(a) An employer seeking certification under this subpart must establish that its need for non-agricultural services or labor is temporary, regardless of whether the underlying job is permanent or temporary.
(b) The employer's need is considered temporary if justified to the CO as one of the following: A one-time occurrence; a seasonal need; a peakload need; or an intermittent need, as defined by DHS regulations. Except where the employer's need is based on a one-time occurrence, the CO will deny a request for an H-2B Registration or an Application for Temporary Employment Certification where the employer has a need lasting more than 9 months.
(c) A job contractor will only be permitted to seek certification if it can demonstrate through documentation its own temporary need, not that of its employer-client(s). A job contractor will only be permitted to file applications based on a seasonal need or a one-time occurrence.
(d) Nothing in this paragraph (d) is intended to limit the authority of the Secretary of Homeland Security, in the course of adjudicating an H-2B petition, to make the final determination as to whether a prospective H-2B employer's need is temporary in nature.
Notes of Decisions
Kiewit Offshore Servs., Ltd. v. U.S. Dep't of Labor, No. 4:22-cv-03716 (S.D. Tex. Jan. 25, 2023).
· cites it 8× “Defendants point to the BALCA opinion, where the ALJ concluded that Plaintiff failed to establish its needs were temporary in nature as required by 20 C.F.R. § 655.6 , which outlines that employers seeking certification must establish temporary need.”
E&T Elec. LLC v. OFLC Certifying Officer, No. 1:24-cv-01192 (N.D. Ill. June 5, 2024).
· cites it 4× “) On January 3, 2024, the OFLC’s Certifying Officer (“CO”) issued Plaintiff a Notice of Deficiency, which stated that Plaintiff’s Application “fail[ed] to meet the criteria for acceptance” for two reasons: Plaintiff had not “establish[ed] the job opportunity as temporary in…”
Grass Works Lawn Care, LLC v. Acosta, No. 2018-1581, 2019 WL 1981087 (D.D.C. May 3, 2019).
“2 (h)(6); 20 C.F.R. § 655.6 (b)). Employers who wish to hire workers under the H-2B program must first “apply for temporary employment certification from [the Department of Labor (DOL)].”
E&T Elec. LLC v. Su, No. 2024-3377 (D.D.C. Dec. 23, 2024).
“2 (h)(6); 20 C.F.R. § 655.6 (b). A Certifying Officer in the DOL Office of Foreign Labor Certification reviews the application and, if further information is required, may issue a Notice of Deficiency to the employer.”
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