Rule2026-02131
Exercise of Time-Limited Authority To Increase the Fiscal Year 2026 Numerical Limitation for the H-2B Temporary Nonagricultural Worker Program
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
February 3, 2026
Effective
January 30, 2026
Issuing agencies
Homeland Security DepartmentLabor DepartmentEmployment and Training Administration
Abstract
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.
Full Text
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<title>Federal Register, Volume 91 Issue 22 (Tuesday, February 3, 2026)</title>
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[Federal Register Volume 91, Number 22 (Tuesday, February 3, 2026)]
[Rules and Regulations]
[Pages 5040-5074]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-02131]
[[Page 5039]]
Vol. 91
Tuesday,
No. 22
February 3, 2026
Part II
Department of Homeland Security
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8 CFR Part 214
Department of Labor
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Employment and Training Administration
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20 CFR Part 655
Exercise of Time-Limited Authority To Increase the Fiscal Year 2026
Numerical Limitation for the H-2B Temporary Nonagricultural Worker
Program; Final Rule
Federal Register / Vol. 91 , No. 22 / Tuesday, February 3, 2026 /
Rules and Regulations
[[Page 5040]]
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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.
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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: <a href="https://www.regulations.gov">https://www.regulations.gov</a>. 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 <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
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 <a href="http://regulations.gov">regulations.gov</a>,
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:
<a href="/cdn-cgi/l/email-protection#6c232a202f423e090b19000d180503021f2c080300420b031a"><span class="__cf_email__" data-cfemail="440b0208076a162123312825302d2b2a3704202b286a232b32">[email protected]</span></a>.
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
[[Page 5041]]
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
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\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).
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(3) 18,490 visas, plus any unused visas from the first or second
allocations, for aliens who will be available for eligible employers
with a need for workers to begin work between May 1, 2026 and September
30, 2026. These petitions are exempt from the returning worker
requirement. 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).
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\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,
Sec. 1517); 6 U.S.C. 542 note; 8 U.S.C. 1551 note.
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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).
[[Page 5042]]
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.
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\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.
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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.
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\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.
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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,
[[Page 5043]]
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\
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\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, <a href="https://www.uscis.gov/archive/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</a> (Jan.
13, 2017); USCIS, USCIS Reaches H-2B Cap for the First Half of
Fiscal Year 2018, <a href="https://www.uscis.gov/archive/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</a> (Dec. 21, 2017); USCIS, USCIS Reaches
H-2B Cap for the First Half of Fiscal Year 2019, <a href="https://www.uscis.gov/news/news-releases/">https://www.uscis.gov/news/news-releases/</a> 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, <a href="https://www.uscis.gov/news/news-releases/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</a> (Nov. 20,
2019); USCIS, USCIS Reaches H-2B Cap for the First Half of Fiscal
Year 2021, <a href="https://www.uscis.gov/news/alerts/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</a> (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, <a href="https://www.uscis.gov/newsroom/alerts/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</a> (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, <a href="https://www.uscis.gov/newsroom/alerts/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</a> (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, <a href="https://www.uscis.gov/newsroom/alerts/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</a> (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, <a href="https://www.dol.gov/agencies/eta/foreign-labor/news">https://www.dol.gov/agencies/eta/foreign-labor/news</a> (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, <a href="https://www.uscis.gov/newsroom/alerts/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</a>
(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, <a href="https://www.dol.gov/agencies/eta/foreign-labor/news">https://www.dol.gov/agencies/eta/foreign-labor/news</a> (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,'' <a href="https://www.uscis.gov/newsroom/alerts/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</a> (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,
<a href="https://www.dol.gov/agencies/eta/foreign-labor/news">https://www.dol.gov/agencies/eta/foreign-labor/news</a>.
\16\ DOL announcement on January 5, 2026. See <a href="https://www.foreignlaborcert.doleta.gov/">https://www.foreignlaborcert.doleta.gov/</a>.
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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.
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\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.
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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.
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\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.
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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
[[Page 5044]]
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.
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\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).
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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.
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\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.
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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\
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\29\ See DHS, DHS to Improve Integrity of Visa Program for
Foreign Workers (March 5, 2020), <a href="https://www.dhs.gov/news/2020/03/05/dhs-improve-integrity-visa-program-foreign-workers">https://www.dhs.gov/news/2020/03/05/dhs-improve-integrity-visa-program-foreign-workers</a>.
