H-2B Denied on the Numbers: A Seasonal Restaurant Case That Went to BALCA

The H-2B number of workers you request has to be proven, not estimated. This April 2026 case shows how a seasonal restaurant lost on the H-2B number of workers even after its seasonal theory held up.

The employer’s name, location and identifying details in this case study have been changed. The legal issues, the strategy and the outcome are real.

Key takeaways

• A Certifying Officer can accept that your business is seasonal and still deny the application, because the number of workers doesn’t add up.
• Your own payroll is the test. If past seasonal hires worked part-time, or the “peak” months on your chart had no seasonal workers, the request for full-time H-2B workers looks inflated.
• Restaurants open year-round can still prove a seasonal need for added staff. They must show which months carry the extra load, and that the off-season genuinely has no work for those positions.
• A smaller, well-supported request beats a larger one every time. Asking for the number you can prove is what gets certified.

At a glance

• The employer (name changed): Ridgeline Kitchen, a high-volume quick-service restaurant in a resort region whose traffic follows school breaks, summer, fall foliage and the holidays
• The role: Cashiers, seasonal, April 1 to December 31
• The season: April 1, 2026 start (filed in the January 2026 window)
• The problem: A five-part Notice of Deficiency, then a denial, then administrative review before BALCA
• The outcome: The denial was upheld. The decision turned on the number of workers, not on whether the business is seasonal. The 2027 filing has been rebuilt around a much smaller, hours-based request.

The situation

Ridgeline Kitchen’s volume rises and falls with the tourist calendar. Spring break and summer bring the largest crowds. Fall foliage season brings more. Holiday events at the area’s attractions carry traffic deep into December. Winter, outside the holidays, is quiet. The restaurant is open all year with a permanent crew, and it brings on extra cashiers for the busy months.

The owners had tried H-2B before and been denied. For 2026, they came to us to rebuild the case.

The challenge

The NOD raised five problems:

1. Temporary need. The restaurant is open year-round, and the payroll submitted ran only through September of the prior year.
2. Number of workers. Nothing showed how the requested count was calculated.
3. Job order content. A required assurance about on-the-job training was missing.
4. Housing. The application said housing would be offered but gave no terms.
5. Inconsistent counts. One part of the filing said 15 workers; another said 10.

The technical items were straightforward. We added the training assurance, stated the housing terms, and conformed the count to 10 throughout. The real fight was over need and numbers.

Our strategy

The response tried to defend both the season and the H-2B number of workers.

1. Prove the season with outside data, not just sales. We built the seasonal case from monthly revenue, public visitor counts for the region’s main outdoor destinations, and the published operating calendars of its major attractions. All of them traced the same curve.

2. Reduce the request. We cut the request from 15 workers to 10 and tied it to the seasonal revenue curve.

3. Ask for partial certification in the alternative. Under 20 CFR 655.54, a Certifying Officer may certify fewer workers than requested. We expressly invited that rather than an all-or-nothing decision.

What went wrong: the H-2B number of workers

The Certifying Officer denied the application. The analysis was blunt and drawn entirely from the employer’s own payroll. No past seasonal cashier had reached 40 hours a week. Some months the employer described as peak had no seasonal cashiers on payroll. One “off-season” month had out-earned several of the claimed peak months.

We requested administrative review. The decision turned on the number of workers rather than the seasonal theory itself. The employer could not show that ten full-time positions existed when its own history showed fewer, part-time seasonal hires.

Rebuilding the H-2B number of workers for 2027

The lesson is not “don’t appeal.” The lesson is that the application has to be built from the payroll up:

• Start from hours, not headcount. Add up the seasonal hours actually worked by month. Divide by a full-time week. That number, not a staffing wish, is the request.
• Match the dates to the data. If a month inside the requested period shows no seasonal workers, either explain why it will be different or leave that month out.
• Separate permanent and seasonal staff in every payroll exhibit, so the officer can see the seasonal layer on top of the year-round crew.
• Request fewer workers and stage the timing. The 2027 plan asks for six cashiers, with start dates staged to match the spring ramp-up instead of a single April start for everyone.

The pattern we saw across the April 2026 season

This was not an isolated result. Across business cases in the January 2026 filing round, denials clustered around the same issue. Officers accepted, or did not seriously contest, the seasonal or peakload theory. They then denied because the numbers didn’t reconcile: payroll that skipped requested months, staff counts that didn’t separate permanent from temporary workers, or “borrowed” payroll from a different occupation that showed temporary workers year-round. In 2026, DOL is reading payroll records the way an auditor would.

What this means for your business

Build the H-2B number of workers from your payroll. Before you file, read your payroll as a skeptical officer will. If the numbers don’t support the request, change the request, not the story. If you are not sure what your records will show, that is exactly when an outside H-2B compliance and filing review pays for itself.

Official sources: the H-2B application rules on worker counts and partial certification at 20 CFR Part 655, Subpart A, and DOL’s H-2B program page.

Frequently asked questions

Can a restaurant that is open year-round use H-2B workers?

Yes, if it can show a seasonal or peakload need for additional workers during specific months. The evidence must separate the year-round crew from the seasonal layer and show that the extra positions don’t exist in the off-season.

How does DOL decide the H-2B number of workers to certify?

DOL compares the number requested with the employer’s evidence: payroll showing seasonal hires and hours by month, contracts, and production or revenue data. If past seasonal workers were few or part-time, a request for many full-time workers is likely to be reduced or denied.

What is partial certification in H-2B?

Under 20 CFR 655.54, a Certifying Officer can certify fewer workers than requested when the evidence supports some, but not all, of the positions. Employers can ask for it in the alternative in an NOD response.

Should we appeal an H-2B denial to BALCA?

Sometimes. BALCA reviews the record that was before the Certifying Officer, so an appeal is strongest when the officer misapplied the law to solid evidence. When the denial rests on the employer’s own numbers, refiling a corrected application is often the better use of time.

Not sure what your payroll will say to DOL? Contact Frontera Labor for a pre-filing review of your next H-2B application.

Attorney advertising. This case study describes a single matter with identifying details changed. Prior results do not guarantee a similar outcome. This article is general information, not legal advice for your situation.