Exercise of Time-Limited Authority To Increase the Fiscal Year 2026 Numerical Limitation for the H-2B Temporary Nonagricultural Worker Program

DEPARTMENT OF HOMELAND SECURITY

8 CFR Part 214

[CIS No. 2854-26; DHS Docket No. USCIS-2026-0034]

RIN 1615-AD16

DEPARTMENT OF LABOR

Employment and Training Administration

20 CFR Part 655

[DOL Docket No. ETA-2026-0034]

RIN 1205-AC32

Exercise of Time-Limited Authority To Increase the Fiscal Year 2026 Numerical Limitation for the H-2B Temporary Nonagricultural Worker Program

AGENCY:

U.S. Citizenship and Immigration Services (USCIS), Department of Homeland Security (DHS) and Employment and Training Administration and Wage and Hour Division, Department of Labor (DOL).

ACTION:

Temporary rule.

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.

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.

Comments on the Information Collection:

DOL's Office of Foreign Labor Certification (OFLC) will accept comments in connection with the new information collection Form ETA-9142-B-CAA-10 associated with this rule until April 6, 2026. The electronic Federal Docket Management System will accept comments prior to midnight eastern time at the end of that day.

ADDRESSES:

You may submit written comments on the new information collection Form ETA-9142-B-CAA-10, identified by Regulatory Information Number (RIN) 1205-AC32, electronically by the following method:

Federal eRulemaking Portal: https://www.regulations.gov.

Follow the instructions on the website for submitting comments.

Instructions:

Include the agency's name and the RIN 1205-AC32 in your submission. All comments received will become a matter of public record and may be posted without change to

https://www.regulations.gov.

Comments submitted after the deadline for submission will not be considered. Please do not submit comments containing trade secrets, confidential or proprietary commercial or financial information, personal health information, sensitive personally identifiable information (for example, social security numbers, driver's license or state identification numbers, passport numbers, or financial account numbers), or other information that you do not want to be made available to the public. The agency reserves the right to redact or refrain from posting such personally sensitive or other sensitive information or comments that contain threatening language. Please note that depending on how information is submitted through regulations.gov, the agency may not be able to redact the information and instead reserves the right to refrain from posting the information or comment in such situations.

FOR FURTHER INFORMATION CONTACT:

Regarding 8 CFR part 214: Business and Foreign Workers Division, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, 5900 Capital Gateway Drive, Camp Springs, MD 20746; telephone (240) 721-3000 (not a toll-free number).

Regarding 20 CFR part 655 and Form ETA-9142-B-CAA-10: Brian D. Pasternak, Administrator, Office of Foreign Labor Certification, Employment and Training Administration, Department of Labor, 200 Constitution Ave. NW, Room N-5311, Washington, DC 20210, email:

OFLC.Regulations@dol.gov.

Individuals with hearing or speech impairments may access the telephone numbers above via TTY by calling the toll-free Federal Information Relay Service at 1-877-889-5627 (TTY/TDD).

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Executive Summary

II. Background

A. Legal Framework

B. H-2B Numerical Limitations Under the INA

C. FY 2026 Public Law 119-37

D. Joint Issuance of the Final Rule

III. Discussion

A. Statutory Determination

B. Numerical Increase and Allocations for Fiscal Year 2026

C. Returning Workers

D. Returning Worker Exemption for Up to 18,490 Visas for Employment Start Dates Between May 1 and September 30, 2026

E. Business Need Standard—Irreparable Harm and FY 2026 Attestation

F. DHS Petition Procedures

G. DOL Procedures

H. Non-Severability

IV. Statutory and Regulatory Requirements

A. Administrative Procedure Act

B. Executive Orders 12866 (Regulatory Planning and Review), 13563 (Improving Regulation and Regulatory Review), and 14192 (Unleashing Prosperity Through Deregulation)

C. Regulatory Flexibility Act (RFA)

D. Unfunded Mandates Reform Act of 1995 (UMRA)

E. Executive Order 13132 (Federalism)

F. Executive Order 12988 (Civil Justice Reform)

G. Congressional Review Act (CRA)

H. National Environmental Policy Act (NEPA)

I. Paperwork Reduction Act (PRA)

I. Executive Summary

FY 2026 H-2B Supplemental Cap

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. Employers must file these petitions no later than 14 days after the second half of the statutory cap is reached;

(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. Employers must file these petitions no earlier than 15 days after the second half of the statutory cap

1

is reached; and

1

The term “statutory cap” refers to the 66,000 cap set forth at INA section 214(g)(1)(B) or the 33,300 semiannual caps at INA section 214(g)(10).

(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. Employers must file these petitions no earlier than 45 days after the second half of the statutory cap is reached.

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. Background

A. Legal Framework

The Immigration and Nationality Act (INA), as amended, establishes the H-2B nonimmigrant classification for a nonagricultural temporary worker “having a residence in a foreign country which he has no intention of abandoning who is coming temporarily to the United States to perform . . . temporary [non-agricultural] service or labor if unemployed persons capable of performing such service or labor cannot be found in this country.” INA section 101(a)(15)(H)(ii)(b), 8 U.S.C. 1101(a)(15)(H)(ii)(b). Employers must petition DHS in such form and containing such information as the Secretary prescribes for classification of prospective temporary workers as H-2B nonimmigrants. INA section 214(c)(1), 8 U.S.C. 1184(c)(1). Generally, DHS must approve this petition before the beneficiary can be considered eligible for an H-2B visa. And the INA requires that “[t]he question of importing any alien as [an H-2B] nonimmigrant . . . in any specific case or specific cases shall be determined by [DHS],

2

after consultation with appropriate agencies of the Government.” INA section 214(c)(1), 8 U.S.C. 1184(c)(1).

2

As of March 1, 2003, in accordance with section 1517 of Title XV of the Homeland Security Act of 2002 (HSA), Public Law 107-296, 116 Stat. 2135, any reference to the Attorney General in a provision of the Immigration and Nationality Act describing functions which were transferred from the Attorney General or other Department of Justice official to the Department of Homeland Security by the HSA “shall be deemed to refer to the Secretary” of Homeland Security.

See

6 U.S.C. 557 (2003) (codifying HSA, Title XV, § 1517); 6 U.S.C. 542 note; 8 U.S.C. 1551 note.

In addition, the INA generally charges the Secretary of Homeland Security with the administration and enforcement of the nation's immigration laws, and provides that the Secretary “shall establish such regulations . . . and perform such other acts as [she] deems necessary for carrying out [her] authority” under the INA.

See

INA section 103(a)(1), (3), 8 U.S.C. 1103(a)(1), (3);

see also

6 U.S.C. 202(4) (charging the Secretary with “[e]stablishing and administering rules . . . governing the granting of visas or other forms of permission . . . to enter the United States to individuals who are not a citizen or an alien lawfully admitted for permanent residence in the United States”). With respect to nonimmigrants in particular, the INA provides that “[t]he admission to the United States of any alien as a nonimmigrant shall be for such time and under such conditions as the [Secretary] may by regulations prescribe.” INA section 214(a)(1), 8 U.S.C. 1184(a)(1). The Secretary may designate officers or employees to take and consider evidence concerning any matter that is material or relevant to the enforcement of the INA. INA sections 287(a)(1), (b), 8 U.S.C. 1357(a)(1), (b), and INA section 235(d)(3), 8 U.S.C. 1225(d)(3). INA section 291, 8 U.S.C. 1361, establishes that the petitioner or applicant for a visa or other immigration document bears the burden of proof with respect to eligibility and inadmissibility, including that the alien is eligible for the immigration status being sought.

DHS regulations provide that an approved TLC from DOL, issued pursuant to regulations established at 20 CFR part 655, or from the Guam Department of Labor if the workers will be employed on Guam, must accompany an H-2B petition for temporary employment in the United States. 8 CFR 214.2(h)(6)(iii)(A) and (C) through (E), (h)(6)(iv)(A); see also INA section 103(a)(6), 8 U.S.C. 1103(a)(6). The TLC serves as DHS's consultation with DOL with respect to whether a qualified U.S. worker is available to fill the petitioning H-2B employer's job opportunity and whether a foreign worker's employment in the job opportunity will adversely affect the wages and working conditions of similarly-employed U.S. workers.

See

INA section 214(c)(1); 8 U.S.C. 1184(c)(1); 8 CFR 214.2(h)(6)(iii)(A) and (D).

To determine whether to issue a TLC, the Departments have established regulatory procedures under which DOL certifies whether a qualified U.S. worker is available to fill the job opportunity described in the employer's petition for a temporary nonagricultural worker, and whether a foreign worker's employment in the job opportunity will adversely affect the wages or working conditions of similarly employed U.S. workers.

See

20 CFR part 655, subpart A. The regulations establish the process by which employers obtain a TLC and the rights and obligations of workers and employers.

Once the H-2B petition is approved, under the INA and current DHS regulations, H-2B workers are limited to employment with the H-2B petitioner and do not have employment authorization outside of the validity period listed on the approved petition unless otherwise authorized.

See

8 U.S.C. 1184(c)(1), 8 CFR 274a.12(b)(9).

An employer or U.S. agent generally may submit a new H-2B petition, with a new, approved TLC, to USCIS to request an extension of H-2B nonimmigrant status for the validity of the TLC or for a period of up to 1 year. 8 CFR 214.2(h)(15)(ii)(C).

The INA also authorizes DHS to impose appropriate remedies against an employer for a substantial failure to meet the terms and conditions of employing an H-2B worker, or for a willful misrepresentation of a material fact in a petition for an H-2B worker. INA section 214(c)(14)(A), 8 U.S.C. 1184(c)(14)(A). The INA expressly authorizes DHS to delegate certain enforcement authority to DOL. INA section 214(c)(14)(B), 8 U.S.C. 1184(c)(14)(B);

see also

INA section 103(a)(6), 8 U.S.C. 1103(a)(6). DHS has delegated its authority under INA section 214(c)(14)(A)(i), 8 U.S.C. 1184(c)(14)(A)(i) to DOL.

See

DHS, Delegation of Authority to DOL under Section 214(c)(14)(A) of the INA (Jan. 16, 2009);

see also

8 CFR 214.2(h)(6)(ix) (stating that DOL may investigate employers to enforce compliance with the conditions of, among other things, an H-2B petition and a DOL-approved TLC). This enforcement authority has been delegated within DOL to the Wage and Hour Division (WHD) and is governed by regulations at 29 CFR part 503.

B. H-2B Numerical Limitations Under the INA

The INA sets the maximum annual number (“statutory cap”) of aliens who may be issued H-2B visas or otherwise provided H-2B nonimmigrant status to perform temporary nonagricultural work at 66,000, to be distributed semi-annually beginning in October and April.

See

INA sections 214(g)(1)(B) and (g)(10), 8 U.S.C. 1184(g)(1)(B) and (g)(10). Accordingly, with certain exceptions, described below, up to 33,000 aliens may be issued H-2B visas or provided H-2B nonimmigrant status in the first half of a fiscal year, and the remaining annual allocation, including any unused nonimmigrant H-2B visas from the first half of a fiscal year, will be available for employers seeking to hire H-2B workers during the second half of the fiscal year.

3

If the full statutory cap of H-2B visas are not utilized in a given fiscal year, DHS cannot carry over the unused numbers for petition approvals for employment start dates beginning on or after the start of the next fiscal year.

3

The Federal Government's fiscal year runs from October 1 of the budget's prior year through September 30 of the year being described. For example, FY 2026 is from October 1, 2025, through September 30, 2026.

In FYs 2005, 2006, 2007, and 2016, Congress exempted H-2B workers identified as returning workers from the annual H-2B cap of 66,000.

4

A returning worker is defined by statute as an H-2B worker who was previously counted against the annual H-2B cap during a designated period of time.

5

For example, Congress designated that returning workers for FY 2016 needed to have been counted against the cap during FY 2013, 2014, or 2015 to qualify for the exemption.

6

During each of the years Congress exempted returning workers from the annual H-2B cap, DHS and Department of State (DOS) worked together to confirm that all workers requested under the returning worker provision in fact were eligible for exemption from the annual cap (

i.e.,

were issued an H-2B visa or provided H-2B status during one of the prior three fiscal years) and were otherwise eligible for H-2B classification.

4

See

INA 214(g)(9)(A), 8 U.S.C. 1184(g)(9)(A),

see also

Consolidated Appropriations Act, 2016, Public Law 114-113, div. F, tit. V, sec 565; John Warner National Defense Authorization Act for Fiscal Year 2007, Public Law 109-364, div. A, tit. X, sec. 1074, (2006); Save Our Small and Seasonal Businesses Act of 2005, Public Law. 109-13, div. B, tit. IV, sec. 402.

5

See

INA section 214(g)(9)(A), 8 U.S.C. 1184(g)(9)(A).

6

See

Consolidated Appropriations Act, 2016, Public Law 114-113, div. F, tit. V, sec 565.

Because of the strong demand for H-2B visas in recent years, the statutorily-determined semi-annual visa allocation, the DOL regulatory requirement that employers apply for a TLC 75 to 90 days before the start date of work,

7

and the DHS regulatory requirement that all H-2B petitions be accompanied by an approved TLC,

8

employers that wish to obtain visas for their workers under the semiannual allotment must act early to receive a TLC and file a petition with USCIS. As a result, the date on which USCIS has reached sufficient H-2B petitions to reach the first half of the fiscal year statutory cap has generally trended earlier in recent years.

9

For FY 2022, for the first time in more than a decade, USCIS received sufficient H-2B petitions to reach the first half of the fiscal year statutory cap before the start of the fiscal year.

10

This occurred even earlier in FY 2023, when USCIS received enough H-2B petitions to reach the FY 2023 first-half statutory cap on September 12, 2022.

11

For FY 2024, USCIS received sufficient H-2B petitions to reach the first half of the fiscal year statutory cap on October 11, 2023.

12

For FY 2025, USCIS received sufficient H-2B petitions to reach the first half of the fiscal year statutory cap on September 18, 2024.

13

For FY 2026,

USCIS received sufficient H-2B petitions to reach the first half of the fiscal year statutory cap on September 12, 2025.

14

This trend in recent years of increased demand for H-2B workers is even more apparent in the second half of the fiscal year.

15

For example, during the three-day filing window of January 1 through 3, 2026 for H-2B TLCs for the second half of FY 2026, DOL's Office of Foreign Labor Certification (OFLC) received requests to certify 162,603 worker positions for start dates of work on April 1, 2026.

16

7

See

20 CFR 655.15(b).

8

See

8 CFR 214.2(h)(6)(vi)(A).

9

In fiscal years 2017 through 2021, USCIS received a sufficient number of H-2B petitions to reach or exceed the relevant first half statutory cap on January 10, 2017, December 15, 2017, December 6, 2018, November 15, 2019, and November 16, 2020, respectively.

See

USCIS, USCIS Reaches the H-2B Cap for the First Half of Fiscal Year 2017,

https://www.uscis.gov/archive/uscis-reaches-the-h-2b-cap-for-the-first-half-of-fiscal-year-2017

(Jan. 13, 2017); USCIS, USCIS Reaches H-2B Cap for the First Half of Fiscal Year 2018,

https://www.uscis.gov/archive/uscis-reaches-h-2b-cap-for-first-half-of-fy-2018

(Dec. 21, 2017); USCIS, USCIS Reaches H-2B Cap for the First Half of Fiscal Year 2019,

https://www.uscis.gov/news/news-releases/

uscis-reaches-h-2b-cap-for-first-half-of-fy-2019 (Dec. 12, 2018); USCIS, USCIS Reaches H-2B Cap for the First Half of Fiscal Year 2020,

https://www.uscis.gov/news/news-releases/uscis-reaches-h-2b-cap-for-first-half-of-fy-2020

(Nov. 20, 2019); USCIS, USCIS Reaches H-2B Cap for the First Half of Fiscal Year 2021,

https://www.uscis.gov/news/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2021

(Nov. 18, 2020).

10

On October 12, 2021, USCIS announced that it had received sufficient petitions to reach the congressionally mandated cap on H-2B visas for temporary nonagricultural workers for the first half of FY 2022, and that September 30, 2021, was the final receipt date for new cap-subject H-2B worker petitions requesting an employment start date before April 1, 2022.

