DOL and USCIS Release Rule for Supplemental H-2B Visa Numbers for FY 2026

On January 30, 2026, the Department of Labor (DOL) and U.S. Citizenship and Immigration Service (USCIS) announced a joint temporary rule implementing the process for employers who have a certified ETA 9142B with an employment start within FY 2026 (from October 1, 2025, to September 30, 2026) to apply for up to 64,716 additional (supplemental) H-2B visa numbers. Unlike prior years, the additional visas are available to nationals of all countries and specific visas have not been reserved for certain countries. The DOL and USCIS outlined the following schedule as to when the supplemental visas may be requested and released.

First Allocation for Employment Start Dates From January 1 to March 31, 2026 (Petitions Filed Under the First Half of FY 2026)

There are 18,490 immediately available visas limited to returning workers regardless of country of nationality. Returning workers are defined as workers who were issued H-2B status in fiscal years 2023, 2024 or 2025. Employers requesting an employment start date in the first half of FY 2025 may file such petitions starting January 30, 2026. Employers must file the petitions no later than 14 days after the second half of the statutory cap is reached. While USCIS has stated the employment start date on the petition must match the employment start date on the temporary labor certification (TLC), even if that date has passed, it provided guidance that for the purpose of the additional released  visas, “petitioners may use TLCs that list an employment start date that has passed if the TLC is otherwise valid.”

Second Allocation for Employment Start Dates From April 1 to April 30, 2026 (Early Second Half of FY 2026)

USCIS will issue up to 27,736 visas, plus any unused visas from the first allocation limited to returning workers regardless of country of nationality. These petitions must request an employment start date from April 1 through April 30, 2026. Employers may file these petitions no earlier than 15 days after the second half statutory cap is reached. USCIS will send out a notice when the second half of the cap has been reached. Employers must also file these petitions no later than 44 days after the second half of the statutory cap is reached.

Third Allocation for Employment Start Dates From May 1 to September 30, 2026  

USCIS will issue up to 18,490 visas, plus any unused visas from the first and second allocations regardless of country of nationality. Please note that these numbers are not limited to returning workers. These petitions must request an employment start date from May 1 through September 30, 2026. Employers must file these petitions no earlier than 45 days after the second half statutory cap is reached. Employers must also file these petitions no later than September 15, 2026.

Frequently Asked Questions Regarding the Additional H-2B Visa Numbers for FY 2026

Workers That Qualify for Supplemental Visas

Q: Which workers are eligible for these additional visas?

A: There are two categories of workers who are eligible for these supplemental H-2B visas. First, employers may request returning workers who have been issued H-2B visas or otherwise granted H-2B status in FY 2023-2025. For the third allocation period, the supplemental visas are available to any workers and not limited to returning workers or those currently in H-2B status in the United States.

Q: I am an employer with a season that starts October 1, 2025, to March 31, 2026 (first half of fiscal year). My ETA 9142B has been certified with the DOL, but the H-2B cap has already been met. How does this rule affect me?

A: Employers who have start dates within the October 1, 2025, to March 31, 2026, range but did not make it into the cap may request H-2B supplemental visa numbers under the first allocation and request a start date between January 1, 2026, through March 31, 2026.

Q: I am an employer with a season that starts April 1, 2026, to April 30, 2026 (early second half of FY 2026). How does this rule affect me?

A: If you submitted your H-2B filing between January 1 to 3, then your petition was randomly placed into a group. Group A had around 35,000 visa requests (enough to fill the cap). All other groups had around 20,000 visa requests. If your petition is in Group A, you will likely make it into the “cap,” and once your ETA 9142B is certified with the DOL, you can petition for workers as normal.

However, if your petition was selected for a later group, and it does not make it into the cap, then you will have the additional option of securing workers from the additional visas issued as outlined by USCIS. Employers who do not make it to the cap with a start date of need in the early second half of FY 2026 will be able to request H-2B supplemental visa numbers under the second allocation of supplemental 27,736 visas plus any unused visas from the first allocation limited to returning workers regardless of country of nationality. These returning workers must have been granted H-2B status in FY 2023, 2024 or 2025.

Employers with a start date between April 1, 2026, to April 30, 2026, will be able to petition for these supplemental visas no earlier than 15 days after the second half statutory cap is reached. USCIS will send out a notice when the second half of the cap has been reached.

Q: I am an employer with a season that starts May 1, 2026, to September 30, 2026. How does this rule affect me?

A: The H-2B randomization process will still proceed as normal. It is likely that the H-2B cap will be reached before you are able to submit your ETA 9142B, as has been the case in past years. This year, there will be additional visas available specifically for employers with start dates from May 1, 2026, through September 30, 2026. Employers may submit a new ETA 9142B petition requesting an employment period with a start date of May 1, 2026, or later but before September 30, 2026, to request supplemental vias under the third allocation which consists of 18,490 visas plus any unused visas from the first and second allocations.

Employers with a start date of May 1, 2026, and later will be able to petition for additional visas no earlier than 45 days after the second half statutory cap is reached. USCIS will send out a notice when the second half of the cap has been reached.

Q: How do I prove that I will be seeking workers who qualify for these visas?

A: USCIS requires that an employer certify that it will only be seeking qualified workers for these visas. Employers may provide evidence that they were only seeking returning workers by keeping evidence on file such as a date-stamped written communication from the employer to its agent(s) and/or recruiter(s) that instructs the agent(s) and/or recruiter(s) to only recruit and provide instruction regarding an application for an H-2B visa to those foreign workers who were previously issued an H-2B visa or granted H-2B status in FY 2023, 2024 or 2025.

Q: Do I have to prove irreparable harm to apply for these additional visas?

A: Yes. If an employer applies for visas under this rule, the employer will need to prove that the business is suffering irreparable harm or will suffer irreparable harm if it is unable to hire H-2B employees. Irreparable harm is defined as permanent and severe financial loss that is either occurring or impending. An employer will need to sign an attestation under penalty of perjury with the filing and maintain a detailed letter of irreparable harm, along with evidence of irreparable harm.

USCIS Procedures

Q: If I file for these H-2B visas, am I guaranteed to get them?

A: Not necessarily. If USCIS receives requests for more than the allotted visas for a certain group, USCIS will conduct a lottery to determine which employers are granted the additional visas.

Q: If USCIS approves insufficient petitions to use all the visas allocated to a specific period, will those visas be re-allocated to the later start dates?

A: Yes, unused supplemental visas can be used in the second allocation and third allocation.

Additional Recruitment for Supplemental Visas

Q: Will I have to conduct new recruitment?

A: We are waiting for USCIS to confirm guidance on this topic as the new joint rule and USCIS guidance in the newly released Attestation do not contain language requiring new recruitment requirements for the supplemental visas.

Read the USCIS announcement here.

For any questions, please contact your Fredrikson H-2 Immigration Solutions Team: Loan Huynh, Mimi Alworth, Brooke Trottier and/or Lauren Breckenridge.

This material has been prepared by Fredrikson & Byron, P.A. for informational purposes only. This
information does not create an attorney-client relationship between the reader and Fredrikson & Byron,
its attorneys, or the authors of this material.