H-2B Visa: Caps, Supplemental Visas, Temporary Need, Labor Certification and Fees

(g) Temporary workers and trainees; limitation on numbers (1) The total number of aliens who may be issued visas or otherwise provided nonimmigrant status during any fiscal year (beginning with fiscal year 1992)— (A) under section 1101(a)(15)(H)(i)(b) of this title, may not exceed— (i) 65,000 in each fiscal year before fiscal year 1999; (ii) 115,000 in fiscal year 1999; (iii) 115,000 in fiscal year 2000; (iv) 195,000 in fiscal year 2001; (v) 195,000 in fiscal year 2002; (vi) 195,000 in fiscal year 2003; and (vii) 65,000 in each succeeding fiscal year; or (B) under section 1101(a)(15)(H)(ii)(b) of this title may not exceed 66,000.

(10) The numerical limitations of paragraph (1)(B) shall be allocated for a fiscal year so that the total number of aliens subject to such numerical limits who enter the United States pursuant to a visa or are accorded nonimmigrant status under section 1101(a)(15)(H)(ii)(b) of this title during the first 6 months of such fiscal year is not more than 33,000.

Under the Immigration and Nationality Act (INA), as amended, there is a statutory numerical limit, or “cap,” on the total number of aliens who may receive an H-2B visa, or otherwise be granted H-2B status, during a fiscal year. Congress has set the H-2B cap at 66,000 per fiscal year, with:

33,000 for workers who begin employment in the first half of the fiscal year, Oct. 1 through March 31; and

33,000 for workers who begin employment in the second half of the fiscal year, April 1 through Sept. 30.

Any unused numbers from the first half of the fiscal year will be available for employers seeking to hire H-2B workers during the second half of the fiscal year. Unused H-2B numbers from one fiscal year do not carry over into the next fiscal year.

Generally, workers in the United States in H-2B status who extend their stay, change employers, or change the terms and conditions of employment are not subject to the cap. Similarly, H-2B workers who were already counted against the cap in the same fiscal year that the proposed employment begins are not subject to the cap if the employer names them on the petition and states that they have already been counted. The spouse and children of H-2B workers classified as H-4 nonimmigrants also do not count against this cap.

Additionally, petitions for the following types of workers are exempt from the H-2B cap:

Fish roe processors, fish roe technicians, or supervisors of fish roe processing; and

Workers performing labor or services in the Commonwealth of the Northern Mariana Islands or Guam until Dec. 31, 2029.

Once the H-2B cap is reached, we may accept petitions only for H-2B workers who are exempt from or not subject to the H-2B cap.

U.S. Citizenship and Immigration Services received enough petitions to meet the congressionally established H-2B cap for the first half of fiscal year (FY) 2027. Sept. 4, 2026 was the final receipt date for new cap-subject H-2B worker petitions requesting an employment start date before April 1, 2027. We will reject new cap-subject H-2B petitions received after Sept. 4, 2026, that request an employment start date before April 1, 2027.

On Sept. 11, 2026, we announced that we had received enough petitions to reach the congressionally mandated H-2B cap for the first half of fiscal year 2027. Sept. 4, 2026 was the “final receipt date” for cap-subject H-2B worker petitions requesting employment start dates before April 1, 2027. The “final receipt date” is the date when we determine that we received enough cap-subject petitions to reach the limit of 33,000 H-2B workers for the first half of fiscal year 2027.

SUMMARY: The Secretary of Homeland Security, in consultation with the Secretary of Labor, is exercising time-limited Fiscal Year (FY) 2026 authority to issue up to, but not more than, an additional 64,716 visas for the fiscal year. All of these supplemental visas will be available only to those American businesses that are suffering or will suffer impending irreparable harm, i.e., those facing permanent and severe financial loss, as attested by the employer. These supplemental visas will be distributed in three allocations based on the petitioner's start date of need through the end of the fiscal year.

(1) 18,490 immediately available visas limited to returning workers, that is, aliens 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.

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(2) 27,736 visas, plus any unused visas from the first allocation, limited to returning workers, that is, aliens 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.

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(3) 18,490 visas, plus any unused visas from the first or second allocations, for aliens 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.

DATES: Effective Dates: This final rule is effective from January 30, 2026, through September 30, 2026, except for 20 CFR 655.69, which is effective from January 30, 2026, through September 30, 2029. Petition dates: DHS will not accept any H-2B petitions under provisions related to the FY 2026 supplemental numerical allocations after September 15, 2026, and will not approve any such H-2B petitions after September 30, 2026.

To qualify for the FY 2026 supplemental caps provided by this temporary final rule, eligible petitioners must: --Meet all existing H-2B eligibility requirements, including obtaining an approved Temporary Labor Certification (TLC) from DOL before filing the Form I-129, Petition for a Nonimmigrant Worker, with USCIS; --Properly file the Form I-129 with USCIS at the current filing location, during the appropriate filing period. USCIS will reject any petitions filed after September 15, 2026; --Submit an attestation affirming, under the penalty of perjury, that the employer is suffering irreparable harm or will suffer impending irreparable harm without the ability to employ all of the H-2B workers requested on the petition, and that they are seeking to employ returning workers only, unless the H-2B worker is counted towards the 18,490 allocation, plus any rollover from the first and second allocations, for employment start dates between May 1 and September 30, 2026 (third allocation). --Prepare and retain a detailed written statement describing how the employer is suffering irreparable harm or will suffer impending irreparable harm with evidence demonstrating irreparable harm supporting their petition. Petitioners filing H-2B petitions under this FY 2026 supplemental cap must retain documentation of compliance with the attestation requirements for three years from the date DOL approved the TLC and must provide the documents and records upon the request of DHS and/or DOL, as well as fully cooperate with any compliance reviews. DHS will not approve H-2B petitions filed in connection with the FY 2026 supplemental cap authority on or after October 1, 2026.

