H-2 Seasonality: Proving your Need

All prospective H-2 employers must provide a “burden of proof” to ensure they are either temporary or seasonal in nature, depending on their desired program. This includes providing a justification for why they need workers when they do, but also, why they do not in the off season. For the programs, temporary and seasonal have a maximum of 10 months, per employer, geography, and occupation.   

H-2A Definitions 

For H-2A, we must create a temporary need statement, providing ample proof and justification of the labor needs:

• Temporary: a labor need that is less than one year (10 months)

• Seasonal: 

  • Tied to a certain time of year (i.e., recurring)…

  • …by an “event or pattern” (e.g., growing season)… 

  • …requiring labor levels “far above…ongoing operations.”

    • Note that the definition of seasonal assumes that there are year-round operations happening. A seasonal need is one above and beyond that – i.e., a need to supplement the year-round workers. 

H-2B Definitions 

1. The H-2B program requires participants to show, with increased scrutiny, a detailed explanation, with evidence, why the employer needs the number of workers requested for the contract period 

   • Two types of Temporary Need 

     • Seasonal in the H-2B program is slightly different than the H-2A program. It is more in line with the layperson definition (i.e., there is only a need certain times of year) 

     • Peak Load is more akin to the H-2A definition of seasonal. It assumes a year-round operation, but has a need to supplement the year-round workers during peak months. 

2. As an example, peakload could be appropriate for landscapers in more temperate regions, as work is performed year-round but generally ramps up in the spring, summer, and fall months. 

Overall Considerations 

1. There are industry specific prejudices, something we must be overly cautious about

   • i.e. climatized nursery operations, landscaping in temperate climates, construction industries, etc. 

2. Each seasonality is tied to the employer’s geographic location and the occupation 

   • An employer can have different seasons, if they are tied to either wholly distinct job occupations (no overlapping job duties), or differing locations (outside of the area of intended employment) 

   • If two petitions are within the same area, the job descriptions must be unique in the eyes of DOL 

     • There is no forgiveness for differing commodities, i.e. harvesting a lime versus an avocado 

3. Seasonality is also linked with common ownership between entities of employers  

   • i.e. two operations that share management, payroll, marketing, control, that are within the same area of intended employment, asking for different seasons with similar job descriptions  

4. First-time H-2B employers face even higher scrutiny, entering the program for the first time 

Examples of Burden of Proof for Temporary Need 

1. Historical payroll records 

2. Signed contracts 

   • Dictating scope of project, location, and estimation of man hours 

3. Overall estimation of man hours for given jobs  

4. Tax documents  

5. Sales records/ monthly revenue charts 

6. Production schedules  

KEY TERMS: 

Area of Intended Employment- Generally, the area of intended employment is the employer’s place of business and all areas within normal commuting distance where work will be performed. In most cases, this will be the employer’s primary worksite and any other worksites in the surrounding counties. 

Who- Each employer entering the H-2 programs, even if they have used the program previously

What- The employer’s nature of business and/or primary crops/commodities produced

Where- The employer’s location(s), both overall and where workers are needed 

When- The reason for the employer’s seasonal ebbs/flows (i.e., fixed-site versus FLC, nature of job opportunity, unique job requirements, source countries, level of service needed, etc.)