\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 <a href="https://twitter.com/DHSgov/status/1245745115458568192?s=20">https://twitter.com/DHSgov/status/1245745115458568192?s=20</a>.
\32\ See <a href="https://twitter.com/DHSgov/status/1245745116528156673">https://twitter.com/DHSgov/status/1245745116528156673</a>.
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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\
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\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, <a href="https://www.uscis.gov/news/alerts/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</a> (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.
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On January 28, 2022, DHS and DOL jointly published a temporary
final rule
[[Page 5045]]
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\
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\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, <a href="https://www.uscis.gov/newsroom/alerts/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</a> (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.
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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\
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\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, <a href="https://www.uscis.gov/newsroom/alerts/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</a> (Jan. 31, 2023); USCIS, Cap Reached for
Additional Returning Worker H-2B Visas for the Early Second Half of
FY 2023, <a href="https://www.uscis.gov/newsroom/alerts/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</a> (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.
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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,
[[Page 5046]]
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\
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\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, <a href="https://www.uscis.gov/newsroom/alerts/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</a> (Jan. 12, 2024); USCIS, Cap Reached for
Additional Returning Worker H-2B Visas for the Early Second Half of
FY 2024, <a href="https://www.uscis.gov/newsroom/alerts/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</a> (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.
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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\
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\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, <a href="https://www.uscis.gov/newsroom/alerts/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</a> (Jan. 10, 2025); USCIS, Cap Reached for
Additional Returning Worker H-2B Visas for the Early Second Half of
FY 2025, <a href="https://www.uscis.gov/newsroom/alerts/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</a> (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).
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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\
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\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, <a href="https://www.bls.gov/news.release/archives/jolts_01072026.htm">https://www.bls.gov/news.release/archives/jolts_01072026.htm</a>.
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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
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\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.
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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
[[Page 5047]]
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.
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\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.
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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
[[Page 5048]]
resources, and reduce uncertainty for employers.\59\
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\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.
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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\
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\60\ The Cybersecurity & Infrastructure Security Agency (CISA)
has identified 16 critical infrastructure sectors. See <a href="https://www.cisa.gov/topics/critical-infrastructure-security-and-resilience/critical-infrastructure-sectors">https://www.cisa.gov/topics/critical-infrastructure-security-and-resilience/critical-infrastructure-sectors</a>. 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,
<a href="https://www.census.gov/naics/">https://www.census.gov/naics/</a>.
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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.
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\61\ Based on an analysis of OFLC H-2B Performance data for FY
2025 available at <a href="https://www.dol.gov/agencies/eta/foreign-labor/performance">https://www.dol.gov/agencies/eta/foreign-labor/performance</a> 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. <a href="https://www.bls.gov/news.release/archives/empsit_01092026.htm">https://www.bls.gov/news.release/archives/empsit_01092026.htm</a>.
\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.
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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\
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\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).
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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.
[[Page 5049]]
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.
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\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.
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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.
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\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).
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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.\68\ 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\
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\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,
<a href="https://www.uscis.gov/news/alerts/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</a> (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, <a href="https://www.uscis.gov/news/alerts/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</a> (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.
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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
[[Page 5050]]
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\
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\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, <a href="https://www.uscis.gov/newsroom/alerts/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</a> (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.
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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\
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\74\ See USCIS, Cap Reached for Additional Returning Worker H-2B
Visas for the First Half of FY 2023, <a href="https://www.uscis.gov/newsroom/alerts/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</a> (Jan. 31, 2023); USCIS, Cap Reached for
Additional Returning Worker H-2B Visas for the Early Second Half of
FY 2023, <a href="https://www.uscis.gov/newsroom/alerts/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</a> (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.
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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\
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\76\ See USCIS, USCIS Reaches H-2B Cap for First Half of FY
2024, <a href="https://www.uscis.gov/newsroom/alerts/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</a> (Oct. 13, 2023).
\77\ See USCIS, Cap Reached for Additional Returning Worker H-2B
Visas for the First Half of FY 2024, <a href="https://www.uscis.gov/newsroom/alerts/">https://www.uscis.gov/newsroom/alerts/</a> 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, <a href="https://www.uscis.gov/newsroom/alerts/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</a> (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.
