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

February 2, 2026

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At a glance

  • A Temporary Rule will make available an additional 64,716 H-2B visas in Fiscal Year (FY) 2026 subject to certain conditions.
  • 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, with varying filing timelines.
  • Of the additional visas, 46,226 will be made available to returning H-2B workers, and the remaining 18,490 will be reserved for petitions requesting employment start dates between May 1 and September 30, 2026, plus any rollover unused visas from the prior allocations, regardless of whether they are returning workers.
  • As in past years, the Temporary Rule also includes provisions to protect both U.S. and H-2B workers, including additional scrutiny for employers that have committed certain labor law violations in the H-2B program.

A closer look

The U.S. Department of Homeland Security (DHS) and Department of Labor (DOL) have jointly issued a Temporary Rule, effective January 30, 2026, that will make an additional 64,716 H-2B temporary nonagricultural worker visas available over the course of FY 2026. Last month, the agencies announced that only 35,000 supplemental H-2B visas would be made available this fiscal year; the official agency action increases the number cited in the original announcement. The temporary rule will be published on February 3; an advance copy is available.

The additional 64,716 visas is the same number of supplemental H-2B visas that the Biden Administration made available in FY 2025. The additional allocation supplements the 66,000 H-2B visas that are normally available each fiscal year. This fiscal year, 46,226 of the additional visas will be made available to returning workers who received an H-2B visa or were otherwise granted H-2B status during one of the previous three fiscal years (last fiscal year, 44,716 additional visas were reserved for returning H-2B workers).

The remaining 18,490 additional H-2B visas will be reserved for petitions requesting employment start dates between May 1 and September 30, 2026, plus any rollover unused visas from the prior allocations, regardless of whether the foreign nationals are returning workers.

As in past years, employers seeking supplemental H-2B visas in FY 2026 must attest that they are suffering irreparable harm or will suffer impending irreparable harm if they are unable to employ all the workers requested in their petition.

The supplemental increase applies to FY 2026 only and does not affect the H-2B program in future fiscal years.

Timeline for allocations

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.

Additional filing restrictions

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.

Carryover of unused numbers

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. 

Additional worker protections

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.

What this means for employers

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.

This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.

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