Does Roofing Qualify for H-2B? Proving Temporary Need in a Year-Round Market
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Reviewed & verified by A. Jason Velez, Esq.*
Founding Attorney, 1LAW · Last reviewed September 23, 2026
Legal Inquiry
Consumer Legal Issue
Does roofing typically qualify for H-2B, and how do we prove temporary need when work runs year-round in desert markets?
Attorney Answer
Roofing is not excluded from H-2B, but a labor shortage is not a temporary need. The employer must prove its own need is a one-time occurrence, seasonal, peakload, or intermittent (8 C.F.R. § 214.2(h)(6)(ii)(B)). Peakload means the employer 'regularly employs permanent workers,' needs to supplement them 'on a temporary basis due to a seasonal or short-term demand,' and the additions 'will not become a part of the petitioner's regular operation.' DOL will deny a need lasting more than nine months except for a one-time occurrence (20 C.F.R. § 655.6(b)). The job itself may be permanent so long as the need is temporary (§ 655.6(a)).
A year-round desert market can still show a genuine peak above a permanent workforce, but the evidence has to be real: contracts, payroll history, workload charts and a credible end date. Temporariness cannot be manufactured - the Ninth Circuit rejected an employer's attempt to make workers 'temporary' by planning around the rules (Seven Star, Inc. v. United States) - and recent district decisions show DOL denying peakload where the charts showed continuous need or where a single big contract was the only evidence. Explain why the added workers will not become part of regular operations and why the dates match the evidence. Federal courts have upheld the current joint DOL-DHS H-2B rules (Outdoor Amusement Business Ass'n v. DHS).
Cases Cited
Published decisions relevant to this issue, provided as legal background rather than advice about any particular case.
- Seven Star, Inc. v. United States, 873 F.2d 225 (1989) — U.S. Court of Appeals for the Ninth Circuit
Temporariness depends on the nature of the need and cannot be manufactured by the employer. - Outdoor Amusement Business Ass'n v. DHS, 983 F.3d 671 (2020) — U.S. Court of Appeals for the Fourth Circuit
Upheld the current joint DOL-DHS H-2B rules.
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Frequently Asked Questions
Can a roofing company use H-2B?
Roofing is not excluded, but a labor shortage is not a temporary need. The employer must prove its own need is a one-time occurrence, seasonal, peakload or intermittent.
How long can an H-2B temporary need last?
The Department of Labor will deny a need lasting more than nine months, except for a one-time occurrence (20 C.F.R. § 655.6(b)).
How does a year-round business prove a peak?
With real evidence of a peak above a permanent workforce: contracts, payroll history, workload charts and a credible end date. Temporariness cannot be manufactured by relabeling an ongoing staffing need.