On November 1, 2021, the Department of Labor (DOL) found that labor shortages resulting from the COVID-19 pandemic do not qualify as a “one-time occurrence” justifying the hiring of H-2B temporary workers. The H-2B program allows U.S. employers to hire foreign workers to fill temporary non-agricultural positions in the United States. Before hiring an H-2B worker, the employer must file an application with DOL. In particular, the employer must demonstrate that a “temporary” need for foreign workers exists due to: (1) a one-time occurrence; (2) the seasonal nature of the business; (3) a short-term spike in demand (i.e., a peak load); or (4) the intermittent nature of the work.
In the case before DOL, the U.S. employer—a small grocery store —argued that the COVID-19 pandemic is a “one-time occurrence” causing severe but temporary shortages in the local labor market. These shortages required the company to hire H-2B workers to stock shelves and run cash registers. The company emphasized that these labor shortages had ignited a “wage war” in the local area and that it was unable to attract U.S. workers at an affordable rate.
DOL, however, disagreed that the COVID-19 pandemic qualified as a “one-time occurrence,” principally because the employment needs resulting from it could not be considered “temporary.” Under the regulations, to show a temporary employment need, the U.S. employer “must establish that the need for the employee will end in the near, definable future.” Given that the COVID-19 pandemic continues with no definable end-date, DOL determined that the pandemic does not qualify as a one-time occurrence under the H-2B program. According to DOL, labor shortages alone do not justify a finding that an employer’s need for workers is temporary in nature. Instead, the U.S. employer will have to demonstrate that the need for temporary foreign workers will end in the “near, definable future.”