On behalf of Sayer Regan & Thayer of Sayer Regan & Thayer, LLP posted on Thursday, January 6 , 2022.

The U.S. Department of Labor (DOL) has ruled that the labor shortage crisis resulting from the extended COVID-19 pandemic is not a “one-time occurrence” that would justify the hiring of additional employees under the H-2B temporary worker program.

The H-2B program allows U.S. employers to hire foreign workers to fill non-agricultural positions on a temporary basis. The employer must file an application with DOL and demonstrate that a “temporary” need for foreign workers exists due to a one-time occurrence, the seasonal nature of the business, a short-term spike in demand, or the intermittent nature of the work.

The DOL issued its ruling in a case involving a small grocery store that had applied to hire additional foreign workers on a temporary basis because they were unable to attract U.S. workers at an affordable rate. However, according to the DOL, labor shortages alone do not justify a finding that an employer’s need for workers is temporary in nature. The DOL declined the grocery store’s H-2B application, ruling that the worker shortage could not be ruled as a temporary event that would “end in the near, definable future.”

For further information and assistance in H-2B visas and other immigration related issues, please contact Sayer, Regan & Thayer toll-free at 866-378-5836 or 401-324-9915.

These materials have been prepared by SRT for informational purposes only and are not intended and should not be construed as legal advice.