See

USCIS, USCIS Reaches H-2B Cap for the First Half of Fiscal Year 2022,

https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2022

(October 12, 2021).

11

On September 14, 2022, USCIS announced that it had received sufficient petitions to reach the congressionally mandated cap on H-2B visas for temporary nonagricultural workers for the first half of FY 2023, and that September 12, 2022, was the final receipt date for new cap-subject H-2B worker petitions requesting an employment start date before April 1, 2023.

See

USCIS, USCIS Reaches H-2B Cap for the First Half of Fiscal Year 2023,

https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2023

(September 14, 2022).

12

On October 13, 2023, USCIS announced that it had received sufficient petitions to reach the congressionally mandated cap on H-2B visas for temporary nonagricultural workers for the first half of FY 2024, and that October 11, 2023, was the final receipt date for new cap-subject H-2B worker petitions requesting an employment start date before April 1, 2024.

See

USCIS, USCIS Reaches H-2B Cap for First Half of FY 2024,

https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2024

(October 13, 2023). While this date was slightly later than the prior two years, the Departments note that DOL received 2,157 applications for the first half of the FY 2024 statutory cap during the initial three-day filing window of July 3-5, 2023, covering 40,947 worker positions; a 59% increase in TLC workload when compared to the same time period in 2022.

See

DOL, OFLC Publishes List of Randomized H-2B Applications Submitted July 3-5, 2023, for Employers Seeking H-2B Workers Starting October 1, 2023,

https://www.dol.gov/agencies/eta/foreign-labor/news

(July 10, 2023).

13

On September 19, 2024, USCIS announced that it had received sufficient petitions to reach the congressionally mandated cap on H-2B visas for temporary nonagricultural workers for the first half of FY 2025, and that September 18, 2024, was the final receipt date for new cap-subject H-2B worker petitions requesting an employment start date before April 1, 2025.

See

USCIS, USCIS Reaches H-2B Cap for First Half of Fiscal Year 2025,

https://

www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fiscal-year-2025

(September 19, 2024). While this date was slightly later than in FY 2023, the Departments note that DOL received 2,158 applications for the first half of the FY 2025 statutory cap during the initial three-day filing window of July 3-5, 2024, covering 44,238 worker positions; a 59% increase in TLC workload and 48% increase in requested worker positions when compared to the same time period for fiscal year 2023.

See

DOL, OFLC Publishes List of Randomized H-2B Applications Submitted July 3-5, 2024, for Employers Seeking H-2B Workers Starting October 1, 2024,

https://www.dol.gov/agencies/eta/foreign-labor/news

(July 9, 2024).

14

On September 16, 2025, USCIS announced that it had received a sufficient number of petitions to reach the congressionally mandated H-2B cap for the first half of FY 2026.

See

USCIS, “USCIS Reaches H-2B Cap for First Half of FY 2026,”

https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fiscal-year-2026

(last modified Sept. 16, 2025). On September 12, 2025, the number of beneficiaries listed on petitions received by USCIS surpassed the total number of remaining H-2B visas available against the H-2B statutory cap for the first half of FY 2026. In accordance with regulations, USCIS determined it was necessary to use a computer-generated process, commonly known as a lottery, to ensure the fair and orderly allocation of H-2B visa numbers to meet, but not exceed, the remainder of the FY 2026 statutory cap. 8 CFR 214.2(h)(8)(vii). USCIS conducted a lottery to randomly select petitions from those received. As a result, USCIS assigned all petitions selected in the lottery the receipt date of September 12, 2025.

15

In recent years, DOL has received an increasing number of TLC applications for an increasing number of H-2B workers with April 1 start dates: DOL received 4,500 applications on January 1, 2018, covering more than 81,600 worker positions; DOL received 5,276 applications by January 8, 2019, covering more than 96,400 worker positions; DOL received 5,677 applications during the initial three-day filing window in 2020 covering 99,362 worker positions; DOL received 5,377 applications during the initial three-day filing window in 2021 covering 96,641 worker positions; DOL received 7,875 applications by January 4, 2022, covering 136,555 worker positions; DOL received 8,693 applications during the initial three-day filing window in 2023, covering 142,796 worker positions; DOL received 8,817 H-2B applications by January 8, 2024, covering 138,847 worker positions; and DOL received 8,759 H-2B applications by January 4, 2025, covering 149,953 worker positions.

See

DOL, Announcements,

https://www.dol.gov/agencies/eta/foreign-labor/news.

16

DOL announcement on January 5, 2026.

See https://www.foreignlaborcert.doleta.gov/.

Congress, in recognition of historical and current demand has, for the last several fiscal years, authorized supplemental visas.

17

The authority for the current supplemental cap is under section 101 of the Continuing Appropriations Act, 2026, Public Law 119-37 (FY 2026 authority), as discussed below.

17

See

section 543 of Division F of the Consolidated Appropriations Act, 2017, Public Law 115-31 (FY 2017 Omnibus); section 205 of Division M of the Consolidated Appropriations Act, 2018, Public Law 115-141 (FY 2018 Omnibus); section 105 of Division H of the Consolidated Appropriations Act, 2019, Public Law 116-6 (FY 2019 Omnibus); section 105 of Division I of the Further Consolidated Appropriations Act, 2020, Public Law 116-94 (FY 2020 Omnibus); section 105 of Division O of the Consolidated Appropriations Act, 2021, Public Law 116-260 (FY 2021 Omnibus); section 105 of Division O of the Consolidated Appropriations Act, 2021, FY 2021 Omnibus, sections 101 and 106(3) of Division A of Public Law 117-43, Continuing Appropriations Act, 2022, and section 101 of Division A of Public Law 117-70, Further Continuing Appropriations Act, 2022 through February 18, 2022 (together, FY 2022 authority); section 204 of Division O of the Consolidated Appropriations Act, 2022, Public Law 117-103 (FY 2022 Omnibus); section 303 of Division O of the Consolidated Appropriations Act, 2023, Public Law 117-328 (FY 2023 Omnibus); Division A of Public Law 118-15, Continuing Appropriations Act, 2024 and Other Extensions Act, through November 17, 2023, as well as section 105 of Division G, Title I of the Further Consolidated Appropriations Act, 2024, Public Law 118-47 (FY 2024 Omnibus); and the Continuing Appropriations and Extensions Act, 2025, sections 101(6) and 106 of Division A, Title I of Public Law 118-83 (Sept. 26, 2024) (FY 2025 Omnibus), which extended the authorization previously provided in section 105 of Division G, Title I of the FY 2024 Omnibus.

C. FY 2026 Public Law 119-37

Congress passed the FY 2026 authority, Public Law 119-37, which President Donald J. Trump signed on November 12, 2025. This law extends the authority under the same terms and conditions provided in section 105 of Division G, Title I of the Further Consolidated Appropriations Act, 2024, Public Law 118-47 (Mar. 23, 2024) (“FY 2024 Omnibus”),

18

permitting the Secretary of Homeland Security to increase the number of H-2B visas available to U.S. employers in FY 2026.

19

In other words, Public Law 119-37

20

permits the Secretary of Homeland Security, after consultation with the Secretary of Labor, to provide up to 64,716 additional H-2B visas for the remainder of FY 2026, notwithstanding the otherwise-established statutory numerical limitation set forth in the INA, for eligible employers whose employment needs for FY 2026 cannot be met.

21

Under the Public Law 119-37 authority, DHS and DOL are jointly publishing this temporary final rule to authorize the issuance of up to 64,716 additional visas for the remainder of FY 2026 to those businesses that are suffering irreparable harm or will suffer impending irreparable harm, as attested by the employer on a new attestation form. The authority to approve H-2B petitions under this FY 2026 supplemental cap expires at the end of the fiscal year. Therefore, USCIS will not approve H-2B petitions filed in connection with the FY 2026 supplemental cap authority on or after October 1, 2026.

18

Further Consolidated Appropriations Act, 2024, Public Law 118-47 (Mar. 23, 2024). Specifically, Division G, section 105 provides that “the Secretary of Homeland Security, after consultation with the Secretary of Labor, and upon determining that the needs of American businesses cannot be satisfied in [FY] 2024 with United States workers who are willing, qualified, and able to perform temporary nonagricultural labor,” may increase the total number of aliens who may receive an H-2B visa in FY 2024 by the highest number of H-2B nonimmigrants who participated in the H-2B returning worker program in any fiscal year in which returning workers were exempt from the H-2B numerical limitation.

19

See

secs. 101(6) and 106, Div. A, Title I, Public Law 118-83 (Sept. 26, 2024), and section 105 of Division G, Title I of the Further Consolidated Appropriations Act, 2024, Public Law 118-47 (Mar. 23, 2024) (FY 2024 Omnibus); and section 1101(6) of Division A, Tittle I, the Full-Year Continuing Appropriations Act, 2025, Public Law 119-4 (Mar. 15, 2025).

20

See

section 101, Div. A, Title I, Public Law 119-37, Continuing Appropriations, Agriculture, Legislative Branch, Military Construction and Veterans Affairs, and Extensions Act, 2026.

21

Appropriations and authorities provided by the continuing resolutions are available for the needs of the entire fiscal year to which the continuing resolution applies, although DHS's ability to obligate funds or exercise such authorities may lapse at the sunset of such resolution.

See, e.g.,

Comments on Due Date and Amount of District of Columbia's Contributions to Special Employee Retirement Funds, B-271304 (Comp. Gen. Mar. 19, 1996) (explaining that “ “a continuing resolution appropriates the full annual amount regardless of its period of duration. . . Standard continuing resolution language makes it clear that the appropriations are available to the extent and in the manner which would be provided by the pertinent appropriations act that has yet to be enacted (unless otherwise provided in the continuing resolution).).” ”). Consistent with this principle, DHS interprets the current continuing resolution to provide DHS with the discretion to authorize additional H-2B visa numbers with respect to all of FY 2026 subject to the same terms and conditions as the FY 2024 authority at any time before the continuing resolution expires, notwithstanding the reference to FY 2024 in the FY 2024 Omnibus.

As noted above, since FY 2017, Congress has enacted a series of public laws providing the Secretary of Homeland Security with the discretionary authority to increase the H-2B cap beyond that set forth in section 214 of the INA. The previous statutory provisions were materially identical to section 105 of the FY 2024 Omnibus, which is the same authority provided for FY 2026 by the recent continuing resolution. During each fiscal year from FY 2017 through FY 2019, and FY 2021 through FY 2025, the Secretary of Homeland Security, after consulting with the Secretary of Labor, determined that the needs of some

American businesses could not be satisfied in such year with U.S. workers who were willing, qualified, and able to perform temporary nonagricultural labor. Based on these determinations, on July 19, 2017, and May 31, 2018, DHS and DOL jointly published temporary final rules for FY 2017 and FY 2018, respectively, each of which allowed an increase of up to 15,000 additional H-2B visas for those businesses that attested that if they did not receive all of the workers requested on the Form I-129, Petition for a Nonimmigrant Worker, they were likely to suffer irreparable harm,

i.e.,

suffer a permanent and severe financial loss.

22

USCIS approved a total of 12,294 H-2B workers under petitions filed pursuant to the FY 2017 supplemental cap increase.

23

In FY 2018, USCIS received petitions for more than 15,000 beneficiaries during the first five business days of filing for the supplemental cap, and held a lottery on June 7, 2018. The total number of H-2B workers approved toward the FY 2018 supplemental cap increase was 15,788.

24

The vast majority of the H-2B petitions received under the FY 2017 and FY 2018 supplemental caps requested premium processing (Form I-907, Request for Premium Processing)

25

and were adjudicated within 15 calendar days.

22

See

Exercise of Time-Limited Authority To Increase the Fiscal Year 2017 Numerical Limitation for the H-2B Temporary Nonagricultural Worker Program, 82 FR 32987, 32998 (July 19, 2017); Exercise of Time-Limited Authority To Increase the Fiscal Year 2018 Numerical Limitation for the H-2B Temporary Nonagricultural Worker Program, 83 FR 24905, 24917 (May 31, 2018).

23

See

Department of Homeland Security, U.S. Citizenship and Immigration Services, Office of Performance and Quality, CLAIMS3, VIBE, DOS Visa Issuance Data queried 10/2022, TRK 10625.

24

See

Department of Homeland Security, U.S. Citizenship and Immigration Services, Office of Performance and Quality, CLAIMS3, VIBE, DOS Visa Issuance Data queried 10/2022, TRK 10625. The number of approved workers exceeded the number of additional visas authorized for FY 2018 to allow for the possibility that some approved workers would either not seek a visa or admission, would not be issued a visa, or would not be admitted to the United States.

25

Premium processing allows for expedited processing for an additional fee.

See

INA 286(u), 8 U.S.C. 1356(u).

On May 8, 2019, DHS and DOL jointly published a temporary final rule authorizing an increase of up to 30,000 additional H-2B visas for the remainder of FY 2019.

26

The additional visas were limited to returning workers who had been counted against the H-2B cap or were otherwise granted H-2B status in the previous three fiscal years, and for those businesses that attested to a level of need such that, if they did not receive all of the workers requested on the Form I-129, they were likely to suffer irreparable harm,

i.e.,

suffer a permanent and severe financial loss.

27

The Secretary determined that limiting returning workers to those who were issued an H-2B visa or granted H-2B status in the past three fiscal years was appropriate, as it mirrored the standard that Congress designated in previous returning worker provisions. On June 5, 2019, approximately 30 days after the supplemental visas became available, USCIS announced that it received sufficient petitions filed pursuant to the FY 2019 supplemental cap increase. USCIS did not conduct a lottery for the FY 2019 supplemental cap increase. The total number of H-2B workers approved towards the FY 2019 supplemental cap increase was 32,680.

28

The vast majority of these petitions requested premium processing and were adjudicated within 15 calendar days.

26

See

Exercise of Time-Limited Authority To Increase the Fiscal Year 2019 Numerical Limitation for the H-2B Temporary Nonagricultural Worker Program, 84 FR 20005, 20021 (May 8, 2019).

27

See

84 FR at 20021.

28

See

Department of Homeland Security, U.S. Citizenship and Immigration Services, Office of Performance and Quality, CLAIMS3, VIBE, DOS Visa Issuance Data queried 10/2022, TRK 10625. The number of approved workers exceeded the number of additional visas authorized for FY 2019 to allow for the possibility that some approved workers would either not seek a visa or admission, would not be issued a visa, or would not be admitted to the United States.

Although Congress provided the Secretary of Homeland Security with the discretionary authority to increase the H-2B cap in FY 2020, the Secretary did not exercise that authority. DHS initially intended to exercise its authority and, on March 4, 2020, announced that it would make available 35,000 supplemental H-2B visas for the second half of the fiscal year.

29

On March 13, 2020, then-President Trump declared a National Emergency concerning COVID-19, a communicable disease caused by the coronavirus SARS-CoV-2.

30

On April 2, 2020, DHS announced that the rule to increase the H-2B cap was on hold due to economic circumstances, and that DHS would not release additional H-2B visas until further notice.

31

DHS also noted that the Department of State had suspended routine visa services.

32

29

See

DHS, DHS to Improve Integrity of Visa Program for Foreign Workers (March 5, 2020),

https://www.dhs.gov/news/2020/03/05/dhs-improve-integrity-visa-program-foreign-workers.

30

See

Proclamation 9994 of Mar. 13, 2020, Declaring a National Emergency Concerning the Coronavirus Disease (COVID-19) Outbreak, 85 FR 15337 (March 18, 2020).

31

See https://twitter.com/DHSgov/status/1245745115458568192?s=20.

32

See https://twitter.com/DHSgov/status/1245745116528156673.

In FY 2021, DHS in consultation with DOL determined it was appropriate to increase the H-2B cap for FY 2021 coupled with additional protections (for example, post-adjudication audits, investigations, and compliance checks), based on the demand for H-2B workers in the second half of FY 2021, continuing economic growth, the improving job market, and increased visa processing capacity by the Department of State. Accordingly, on May 25, 2021, DHS and DOL jointly published a temporary final rule authorizing an increase of up to 22,000 additional H-2B visas for the remainder of FY 2021.

