United States: DOL and DHS Temporary Rule Provides for Additional 64,716 H-2B Visas in FY 2026

The additional H-2B visas will be made available in a series of allocations over the course of FY 2026, tied to case type and requested start date. The supplemental visas have been divided into the following three separate allocations:

• Returning Worker allocation between January 1 and March 31, 2026 (first allocation): 18,490 supplemental visas will be immediately available upon publication of the temporary rule (on February 3) to returning workers, that is, foreign nationals who were issued an H-2B visa or otherwise granted H-2B status in FY 2023, 2024, or 2025, and who will be available for eligible employers with a need for workers to begin work between January 1, 2026 through March 31, 2026. Employers must file these petitions no later than 14 days after the second half of the H-2B statutory cap is reached, which USCIS will identify through public announcement. In the event that USCIS approves insufficient petitions to use all 18,490 supplemental visas under this first allocation, the unused numbers will carry over to the second allocation. 
• Returning Worker allocation between April 1 and April 30, 2026 (second allocation): 27,736 supplemental visas, plus any unused visas from the first allocation, have been allocated to returning workers, that is, foreign nationals who were issued an H-2B visa or otherwise granted H-2B status in FY 2023, 2024, or 2025, and who will be available for eligible employers with a need for workers to begin work between April 1, 2026 and April 30, 2026. Employers must file these petitions no earlier than 15 days after the second half of the H-2B statutory cap is reached, a date that USCIS will identify in a public announcement. When USCIS announces that it has received a sufficient number of petitions to reach the second half statutory cap, it will also announce the earliest possible filing date (15 days after the second half statutory cap) for this allocation. In the event that USCIS approves insufficient petitions to use all 27,736 visas, the unused numbers will carry over for petition approvals for employment start dates beginning on or after May 1, 2026.
• Allocation between May 1 and September 30, 2026 (third allocation): 18,490 supplemental visas, plus any unused visas from the first or second allocations, have been allocated for foreign nationals who will be available for eligible employers with a need for workers to begin work between May 1, 2026 and September 30, 2026. These petitions are exempt from the returning worker requirement. Employers must file these petitions no earlier than 45 days after the second half of the statutory cap is reached, a date that USCIS will identify in a public announcement. When USCIS announces that it has received a sufficient number of petitions to reach the second half statutory cap, it will also announce the earliest possible filing date (45 days after the second half statutory cap) for this allocation. In the event that USCIS approves insufficient petitions to use all 18,490 visas, the unused numbers will not carry over to FY 2027.

Petitions requesting supplemental H-2B allocations under the rule must be filed at the current filing location as listed on the USCIS website. No petitions for supplemental H-2B visas may be filed after September 15, 2026, and no such petitions may be approved after September 30, 2026.

As detailed above, if there are any unused numbers in either of the first two allocation groups, the unused numbers will carry over to the subsequent allocation group. In the event that USCIS approves insufficient petitions to use all 18,490 supplemental visas in the third allocation group, plus any unused visas from the first or second allocations, the unused numbers will not carry over to FY 2027. 

Existing regulations require employers seeking H-2B workers to test the U.S. labor market and certify that there are not enough U.S. workers who are able, willing, qualified, and available for the offered positions, and that employing H-2B workers will not adversely affect the wages or working conditions of similarly employed U.S. workers.

The supplemental H-2B rule includes additional provisions designed to protect both U.S. and H-2B workers. In particular, the regulation provides for additional scrutiny in the supplemental cap petition process for employers that have committed certain labor law violations in the H-2B program. As with supplemental allotments in previous years, DHS and DOL also state that they intend to conduct audits of petitions for supplemental FY 2026 H-2B visas to verify compliance with program requirements, and a finding of a substantial violation may result in revocation of the temporary labor certification and/or petition, assessment of a civil monetary penalty, or program debarment.

To maximize the chance of securing an H-2B visa number before the supply is exhausted, employers with FY 2026 H-2B employment needs should work with their immigration counsel to submit petitions at the earliest opportunity as each tranche of supplemental allocations becomes available.