The term “temporary need” refers to conditions under which an employer requires the services of a foreign worker for a limited period, typically one year, but may be extended to up to three years under certain conditions. The need for the worker must be temporary, not permanent, and the employer must demonstrate that it has been unable to find qualified US workers to fill the position.
To assess the validity of employers' requests to hire foreign nationals on a temporary basis through H-2B petitions, the USCIS categorizes the nature of the employment need under the following four different classifications:
The USCIS examines factors specific to the chosen classification to ascertain the legitimacy of an employer's temporary need under the H-2B program. In their petitions, employers must illustrate this need by providing supporting documentation that aligns with the USCIS's established criteria.
The following are some of the main criteria used by the USCIS for these purposes, as well as examples of the types of supporting evidence employers use to substantiate their claims:
Supporting Documentation: Copies of employment agreements or contracts that clearly outline the roles of temporary workers.
Supporting Documentation: Payroll records that separate H-2B workers from permanent employees, showing how long each group has been employed.
Supporting Documentation: Historical workforce data that reveals how the employer has historically addressed similar workforce needs over time.
Supporting Documentation: Workforce data that distinguishes between temporary and permanent staff, helping the USCIS identify trends and when temporary needs are more likely to arise.
Supporting Documentation: Data illustrating how the distribution of temporary and permanent staff within the company compares to industry-wide standards.
Supporting Documentation: Past records, including payroll and previous H-2B petitions, that demonstrate the employer's adherence to immigration laws.
Note that while each piece of documentation supports a specific factor, the USCIS evaluates the totality of circumstances surrounding each petition. Therefore, employers should submit comprehensive and relevant evidence for a stronger case.
Example: Jane, the owner of a hotel and ski resort, experiences a surge in guests during winter. She petitions the USCIS for H-2B visas under the "Seasonal Need" category to address her seasonal staffing needs. To substantiate her claim, she submits comprehensive evidence, including past winter booking data and payroll records of prior temporary hires. Additionally, her contracts with seasonal staff explicitly define their exclusive winter employment, which provides additional supporting evidence to support her petition.