33

The supplemental visas were available only to employers that attested they were likely to suffer irreparable harm without the additional workers. The allocation of 22,000 additional H-2B visas under that rule consisted of 16,000 visas available only to H-2B returning workers from one of the last three fiscal years (FY 2018, 2019, or 2020) and 6,000 visas that were initially reserved for nationals of the Northern Central American countries of El Salvador, Guatemala, and Honduras, who were exempt from the returning worker requirement. By August 13, 2021, USCIS had received enough petitions for returning workers to reach the additional 22,000 H-2B visas made available under the FY 2021 H-2B supplemental visa temporary final rule.

34

The total number of H-2B workers approved towards the FY 2021 supplemental cap increase was 30,707.

35

This total number included approved H-2B petitions for 23,937 returning workers, as well as 6,805 beneficiaries from the Northern Central American countries.

36

33

See

Exercise of Time-Limited Authority To Increase the Fiscal Year 2021 Numerical Limitation for the H-2B Temporary Nonagricultural Worker Program and Portability Flexibility for H-2B Workers Seeking To Change Employers, 86 FR 28198 (May 25, 2021).

34

See

USCIS, Cap Reached for Remaining H-2B Visas for Returning Workers for FY 2021,

https://www.uscis.gov/news/alerts/cap-reached-for-remaining-h-2b-visas-for-returning-workers-for-fy-2021

(August 19, 2021).

35

The number of approved workers exceeded number of additional visas authorized for FY 2021 to allow for the possibility that some approved workers would either not seek a visa or admission, would not be issued a visa, or would not be admitted to the United States.

See

Department of Homeland Security, U.S. Citizenship and Immigration Services, Office of Performance and Quality, CLAIMS3, VIBE, DOS Visa Issuance Data queried 10/2023, TRK 13122, H-2B Visa Issuance Report September 30, 2023.

36

See

Department of Homeland Security, U.S. Citizenship and Immigration Services, Office of Performance and Quality, CLAIMS3, VIBE, DOS Visa Issuance Data queried 10/2023, TRK 13122, H-2B Visa Issuance Report September 30, 2023.

On January 28, 2022, DHS and DOL jointly published a temporary final rule

authorizing an increase of up to 20,000 additional H-2B visas for FY 2022 positions with start dates on or before March 31, 2022.

37

These supplemental visas were available only to employers that attested they were suffering or would suffer impending irreparable harm without the additional workers. The allocation of 20,000 additional H-2B visas under that rule consisted of 13,500 visas available only to H-2B returning workers from one of the last three fiscal years (FY 2019, 2020, or 2021) and 6,500 visas reserved for Salvadoran, Guatemalan, Honduran, and Haitian nationals, who were exempted from the returning worker requirement. USCIS data show that the total number of H-2B workers approved towards the first half FY 2022 supplemental cap increase was 17,381, including 14,150 workers under the returning worker allocation, as well as 3,231 workers approved towards the Haitian/Northern Central American allocation.

38

For the second half of FY 2022, DHS in consultation with DOL determined it was appropriate to increase the H-2B cap for FY 2022 positions with start dates beginning on April 1, 2022 through September 30, 2022, based on the continued demand for H-2B workers for the remainder of FY 2022, continuing economic growth, increased labor demand, and increased visa processing capacity by the Department of State. Accordingly, on May 18, 2022, DHS and DOL jointly published a temporary final rule authorizing an increase of no more than 35,000 additional H-2B visas for the second half of FY 2022.

39

As in the January 2022 temporary final rule, the supplemental visas were available only to employers that attested they were suffering or would suffer impending irreparable harm without the additional workers. The allocation of 35,000 additional H-2B visas under the rule applicable to the second half of FY 2022 consisted of 23,500 visas available only to H-2B returning workers from one of the last three fiscal years (FY 2019, 2020, or 2021) and 11,500 visas reserved for Salvadoran, Guatemalan, Honduran, and Haitian nationals, who were exempted from the returning worker requirement. By May 25, 2022, USCIS had received enough petitions for returning workers to reach the additional 23,500 H-2B visas made available under the second half FY 2022 H-2B supplemental visa temporary final rule.

40

USCIS data show that the total number of H-2B workers approved towards the second half FY 2022 supplemental cap increase was 43,798, including 31,480 workers under the returning worker allocation, as well as 12,318 workers approved towards the Haitian/Northern Central American allocation.

41

37

See

Exercise of Time-Limited Authority To Increase the Fiscal Year 2022 Numerical Limitation for the H-2B Temporary Nonagricultural Worker Program and Portability Flexibility for H-2B Workers Seeking To Change Employers, 87 FR 4722 (Jan. 28, 2022); 87 FR 6017 (Feb. 3, 2022) (correction).

38

See

Department of Homeland Security, U.S. Citizenship and Immigration Services, Office of Performance and Quality, CLAIMS3, VIBE, DOS Visa Issuance Data queried 10/2023, TRK 13122, H-2B Visa Issuance Report September 30, 2023.

39

See

Temporary Final Rule, Exercise of Time-Limited Authority To Increase the Numerical Limitation for Second Half of FY 2022 for the H-2B Temporary Nonagricultural Worker Program and Portability Flexibility for H-2B Workers Seeking To Change Employers, 87 FR 30334 (May 18, 2022).

40

See

USCIS, Cap Reached for Additional Returning Worker H-2B Visas for Second Half of FY 2022,

https://www.uscis.gov/newsroom/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-second-half-of-fy-2022

(May 31, 2022).

41

The number of approved workers exceeded the number of additional visas authorized for the second half of FY 2022 to allow for the possibility that some approved workers would either not seek a visa or admission, would not be issued a visa, or would not be admitted to the United States.

See

Department of Homeland Security, U.S. Citizenship and Immigration Services, Office of Performance and Quality, C3 Consolidated, queried 10/2023, TRK 13122, H-2B Visa Issuance Report September 30, 2023.

On December 15, 2022, DHS and DOL jointly published a temporary final rule authorizing an increase of up to 64,716 additional H-2B visas for the entirety of FY 2023.

42

As in the FY 2022 temporary final rules, the additional visas were available only to employers that attested they were suffering or would suffer impending irreparable harm without the additional workers. The 64,716 additional visas included 44,716 reserved for returning workers from one of the last three fiscal years (FY 2020, 2021, or 2022), which were distributed in several allocations based on date of employer need: 18,216 for employers with requested employment start dates on or before March 31, 2023; 16,500 for employers with requested employment start dates from April 1, 2023, to May 14, 2023 (early second half allocation); and 10,000 for employers with requested employment start dates from May 15, 2023, to Sept. 30, 2023 (late second half allocation). The remaining 20,000 visas were available for the entirety of FY 2023, and were set aside for nationals of El Salvador, Guatemala, Honduras, and Haiti, who were exempt from the returning worker requirement. By January 30, 2023, USCIS received enough petitions to reach the cap for the additional 18,216 H-2B visas made available for returning workers for the first half of fiscal year, and by March 30, 2023, USCIS received enough petitions to reach the cap for the additional 16,500 H-2B visas made available for returning workers for the early second half of fiscal year.

43

USCIS data show that the total number of H-2B workers approved towards the FY 2023 supplemental cap increase was 78,302, including 54,470 workers under the returning worker allocation, as well as 23,832 workers approved towards the Haitian/Northern Central American allocation.

44

42

See

Exercise of Time-Limited Authority To Increase the Numerical Limitation for FY 2023 for the H-2B Temporary Nonagricultural Worker Program and Portability Flexibility for H-2B Workers Seeking To Change Employers, 87 FR 76816 (Dec. 15, 2022); 87 FR 77979 (Dec. 21, 2022) (correction).

43

See

USCIS, Cap Reached for Additional Returning Worker H-2B Visas for the First Half of FY 2023,

https://www.uscis.gov/newsroom/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-the-first-half-of-fy-2023

(Jan. 31, 2023); USCIS, Cap Reached for Additional Returning Worker H-2B Visas for the Early Second Half of FY 2023,

https://www.uscis.gov/newsroom/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-the-early-second-half-of-fy-2023

(Mar. 31, 2023).

44

The number of approved workers exceeded the number of additional visas authorized for FY 2023 to allow for the possibility that some approved workers would either not seek a visa or admission, would not be issued a visa, or would not be admitted to the United States.

See

DHS, USCIS, Office of Performance and Quality, CLAIMS3, VIBE, DOS Visa Issuance Data, queried 10/2023, TRK 13122, H-2B Visa Issuance Report September 30, 2023.

On November 17, 2023, DHS and DOL jointly published a temporary final rule authorizing an increase of up to 64,716 additional H-2B visas for the entirety of FY 2024.

45

As in the FY 2023 temporary final rule, the additional visas were available only to employers that attested they were suffering or would suffer impending irreparable harm without the additional workers. The 64,716 additional visas included 44,716 reserved for returning workers from one of the last three fiscal years (FY 2021, 2022, or 2023), which were distributed in several allocations based on date of employer need: 20,716 for employers with requested employment start dates on or before March 31, 2024; 19,000 for employers with requested employment start dates from April 1, 2024, to May 14, 2024 (early second half allocation); and 5,000 for employers with requested employment start dates from May 15, 2024, to September 30, 2024 (late second half allocation). The remaining 20,000 visas were available for the entirety of FY 2024, and were set aside for nationals of El Salvador, Guatemala, Honduras, Haiti, Colombia, Ecuador,

and Costa Rica, who were exempt from the returning worker requirement. By January 9, 2024, USCIS received enough petitions to reach the cap for the additional 20,716 H-2B visas made available for returning workers for the first half of fiscal year, and by April 17, 2024, USCIS received enough petitions to reach the cap for the additional 19,000 H-2B visas made available for returning workers for the early second half of fiscal year.

46

USCIS data show that the total number of H-2B workers approved towards the FY 2024 supplemental cap increase was 85,577, including 61,102 workers under the returning worker allocation, as well as 24,475 workers approved towards the country-specific allocation.

47

45

Exercise of Time-Limited Authority To Increase the Numerical Limitation for FY 2024 for the H-2B Temporary Nonagricultural Worker Program and Portability Flexibility for H-2B Workers Seeking To Change Employers, 88 FR 80394 (Nov. 17, 2023).

46

See

USCIS, Cap Reached for Additional Returning Worker H-2B Visas for the First Half of FY 2024,

https://www.uscis.gov/newsroom/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-the-first-half-of-fy-2024

(Jan. 12, 2024); USCIS, Cap Reached for Additional Returning Worker H-2B Visas for the Early Second Half of FY 2024,

https://www.uscis.gov/newsroom/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-the-early-second-half-of-fy-2024

(Apr. 18, 2024).

47

The number of approved workers exceeded the number of additional visas authorized for FY 2024 to allow for the possibility that some approved workers would either not seek a visa or admission, would not be issued a visa, or would not be admitted to the United States.

See

DHS, USCIS, Office of Performance and Quality, ELIS, CLAIMS3, VIBE, DOS Visa Issuance Data queried 10/2024, PAER0016221.

On December 2, 2024, DHS and DOL jointly published a temporary final rule authorizing an increase of up to 64,716 additional H-2B visas for the entirety of FY 2025.

48

Similar to the previous temporary final rules, the additional visas were available only to employers that attested they were suffering or would suffer impending irreparable harm without the additional workers. The 64,716 additional visas included 44,716 reserved for returning workers from one of the last three fiscal years (FY 2022, 2023, or 2024), which were distributed in several allocations based on date of employer need: 20,716 for employers with requested employment start dates on or before March 31, 2025; 19,000 for employers with requested employment start dates from April 1, 2025, to May 14, 2025 (early second half allocation); and 5,000 for employers with requested employment start dates from May 15, 2025, to September 30, 2025 (late second half allocation). The remaining 20,000 visas were available for the entirety of FY 2025, and were set aside for nationals of El Salvador, Guatemala, Honduras, Haiti, Colombia, Ecuador, and Costa Rica, who were exempt from the returning worker requirement. By January 7, 2025, USCIS received enough petitions to reach the cap for the additional 20,716 H-2B visas made available for returning workers for the first half of fiscal year, and by April 18, 2025, USCIS received enough petitions to reach the cap for the additional 19,000 H-2B visas made available for returning workers for the early second half of fiscal year.

49

USCIS data show that the total number of H-2B workers approved towards the FY 2025 supplemental cap increase was 87,067, including 60,941 workers under the returning worker allocations, as well as 26,126 workers approved towards the country-specific allocation.

50

48

Exercise of Time-Limited Authority To Increase the Numerical Limitation for FY 2025 for the H-2B Temporary Nonagricultural Worker Program and Portability Flexibility for H-2B Workers Seeking To Change Employers, 89 FR 95626 (Dec. 2, 2024).

49

See

USCIS, Cap Reached for Additional Returning Worker H-2B Visas for the First Half of FY 2025,

https://www.uscis.gov/newsroom/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-the-first-half-of-fy-2025

(Jan. 10, 2025); USCIS, Cap Reached for Additional Returning Worker H-2B Visas for the Early Second Half of FY 2025,

https://www.uscis.gov/newsroom/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-the-early-second-half-of-fy-2025

(Apr. 23, 2025).

50

The number of approved workers exceeded the number of additional visas authorized for FY 2025 to allow for the possibility that some approved workers would either not seek a visa or admission, would not be issued a visa, or would not be admitted to the United States.

See

USCIS OPQ H2B Cap Tracking Dashboard (as of December 30, 2025).

DHS, in consultation with DOL, believes that it is appropriate to increase the H-2B cap for FY 2026 based on the demand for H-2B workers in the first half of FY 2026, demand for the second half of FY 2026, and recent economic and labor market data.

51

51

The BLS Job Openings and Labor Turnover Survey (JOLTS) reports 7.1million job openings in November 2025.

See

DOL, BLS, Job Openings and Labor Turnover—November 2025,

https://www.bls.gov/news.release/archives/jolts_01072026.htm

.

D. Joint Issuance of the Final Rule

As in prior years, DHS and DOL (the Departments) have determined that it is appropriate to jointly issue this temporary rule.

52

The determination to issue the temporary final rule jointly follows conflicting court decisions concerning DOL's authority to independently issue legislative rules to carry out its consultative and delegated functions pertaining to the H-2B program under the INA.

53

Although DHS and DOL each have authority to independently issue rules implementing their respective duties under the H-2B program,

54

the Departments are implementing the numerical increase in this manner to ensure there can be no question about the authority underlying the administration and enforcement of the temporary cap increase. This approach is consistent with rules implementing DOL's general consultative role under section 214(c)(1) of the INA, 8 U.S.C. 1184(c)(1), and delegated functions under sections 103(a)(6) and 214(c)(14)(B) of the INA, 8 U.S.C. 1103(a)(6), 1184(c)(14)(B).

See

8 CFR 214.2(h)(6)(iii)(A) & (C), (iv)(A).

II. Discussion

A. Statutory Determination

52

See

Exercise of Time-Limited Authority To Increase the Fiscal Year 2017 Numerical Limitation for the H-2B Temporary Nonagricultural Worker Program, 82 FR 32987 (Jul. 19, 2017); Exercise of Time-Limited Authority To Increase the Fiscal Year 2018 Numerical Limitation for the H-2B Temporary Nonagricultural Worker Program, 83 FR 24905 (May 31, 2018); Exercise of Time-Limited Authority To Increase the Fiscal Year 2019 Numerical Limitation for the H-2B Temporary Nonagricultural Worker Program, 84 FR 20005 (May 8, 2019); Exercise of Time-Limited Authority To Increase the Fiscal Year 2021 Numerical Limitation for the H-2B Temporary Nonagricultural Worker Program and Portability Flexibility for H-2B Workers Seeking To Change Employers, 86 FR 28198 (May 25, 2021); Exercise of Time-Limited Authority To Increase the Fiscal Year 2022 Numerical Limitation for the H-2B Temporary Nonagricultural Worker Program and Portability Flexibility for H-2B Workers Seeking To Change Employers, 87 FR 4722 (Jan. 28, 2022); Exercise of Time-Limited Authority To Increase the Numerical Limitation for Second Half of FY 2022 for the H-2B Temporary Nonagricultural Worker Program and Portability Flexibility for H-2B Workers Seeking To Change Employers, 87 FR 30334 (May 18, 2022); Exercise of Time-Limited Authority To Increase the Numerical Limitation for FY 2023 for the H-2B Temporary Nonagricultural Worker Program and Portability Flexibility for H-2B Workers Seeking To Change Employers, 87 FR 76816 (Dec. 15, 2022); Exercise of Time-Limited Authority To Increase the Numerical Limitation for FY 2024 for the H-2B Temporary Nonagricultural Worker Program and Portability Flexibility for H-2B Workers Seeking To Change Employers, 88 FR 80394 (Nov. 17, 2023); and Exercise of Time-Limited Authority To Increase the Numerical Limitation for FY 2025 for the H-2B Temporary Nonagricultural Worker Program and Portability Flexibility for H-2B Workers Seeking To Change Employers, 89 FR 95626 (Dec. 2, 2024).

