitions covering a continuous period of time extending beyond the current maximum validity period of a DOL TLC; or
2. There is no gap or only a short gap in the periods of time between the end date of the first petition and the start date of the second petition.

Determining If a Petitioner’s Need is Temporary

Below is a non-exhaustive list of inquiries and examples of supplementary evidence that USCIS may consider, in addition to the required detailed statement, to determine whether a petitioner’s need is temporary. Adjudicators will base their request for additional evidence on the specific facts of each case.

Examples of relevant factors include:

• Does the employer employ a permanent staff or workforce that also performs the same duties?

Supplementary evidence may include but is not limited to:

• Payroll records distinguishing the H-2B workforce from the permanent workers in the requested occupation;
• Staffing/workload data showing a breakdown of temporary vs. permanent staff, data by month;
• Data on the employer’s annual historical need for workers; and/or
• Copies of the employer’s agreements or contracts with permanent employees.
• Are there periods of time when H-2B workers are not needed to perform the same job duties? If so, for how long?

USCIS may use this factor to determine whether an employer’s need for the duties is temporary and is particularly relevant for the finding of seasonal need. However, an H-2B petitioner claiming a peakload need must demonstrate that:

• The employer has a permanent staff,
• Temporary workers supplement the permanent staff during certain times of the year, and
• Temporary workers are not part of the employer’s regular operation.

Temporary need may not be based on a need to provide coverage for an employer’s vacationing permanent employees. While a statement of need can be sufficiently detailed, submitting payroll records as supplementary evidence may assist USCIS in determining whether there is a temporary need.

• Did the same employer file more than one Form I-129 petition for workers to perform the same job duties in one year?

If a petitioner filed more than one Form I-129 petition either concurrently or consecutively, USCIS may look at these factors to decide whether the employer actually has a permanent, year-round need for the job duties. These factors include:

• Do two or more Form I-129 petitions reflect different job duties to be performed?

This can be determined by the occupational codes for the workers, or by examining the tools used and individual tasks performed by the workers. If the job duties being performed are the same, USCIS may inquire about whether the total period of time reflected on two or more approved TLCs supporting the Form I-129 petitions reflects a permanent, year-round need.

• Does the petitioner operate separate and distinct business entities?

USCIS may consider, among others, whether there are separate owners or separately incorporated entities. Supplementary evidence may include separate articles of incorporation, tax documents (W-2, federal tax receipts, employer ID numbers), bank accounts, or certificates of worker’s compensation.

• Do the separate petitions cover separate seasons?

Supplementary evidence may include, among others, work contracts, invoices, client documents, or employees’ work schedules, and similar documents showing:

• The work reoccurs on the same cycle each year, or
• The work will be performed in certain months each year, and/or
• Gaps each year when services are not needed.
• Does the petitioner employ different beneficiaries for each distinct period of need?

Different beneficiaries required for the work on separate petitions may indicate that the employer’s needs are for distinct duties. Supplementary evidence may include payroll records, staffing/workload data, or employment contracts showing that the petitioner has different workers. In the case of a peakload need, the regulations require that “the temporary additions to staff will not become a part of the petitioner’s regular operation.” See 8 CFR 214.2(h)(6)(ii)(B)(3).
 

• What is the petitioner’s filing history?

Adjudicators will use internal system databases to examine petitioners’ relationships with other petitioners and their filing history. A petitioner’s filing history may also indicate whether the petitioner has a year-round, permanent need for workers. Depending on the evidence in our internal system databases, adjudicators may issue a Request for Evidence in certain circumstances when they have an articulable basis for questioning whether the employer in fact has a temporary need for H-2B beneficiaries.

Note: No single factor or combination of factors weighs more heavily than any other factor. USCIS determines each case on its own merits based on all of the facts presented, using the preponderance of the evidence standard.