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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\
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\79\ See USCIS, USCIS Reaches H-2B Cap for First Half of Fiscal
Year 2025, <a href="https://www.uscis.gov/newsroom/alerts/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</a> (Sept. 19, 2024).
\80\ See USCIS, Cap Reached for Additional Returning Worker H-2B
Visas for the First Half of FY 2025, <a href="https://www.uscis.gov/newsroom/alerts/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</a> (Jan. 10, 2026); USCIS, Cap Reached for
Additional Returning Worker H-2B Visas for the Early Second Half of
FY 2025, <a href="https://www.uscis.gov/newsroom/alerts/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</a> (Apr. 23, 2025).
\81\ USCIS OPQ H2B Cap Tracking Dashboard (as of Dec. 30, 2025).
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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\
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\82\ See USCIS, USCIS Reaches H-2B Cap for First Half of Fiscal
Year 2026, <a href="https://www.uscis.gov/newsroom/alerts/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</a> (Sept. 16, 2025).
\83\ See DOL, Announcements, <a href="https://www.dol.gov/agencies/eta/foreign-labor/news">https://www.dol.gov/agencies/eta/foreign-labor/news</a>.
\84\ See USCIS, USCIS Reaches H-2B Cap for First Half of FY
2017, <a href="https://www.uscis.gov/archive/">https://www.uscis.gov/archive/</a> 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, <a href="https://www.uscis.gov/archive/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</a> (Dec. 21,
2017); USCIS, USCIS Reaches H-2B Cap for First Half of FY 2019,
<a href="https://www.uscis.gov/news/news-releases/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</a> (Dec. 12, 2018); USCIS, USCIS Reaches H-2B Cap
for First Half of FY 2020, <a href="https://www.uscis.gov/news/news-releases/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</a> (Nov. 20, 2019);
USCIS, USCIS Reaches H-2B Cap for First Half of FY 2021, <a href="https://www.uscis.gov/news/alerts/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</a> (Nov. 18, 2020); USCIS, USCIS Reaches H-2B Cap for First
Half of FY 2022, <a href="https://www.uscis.gov/newsroom/alerts/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</a> (Oct. 12, 2021); USCIS,
USCIS Reaches H-2B Cap for First Half of FY 2023, <a href="https://www.uscis.gov/newsroom/alerts/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</a> (Sept. 14, 2022); USCIS, USCIS Reaches H-2B Cap for First
Half of FY 2024, <a href="https://www.uscis.gov/newsroom/alerts/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</a>; USCIS, USCIS Reaches H-
2B Cap for First Half of Fiscal Year 2025, <a href="https://www.uscis.gov/newsroom/alerts/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</a> (Sept. 19, 2024); and USCIS, USCIS Reaches H-2B Cap for
First Half of Fiscal Year 2026, <a href="https://www.uscis.gov/newsroom/alerts/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</a>
(Sept. 16, 2025).
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[[Page 5051]]
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\
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\85\ See CISA, Critical Infrastructure Sectors, <a href="https://www.cisa.gov/topics/critical-infrastructure-security-and-resilience/critical-infrastructure-sectors">https://www.cisa.gov/topics/critical-infrastructure-security-and-resilience/critical-infrastructure-sectors</a>.
\86\ See CISA, Critical Manufacturing Sector, <a href="https://www.cisa.gov/topics/critical-infrastructure-security-and-resilience/critical-infrastructure-sectors/critical-manufacturing-sector">https://www.cisa.gov/topics/critical-infrastructure-security-and-resilience/critical-infrastructure-sectors/critical-manufacturing-sector</a>.
\87\ See CISA, Commercial Facilities Sector, <a href="https://www.cisa.gov/topics/critical-infrastructure-security-and-resilience/critical-infrastructure-sectors/commercial-facilities-sector">https://www.cisa.gov/topics/critical-infrastructure-security-and-resilience/critical-infrastructure-sectors/commercial-facilities-sector</a>.
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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.
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\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.
[GRAPHIC] [TIFF OMITTED] TR03FE26.000
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\
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\89\ See USCIS, USCIS Reaches H-2B Cap for First Half of Fiscal
Year 2026, <a href="https://www.uscis.gov/newsroom/alerts/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</a> (Sept. 16, 2025).
\90\ DOL announcement on July 9, 2025. See <a href="https://www.dol.gov/agencies/eta/foreign-labor/news">https://www.dol.gov/agencies/eta/foreign-labor/news</a>.