53

See Outdoor Amusement Bus. Ass'n

v.

Dep't of Homeland Sec.,

334 F. Supp. 3d 697 (D. Md. 2018),

appeal docketed,

No. 18-2370 (4th Cir. Nov. 15, 2018)

; see also

Temporary Non-Agricultural Employment of H-2B Aliens in the United States, 80 FR 24042, 24045 (Apr. 29, 2015).

54

See Outdoor Amusement Bus. Ass'n,

983 F.3d at 684-89.

Following consultation with the Secretary of Labor, the Secretary of Homeland Security has determined that the needs of some U.S. employers cannot be satisfied for the remainder of FY 2026 with U.S. workers who are willing, qualified, and able to perform temporary nonagricultural labor. In accordance with the FY 2026 continuing resolution extending the authority provided in section 105 of the FY 2024 Omnibus, the Secretary of Homeland Security has determined that it is appropriate, for the reasons stated below, to raise the numerical limitation on H-2B nonimmigrant visas by up to 64,716 additional visas, the maximum

authorized, for those American businesses that attest that they are suffering irreparable harm or will suffer impending irreparable harm, in other words, a permanent and severe financial loss, without the ability to employ all of the H-2B workers requested on their petition. These businesses must retain documentation, as described below, supporting this attestation.

As in connection with H-2B supplemental visa temporary final rules in previous years, and consistent with existing authority, DHS and/or DOL may conduct audits with respect to petitions filed under this temporary final rule requesting supplemental H-2B visas during the period of temporary need. Contingent on the availability of resources, the Departments will use their discretion to select which petitions to audit, and the Departments will use the audits to verify compliance with H-2B program requirements. If the Departments find that an employer's documentation does not meet the irreparable harm standard, or that the employer fails to provide evidence demonstrating irreparable harm or comply with the audit process, the Departments may consider it to be a willful violation resulting in an adverse agency action against the employer, including revocation of the TLC or program debarment.

DHS will not accept, and will reject, H-2B supplemental cap petitions submitted with a start date of need between January 1 and March 31, 2026, that are received after the applicable numerical limitation has been reached or, if the numerical limitation for this allocation has not been met, 15 days or later after the FY 2026 second half statutory cap has been met. If DHS determines by this latter date that it has received fewer petitions than needed to reach the cap for the first supplemental allocation, DHS will make the unused visas from this first allocation available under the second supplemental allocation for aliens who are returning workers with employment start dates between April 1 and 30, 2026. A similar filing deadline also applies for the second supplemental allocation where any unused visas from the second supplemental allocation (involving employment start dates between April 1 and 30, 2026) will be carried over to the third supplemental allocation for aliens with employment start dates between May 1 and September 30, 2026. DHS believes the established filing windows after which it will make any remaining visas available to the next immediate allocation will provide sufficient opportunity for their use by employers who need these H-2B workers while also providing a greater likelihood that supplemental H-2B visas do not go unused.

DHS will not accept, and will reject, H-2B supplemental cap petitions submitted with a date of need between April 1 and 30, 2026 (second allocation), that are received earlier than 15 days after the FY 2026 second half statutory cap is met. DHS will also not accept, and will reject, such petitions that are received after the applicable numerical limitation has been reached or, if the numerical limitation for this allocation has not been met, 45 days or later after the FY 2026 second half statutory cap is met. For H-2B supplemental cap petitions with a date of need between May 1 and September 30, 2026 (third allocation), DHS will not accept, and will reject such petitions that are received earlier than 45 days after the FY 2026 second half statutory cap is met or that are received after the applicable numerical limitation has been reached or after September 15, 2026. Requiring petitioners to wait to submit H-2B supplemental cap petitions for these allocations is consistent with the supplemental cap authority in section 105 of the FY 2024 Omnibus, as extended to FY 2026 by Public Law 119-37 (November 12, 2025), and will facilitate the orderly intake and processing of supplemental cap petitions for American businesses to meet their temporary and seasonal labor needs.

Similar to previous temporary final rules, the Secretary of Homeland Security, in consultation with the Secretary of Labor, has determined to limit 46,226 supplemental visas to H-2B returning workers.

55

Because American businesses who need workers to fill temporary or seasonal labor during the summer months of May 1 through September 30 have historically been shut out of receiving H-2B workers under the statutory cap, the Secretary, in consultation with the Secretary of Labor, has also determined that the remaining 18,490 supplemental visas reserved for petitions requesting employment start dates between May 1 and September 30, 2026, plus any rollover unused visas from the first and second allocations, will be exempt from the returning worker requirement.

55

For purposes of this rule, these returning workers could have been H-2B cap exempt or extended H-2B status in FY 2023, 2024, or 2025. Additionally, they may have been previously counted against the annual H-2B cap of 66,000 visas during FY 2023, 2024, or 2025, or the supplemental caps in FY 2023, 2024, or 2025.

The Secretary of Homeland Security's determination to increase the numerical limitation is based, in part, on the conclusion that some American businesses, including those with late-season needs, particularly those who support the critical infrastructure sectors of the U.S. economy,

56

may not be able to meet their business needs without the ability to employ all of the H-2B workers requested on their H-2B petition. The determination supports President Trump's domestic policy goal to make the United States “the investment capital of the world and ensuring that expansion remains the hallmark of American manufacturing for decades to come”

57

while ensuring available U.S. workers continue to have the opportunity to seek employment in positions that support our nation's critical infrastructure. As stated in prior temporary final rules, in the past, members of Congress have informed the Secretaries of Homeland Security and Labor about the needs of some American businesses for H-2B workers (after the statutory cap for the relevant half of the fiscal year has been reached) and about the potentially negative impact on state and local economies if the cap is not increased.

58

American businesses, chambers of commerce, employer organizations, and state and local elected officials have also previously expressed concerns to the Secretaries of Homeland Security and Labor regarding the unavailability of H-2B visas after the statutory cap was reached, and have urged the Departments to publish one rule covering the release of supplemental visas for the entire fiscal year in order to save time, conserve limited agency

resources, and reduce uncertainty for employers.

59

56

These businesses include, but are not limited to, American businesses that support our manufacturing, food supply (

e.g.,

seafood), hospitality and tourism, forestry, and transportation, particularly as the United States readies itself for celebrating America's 250th anniversary and hosts the World Cup 2026 this summer. President Trump has issued several executive orders and proclamations aimed at building and protecting these industries.

See, e.g.,

Proclamation 10977, “National Manufacturing Day, 2026,” 90 FR 48159 (Oct. 3, 2025). “. . . manufacturing has always been the foundation of our prosperity, the strength of our communities, the safeguard of our independence, and the engine of our greatness.”

See also

Executive Order 14225, “Immediate Expansion of American Timber Production,” 90 FR 11365 (Mar. 1, 2025). “. . . The production of timber, lumber, paper, bioenergy, and other wood products (timber production) is critical to our Nation's well-being. Timber production is essential for crucial human activities like construction and energy production. . .”

57

Proclamation 10977, “National Manufacturing Day, 2025,” 90 FR 48159 (Oct. 3, 2025).

58

See, e.g.,

Exercise of Time-Limited Authority To Increase the Numerical Limitation for FY 2023 for the H-2B Temporary Nonagricultural Worker Program and Portability Flexibility for H-2B Workers Seeking To Change Employers, 87 FR 76816 (Dec. 15, 2022). These documents were retained in the administrative record for those rules.

59

These letters were retained in the administrative record for those rules.

Based on the most recent labor market and DOL H-2B worker demand data, the Secretary of Homeland Security, following consultation with the Secretary of Labor, has determined that it is appropriate to provide a one-time increase of H-2B supplemental visas for the remainder of FY 2026 and to publish one rule covering the entire fiscal year for 2026. Given President Trump's focus on strengthening the U.S. industrial base by securing historic investments, the Departments deemed this action as appropriate to support American businesses with seasonal or temporary workforce needs, such as those in critical infrastructure sectors of the U.S. economy, that are suffering or will suffer impending irreparable harm if they are unable to obtain H-2B workers under the statutory cap.

60

60

The Cybersecurity & Infrastructure Security Agency (CISA) has identified 16 critical infrastructure sectors.

See https://www.cisa.gov/topics/critical-infrastructure-security-and-resilience/critical-infrastructure-sectors.

The first 2-digits of the North American Industry Classification System (NAICS) code identifies the industry associated for a specific employer. For example, 23 is for Construction and 72 is for Accommodation and Food Services.

See

U.S. Census Bureau, North American Industry Classification System,

https://www.census.gov/naics/.

DOL data identifies six industry sectors—administrative/landscaping services, accommodation and food services, entertainment and recreation, construction, agriculture and forestry, and manufacturing—requested almost 95 percent of H-2B TLC applications in FY 2025.

61

The most recent DOL's Bureau of Labor Statistics (BLS) data shows weaker unemployment rates across the top industries relative to prior years,

62

and DOL OFLC's data shows a strong demand for H-2B workers to supplement their business needs for positions with employment start dates under the FY 2026 statutory cap.

63

The decision to release additional H-2B visas for FY 2026 under the time-limited authority represents an important step to help American businesses in industry sectors experiencing labor shortages due to seasonal workforce needs while supporting President Trump's domestic policy agenda to strengthen the U.S. economy and its industrial base.

61

Based on an analysis of OFLC H-2B Performance data for FY 2025 available at

https://www.dol.gov/agencies/eta/foreign-labor/performance

for all TLCs listed as having a case status of “Determination—Certification” or “Determination—Partial Certification” and using the first 2-digit economic sector designation of the North American Industrial Classification System (NAICS) self-reported by the employer on the DOL Form ETA-9142B that best represents its primary business activity. Out of more than 232,400 H-2B worker positions certified during FY 2025, 95.1 percent of H-2B filings were certified for positions within just the following 6 industry sectors: NAICS 56 (Administrative and Support and Waste Management and Remediation Services, which includes landscaping services) accounted for 42.6 percent of labor demand; NAICS 71 (Arts, Entertainment, and Recreation) accounted for 15.3 percent of labor demand; NAICS 72 (Accommodation and Food Services) accounted for 13.8 percent of labor demand; NAICS 23, (Construction) accounted for 9.2 percent of labor demand; NAICS 11 (Agriculture, Forestry, Fishing, and Hunting) accounted for 8.1 percent of labor demand; and NAICS 31-33 (Manufacturing) accounted for 6.0 percent of labor demand.

62

BLS data indicates current labor market conditions are comparable to the labor market conditions in FY 2020 when 35,000 supplemental visas were initially announced (but not released due to the National Emergency concerning COVID-19). BLS, The Employment Situation, December 2025.

https://www.bls.gov/news.release/archives/empsit_01092026.htm.

63

DOL OFLC received 2,421 H-2B applications covering 47,488 worker positions with a work start date of October 1, 2025, and 10,062 H-2B applications covering 162,603 worker positions with a work start date of April 1, 2026.

See

DOL Announcement, “July 9, 2025. OFLC Publishes List of Randomized H-2B Applications Submitted July 3-5, 2025, for Employers Seeking H-2B Workers Starting October 1, 2025” and “January 5, 2026. OFLC Publishes List of Randomized H-2B Applications Submitted January 1-3 for Employers Seeking H-2B Workers Starting April 1, 2026,” respectively.

The decision to afford the benefits of this temporary cap increase to American businesses that need workers because they are suffering irreparable harm or will suffer impending irreparable harm, rather than applying the cap increase to any and all businesses seeking temporary workers, is consistent with DHS's time-limited authority to increase the cap, as explained below. The Secretary of Homeland Security, in implementing section 105 of the FY 2024 Omnibus, as extended by Public Law 119-37, and determining the scope of any such increase, has broad discretion, following consultation with the Secretary of Labor, to identify the business needs that are most relevant, while bearing in mind the need to protect U.S. workers.

64

Within that context, for the below reasons, the Secretary of Homeland Security has determined to allow an increase of up to 64,716 additional visas solely for American businesses facing permanent, severe financial loss or those who will face such loss in the near future.

65

64

Congress has delegated to DHS the broad authority to administer and enforce the immigration laws in title 8 of the U.S.C. as well as other immigration and naturalization laws.

See, e.g.,

INA sec. 103(a)(1), 214(a)(1), (c)(1); 8 U.S.C. 1103(a)(1), 1184(a)(1), (c)(1);

see Loper Bright Enterprises

v.

Raimondo,

144 S. Ct. 2244, 2263 (2024) (“In a case involving an agency, of course, the statute's meaning may well be that the agency is authorized to exercise a degree of discretion. Congress has often enacted such statutes. For example, some statutes `expressly delegate' to an agency the authority to give meaning to a particular statutory term. Others empower an agency to prescribe rules to fill up the details of a statutory scheme, or to regulate subject to the limits imposed by a term or phrase that leaves agencies with flexibility, such as `appropriate' or `reasonable.' ”) (cleaned up and internal citations omitted).

65

The statute explicitly provides that the Secretary of Homeland Security, after consulting with the Secretary of Labor, and upon the determination that the needs of United States businesses cannot be satisfied during FY 2026 with U.S. workers to perform temporary nonagricultural labor, may determine the appropriate number of H-2B supplemental visas to be issued in FY 2026, limited to the highest number of H-2B nonimmigrants who participated in the H-2B returning worker program. Consistent with the discretion afforded thereunder by Congress, and commensurate with authorities including those afforded under sections 103 and 214 of the INA, 8 U.S.C. 1103 and 1184, DHS, in consultation with DOL, is making available up to an additional 64,716 H-2B visas for FY 2026 to employers who are suffering irreparable harm or will suffer impending irreparable harm.

See Loper Bright Enterprises

v.

Raimondo,

144 S. Ct. at 2263 (2024).

As explained in earlier temporary final rules, DHS has long interpreted the reference to “the needs of American businesses” reiterated in section 105 of the FY 2024 Omnibus, as extended by Public Law 119-37, as describing a need different from the need ordinarily required of employers in petitioning for an H-2B worker. Under the generally applicable H-2B program, each individual H-2B employer must demonstrate that it has a temporary need for the services or labor for which it seeks to hire H-2B workers.

See

8 CFR 214.2(h)(6)(ii); 20 CFR 655.6. The use of the phrase “needs of American businesses,” which is not found in INA section 101(a)(15)(H)(ii)(b), 8 U.S.C. 1101(a)(15)(H)(ii)(b), or the regulations governing the standard H-2B cap, authorizes the Secretary of Homeland Security in allocating additional H-2B visas under section 105 of the FY 2024 Omnibus, as extended by Public Law 119-37, to require that employers establish a need above and beyond the normal standard under the H-2B program, that is, an inability to find sufficient qualified U.S. workers willing and available to perform temporary services or labor and that the employment of the H-2B worker will not adversely affect the wages and working conditions of U.S. workers,

see

8 CFR 214.2(h)(6)(i)(A). DOL concurs with this interpretation. Accordingly, the Secretaries have determined that it is appropriate, within the limits discussed below, to tailor the availability of this temporary cap increase to those American businesses that are suffering irreparable harm or will suffer impending irreparable harm, in other words, those facing permanent and severe financial loss.

In sum, this rule increases the numerical limitation by up to 64,716 additional H-2B visas for FY 2026, but also restricts the availability of those additional visas by prioritizing only the most significant business needs, and limiting eligibility to H-2B returning workers, unless the worker will start work on or after May 1 through September 30, 2026. This rule also distributes the supplemental visas in three allocations to assist American businesses that need workers to begin work on different start dates. These provisions are each described in turn below.

