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Temporary Need

What is a Temporary Need?

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.

Key Takeaways

  • There are four categories of temporary need: one-time occurrence; seasonal; peakload; and intermittent.
  • The H-2B visa program is designed for employers with a temporary need for foreign workers to fill non-agricultural jobs.
  • When submitting H-2B petitions, employers must submit documentation substantiating their claims of temporary need. 

The Four Categories of Temporary Need 

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:

One-time Occurrence:

  • Criteria: Employers can utilize this category when they haven't previously required workers for a service and don't anticipate such a need in the foreseeable future.
  • Example: A company hosting a one-off international conference might require temporary staff for event management, security, and logistics.

Seasonal Need:

  • Criteria: This need is tied to a specific season, driven by recurring events. Employers should indicate periods when labor isn't required.
  • Example: A ski resort hotel may need extra staff during the winter ski season.

Peakload Need:

  • Criteria: Employers must demonstrate a temporary surge in workload beyond their regular operations that their permanent workforce can't handle.
  • Example: A tech company launching a new product might need more customer service representatives during the launch phase.

Intermittent Need:

  • Criteria: Employers occasionally need temporary workers to manage short periods of increased workload but don't need them consistently.
  • Example: A software company might occasionally require additional developers for a new software update.

Classification-specific Factors and Supporting Documentation for H-2B Petitions

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: 

  • The specificity of the duties assigned to temporary workers.

Supporting Documentation: Copies of employment agreements or contracts that clearly outline the roles of temporary workers. 

  • The requested duration of employment.

Supporting Documentation: Payroll records that separate H-2B workers from permanent employees, showing how long each group has been employed. 

  • An employer's historical hiring patterns.

Supporting Documentation: Historical workforce data that reveals how the employer has historically addressed similar workforce needs over time.

  • Prevailing economic conditions and industry trends.

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. 

  • Comparisons with industry norms. 

Supporting Documentation: Data illustrating how the distribution of temporary and permanent staff within the company compares to industry-wide standards.

  • The employer's past compliance with H-2B regulations.

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.

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