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H-2B Visa – Seasonal or Peak-load, Does it Really Matter?

It’s that time of year again. You’re ramping up for the seasonal rush and you just can’t find the employees you need. You are lamenting this fact with another employer when he tells you to do what he does – he uses the H-2B visa program to get the seasonal workers he needs. Great idea, but as you start looking into the program you can’t decide whether your business has a seasonal or peak-load need.

The H-2B program is for foreign nationals who wish to come to the U.S. temporarily to perform nonagricultural services. You can only hire H-2B workers if qualified U.S. workers capable of performing such services or labor are not available, and only if hiring such workers will not adversely affect the wages and working conditions of similarly employed U.S. workers. In other words, you can only hire foreign workers if it won’t harm U.S. workers.

There are several basic standards that must be met when determining temporary need:

A position is temporary if the nature of the employer’s need for the duties to be performed is temporary, whether or not the underlying job is permanent or temporary
Part-time employment does not qualify for H-2B certification; only full-time employment qualifies
A labor shortage, however severe, does not establish a temporary need under the H-2B classification

Employer’s need for temporary labor or services must be a one-time occurrence, intermittent, seasonal, or peak-load. These terms are defined in the regulations by both the Department of Labor (DOL) and the United State Citizenship and Immigration Services (USCIS).

The standards for a One-time occurrence and intermittent need are pretty clear, but the lines between seasonal and peak-load needs seem blurred. How then do you decide whether your need is seasonal or peak-load?

Difference between Seasonal and Peak-load need:

Although USCIS has provided various definitions to help both the employers and employees understand the meaning and significance of One-time occurrence, Intermittent, Seasonal and Peak-load needs, employers often get confused and fail to understand if their job need is either Seasonal or Peak-load.

In the chart below we provide a side-by-side comparison of the Seasonal and Peak-load categories. We hope that this will help clarify the differing requirements and make the distinction easier to understand.

Seasonal	Peak-load
USCIS definition: Employer’s need is clearly tied to a season and has a predictable pattern each year	USCIS definition: Need for workers can be tied to one or more seasons or other short-term demand
Clarification: The employer must establish that the services or labor are traditionally tied to a season of the year by a clearly established pattern	Clarification: The employer must establish that it regularly employs permanent workers to perform the services or labor, and it needs to supplement its permanent staff on a temporary basis due to seasonal or short-term demands, with temporary employees who will not become a part of the regular operations.
Visa issuance: Seasonal H-2B visas are only granted for the period covered by the applicable season and as approved by the DOL labor certification and USCIS petition.	Visa issuance: H-2B visas for peak-load positions are typically issued for a maximum of one year, but can be extended for a maximum of three years if the employer can prove that unforeseen circumstances arose after the H-2B visas were issued which prevented the timely completion of the project.
Most seasonal business operations “shut down” or do not employ workers at all in that occupation for part of the year	Most business operations are year-round and may employ workers in that occupation on a permanent basis
It is possible for the business to operate year round, but the need for workers in the occupation is seasonal	Employer’s need is “above and beyond” the existing worker levels employed in that occupation
Example of seasonal need: A landscaping business, which requires more workers in the spring, summer, and fall.	Example of peak-load need: Construction of a building or bridge.

Conclusion:

Both Seasonal and Peak-load have their own significance and importance. It is important for the H-2B employer and employee to understand the differences between the two. H-2B employers often get frustrated before they even start the H-2B Visa process. USCIS is not known as the most tolerant of Federal agencies so it’s important to make sure you have everything right, including the type of need, in your in H-2B Visa petition when you file

If you are an employer who has questions regarding Seasonal or Peak-load employment needs or require assistance with the H-2B filing, contact ExpressH2B. ExpressH2B attorneys would be happy to assist you.