B. Numerical Increase and Allocations for Fiscal Year 2026

The increase of up to 64,716 visas will help address the urgent needs of eligible U.S. employers for additional H-2B workers with employment needs in FY 2026.

66

The determination to make available up to 64,716 additional H-2B visas reflects a balancing of a number of factors including: the demand for H-2B visas during the first half of FY 2026 and expected demand for the second half of FY 2026; current labor market conditions; the general trend of increased demand for H-2B visas from FY 2018 to FY 2025; H-2B returning worker data; the amount of time for employers to hire and obtain H-2B workers in this fiscal year; and President Trump's focus on strengthening the U.S. industrial base and securing America's dominance. DHS believes the numerical increase addresses the needs of American businesses.

66

In contrast with section 214(g)(1) of the INA, 8 U.S.C. 1184(g)(1), which establishes a cap on the number of individuals who may be issued visas or otherwise provided H-2B status (emphasis added), and section 214(g)(10) of the INA, 8 U.S.C. 1184(g)(10), which imposes a first half of the fiscal year cap on H-2B issuance with respect to the number of aliens who may be issued visas or are accorded H-2B status (emphasis added), section 105 of the FY 2024 Omnibus, as extended by Public Law 119-37, only authorizes DHS to increase the number of available H-2B visas. Accordingly, DHS will not permit aliens authorized for H-2B status pursuant to an H-2B petition approved under section 105 of the FY 2024 Omnibus, as extended by Public Law 119-37, to change to H-2B status from another nonimmigrant status.

See

INA section 248, 8 U.S.C. 1258;

see also

8 CFR part 248. If a petitioner files a petition seeking H-2B workers in accordance with this rule and requests a change of status on behalf of someone in the United States, the change of status request will be denied, but the petition will be adjudicated in accordance with applicable DHS regulations. Any alien authorized for H-2B status under the approved petition would need to obtain the necessary H-2B visa at a consular post abroad and then seek admission to the United States in H-2B status at a port of entry.

Section 105 of the FY 2024 Omnibus, as extended by Public Law 119-37, sets the highest number of H-2B returning workers who were exempt from the cap in certain previous years as the maximum limit for any increase in the H-2B numerical limitation for FY 2026.

67

Consistent with the statute's reference to H-2B returning workers, in determining the appropriate number by which to increase the H-2B numerical limitation, the Secretary of Homeland Security focused on the number of visas allocated to such workers in years in which Congress enacted returning worker exemptions from the H-2B numerical limitation. During each of the years the returning worker provision was in force, U.S. employers' standard business needs for H-2B workers exceeded the statutory 66,000 cap. The highest number of H-2B returning workers approved was 64,716 in FY 2007. In setting the number of additional H-2B visas to be made available for FY 2026, DHS considered this number, overall indications of increased need, weakening unemployment numbers, and the availability of U.S. workers, as discussed below. On the basis of these considerations, DHS determined that it is appropriate to make available 64,716 additional visas, the maximum authorized, under the FY 2026 authority.

67

During fiscal years 2005 to 2007, and 2016, Congress enacted “returning worker” exemptions to the H-2B visa cap, allowing workers who were counted against the H-2B cap in one of the three preceding fiscal years not to be counted against the upcoming fiscal year cap. Save Our Small and Seasonal Businesses Act of 2005, Public Law 109-13, Sec. 402 (May 11, 2005); John Warner National Defense Authorization Act, Public Law 109-364, Sec. 1074 (Oct. 17, 2006); Consolidated Appropriations Act of 2016, Public Law 114-113, Sec. 565 (Dec. 18, 2015).

In past years, the number of beneficiaries covered by H-2B petitions submitted exceeded the number of additional visas allocated under recent supplemental caps. For example, in FY 2018, USCIS received petitions for approximately 29,000 beneficiaries during the first five business days of filing for the 15,000 supplemental cap. USCIS therefore conducted a lottery on June 7, 2018, to randomly select petitions that it would accept under the supplemental cap. Of the selected petitions, USCIS issued approvals for 15,672 beneficiaries.

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In FY 2019, USCIS received sufficient petitions for the 30,000 supplemental cap on June 5, 2019, but did not conduct a lottery to randomly select petitions that it would accept under the supplemental cap. Of the petitions received, USCIS issued approvals for 32,717 beneficiaries. In FY 2021, USCIS received a sufficient number of petitions for the 22,000 supplemental cap on August 13, 2021, including a significant number for workers from Northern Central American countries.

69

Of the petitions received, USCIS issued approvals for 30,707 beneficiaries, including approvals for 6,805 beneficiaries under the allocation for the nationals of the Northern Central American countries.

70

68

USCIS recognizes it has approved petitions for more than the number of supplemental H-2B workers authorized under the relevant fiscal year supplemental cap. This is because DHS estimates that not all of the workers requested in the approved petitions will eventually obtain a visa. For instance, although DHS approved petitions for 15,672 beneficiaries under the FY 2018 cap increase, the Department of State data shows that as of January 15, 2019, it issued only 12,243 visas under that cap increase. Similarly, DHS approved petitions for 12,294 beneficiaries under the FY 2017 cap increase, but the Department of State data shows that it issued only 9,160 visas.

69

On June 3, 2021, USCIS announced that it had received enough petitions to reach the cap for the additional 16,000 H-2B visas made available for returning workers only, but that it would continue accepting petitions for the additional 6,000 visas allotted for nationals of the Northern Central American countries.

See

USCIS, Cap Reached for Additional Returning Worker H-2B Visas for FY 2021,

https://www.uscis.gov/news/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-fy-2021

(Jun. 3, 2021). On July 23, 2021, USCIS announced that, because it did not receive enough petitions to reach the allocation for the Northern Central American countries by the July 8 filing deadline, the remaining visas were available to H-2B returning workers regardless of their country of origin.

See

USCIS, Employers May File H-2B Petitions for Returning Workers for FY 2021,

https://www.uscis.gov/news/alerts/employers-may-file-h-2b-petitions-for-returning-workers-for-fy-2021

(Jul. 23, 2021).

70

See

Department of Homeland Security, U.S. Citizenship and Immigration Services, Office of Performance and Quality, CLAIMS3, VIBE, DOS Visa Issuance Data queried 10/2023, TRK 13122. The number of approved workers exceeded the number of additional visas authorized for FY 2018, FY 2019, as well as for FY 2021 to allow for the possibility that some approved workers would either not seek a visa or admission, would not be issued a visa, or would not be admitted to the United States. Unlike these past supplemental cap temporary final rules, petitions filed under the first half FY 2022 temporary final rule did not exceed the additional allocation of 20,000 H-2B visas provided by that rule.

In FY 2022, DHS made the supplemental cap available twice, once in January 2022 and again in May 2022. Under the earlier FY 2022 supplemental cap for petitions with start dates in the first half of FY 2022, USCIS had issued approvals for 17,381 beneficiaries, including approvals for 3,231 beneficiaries under the allocation for nationals of the Northern Central American countries and Haiti.

71

For the second half of FY 2022, within the first five business days of filing, USCIS received petitions for more beneficiaries than the additional 23,500 supplemental visas made available for returning

workers, thus necessitating a random selection of petitions to meet the returning worker allotment.

72

Of the FY 2022, USCIS issued approvals for 43,798 beneficiaries, including approvals for 12,318 beneficiaries under the allocation for nationals of the Northern Central American countries and Haiti.

73

71

See

Department of Homeland Security, U.S. Citizenship and Immigration Services, Office of Performance and Quality, CLAIMS3, VIBE, DOS Visa Issuance Data queried 10/2023, TRK 13122.

72

See

USCIS, Cap Reached for Additional Returning Worker H-2B Visas for Second Half of FY 2022,

https://www.uscis.gov/newsroom/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-second-half-of-fy-2022

(May 31, 2022).

73

See

Department of Homeland Security, U.S. Citizenship and Immigration Services, Office of Performance and Quality, C3 Consolidated, queried 10/2023, TRK 13122, FY 2023 H-2B Northern Central American Cap Approvals by Validity Start Date Month. The number of approved workers exceeded the number of additional visas authorized for the second half of FY 2022 to allow for the possibility that some approved workers would either not seek a visa or admission, would not be issued a visa, or would not be admitted to the United States.

In FY 2023, USCIS received enough petitions to reach the cap for the additional 18,216 H-2B visas made available for returning workers for the first half of fiscal year by January 30, 2023, and USCIS received enough petitions to reach the cap for the additional 16,500 H-2B visas made available for returning workers for the early second half of fiscal year by March 30, 2023.

74

Of the petitions for supplemental H-2B visas in FY 2023, USCIS issued approvals for 78,302 beneficiaries, including 7,157 beneficiaries under the allocation of 10,000 visas made available for returning workers for the late second half of the fiscal year and 23,832 beneficiaries under the allocation of 20,000 visas reserved for nationals of the Northern Central American countries and Haiti.

75

74

See

USCIS, Cap Reached for Additional Returning Worker H-2B Visas for the First Half of FY 2023,

https://www.uscis.gov/newsroom/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-the-first-half-of-fy-2023

(Jan. 31, 2023); USCIS, Cap Reached for Additional Returning Worker H-2B Visas for the Early Second Half of FY 2023,

https://www.uscis.gov/newsroom/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-the-early-second-half-of-fy-2023

(Mar. 31, 2023).

75

See

DHS, USCIS, Office of Performance and Quality, CLAIMS3, VIBE, DOS Visa Issuance Data, queried 10/2023, TRK 13122, H-2B Visa Issuance Report September 30, 2023. The number of approved workers exceeded the number of additional visas authorized for FY 2023 to allow for the possibility that some approved workers would either not seek a visa or admission, would not be issued a visa, or would not be admitted to the United States.

In FY 2024, USCIS received a sufficient number of H-2B petitions to reach the first half of the FY 2024 fiscal year statutory cap on October 11, 2023.

76

USCIS received enough petitions to reach the cap for the additional 20,716 H-2B visas made available for returning workers for the first half of fiscal year by January 9, 2024, and USCIS received enough petitions to reach the cap for the additional 19,000 H-2B visas made available for returning workers for the early second half of fiscal year by April 17, 2024.

77

Of the petitions for supplemental H-2B visas in FY 2024, USCIS issued approvals for 85,577 beneficiaries, including 6,314 beneficiaries under the allocation of 5,000 visas made available for returning workers for the late second half of the fiscal year and 24,475 beneficiaries under the allocation of 20,000 visas reserved for nationals of Guatemala, El Salvador, Honduras, Haiti, Colombia, Ecuador, or Costa Rica.

78

76

See

USCIS, USCIS Reaches H-2B Cap for First Half of FY 2024,

https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2024

(Oct. 13, 2023).

77

See

USCIS, Cap Reached for Additional Returning Worker H-2B Visas for the First Half of FY 2024,

https://www.uscis.gov/newsroom/alerts/

cap-reached-for-additional-returning-worker-h-2b-visas-for-the-first-half-of-fy-2024

(Jan. 12, 2024); USCIS, Cap Reached for Additional Returning Worker H-2B Visas for the Early Second Half of FY 2024,

https://www.uscis.gov/newsroom/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-the-early-second-half-of-fy-2024

(Apr. 18, 2024).

78

See

Department of Homeland Security, U.S. Citizenship and Immigration Services, Office of Performance and Quality, ELIS, CLAIMS3, VIBE, DOS Visa Issuance Data queried 10/2024, PAER0016221. The number of approved workers exceeded the number of additional visas authorized for FY 2024 to allow for the possibility that some approved workers would either not seek a visa or admission, would not be issued a visa, or would not be admitted to the United States.

In FY 2025, USCIS received a sufficient number of H-2B petitions to reach the first half of the FY 2025 fiscal year statutory cap on September 18, 2024.

79

USCIS received enough petitions to reach the cap for the additional 20,716 H-2B visas made available for returning workers for the first half of fiscal year by January 7, 2025, and USCIS received enough petitions to reach the cap for the additional 19,000 H-2B visas made available for returning workers for the early second half of fiscal year by April 18, 2025.

80

Of the petitions for supplemental H-2B visas in FY 2025, USCIS issued approvals for 87,067 beneficiaries, including 5,347 beneficiaries under the allocation of 5,000 visas made available for returning workers for the late second half of the fiscal year and 26,126 beneficiaries under the allocation of 20,000 visas reserved for nationals of Guatemala, El Salvador, Honduras, Haiti, Colombia, Ecuador, or Costa Rica.

81

79

See

USCIS, USCIS Reaches H-2B Cap for First Half of Fiscal Year 2025,

https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fiscal-year-2025

(Sept. 19, 2024).

80

See

USCIS, Cap Reached for Additional Returning Worker H-2B Visas for the First Half of FY 2025,

https://www.uscis.gov/newsroom/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-the-first-half-of-fy-2025

(Jan. 10, 2026); USCIS, Cap Reached for Additional Returning Worker H-2B Visas for the Early Second Half of FY 2025,

https://www.uscis.gov/newsroom/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-the-early-second-half-of-fy-2025

(Apr. 23, 2025).

81

USCIS OPQ H2B Cap Tracking Dashboard (as of Dec. 30, 2025).

Data for the first half of FY 2026 indicates an immediate need for additional supplemental H-2B visas for U.S. employers with start dates between January 1 and March 31, 2026 (the last date of the first half of FY 2026 statutory cap). USCIS received a sufficient number of H-2B petitions to reach the first half of the FY 2026 statutory cap on September 12, 2025.

82

On July 9, 2025, DOL OFLC announced that it received 2,421 H-2B TLC applications covering 47,488 workers with an employment start date of October 1, 2025.

83

Further, the date on which USCIS received sufficient H-2B petitions to reach the first half semiannual statutory cap has generally trended earlier in recent years. In fiscal years 2017 through 2026, USCIS received a sufficient number of H-2B petitions to reach or exceed the relevant first half statutory cap on January 10, 2017, December 15, 2017, December 6, 2018, November 15, 2019, November 16, 2020, September 30, 2021, September 12, 2022, October 11, 2023, September 18, 2024, and September 12, 2025, respectively.

84

82

See

USCIS, USCIS Reaches H-2B Cap for First Half of Fiscal Year 2026,

https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fiscal-year-2026

(Sept. 16, 2025).

83

See

DOL, Announcements,

https://www.dol.gov/agencies/eta/foreign-labor/news.

84

See

USCIS, USCIS Reaches H-2B Cap for First Half of FY 2017,

https://www.uscis.gov/archive/

uscis-reaches-the-h-2b-cap-for-the-first-half-of-fiscal-year-2017

(Jan. 13, 2017); USCIS, USCIS Reaches H-2B Cap for First Half of FY 2018,

https://www.uscis.gov/archive/uscis-reaches-h-2b-cap-for-first-half-of-fy-2018

(Dec. 21, 2017); USCIS, USCIS Reaches H-2B Cap for First Half of FY 2019,

https://www.uscis.gov/news/news-releases/uscis-reaches-h-2b-cap-for-first-half-of-fy-2019

(Dec. 12, 2018); USCIS, USCIS Reaches H-2B Cap for First Half of FY 2020,

https://www.uscis.gov/news/news-releases/uscis-reaches-h-2b-cap-for-first-half-of-fy-2020

(Nov. 20, 2019); USCIS, USCIS Reaches H-2B Cap for First Half of FY 2021,

https://www.uscis.gov/news/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2021

(Nov. 18, 2020); USCIS, USCIS Reaches H-2B Cap for First Half of FY 2022,

https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2022

(Oct. 12, 2021); USCIS, USCIS Reaches H-2B Cap for First Half of FY 2023,

https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2023

(Sept. 14, 2022); USCIS, USCIS Reaches H-2B Cap for First Half of FY 2024,

https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2024;

USCIS, USCIS Reaches H-2B Cap for First Half of Fiscal Year 2025,

https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fiscal-year-2025

(Sept. 19, 2024); and USCIS, USCIS Reaches H-2B Cap for First Half of Fiscal Year 2026,

https://

www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fiscal-year-2026

(Sept. 16, 2025).

Most American businesses in these top industry sectors support one of the 16 critical infrastructure sectors that have a significant impact on national economic security. Given these trends in program usage and the documented need for H-2B workers among American businesses that continue to support economic recovery and growth across the U.S. industrial base, DHS believes it is appropriate to release the additional visas for FY 2026.