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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
[[Page 5052]]
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.
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\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.
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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.
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\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, <a href="https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-second-half-of-fy-2025-and-filing-dates-now-available-for-supplemental">https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-second-half-of-fy-2025-and-filing-dates-now-available-for-supplemental</a> (Mar. 26, 2025).
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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
[[Page 5053]]
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.
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\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.
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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.
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\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.
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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
[[Page 5054]]
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: <a href="https://www.foreignlaborcert.doleta.gov/form.cfm">https://www.foreignlaborcert.doleta.gov/form.cfm</a>.
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\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).
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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.
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\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.).
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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
[[Page 5055]]
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
[[Page 5056]]
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
[[Page 5057]]
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\
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\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\
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\103\ See IER, Partnerships, <a href="https://www.justice.gov/crt/partnerships">https://www.justice.gov/crt/partnerships</a> (last visited Jan. 9, 2026).
\104\ ICE Tip Form, <a href="https://www.ice.gov/webform/ice-tip-form">https://www.ice.gov/webform/ice-tip-form</a>.
\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 <a href="https://www.dhs.gov/">https://www.dhs.gov/</a> system-records-notices-
sorns. Additional general information about DHS privacy policy can
be accessed at <a href="https://www.dhs.gov/policy">https://www.dhs.gov/policy</a>.
---------------------------------------------------------------------------
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\
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\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)
[[Page 5058]]
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
[[Page 5059]]
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.\114\ Given the continued high demand of American
businesses for H-2B workers (as discussed in this preamble), rapidly
evolving economic conditions, low unemployment rates, and the limited
time remaining until the expiration of the continuing resolution
authorizing supplemental cap authority to help prevent further
irreparable harm currently experienced by some U.S. employers or avoid
impending economic harm for others, a decision to undertake notice and
comment rulemaking, which would delay final action on this matter by
months, would greatly complicate and potentially preclude the
Departments from successfully exercising the authority created by
Section 105 of the FY 2024 Omnibus as extended by Section 101, Division
A, Title I of Public Law 119-37 (Nov. 12, 2025). If the Departments are
precluded from exercising this authority, substantial economic harm
will result for the reasons stated above.
---------------------------------------------------------------------------
\113\ See USCIS, USCIS Reaches H-2B Cap for First Half of Fiscal
Year 2026, <a href="https://www.uscis.gov/newsroom/alerts/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</a> (Sept. 16, 2025).
\114\ See USCIS, USCIS Reaches H-2B Cap for Second Half of FY
2025 and Filing Dates Now Available for Supplemental Visas, <a href="https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-second-half-of-fy-2025-and-filing-dates-now-available-for-supplemental">https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-second-half-of-fy-2025-and-filing-dates-now-available-for-supplemental</a>
(Mar. 26, 2025).
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2. Good Cause To Proceed With an Immediate Effective Date
The APA also authorizes agencies to make a rule effective
immediately, upon a showing of good cause, instead of imposing a 30-day
delay. 5 U.S.C. 553(d)(3). The good cause exception to the 30-day
effective date requirement is easier to meet than the good cause
exception for foregoing notice and comment rulemaking. Riverbend Farms,
Inc. v. Madigan, 958 F.2d 1479, 1485 (9th Cir. 1992); Am. Fed'n of
Gov't Emps., AFL-CIO v. Block, 655 F.2d 1153, 1156 (D.C. Cir. 1981);
U.S. Steel Corp. v. EPA, 605 F.2d 283, 289-90 (7th Cir. 1979). An
agency can show good cause for eliminating the 30-day delayed effective
date when it demonstrates urgent conditions the rule seeks to correct
or unavoidable time limitations. U.S. Steel Corp., 605 F.2d at 290;
United States v. Gavrilovic, 511 F.2d 1099, 1104 (8th Cir. 1977). For
the same reasons set forth above expressing the need for immediate
action, we also conclude that the Departments have good cause to
dispense with the 30-day effective date requirement.
