H-2B Clarifying Guidance
This page contains clarifying guidance that USCIS has provided to Service Center officers who adjudicate H-2B petitions.
NOTE: Visit the Guidance on “Temporary Need” in H-2B Petitions page for subsequent guidance providing additional clarification.
1. Clarification of “statement of need”
USCIS regulations state that an H-2B petition shall be accompanied by a statement describing in detail the temporary situation or conditions which make it necessary to bring the beneficiary into the United States and whether the need is a one-time occurrence, seasonal, peakload, or intermittent. If the need is seasonal, peakload, or intermittent, the statement shall indicate whether the situation or conditions are expected to be recurrent. (See 8 CFR 214.2(h)(6)(vi).) If the beneficiary will be performing services in more than one location, then an itinerary with the dates and locations of the services or training must be submitted with Form I-129. (See 8 CFR 215.2(h)(2)(i)(B).)
In most circumstances, a statement of need that is sufficiently detailed, for which there is no articulable basis to doubt its credibility, may, by itself, establish the petitioner’s temporary need without supporting documentation. However, if the petition lacks sufficient detail to establish a temporary need, or if additional evidence is needed to verify the facts stated in the petition, then a Request for Evidence (RFE), or Notice of Intent to deny (NOID) may be issued. If the totality of the evidence does not establish eligibility, then the petition may be denied.
Additionally, the regulations provide four alternate ways to establish temporary need (one-time occurrence, seasonal, peakload, or intermittent). Generally, if any one of those needs has been established, the need is temporary in nature per USCIS regulations. USCIS Service Center Operations recognizes that in some instances, petitioners might attempt to characterize their need in different ways to DOL and USCIS. Depending on the circumstances, this may remain a valid basis for additional inquiry. So long as the underlying facts have not changed, the petition may be approved if at least one of the four alternate bases of establishing temporary need has been satisfied. Of course, in all cases, the petitioner must satisfy, by a preponderance of the evidence, all other regulatory requirements for H-2B classification.
2. Increase in RFEs
There has been no change in policy regarding the processing of H-2Bs. Recently, both the California and Vermont Service Centers have undergone changes in staffing. Officers, who are new to the H-2B adjudication, have been undergoing H-2B related training. The result of these changes has resulted in a temporary increase in the number of RFEs, which often occurs as officers familiarize themselves with a new type of adjudication. However, an increase in RFEs should not be viewed as a change in existing adjudications practice but reflects the extra care new adjudicators are taking to ensure that they apply existing law correctly.