85

For example, American businesses classified under NAICS 31-33 (Manufacturing) may be considered to fall under the Critical Manufacturing Sector,

86

while NAICS 71 (Arts, Entertainment, and Recreation) and 72 (Accommodation and Food Services) may fall under one of the eight subsectors that comprise the Commercial Facilities Sector.

87

85

See

CISA, Critical Infrastructure Sectors,

https://www.cisa.gov/topics/critical-infrastructure-security-and-resilience/critical-infrastructure-sectors.

86

See

CISA, Critical Manufacturing Sector,

https://www.cisa.gov/topics/critical-infrastructure-security-and-resilience/critical-infrastructure-sectors/critical-manufacturing-sector.

87

See

CISA, Commercial Facilities Sector,

https://www.cisa.gov/topics/critical-infrastructure-security-and-resilience/critical-infrastructure-sectors/commercial-facilities-sector.

The 2025

88

numbers are higher than the historical trend but are generally consistent with what the current unemployment rate alone would predict. The data presented in Chart 1 is meant to provide additional context and to demonstrate that the total allocation of H-2B visas is reasonable given labor market conditions.

88

The number of estimated visas issued for FY 2025 is based on the sum of the fiscal year statutory cap for H-2B workers (66,000) and the supplemental allocation for FY 2025 (64,716), for a total H-2B visa allocation of 130,716.

ER03FE26.000

Returning Worker Allocation and Filing Deadline for Employment Start Dates Between January 1 and March 31, 2026 (First Allocation)

For the first half of FY 2026, DHS will make 18,490 visas immediately available upon publication of this temporary final rule that are limited to returning workers, in other words, those workers who were issued H-2B visas or held H-2B status in fiscal years 2023, 2024, or 2025. These petitions must request a date of need starting between January 1 and March 31, 2026.

See

new 8 CFR 214.2(h)(6)(xvi). Petitions filed for supplemental allocations under this rule requesting a date of need before January 1, 2026 will be rejected and the filing fees will be returned.

DHS anticipates that U.S. employers will use all of the first allocation for returning workers starting between January 1 and March 31, 2026 (the last day of the first half of FY 2026), given how quickly USCIS reached the FY 2026 first half statutory cap. As noted previously, USCIS received enough H-2B petitions to reach the FY 2026 first half statutory cap on September 12, 2025.

89

Because of the regulatory requirement that employers apply for a TLC 75 to 90 days before the start date of work and the strong demand for H-2B workers in recent years to begin work on the earliest employment start date (

i.e.,

October 1), employers with late-winter employment start dates were likely unable to receive cap-subject H-2B workers and/or did not have a fair opportunity to file visa petitions for cap-subject H-2B workers before the first half statutory cap was reached. Thus, this first allocation would provide these late-winter season employers an opportunity to access the H-2B program.

90

89

See

USCIS, USCIS Reaches H-2B Cap for First Half of Fiscal Year 2026,

https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fiscal-year-2026

(Sept. 16, 2025).

90

DOL announcement on July 9, 2025.

See https://www.dol.gov/agencies/eta/foreign-labor/news.

To mitigate complications from concurrent administration of multiple supplemental allocations and to permit this carry over, petitions for the first supplemental allocation must be filed before petitions for the second allocation may be filed. DHS will not

accept, and will reject, H-2B supplemental cap petitions submitted with a start date of need between January 1 and March 31, 2026, that are received after the applicable numerical limitation has been reached or, if the numerical limitation for this allocation has not been met, 15 days or later after the FY 2026 second half statutory cap has been met. 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 under this rule.

Returning Worker Allocation and Filing Deadline for Employment Start Dates Between April 1 and April 30, 2026 (Second Allocation)

For the early second half of FY 2026, DHS will initially make available 27,736 visas, plus any unused visas from the first allocation, limited to returning workers, in other words, those workers who were issued H-2B visas or held H-2B status in fiscal years 2023, 2024, or 2025. These petitions must request a date of need starting between April 1 and April 30, 2026.

See

new 8 CFR 214.2(h)(6)(xvi).

DHS cannot predict with certainty when the FY 2026 second half statutory cap will be reached (or if it will be reached), and therefore, did not specify a date for when to first allow petitioners to file for FY 2026 second allocation of supplemental visas. In the event that the statutory second half FY 2026 cap is not reached, the supplemental allocations for the second half of FY 2026 will not become available.

To mitigate complications from concurrent administration of the statutory second half cap, these petitions must be filed no earlier than 15 days after the second half statutory cap is reached, a date that USCIS will identify in a public announcement.

91

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. Concurrent administration of the second half statutory cap with the second half supplemental cap would pose significant operational challenges, particularly considering the volume of H-2B petitions USCIS would have to process at the same time. A cushion of 15 days after the second half statutory cap is reached should provide USCIS with sufficient time to process H-2B petitions filed under the second half statutory cap and prepare to process petitions under this second allocation of the supplemental cap, and should also provide petitioners not selected under the statutory cap with enough time to refile under this second allocation of the supplemental cap. Furthermore, making this allocation available

after

the second half statutory cap has been reached builds in flexibility to account for variations in the timing of that cap being reached.

91

Pursuant to new 8 CFR 214.2(h)(6)(xvi)(C)(

2

), USCIS will reject petitions filed pursuant to paragraph (h)(6)(xvi)(A)(

1

)(

ii

) of this section requesting employment start dates from April 1, 2026 to April 30, 2026 that are received earlier than 15 days after the INA section 214(g) cap for the second half of FY 2026 has been met.

Based on historical data showing increasingly high demand for H-2B workers with April 1 start dates, DHS expects all 27,736 visas to be used quickly once the second allocation becomes available as occurred in FY 2024 and FY 2025. However, 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.

DHS will not accept, and will reject, H-2B supplemental cap petitions submitted with a date of need between April 1 and 30, 2026 (second allocation), that are received earlier than 15 days after the FY 2026 second half statutory cap is met. DHS will also not accept, and will reject, such petitions that are received after the applicable numerical limitation has been reached or, if the numerical limitation for this allocation has not been met, 45 days or later after the FY 2026 second half statutory cap is met.

Allocation and Filing Deadline for Employment Start Dates Between May 1 and September 30, 2026 (Third Allocation)

For the late second half of FY 2026, DHS will make available an additional allocation of 18,490 visas, plus any unused visas from the first and second allocations. In past years, because of the regulatory requirement that employers apply for a TLC 75 to 90 days before the start date of work and the strong demand for H-2B workers in recent years to begin work on the earliest employment start date (

i.e.,

April 1), late-season employers

92

were likely unable to receive cap-subject H-2B workers and/or did not have an opportunity to file visa petitions for cap-subject H-2B workers before the second half statutory cap was reached. Employers who need workers to begin work on or after May 1 are not eligible to file TLC applications until on or after February 1. Furthermore, these employers who filed TLC applications on or after February 1 may not have received their approved TLC in time to file an H-2B petition before the statutory cap for the second half of FY 2025 is met,

93

and may not have identified workers to supplement their business needs. Therefore, the Secretary has determined that it is appropriate that this third allocation be available for U.S. employers with a need for workers to begin work on or after May 1 through the end of the fiscal year and that the 18,490 additional visas will be exempt from the returning worker requirement to provide these U.S. employers, especially those in critical infrastructure sectors, with late-season needs a better opportunity to receive H-2B workers to avoid irreparable harm and continue to contribute to the U.S. economy.

92

Employers needing workers to begin work during the late spring and summer seasons in the fiscal year are also referred to as “late season employers.”

93

In FY 2025, USCIS announced that it received sufficient petitions to meet the H-2B statutory cap for the second half of FY 2025 on March 5, 2025.

See

USCIS, USCIS Reaches H-2B Cap for Second Half of FY 2025 and Filing Dates Now Available for Supplemental Visas,

https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-second-half-of-fy-2025-and-filing-dates-now-available-for-supplemental

(Mar. 26, 2025).

To mitigate complications from concurrent administration of the returning worker allocations, these petitions must be filed no earlier than 45 days after the second half statutory cap is reached, a date that USCIS will identify in a public announcement.

94

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 third allocation. Concurrent administration of the second half statutory cap with the second supplemental allocation cap would pose significant operational challenges, particularly considering the volume of H-2B petitions USCIS would have to process at the same time. A cushion of 45 days after the second half statutory cap is reached should provide USCIS with sufficient time to process H-2B petitions filed under the second half statutory cap and prepare to process petitions under this third allocation of the supplemental cap. Furthermore, making this allocation available

after

the second half statutory cap has been reached builds in flexibility to account

for variations in the timing of that cap being reached. DHS cannot predict with certainty when the FY 2026 second half statutory cap will be reached (or if it will be reached), and therefore, did not specify a date in this rule for when to first allow petitioners to file for FY 2026 third allocation of supplemental visas. In the event that the statutory second half of FY 2026 cap is not reached, the supplemental allocations for the second half of FY 2026 will not become available. In the event that USCIS approves insufficient petitions to use all 18,490 visas, the unused numbers will not carry over to FY 2027.

94

Pursuant to new 8 CFR 214.2(h)(6)(xvi)(C)(

2

), USCIS will reject petitions filed pursuant to paragraph (h)(6)(xvi)(A)(

1

)(

ii

) of this section requesting employment start dates from April 1, 2026 to April 30, 2026 that are received earlier than 15 days after the INA section 214(g) cap for the second half FY 2026 has been met.

C. Returning Workers

The Secretary of Homeland Security, in consultation with the Secretary of Labor, has determined that the supplemental visas should be granted to returning workers from the past three fiscal years, unless the H-2B worker is counted towards the separate 18,490 cap available to employers with employment start dates between May 1 and September 30, 2026. The Secretaries have determined that, for purposes of this program, H-2B returning workers include those aliens who were issued an H-2B visa or were otherwise granted H-2B status in FY 2023, 2024, or 2025. As discussed above, the Secretaries determined that limiting returning workers to those who were issued an H-2B visa or granted H-2B status in the past three fiscal years is appropriate as it mirrors the standard that Congress designated in previous returning worker provisions. Returning workers have previously obtained H-2B visas and therefore been vetted by DOS and DHS,

95

would have departed the United States after their authorized period of stay as generally required by the terms of their nonimmigrant admission, and therefore may obtain their new visas through DOS and begin work more expeditiously.

95

Employers may file one H-2B petition to request all of their H-2B workers associated with one TLC (with a limit of 25 named workers per petition). USCIS vets all named H-2B workers prior to issuing a decision. DOS vets all named and unnamed H-2B workers during the visa application process at the U.S. Embassy or Consulate.

Limiting the supplemental cap mostly to returning workers is beneficial because these workers have generally followed immigration law in good faith and demonstrated their willingness to return home after they have completed their temporary labor or services or their period of authorized stay, which is a condition of H-2B status. The returning worker condition therefore provides a basis to believe that H-2B workers under this cap increase will abide by terms and conditions of their H-2B nonimmigrant status and return home again after another temporary stay in the United States.

To ensure compliance with the requirement that additional visas be made available to returning workers, petitioners seeking H-2B workers under the supplemental cap will be required to attest that each employee requested or instructed to apply for a visa under the FY 2026 supplemental cap was issued an H-2B visa or otherwise granted H-2B status in FY 2023, 2024, or 2025, unless the H-2B worker is counted towards the separate 18,490 cap available to employers with employment start dates between May 1 and September 30, 2026. This attestation will serve as prima facie initial evidence to DHS that each worker, unless an H-2B worker who is counted against the 18,490 cap for those that will start work between May 1 and September 30, 2026 (third allocation), meets the returning worker requirement. DHS retains the right to review and verify that each beneficiary under this supplemental rule is in fact a returning worker any time before and after approval of the petition.

Employers requesting H-2B workers subject to the returning worker requirement must maintain evidence that the employer requested and/or instructed that each of the workers petitioned by the employer in connection with this temporary rule were issued H-2B visas or otherwise granted H-2B status in FY 2023, 2024, or 2025. As with previous years, such evidence would include, but is not limited to, 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.

D. Returning Worker Exemption for Up to 18,490 Visas for Employment Start Dates Between May 1 and September 30, 2026 (Third Allocation)

The Secretary of Homeland Security, in consultation with the Secretary of Labor, has determined that 18,490 additional H-2B visas will be exempt from the returning worker requirement only if the employment start date on the H-2B petition is between May 1 and September 30, 2026. In the event the limit for the supplemental visas available in the first and second allocations are not reached, DHS will make the unused visas available to employers requesting employment start dates between May 1 and September 30, 2026. Because these unused visas will be made available as part of the third allocation, they will also be exempt from the returning worker requirement. As described above, these late-season employers were likely unable to receive cap-subject H-2B workers and/or did not have an opportunity to file visa petitions for cap-subject H-2B workers before the second half statutory cap was reached due to the regulatory requirement that employers apply for a TLC 75 to 90 days before the start date of work and the strong demand for H-2B workers in recent years to begin work on the earliest employment start date (

i.e.,

April 1).

E. Business Need Standard—Irreparable Harm and FY 2026 Attestation

To file any H-2B petition under this rule during the remainder of FY 2026, petitioners must meet all existing H-2B eligibility requirements, including having an approved, valid, and unexpired TLC.

See

8 CFR 214.2(h)(6) and 20 CFR part 655 subpart A. The TLC process focuses on establishing whether a petitioner has a temporary need for workers and whether there are U.S. workers who are able, willing qualified, and available to perform the temporary service or labor, and does not address the harm a petitioner is facing or will face in the absence of such workers; the attestation addresses this question. In addition, under this rule, the petitioner must submit an attestation to USCIS in which the petitioner affirms, under penalty of perjury, that it meets the business need standard. Under this standard, the petitioner must be able to establish that, if it does not receive all of the workers requested under the cap increase,

96

it is suffering irreparable harm or will suffer impending irreparable harm, that is, permanent and severe financial loss. In addition to asserting that it meets the business need standard, the U.S. employer must attest that, by the time of submission of the petition to USCIS, they have prepared and retained a detailed written statement describing how the evidence gathered in support of their H-2B petition demonstrates that irreparable harm is occurring or impending. The employer must also attest that, upon request, it will provide

to DHS and/or DOL all of the types of documentary evidence it selected in the attestation form that support its claim of irreparable harm, along with the detailed written statement it prepared by the time of submitting the petition to USCIS describing how such evidence demonstrates irreparable harm. The petitioner must submit the attestation directly to USCIS, together with Form I-129, the approved and valid TLC,

97

and any other necessary documentation. As in prior temporary final rules, employers will be required to complete the new attestation form which can be found at:

https://www.foreignlaborcert.doleta.gov/form.cfm.

96

An employer may request fewer workers on the H-2B petition than the number of workers listed on the TLC.

See

Instructions for Petition for Nonimmigrant Worker, providing that “[t]he total number of workers you request on an H-2B petition must not exceed the number of workers approved by the Department of Labor on the temporary labor certification.”

97

Since July 26, 2019, USCIS has been accepting a printed copy of the electronic one-page ETA-9142B, Final Determination: H-2B Temporary Labor Certification Approval, as an original, approved TLC. See Notice of DHS' Requirement of the Temporary Labor Certification Final Determination Under the H-2B Temporary Worker Program, 85 FR 13178, 13179 (Mar. 6, 2020).

The irreparable harm standard is the same as in previous temporary final rules for recent years. The irreparable harm standard requires U.S. employers to attest that they are suffering irreparable harm or will suffer impending irreparable harm without the ability to employ all of the H-2B workers requested on the petition filed under this rule. The irreparable harm standard in this rule aligns with this determination that Congress requires DHS to make before increasing the number of H-2B visas available to U.S. employers. In particular, requiring U.S. employers to attest that they are suffering irreparable harm or will suffer impending irreparable harm without the ability to employ all of the requested H-2B workers is directly relevant to the needs of the business—if an employer is suffering or will suffer irreparable harm, then their needs are not being satisfied. Because the authority to increase the statutory cap is tied to the needs of businesses, as it has been since 2017, the Departments think, as a policy matter, that it is reasonable to require employers to attest that they are suffering irreparable harm or that they will suffer impending irreparable harm without the ability to employ all of the H-2B workers requested on their petition. If such employers are unable to attest to such harm and retain and produce (upon request) documentation of that harm, it calls into question whether the need set forth in this rule cannot in fact be satisfied without the ability to employ H-2B workers. This requirement falls within the broad discretion Congress gave to the Secretary to, in consultation with the Secretary of Labor, increase the number of H-2B workers in order to meet the needs of American businesses.

