The H-2A Program was designed with several safeguards to protect American workers from discrimination. One requirement that has been vexing the dairy industry holds that, in order to qualify for the H-2A Program, an employer’s need for workers must be temporary.

To meet the requirement, an employer’s need must either be a one-time job lasting fewer than 12 months or must be seasonal. That sounds pretty simple, but there’s a lot more to it than you might think. In our experience, most employers need workers on a seasonal basis, so we will focus on that side of the definition for this post.

 The Definition of Seasonal

The relevant requirement is located at 20 CFR 655.103(d), which states, “For the purposes of this subpart, employment is of a seasonal nature where it is tied to a certain time of year by an event or pattern, such as a short annual growing cycle or a specific aspect of a longer cycle, and requires labor levels far above those necessary for ongoing operations.”

There are two parts to this definition. Let’s look at each one individually.

First, the need for workers must be “tied to a certain time of year by an event or pattern, such as a short annual growing cycle or a specific aspect of a longer cycle”. The idea behind this definition is that the work must be needed explicitly because of cyclical seasonal conditions. The conditions could be weather-related (e.g., crops typically grow best when the weather is warm) or could be related to other natural cycles (e.g., breeding, gestation, and calving).

Please note, however, that, in most cases, this does not cover cycles that are man-made or related to market conditions (e.g., busy seasons related to fluctuations in market prices or holiday purchase volume). Needs based on man-made or market-related cycles fall within the “peakload” need category. Such a need is applicable to the H-2B program, but not the H-2A Program.

Second, the need must require “labor levels far above those necessary for ongoing operations.” There has been some debate over what constitutes “far above those necessary for ongoing operations”, but, in our experience, as long as you can demonstrate that the workload increases enough to hire additional workers, this is rarely a problem.

This requirement might be best explained with some examples.

Let’s say you’re a crop-farmer in the northern Midwest, and you only need additional workers to help with crop-related work from spring through fall because, in the winter, the ground freezes up. In this case, the work is tied to seasonal cycles (e.g., the coming of winter) and requires additional workers for part of the year (since the work isn’t done for the remainder of the year).

As another example, let’s say you raise and breed livestock. Let’s also say that you have structured your business so that calving typically happens in early spring. In that case, the work is tied to gestational cycles and requires additional workers. This too, would most likely be considered seasonal, since the work here is tied to a part of a cycle when the workload increases drastically.

On the other hand, let’s say you run a dairy farm and you have a year-round need for workers to milk cows. There is nothing particularly seasonal about the milking, and you need the same number of workers year-round. This need would likely not qualify. This is the reason why the dairy industry generally cannot use the H-2A Program.

How to be Prepared

If you’re planning on using t he H-2A Program, we encourage you to take some time to gather evidence regarding how your need is temporary/seasonal—especially if you need additional workers for work that is either not primarily related to the growth of a crop or not within the normal spring-through-fall timeframe. In general, the Department of Labor recognizes that a lot of crop farmers need additional workers during the spring, summer, and fall, and they generally do not question these jobs, but if you need workers for something different, be prepared to explain how the work is seasonal.

The Department of Labor often questions the temporariness/seasonality of non-standard jobs. They do so by placing your paperwork on hold and issuing a Notice of Deficiency (NOD). You will then have a specific deadline to respond to their notice with additional information and/or paperwork. If you fail to respond in time or fail to satisfy their request, they will deny your Application for Temporary Labor Certification.

We therefore recommend preemptively solving this problem by preparing, in advance, the following documents and submitting them with your Application for Temporary Labor Certification:

• A written explanation of why you need additional workers during your period of need. This explanation should cover why you need additional workers during your period of need and why you don’t need them outside of your period of need. Be sure to focus on the fluctuations in your workload and how your need meets the definition of temporary and seasonal found at 20 CFR 655.103(d).

• A schedule of the work you perform throughout the year, broken down by month, to highlight why and when you need additional workers. Be sure to highlight which tasks are done during your period of need and not outside of it.

• A chart depicting your workload throughout the year, broken down by month. This can help to highlight your busy season.

For cases that involve work during the winter or work related to the care of livestock, we also recommend that you gather your payroll records and provide a summary that shows at least how many employees you had during each month of the year and how many hours, total, those employees worked during each month of the year. If the Department of Labor (DOL) questions the temporariness/seasonality of your need, they will most likely ask for this report, so having it ready in advance can save you a lot of time down the road.

Date Changes

If at all possible, we strongly recommend that you choose your period of need based on your busy season and avoid changing it. If the Department of Labor sees changing start or end dates, they often assume that the period of need is flexible, rather than tied to specific seasonal conditions. Date changes are one of the most common causes of Notices of Deficiency (NOD). We have even seen applications denied because of date changes, so be sure to proceed with caution if you need to change your start or end dates. We recommend providing a written explanation of why the change is necessary. Again, our team is prepared to help with this.

Save Time Prepping Your Paperwork

If you choose to use our services, we’ll make this process as easy as possible. While we cannot and will not fabricate needs that do not legitimately exist, our team members are experts at helping people organize data and explain situations in a professional way. As part of our normal services, we assess each need, and, if we feel the Department of Labor might question it, we’ll help prepare the evidence recommended above. We also help with Date Change explanations, when necessary, and respond to Notices of Deficiency from the Department of Labor on behalf of employers.

By going the extra mile to help with this prep work, we save employers time, not only on the front end, but also on the back end by helping them avoid Notices of Deficiency and the delays that come with them.

If you have any questions about our services, or if you’d like to speak to one of our experts, feel free to complete a Contact Us Form. We’d love to hear from you!