(ii) Temporary services or labor—(A) Definition. Temporary services or labor under the H-2B classification refers to any job in which the petitioner's need for the duties to be performed by the employee(s) is temporary, whether or not the underlying job can be described as permanent or temporary.

(B) Nature of petitioner's need. Employment is of a temporary nature when the employer needs a worker for a limited period of time. The employer must establish that the need for the employee will end in the near, definable future. Generally, that period of time will be limited to one year or less, but in the case of a one-time event could last up to 3 years. The petitioner's need for the services or labor shall be a one-time occurrence, a seasonal need, a peak load need, or an intermittent need.

(1) One-time occurrence. The petitioner must establish that it has not employed workers to perform the services or labor in the past and that it will not need workers to perform the services or labor in the future, or that it has an employment situation that is otherwise permanent, but a temporary event of short duration has created the need for a temporary worker.

(2) Seasonal need. The petitioner must establish that the services or labor is traditionally tied to a season of the year by an event or pattern and is of a recurring nature. The petitioner shall specify the period(s) of time during each year in which it does not need the services or labor. The employment is not seasonal if the period during which the services or labor is not needed is unpredictable or subject to change or is considered a vacation period for the petitioner's permanent employees.

(3) Peakload need. The petitioner must establish that it regularly employs permanent workers to perform the services or labor at the place of employment and that it needs to supplement its permanent staff at the place of employment on a temporary basis due to a seasonal or short-term demand and that the temporary additions to staff will not become a part of the petitioner's regular operation.

(4) Intermittent need. The petitioner must establish that it has not employed permanent or full-time workers to perform the services or labor, but occasionally or intermittently needs temporary workers to perform services or labor for short periods.

(iii) Procedures. (A) Prior to filing a petition with the director to classify an alien as an H-2B worker, the petitioner shall apply for a temporary labor certification with the Secretary of Labor for all areas of the United States, except the Territory of Guam. In the Territory of Guam, the petitioning employer shall apply for a temporary labor certification with the Governor of Guam. The labor certification shall be advice to the director on whether or not United States workers capable of performing the temporary services or labor are available and whether or not the alien's employment will adversely affect the wages and working conditions of similarly employed United States workers.

(iv) Labor certifications, except Guam—(A) Secretary of Labor's determination. An H-2B petition for temporary employment in the United States, except for temporary employment on Guam, shall be accompanied by an approved temporary labor certification from the Secretary of Labor stating that qualified workers in the United States are not available and that the alien's employment will not adversely affect wages and working conditions of similarly employed United States workers.

To qualify for H-2B nonimmigrant classification, the petitioner must establish that:

There are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work.

Employing H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.

Its need for the prospective worker’s services or labor is temporary, regardless of whether the underlying job can be described as temporary. The employer’s need is considered temporary if it is a(n):

One-time occurrence – A petitioner claiming a one-time occurrence must show that it has:

An employment situation that is otherwise permanent, but a temporary event of short duration has created the need for a temporary worker.

Not employed workers to perform the service or labor in the past, and will not need workers to perform the services or labor in the future;

OR

Seasonal need – A petitioner claiming a seasonal need must show that the service or labor for which it seeks workers is:

Traditionally tied to a season of the year by an event or pattern; and

Of a recurring nature.

Note: You cannot claim a seasonal need if the time period when you do NOT need the service or labor is:

Unpredictable;

Subject to change; or

Considered a vacation period for your permanent employees.

OR

Peak load need – A petitioner claiming a peak load need must show that it:

Regularly employs permanent workers to perform the services or labor at the place of employment;

Needs to temporarily supplement its permanent staff at the place of employment due to a seasonal or short-term demand; and

The temporary additions to staff will not become part of the employer's regular operation.

OR

Intermittent need – A petitioner claiming an intermittent need must show that it:

Has not employed permanent or full-time workers to perform the services or labor; and

Occasionally or intermittently needs temporary workers to perform services or labor for short periods.

H-2B petitioners must also provide a single valid temporary labor certification from the U.S. Department of Labor (DOL), or, if the workers will be employed on Guam, from the Guam Department of Labor (Guam DOL).

*NOTE: As of Jan. 17, 2025, DHS regulations no longer require USCIS to consider whether the beneficiary is a national of a country that the Secretary of Homeland Security, with the concurrence of the Secretary of State, has designated as eligible to participate in the H-2B program.

(B) Limits on an individual's stay. Except as provided in paragraph (h)(6)(vii)(A) of this section, an alien's stay as an H-2B nonimmigrant is limited by the period of time stated in an approved petition. An alien may remain longer to engage in other qualifying temporary nonagricultural employment by obtaining an extension of stay. However, an individual who has held H-2A or H-2B status for a total of 3 years may not again be granted H-2B status until such time as they remain outside the United States for an uninterrupted period of at least 60 days. Eligibility under this paragraph (h)(6)(vii)(B) will be determined during adjudication of a request for admission, change of status or extension of stay. An alien found eligible for a shorter period of H-2B status than that indicated by the petition due to the application of this paragraph (h)(6)(vii)(B) will only be admitted for that shorter period.

Any H-2B worker's spouse and unmarried children under 21 years of age may seek admission in H-4 nonimmigrant classification. Family members are not eligible for employment in the United States while in H-4 status.