98

As discussed in the Legal Framework section, DHS has broad delegation to administer and enforce U.S. immigration laws and issue regulations regarding the same, as well as broad discretion to establish conditions on the admission of nonimmigrants, and over the adjudication of nonimmigrant petitions, after consultation with other agencies, including DOL.

See

INA sec. 103(a)(1), 214(a)(1), (c)(1); 8 U.S.C. 1103(a)(1), 1184(a)(1), (c)(1). In addition, through the temporary enactment authorizing the Secretary of DHS to increase the number of H-2B visas,

99

Congress delegated to the Secretary of DHS, after consultation with the Secretary of Labor, the discretion to establish a framework for determining that the needs of American businesses cannot be satisfied with the existing workforce and the conditions under which to authorize additional visas to further the purpose of the enactment. In the most recent, as well as each prior annual enactment,

100

Congress has consistently used the word “may” when describing the Secretary's authority, and the use of the word “may” indicates a grant of discretion, absent contrary legislative intent, structure and purpose of the statute.

101

As in prior years, the Departments have determined that the irreparable harm standard falls within the discretionary authority of the Secretary of DHS and furthers the legislative purpose behind the temporary enactment by making visas available to those American businesses that are most likely to be severely impacted by a lack of an able, willing, and qualified workforce.

98

See Loper Bright Enterprises

v.

Raimondo,

144 S. Ct. 2244, 2263 (2024).

99

Public Law 118-47, Division G, Title I, sec. 105, states: “Notwithstanding the numerical limitation set forth in section 214(g)(1)(B) of the Immigration and Nationality Act (8 U.S.C. 1184(g)(1)(B)), the Secretary of Homeland Security, after consultation with the Secretary of Labor, and upon the determination that the needs of United States businesses cannot be satisfied during fiscal year 2024 with United States workers who are willing, qualified, and able to perform temporary nonagricultural labor, may increase the total number of aliens who may receive a visa under section 101(a)(15)(H)(ii)(b) of such Act (8 U.S.C. 1101(a)(15)(H)(ii)(b)) in such fiscal year by not more than the highest number of H-2B nonimmigrants who participated in the H-2B returning worker program in any fiscal year in which returning workers were exempt from such numerical limitation.”

100

Lorillard

v.

Pons,

434 U.S. 575, 581 (1978). (“Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it reenacts a statute without change.”).

101

See generally U.S.

v.

Rodgers,

461 U.S. 677, 706 (1983) (The word “may,” when used in a statute, usually implies some degree of discretion unless there is indication of contrary legislative intent, or an obvious inference from the structure and purpose of the statute.).

This rule also requires an employer to attest that it has prepared a detailed written statement describing (i) how the employer's business is suffering irreparable harm or will suffer impending irreparable harm without the ability to employ all H-2B workers requested on the I-129 petition, and (ii) how each type of evidence selected in the attestation form and relied upon by the employer demonstrates the applicable irreparable harm. The employer will not submit this detailed written statement to DHS with its petition for supplemental visas, but will attest on the attestation form to having prepared a detailed written statement. The detailed written statement must be provided to DHS and/or DOL upon request in the event of an audit or during the course of an investigation.

The attestation that irreparable harm is occurring or is impending cannot be based on a speculative analysis that permanent and severe financial loss “may occur” or “is likely to occur.” Rather, as of the time of submission to DHS, U.S. employers must have concrete evidence establishing that severe and permanent financial loss is occurring, with the scope and severity of harm clearly articulable, or that severe and permanent financial loss will occur in the near future without access to the supplemental visas. Even if no irreparable harm ultimately occurs because the employer is approved for supplemental visas under this rule, the U.S. employer must be able to articulate how permanent and severe financial loss was impending at the time of filing.

Additionally, in DOL's experience, employers sometimes do not retain the documentation they specifically attested they would retain, or will not or cannot explain how this documentation demonstrates the relevant irreparable harm to which they attested, which indicates that some of the employers seeking to benefit from hiring H-2B workers are not thoughtfully considering, or considering at all, whether their business needs qualify them for supplemental H-2B visas under these rules.

The Departments continue to believe that the written statement is necessary in the case of an audit or investigation to explain, in detail, the employer's reasoning as to why irreparable harm was occurring or impending without the ability to employ H-2B workers, and how the evidence supports the employer's reasoning. In audits and investigations, some employers have provided hundreds of pages of evidence without any explanation as to how this

evidence demonstrates irreparable harm, leaving DOL or DHS to determine how a voluminous compilation of complex and, sometimes, seemingly unrelated documents demonstrates irreparable harm without any understanding of the employer's intent when providing the documents. A detailed, thoughtful explanation from the employer will clarify the purpose of these documents and allow the employer to clearly make their case that the business was experiencing irreparable harm or would experience impending irreparable harm at the time of petitioning for supplemental visas.

As such, the Departments believe that it is prudent to continue to require employers to identify how they are suffering irreparable harm (that is, permanent and severe financial loss), or will suffer impending irreparable harm, and how the evidence they will maintain shows that harm was occurring or impending, at the time they petition for H-2B visas under this rule. The written statement should identify, in detail, the severe and permanent financial loss that is occurring or will occur in the near future without access to the supplemental visas and should describe how the information contained in the documentary evidence demonstrates this severe and permanent financial loss. A written statement explaining that no irreparable harm occurred because the employer was approved for supplemental H-2B visas is insufficient; if no irreparable harm actually occurred, the U.S. employer must be able to show that irreparable harm was impending at the time of the petition's filing. Supporting evidence of the employer's irreparable harm (either occurring or impending) maintained and discussed in the detailed written statement may include, but is not limited to, the following types of documentation:

(1) Evidence that the business is suffering or will suffer in the near future permanent and severe financial loss due to the inability to meet financial or existing contractual obligations because they were unable to employ all of the requested H-2B workers, including evidence of executed contracts, reservations, orders, or other business arrangements that have been or would be cancelled, and evidence demonstrating an inability to pay debts/bills;

(2) Evidence that the business is suffering or will suffer in the near future permanent and severe financial loss, as compared to prior years, such as financial statements (including profit/loss statements) comparing the employer's period of need to prior years; bank statements, tax returns, or other documents showing evidence of current and past financial condition; and relevant tax records, employment records, or other similar documents showing hours worked and payroll comparisons from prior years to the current year;

(3) Evidence showing the number of workers needed in the previous three seasons (FY 2023, 2024, and 2025) to meet the employer's need as compared to those currently employed or expected to be employed at the beginning of the start date of need. Such evidence must indicate the dates of their employment, and their hours worked (for example, payroll records) and evidence showing the number of H-2B workers it claims are needed, and the workers' actual dates of employment and hours worked; and/or

(4) Evidence that the petitioner is reliant on obtaining a certain number of workers to operate, based on the nature and size of the business, such as documentation showing the number of workers it has needed to maintain its operations in the past, or will in the near future need, including but not limited to: a detailed business plan, copies of purchase orders or other requests for good and services, or other reliable forecast of an impending need for workers.

As with the attestation requirement in prior temporary final rules, these examples are not exhaustive, nor will they necessarily establish that the business meets the irreparable harm standard; petitioners may retain other types of evidence they believe will satisfy these standards. Such evidence must be maintained and provided, with the written statement, to DOL and/or DHS upon request. It has been DOL's experience when reviewing documentation submitted to establish irreparable harm that employers commonly provide unexecuted contracts or letters of intent; contracts with redacted financial terms or dates of performance; or written statements memorializing verbal agreements that are not signed by all parties and thus may be insufficient evidence of the terms of such agreements and may call into question their credibility. In addition, DOL has encountered contracts among related entities that are owned, operated, or otherwise controlled by the employer or an individual with ownership interest in the employer. Such contracts may lack credibility as evidence of irreparable harm because the employer and related parties may share the same interest in obtaining H-2B workers even in situations where the employer is not suffering irreparable harm or will not suffer impending irreparable harm. In those instances, DOL may request that an employer provide additional credible evidence to demonstrate that it has met the legal standard. In other situations, the only documentation offered by the employer is a declaration, without any supporting documentary evidence. Given that the employer must establish that they are suffering irreparable harm or will suffer impending irreparable harm, in other words, a permanent and severe financial loss without the ability to employ all of the H-2B workers requested on their petition, an employer's irreparable harm cannot be properly assessed without evidence of its financial business needs. As such, DOL is clarifying that merely asserting irreparable harm, or providing documentation that lacks sufficient facts or indicia of validity (

e.g.,

signatures) for DOL to determine that the employer was suffering or would suffer impending irreparable harm without the ability to employ all of the H-2B workers requested under the supplemental cap at the time of filing their petition, will be insufficient to make an irreparable harm determination. In such instances where the evidence is insufficient or the petitioner merely submits a declaration without supporting documentation, DOL may require the employer to provide additional credible evidence. This is because mere assertions or the absence of key financial terms or dates of performance in a contract due to redaction, for example, hinder the Department's ability to evaluate whether the employer was in fact suffering irreparable harm or would have suffered impending irreparable harm without the ability to employ all of the H-2B workers it requested for a given period. Factors that can demonstrate the credibility of a contract or similar commitment or obligation may include evidence of an agreement, preferably in writing, that includes the financial terms, dates of performance, and evidence it was signed and/or agreed upon before the petition was filed.

While the employer will not submit the detailed written statement nor the supporting evidence to DHS at the time of filing a petition for H-2B visas under this rule, the Departments emphasize that the employer must prepare the detailed written statement and compile the evidence at the time of filing. The employer must complete the analysis as to whether the employer is experiencing irreparable harm or will experience impending irreparable harm at the time the employer petitions for supplemental

visas using evidence available at this time. In the interest of efficiency, the Departments do not require the submission of this statement to DHS at the time of filing the petition. Instead, the employer must attest that it has prepared the detailed written statement and that it will keep it as part of its records, to be provided to the Departments, upon request.

As the burden rests with the petitioner to prove eligibility for supplemental H-2B visas under the time-limited authority implemented with this temporary final rule by a preponderance of the evidence, it is the petitioner's burden to establish that it meets the irreparable harm standard. INA sec. 291, 8 U.S.C. 1361;

Matter of Chawathe,

25 I&N Dec. 369, 375-76 (AAO 2010). The attestation form will serve as prima facie initial evidence to DHS that the petitioner's business is suffering irreparable harm or will suffer impending irreparable harm. USCIS will reject in accordance with 8 CFR 103.2(a)(7)(ii) or may deny in accordance with 8 CFR 103.2(b)(8)(ii), as applicable, any petition requesting H-2B workers under this FY 2026 supplemental cap that is lacking the requisite attestation form. Although this rule does not require submission of the evidence selected in the attestation and/or a detailed written statement at the time of filing of the petition, other than an attestation, the employer must have the evidence selected in the attestation and the accompanying detailed written statement on hand and ready to present to DHS and/or DOL at any time starting with the date of filing the I-129 petition, through the prescribed document retention period discussed below.

As with petitions filed under the supplemental TFRs in recent years, the Departments may select a random number of petitions for audit examination to verify compliance with program requirements, including the irreparable harm standard implemented through this rule. The Departments may consider failure to provide evidence demonstrating irreparable harm, to prepare or provide the detailed written statement explaining irreparable harm, or to comply with the audit process to be a willful violation resulting in an adverse agency action on the employer, including revocation of the TLC or program debarment. Similarly, failure to cooperate with any compliance review, evaluation, verification, or inspection conducted by DHS and/or DOL as required by 8 CFR 214.2(h)(6)(xvi)(B)(

2

)(

i

) and (

ii

) may constitute a violation of the terms and conditions of an approved petition and lead to petition revocation under 8 CFR 214.2(h)(11)(iii)(A)(

3

).

The attestation submitted to USCIS will also state that the employer:

(1) meets all other eligibility criteria for the available visas, including the returning worker requirement, unless exempt because the H-2B worker is counted against the 18,490 visas reserved for workers with employment start dates between May 1 and September 30, 2026;

(2) will comply with all assurances, obligations, and conditions of employment set forth in the Application for Temporary Employment Certification (Form ETA-9142B and appendices) certified by DOL for the job opportunity (which serves as the TLC); and

(3) will document and retain evidence of such compliance.

Because petitioners will submit the attestation to USCIS as initial evidence with Form I-129, DHS considers the attestation to be evidence that is incorporated into and a part of the petition consistent with 8 CFR 103.2(b)(1). Accordingly, USCIS may deny or revoke, as applicable, a petition based on or related to statements made in the attestation, including but not limited to the following grounds: (1) the employer failed to demonstrate employment of all of the requested workers is necessary under the appropriate business need standard; or (2) the employer failed to demonstrate that it requested and/or instructed that each worker petitioned for is a returning worker, or is exempt because of an employment start date between May 1 and September 30, 2026, as required by this rule. The petitioner may appeal any denial or revocation on such basis, however, under 8 CFR part 103, consistent with DHS regulations and existing USCIS procedures.

It is the view of the Secretaries of Homeland Security and Labor that requiring a post-TLC attestation to USCIS is both practical, given the time remaining in FY 2026 and the need to assemble the necessary documentation, as well as sufficiently protective of U.S. workers given that the employer, in completing the TLC process, is required to conduct a labor market test to determine whether a sufficient number of qualified U.S. workers will be available at the time and place needed to perform the nonagricultural work. In addition, the employer is required to retain documentation, which must be provided upon request, supporting the new attestations regarding (1) the irreparable harm standard and (2) the returning worker requirement where required, or, alternatively, documentation supporting that the H-2B worker(s) requested has an employment start date between May 1 and September 30, 2026 and counted against the 18,490 cap (which may be satisfied by the separate Form I-129 that employers are required to file for such workers in accordance with this rule). Although the employer must have such documentation on hand at the time it files the petition, the Departments have determined that, if employers were required to submit the attestation form to DOL before filing a petition with DHS, the attendant delays would render any visas unlikely to satisfy the needs of American businesses given processing timeframes and the time remaining in this fiscal year. USCIS may issue a notice of intent to revoke and request additional evidence, or issue a revocation notice, based on such documentation, and DOL's OFLC and WHD will be able to review this documentation and enforce the attestations during the course of an audit examination or investigation.

See

8 CFR 103.2(b) or 8 CFR 214.2(h)(11).

In accordance with the attestation requirements, under which petitioners attest that they meet the irreparable harm standard, that they are seeking to employ only returning workers (unless exempt as described above), and that they meet the document retention requirements at 20 CFR 655.69, petitioners must retain documents and records meeting their burden to demonstrate compliance with this rule for three years from the date of the attestation, and must provide the documents and records upon the request of DHS or DOL, such as in the event of an audit or investigation. As mentioned above, the employer bears the burden of establishing that they are suffering or will suffer impending irreparable harm. With regard to the irreparable harm standard, employers attesting that they are suffering irreparable harm must be able to provide concrete evidence establishing severe and permanent financial loss that is occurring; the scope and severity of the harm must be clearly articulable. Employers attesting that they will suffer impending irreparable harm must be able to demonstrate that severe and permanent financial loss will occur in the near future without access to the supplemental visas. It will not be enough to provide evidence suggesting that such harm may or is likely to occur; rather, the documentary evidence must show that impending harm is occurring or will occur and document the form of such harm. Examples of possible types

of evidence to be maintained are listed earlier in this section.

When a petition is selected for audit examination, or investigation, DHS and/or DOL will review all evidence available to it to confirm that the petitioner properly attested to DHS, at the time of filing the petition, that their business was suffering irreparable harm or would suffer impending irreparable harm, and that they petitioned for and employed only returning workers, unless the H-2B worker is exempt from the returning worker requirement as described above, among other attestations. If DHS subsequently finds that the evidence does not support the employer's attestations, DHS may deny or, if the petition has already been approved, revoke the petition at any time consistent with existing regulatory authorities. DHS may also, or alternatively, refer the petitioner to DOL for further investigation. In addition, DOL may independently take enforcement action, including by, among other things, debarring the petitioner from the H-2B program for not less than one year or more than five years from the date of the final agency decision, which also disqualifies the debarred party from filing any labor certification applications or labor condition applications with DOL for the same period set forth in the final debarment decision.

