Is Your Need Seasonal or Peak-load?

Using the H-2B visa program can help during busy seasons and on big jobs.

One common question that arises when landscape contractors look to use the H-2B visa program to hire extra workers is whether their need falls under the seasonal or peak-load provisions of the program. Following are some guidelines to help you find the answer.

But first, here is a quick review of the program. H-2B is for foreign nationals who wish to come to the U.S. temporarily to perform nonagricultural services. You can hire them only if qualified U.S. workers are not available, and if hiring the temps does not lower the wages or diminish the working conditions of U.S. workers.

The positions must be temporary, whether the underlining job is permanent or temporary, and they must be full-time.

Besides seasonal or peak-load needs, a contractor can also designate a need for workers due to a one-time occurrence or on an intermittent basis. The standards for those two designations are pretty self-explanatory, but not so with the first two.

Let's start with seasonal. The United States Citizenship and Immigration Services (www.uscis.gov) defines it as a need that is, "clearly tied to a season and has a predictable pattern each year." The H-2B visas for seasonal workers are finite – only covering the period of time for a stated season. An obvious example of this is a landscaping business in the colder climes that does most of its business in the summer, year in and year out.

The USCIS defines peak-load needs as those that "can be tied to one or more seasons or other short-term demands." H-2B visas for these positions are typically issued for a term of one year, but can be extended for a maximum of three years if the employer can prove that unforeseen circumstances delayed the scheduled completion date.

According to an expert source, "an 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 with temporary employees who will not become a part of the regular operations." And that the "employer's need is above and beyond the existing worker levels employed in that occupation."

An example of this type of a need is a landscaping company that is awarded a large contract for which it is not sufficiently staffed to complete, and cannot find the extra employees in the local workforce.

Clearly understanding which category your needs fall under will help you get off to a good start as you navigate the somewhat complex H-2B Visa process.