B. Executive Orders 12866 (Regulatory Planning and Review), 13563
(Improving Regulation and Regulatory Review), and 14192 (``Unleashing
Prosperity Through Deregulation'')
Executive Orders 12866 (Regulatory Planning and Review) and 13563
(Improving Regulation and Regulatory Review) direct agencies to assess
the costs and benefits of available regulatory
[[Page 5060]]
alternatives and, if a regulation is necessary, to select regulatory
approaches that maximize net benefits. Executive Order 13563 emphasizes
the importance of quantifying both costs and benefits, of reducing
costs, of harmonizing rules, and of promoting flexibility. Executive
Order 14192 (Unleashing Prosperity Through Deregulation) directs
agencies to significantly reduce the private expenditures required to
comply with Federal regulations and provides that ``any new incremental
costs associated with the new regulations shall, to the extent
permitted by law be offset by the elimination of existing costs
associated with at least 10 prior regulations.''
The Office of Management and Budget (OMB) has designated this
temporary final rule a ``significant regulatory action'' under section
3(f) of Executive Order 12866, although not economically significant
under section 3(f)(1), because its annual effects on the economy do not
exceed $100 million in any year of the analysis. Accordingly, the rule
has been reviewed by the Office of Management and Budget.
This rule is not an Executive Order 14192 regulatory action because
it is being issued with respect to an immigration-related function of
the United States. The rule's primary direct purpose is to implement or
interpret the immigration laws of the United States (as described in
INA sec. 101(a)(17), 8 U.S.C. 1101(a)(17)) or any other function
performed by the U.S. Federal Government with respect to aliens. See
OMB Memorandum M-25-20, ``Guidance Implementing Section 3 of Executive
Order 14192, titled ``Unleashing Prosperity Through Deregulation''
(Mar. 26, 2025).
1. Summary
With this temporary final rule (TFR), DHS is authorizing the
release of up to an additional 64,716 total H-2B visas to be allocated
for FY 2026. In accordance with the authority given under the FY 2024
Omnibus as extended by Public Law 119-37, which President Donald J.
Trump signed on November 12, 2025, DHS is allocating the supplemental
visas in the following manner (see Table 1a):
Table 1a--Allocation of Supplement Visas
------------------------------------------------------------------------
FY 2026 Supplement Number of visas
------------------------------------------------------------------------
Returning Worker Allocation Between January 1 and 18,490
March 31, 2026.....................................
Returning Worker Allocation Between April 1 and 27,736
April 30, 2026.....................................
Allocation Between May 1 and September 30, 2026..... 18,490
-------------------
FY 2026 Total Supplemental Visas................ 64,716
------------------------------------------------------------------------
These visas will be available to businesses that: (1) show that
there are an insufficient number of U.S. workers to meet their needs
throughout FY 2026; (2) attest that their businesses are suffering
irreparable harm or will suffer impending irreparable harm without the
ability to employ all of the H-2B workers requested on their petition;
and (3) petition for returning workers who were issued an H-2B visa or
were otherwise granted H-2B status in FY 2023, 2024, or 2025, unless
requesting a start date between May 1 and September 30, 2026. This TFR
aims to prevent irreparable harm to certain American businesses by
allowing them to hire additional H-2B workers within FY 2026.
The estimated total costs to petitioners range from $4,576,426 to
$6,018,119. Estimated total transfers from filing fees made by
petitioners to the Government are $13,495,220. The benefits of this
rule are diverse, though some of them are difficult to quantify. Some
of these benefits include:
<bullet> Employers benefit from this rule significantly through
increased access to H-2B workers;
<bullet> Customers and others benefit directly or indirectly from
increased access;
<bullet> Some U.S. workers may benefit to the extent that they do
not lose jobs through the reduced or closed business activity that
might occur if fewer H-2B workers were available;
<bullet> The Federal Government benefits from increased evidence
regarding attestations.
Table 1b provides a summary of the provisions in this rule and some
of their impacts.
Table 1b--Summary of the TFR's Provisions and Economic Impact
----------------------------------------------------------------------------------------------------------------
Changes resulting from Expected benefits of
Current provision the provisions of the Expected costs of the the provisions of the
TFR provisions of the TFR TFR
----------------------------------------------------------------------------------------------------------------
The current statutory cap limits H- The amended provisions <bullet> The total <bullet> Form I-129
2B visa allocations to 66,000 will allow for an opportunity cost of petitioners would be
workers a year. additional 64,716 H-2B time to file Form I- able to hire temporary
temporary workers. 129 petitions if filed workers needed to
by HR specialists is prevent their
$497,495 (rounded). businesses from
<bullet> The total suffering irreparable
opportunity cost of harm.