See, e.g.,

20 CFR 655.73; 29 CFR 503.20, 503.24.

102

102

Pursuant to the statutory provisions governing enforcement of the H-2B program, INA section 214(c)(14), 8 U.S.C. 1184(c)(14), a violation exists for purposes of DOL enforcement actions in the H-2B program where there has been a willful misrepresentation of a material fact in the petition or a substantial failure to meet any of the terms and conditions of the petition. A substantial failure is a willful failure to comply that constitutes a significant deviation from the terms and conditions.

See, e.g.,

INA section 214(c)(14)(D), 8 U.S.C. 1184(c)(14)(D);

see also

29 CFR 503.19.

Evidence reflecting a preference for hiring H-2B workers over U.S. workers may warrant an investigation by additional agencies enforcing employment and labor laws, such as the Immigrant and Employee Rights Section (IER) of the Department of Justice's Civil Rights Division. INA section 274B, 8 U.S.C. 1324b (prohibiting certain types of employment discrimination based on citizenship status or national origin). Moreover, DHS and DOL may refer potential discrimination to IER pursuant to applicable interagency agreements.

103

In addition, if members of the public have information that a participating employer may be abusing this program, DHS invites them to notify U.S. Immigration and Customs Enforcement (ICE) by completing the online ICE Tip Form

104

or alternately, via the toll-free ICE Tip Line, (866) 347-2423.

105

103

See

IER, Partnerships,

https://www.justice.gov/crt/partnerships

(last visited Jan. 9, 2026).

104

ICE Tip Form,

https://www.ice.gov/webform/ice-tip-form.

105

DHS may publicly disclose information regarding the H-2B program consistent with applicable law and regulations. For information about DHS disclosure of information contained in a system of records, see

https://www.dhs.gov/

system-records-notices-sorns. Additional general information about DHS privacy policy can be accessed at

https://www.dhs.gov/policy.

DHS, in exercising its statutory authority under INA section 101(a)(15)(H)(ii)(b), 8 U.S.C. 1101(a)(15)(H)(ii)(b), and section 105 of the FY 2024 Omnibus, as extended by Public Law 119-37, is responsible for adjudicating eligibility for H-2B classification. As in all cases, the burden rests with the petitioner to establish eligibility by a preponderance of the evidence. INA section 291, 8 U.S.C. 1361.

Matter of Chawathe,

25 I&N Dec. 369, 375-76 (AAO 2010).

Accordingly, as noted above, where the petition lacks initial evidence, such as a properly completed attestation, USCIS will, as applicable, reject the petition in accordance with 8 CFR 103.2(a)(7)(ii) or may deny the petition in accordance with 8 CFR 103.2(b)(8)(ii). Further, where the initial evidence submitted with the petition contains inconsistencies or is inconsistent with other evidence in the petition and the underlying TLC, USCIS may issue a Request for Evidence, Notice of Intent to Deny, or Denial in accordance with 8 CFR 103.2(b)(8). In addition, where it is determined that an H-2B petition filed pursuant to the FY 2024 Omnibus, as extended by Public Law 119-37, was granted erroneously, the H-2B petition approval may be revoked.

See

8 CFR 214.2(h)(11).

F. DHS Petition Procedures

To petition for H-2B workers under this rule, the petitioner must file a Form I-129 at the current filing location in accordance with applicable regulations and form instructions, an unexpired TLC, and the attestation form ETA-9142-B-CAA-10. If filing multiple Forms I-129 based on the same TLC, each H-2B petition must include a copy of the TLC and reference all previously-filed petitions associated with the same TLC. The total number of requested workers may not exceed the total number of workers indicated on the approved TLC. In addition, the USCIS Fee Schedule Final Rule, 89 FR 6194 (January 31, 2024), which took effect on April 1, 2024, imposed a limit of 25 named beneficiaries per petition.

106

106

See

8 CFR 214.2(h)(2)(ii).

Petitions filed for supplemental allocations under this rule at any location other than the current filing location will be rejected and the filing fees will be returned. For all petitions filed under this rule and the H-2B program, generally, employers must establish, among other requirements, that insufficient qualified U.S. workers are available to fill the petitioning H-2B employer's job opportunity and that the foreign worker's employment in the job opportunity will not adversely affect the wages or working conditions of similarly-employed U.S. workers.

107

To meet this standard of protection for U.S. workers and, in order to be eligible for additional visas under this rule, employers must have applied for and received a valid TLC in accordance with 8 CFR 214.2(h)(6)(iv)(A) and (D) and 20 CFR part 655, subpart A. Under DOL's H-2B regulations, TLCs are valid only for the period of employment certified by DOL and expire on the last day of authorized employment.

108

107

INA section 214(c)(1), 8 U.S.C. 1184(c)(1); 8 CFR 214.2(h)(6)(iii)(A) and (D); 20 CFR 655.1.

108

20 CFR 655.55(a).

In order to have a valid TLC, the employment start date on the employer's H-2B petition must not be different from the employment start date certified by DOL on the TLC.

109

Under generally applicable DHS regulations, the only exception to this requirement applies when an employer files an amended H-2B petition, accompanied by a copy of the previously approved TLC and a copy of the initial visa petition approval notice, at a later date to substitute workers as set forth under 8 CFR 214.2(h)(6)(viii)(B).

109

See

8 CFR 214.2(h)(6)(iv)(D).

The attestations must be filed on Form ETA-9142-B-CAA-10, Attestation for Employers Seeking to Employ H-2B Nonimmigrant Workers Under Section 105 of Division G, Title I of the Further Consolidated Appropriations Act, 2024, Public Law 118-47, as extended by Public Law 119-37.

110

Petitioners are required to retain a copy of such attestations and all supporting evidence for 3 years from the date the associated TLC was approved, consistent with 20 CFR 655.56 and 29 CFR 503.17.

111

Petitions submitted to DHS pursuant to Public Law 119-37, which extended the FY 2024 Omnibus, will be processed in the order in which they were received within the relevant supplemental allocation, and pursuant to processes parallel to those in place for when numerical limitations are reached under INA section 214(g)(1)(B)

or (g)(10), 8 U.S.C. 1184(g)(1)(B) or (g)(10). Petitioners may also choose to request premium processing of their petitions under 8 CFR 103.7(e), which allows for expedited processing for an additional fee.

110

See

20 CFR 655.64.

111

See

new 20 CFR 655.69.

USCIS will reject petitions filed under the supplemental allocations in this rule at any location other than the current filing location and will return the filing fees for any such petition.

Immediately upon publication of the rule, but no earlier than that date, USCIS will begin accepting returning worker H-2B petitions requesting employment start dates between January 1 and March 31, 2026. Beginning no earlier than 15 days after the second half statutory cap is reached, USCIS will begin accepting returning worker H-2B petitions requesting employment start dates between April 1 and April 30, 2026. Finally, beginning no earlier than 45 days after the second half statutory cap is reached, USCIS will begin accepting H-2B petitions exempt from the returning worker requirement for employment start dates between May 1 and September 30, 2026.

USCIS will reject H-2B supplemental cap petitions submitted with a start date of need between January 1 and March 31, 2026 (first allocation), that are received after the applicable numerical limitation has been reached or, if the numerical limitation for this allocation has not been met, 15 days or later after the FY 2026 second half statutory cap has been met. USCIS will not accept, and will reject, H-2B supplemental cap petitions submitted with a date of need between April 1 and 30, 2026 (second allocation), that are received earlier than 15 days after the FY 2026 second half statutory cap is met. USCIS will also not accept, and will reject, such petitions that are received after the applicable numerical limitation has been reached or, if the numerical limitation for this allocation has not been met, 45 days or later after the FY 2026 second half statutory cap is met. For H-2B supplemental cap petitions with a date of need between May 1 and September 30, 2026 (third allocation), USCIS will not accept, and will reject such petitions that are received earlier than 45 days after the FY 2026 second half statutory cap is met or that are received after the applicable numerical limitation has been reached or after September 15, 2026. DHS believes that 15 days from the end of the fiscal year is the minimum time needed for petitions filed under the third allocation to be adjudicated, although USCIS cannot guarantee the time period will be sufficient in all cases.

See

new 8 CFR 214.2(h)(6)(xvi)(C). Such petitions will be rejected and the filing fees will be returned. Petitioners may choose to request premium processing of their petitions under 8 CFR 106.4, which allows for expedited processing for an additional fee.

Based on the time-limited authority granted to DHS by section 101 of Division A, Title I of the Continuing Appropriations, Agriculture, Legislative Branch, Military Construction and Veterans Affairs, and Extensions Act, 2026, Public Law 119-37, on the same terms as section 105 of the FY 2024 Omnibus, DHS is notifying the public that USCIS cannot approve petitions seeking H-2B workers under this rule on or after October 1, 2026.

See

new 8 CFR 214.2(h)(6)(xvi)(C). Petitions pending with USCIS that are not approved before October 1, 2026 will be denied and any fees will not be refunded.

See

new 8 CFR 214.2(h)(6)(xvi)(C).

Nothing in this rule will limit the authority of DHS or DOS to deny, rescind, revoke, or take any other action with respect to an H-2B petition or visa application at any time before or after approval of the H-2B petition or visa application.

G. DOL Procedures

All employers are required to have an approved and valid TLC from DOL in order to file a Form I-129 petition with DHS.

See

8 CFR 214.2(h)(6)(iv)(A) and (D). The standards and procedures governing the submission and processing of Applications for Temporary Employment Certification for employers seeking to hire H-2B workers are set forth in 20 CFR part 655, subpart A. An employer that seeks to hire H-2B workers must request a TLC in compliance with the application filing requirements set forth in 20 CFR 655.15 and meet all the requirements of 20 CFR part 655, subpart A, to obtain a valid TLC, including the criteria for certification set forth in 20 CFR 655.51.

See

20 CFR 655.64(a) and 655.50(b). Employers with an approved TLC have conducted recruitment, as set forth in 20 CFR 655.40 through 655.49, to determine whether U.S. workers are qualified and available to perform the work for which employers sought H-2B workers.

The H-2B regulations require, among other things, an employer with a non-emergency situation that seeks to hire H-2B workers must file a completed Application for Temporary Employment Certification with the National Processing Center (NPC) designated by the OFLC Administrator no more than 90 calendar days and no fewer than 75 calendar days before the employer's date of need (start date for the work).

See

20 CFR 655.15.

Emergency Procedures

Under 20 CFR 655.17, an employer may request a waiver of the time period(s) for filing an Application for Temporary Employment Certification based on “good and substantial” cause, provided that the employer has sufficient time to thoroughly test the domestic labor market on an expedited basis and the OFLC certifying officer (CO) has sufficient time to make a final determination as required by the regulation. To rely on this provision, as the Departments explained in the 2015 H-2B Interim Final Rule, the employer must provide the OFLC CO with detailed information describing the “good and substantial cause” necessitating the waiver. Such cause may include the substantial loss of U.S. workers due to Acts of God, or a similar unforeseeable human-made catastrophic event that is wholly outside the employer's control, unforeseeable changes in market conditions, or pandemic health issues. Thus, to ensure an adequate test of the domestic labor market and to protect the integrity of the H-2B program, the Departments clearly intended that use of emergency procedures must be narrowly construed and permitted in extraordinary and unforeseeable catastrophic circumstances that have a direct impact on the employer's need for the specific services or labor to be performed. Even under the existing H-2B statutory visa cap structure, DOL considers USCIS' announcement(s) that the statutory cap(s) on H-2B visas has been reached, which may occur with regularity every six months depending on H-2B visa need, as foreseeable, and therefore not within the meaning of “good and substantial cause” that would justify a request for emergency procedures. Accordingly, employers cannot rely solely on the supplemental H-2B visas made available through this rule as good and substantial cause to use emergency procedures under 20 CFR 655.17.

H. Non-severability

Because of the particular circumstances of this regulation, and because the attestation and other requirements of this rule play a vital role in achieving the purposes of this rule, DHS and DOL intend that the attestation requirement, DOL procedures, and other aspects of this rule be non-severable from the remainder of the rule, including the

increase in the numerical allocations.

112

Thus, if the attestation requirement or any other part of this rule is enjoined or held invalid, the Departments intend for the remainder of the rule, with the exception of the retention requirements being codified in 20 CFR 655.69, to cease operation in the relevant jurisdiction, without prejudice to workers already present in the United States under this regulation, as consistent with law.

112

The Departments' intentions with respect to non-severability extend to all features of this rule.

III. Statutory and Regulatory Requirements

A. Administrative Procedure Act

This rule is issued without prior notice and opportunity to comment and with an immediate effective date pursuant to the Administrative Procedure Act (APA). 5 U.S.C. 553(b) and (d).

1. Good Cause To Forgo Notice and Comment Rulemaking

The APA, 5 U.S.C. 553(b)(B), authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency, for good cause, finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Among other things, the good cause exception for forgoing notice and comment rulemaking “excuses notice and comment in emergency situations, or where delay could result in serious harm.”

Jifry

v.

FAA,

370 F.3d 1174, 1179 (D.C. Cir. 2004). Courts have found “good cause” under the APA in similar situations when an agency is moving expeditiously to avoid significant economic harm to a program, program users, or an industry.

See, e.g., Nat'l Fed'n of Fed. Emps.

v.

Devine,

671 F.2d 607, 611 (D.C. Cir. 1982) (holding that an agency may use the good cause exception to address “a serious threat to the financial stability of [a government] benefit program”);

Am. Fed'n of Gov't Emps.

v.

Block,

655 F.2d 1153, 1156 (D.C. Cir. 1981) (finding good cause when an agency bypassed notice and comment to avoid “economic harm and disruption” to a given industry, which would likely result in higher consumer prices).

Although the good-cause exception is “narrowly construed and only reluctantly countenanced,”

Tenn. Gas Pipeline Co.

v.

FERC,

969 F.2d 1141, 1144 (D.C. Cir. 1992), the Departments have appropriately invoked the exception in this case due to the time exigencies resulting from the unique procedural history of the Department's authority for this action and the ongoing economic need for this rulemaking, as described further below. Overall, the Departments are bypassing notice and comment to prevent “serious economic harm to the H-2B community,” including U.S. employers, associated U.S. workers, and related professional associations, that could result from the failure to provide supplemental visas as authorized by Congress.

See Bayou Lawn & Landscape Servs.

v.

Johnson,

173 F. Supp. 3d 1271, 1285 & n.12 (N.D. Fla. 2016). The Departments note that this action is temporary in nature, and limits eligibility for H-2B supplemental visas to only those businesses most in need, and also protects H-2B and U.S. workers.

With respect to the supplemental allocations provisions in 8 CFR 214.2 and 20 CFR part 655, subpart A, as explained above, the Departments are acting pursuant to the extension of supplemental cap authority in Section 105 of the FY 2024 Omnibus by sections 101(6) and Section 101, Division A, Title I of Public Law 119-37 (Nov. 12, 2025) to FY 2026. The deadline for exercising the FY 2026 supplemental cap authority under the Continuing Appropriations, Agriculture, Legislative Branch, Military Construction and Veterans Affairs, and Extensions Act, 2026, is January 30, 2026, the date on which the FY 2026 continuing resolution expires. This timing concern is critical since the Departments are bypassing advance notice and comment in order to authorize the additional visas before this deadline.

Acting expeditiously is intended to prevent economic harm resulting from American businesses suffering irreparable harm due to a lack of a sufficient labor force. This harm would ensue if the Departments do not exercise the authority provided by the extension of supplemental cap authority. USCIS received more than enough petitions to meet the H-2B visa statutory cap for the first half of FY 2026 on September 12, 2025.

113

Based on past years' experience, DHS anticipates that it will also receive sufficient petitions to meet the semiannual cap for the second half of the FY 2026. USCIS received sufficient petitions to meet the H-2B visa statutory cap for the second half of FY 2025 on March 5, 2025.

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