Every H-2B employer has to prove that its need for the workers is temporary, and that the need fits one of four recognized types: a one-time occurrence, a seasonal need, a peakload need, or an intermittent need. The job itself can be permanent in nature. A landscaping laborer does the same work in April as in October, and that is fine. What matters is whether the employer’s need for the extra workers will end. H-2B temporary need is the single most contested issue in the program, at DOL and at USCIS, and it is decided on documents. Our H-2B temporary worker visa page describes how we build these filings; this article explains each type and what proves it.

The rule: the employer’s need, not the job

The governing principle comes from Matter of Artee Corp., a 1982 decision holding that the question is the nature of the employer’s need, not the nature of the duties. DHS regulations at 8 CFR 214.2(h)(6)(ii)(B) adopt that approach and say a temporary need will generally last one year or less, except that a one-time occurrence can justify a need of up to three years.

DOL has its own regulations, and for several years they set a shorter limit for seasonal, peakload, and intermittent needs. Congress has repeatedly directed DOL, through appropriations language, to apply the DHS definition instead. Check DOL’s current position before you set your dates. Either way, the longer the requested period, the harder both agencies look at whether the need is truly temporary.

Seasonal need

A seasonal need is tied to a season of the year by an event or pattern and recurs every year. Summer resorts, beach concessions, ski areas, landscaping companies in places where winter stops the work, and seafood operations tied to a harvest are typical examples.

The regulations say what does not count: a need is not seasonal if the period when the work is not needed is unpredictable or subject to change, or if it is simply a vacation period for the employer’s permanent staff. A business that is busy all year but busier in summer usually belongs under peakload, not seasonal.

Peakload need

A peakload need fits an employer that regularly employs permanent workers in the occupation at the place of employment, but needs to supplement them temporarily because of a seasonal or short-term rise in demand. The temporary additions must not become part of the regular operation.

This is the most common category, and the most commonly misused. The employer has to show a permanent workforce in that occupation and a predictable spike above it. A company with no permanent laborers on payroll cannot claim a peakload need for laborers.

Intermittent need

An intermittent need fits an employer that has not employed permanent or full-time workers in the occupation, but occasionally or intermittently needs temporary workers for short periods. It is the least used of the four and works best for operations that genuinely bring in a crew a few times a year and otherwise have no one in the role.

One-time occurrence

A one-time occurrence fits two situations: the employer has never employed workers for the services and will not need them again, or the employer has permanent workers but a temporary event of short duration has created a need for a temporary worker. A discrete construction project or rebuilding after a storm are the classic examples. This is the only type that can stretch beyond a year, up to three years, but the employer must explain why the event will end and why the need will not recur.

The evidence DOL and USCIS look for

The statement of temporary need in the ETA-9142B is a short narrative, but it has to be backed by records. Expect to provide:

Monthly payroll summaries for the occupation for the past several years, separating permanent from temporary workers
Contracts, letters of intent, or work orders from customers that show when the work occurs
Monthly sales, occupancy, or production data that show the season or peak
An explanation if this year’s dates differ from prior years
Consistent dates and worker numbers across the DOL application and the later I-129 petition

The most persuasive files are the boring ones: three or more years of payroll showing headcount rising and falling on the same schedule as the requested dates.

Mistakes that sink temporary need

The recurring problems are easy to list: claiming peakload with no permanent staff in the occupation, requesting dates that cover most of the year, shifting the season from one year to the next without explanation, and staffing companies claiming a need that really belongs to their clients. DOL also notices when the number of workers requested grows each year without a matching growth in business. Our article on why H-2B applications get delayed or denied covers what happens when temporary need is challenged, and our guide to the H-2B process for employers shows where the statement of need sits in the filing sequence. If your work might be agricultural rather than non-agricultural, the H-2A agricultural worker visa may be the right program instead.

If you are deciding which temporary need type fits your business, or your statement of need has been questioned, a consultation with Capitol Law Partners can map the right path for your situation. Schedule a consultation.

This article is for informational purposes only and does not constitute legal advice. No attorney-client relationship is formed by this communication.

Attorney Cagatay Ersoy. Practical strategy for founders, investors, and growing companies.

Need help with this topic? See our H-2B seasonal and peakload worker visa page or schedule a consultation.