time to file Form I- <bullet> Businesses
129 petitions and Form that are dependent on
G-28 if filed by the success of other
lawyers will range businesses that are
from $1,730,496 dependent on H-2B
(rounded) if only in- workers would be
house lawyers file protected from the
these forms, to repercussions of local
$2,963,074 (rounded) business failures.
if only outsourced <bullet> Some U.S.
lawyers file them. workers may benefit to
<bullet> DHS estimates the extent that they
the total opportunity do not lose jobs
cost of time through the reduced or
associated with Form I- closed business
907 filed by HR activity that might
specialists is about occur if additional H-
$35,311 (rounded). 2B workers were not
available.
[[Page 5061]]
........................ <bullet> DHS estimates .......................
the total opportunity
cost of time to file
Form I-907 filed by
lawyers range from
about $104,839
(rounded) for only in-
house lawyers, to
$179,525 (rounded) for
only outsourced
lawyers.
n/a................................. Petitioners will be <bullet> The total <bullet> An approved
required to fill out opportunity cost of Form ETA-9142B is
Form ETA-9142B in order time for Form ETA- required before filing
to utilize the 18,490 9142B filed by HR a Form I-129 to
late season H-2B visas specialists is about request H-2B workers.
allocated under the $63,631 (rounded).
rule. <bullet> The total
opportunity cost of
time to file Form ETA-
9142B by lawyers range
from about $188,733
(rounded) for only in-
house lawyers, to
$323,162 (rounded) for
only outsourced
lawyers.
Petitioners will be <bullet> The estimated <bullet> Form ETA-9142-
required to fill out total opportunity cost B-CAA-10 will serve as
the newly created Form of time to file Form initial evidence to
ETA-9142-B-CAA-10, ETA-9142-B-CAA-10 and DHS that the
Attestation for comply with the petitioner meets the
Employers Seeking to attestation is irreparable harm
Employ H-2B approximately standard and
Nonimmigrant Workers $1,955,921. applicable returning
Under Section 105 of worker requirements.
Division G, Title I of
the Further
Consolidated
Appropriations Act,
2024, Public Law 118-
47, as extended by
Public Law 119-37
signed November 12,
2025.
Total Costs......................... ........................ <bullet> The total .......................
estimated cost to
petitioners ranges
from $4,576,426* to
$6,018,119,**
depending on the
filer.
----------------------------------------------------------------------------------------------------------------
Source: USCIS and DOL analysis.
* Calculation: $497,495 + $1,730,496 + $35,311 + $104,839 + $63,631 + $188,733 + $1,955,921 = $4,576,426.
** Calculation: $497,495 + $2,963,074 + $35,311 + $179,525 + $63,631 + $323,162 + $1,955,921 = $6,018,119.
2. Background and Purpose of the Temporary Rule
The H-2B visa classification program was designed to serve American
businesses that are unable to find enough U.S. workers to perform
nonagricultural work of a temporary nature. For a nonimmigrant worker
to be admitted into the United States under this visa classification,
the hiring employer is required to: (1) receive a temporary labor
certification (TLC) from the Department of Labor (DOL); and (2) file
Form I-129 with DHS. The temporary nature of the services or labor
described on the approved TLC is subject to DHS review during
adjudication of Form I-129.\115\ The INA sets the annual number of H-2B
visas for workers performing temporary nonagricultural work at 66,000
to be distributed semiannually beginning in October (33,000) and in
April (33,000).\116\ Any unused H-2B visas from the first half of the
fiscal year are available for employers seeking to hire H-2B workers
during the second half of the fiscal year. However, any unused H-2B
visas from one fiscal year do not carry over into the next and would
therefore not be made available.\117\ Once the statutory H-2B visa cap
limit has been reached, petitioners must wait until the next half of
the fiscal year, or the beginning of the next fiscal year, for
additional visas to become available.
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\115\ Revised effective 1/18/2009; Changes to Requirements
Affecting H-2B Nonimmigrants and Their Employers; Correction, 73 FR
78104 (Jan. 19, 2009); Changes to Requirements Affecting H-2B
Nonimmigrants and Their Employers; Correction, 74 FR 2837 (Jan 18,
2009).
\116\ See INA 214(g)(1)(B), 8 U.S.C. 1184(g)(1)(B) and INA
214(g)(4), 8 U.S.C. 1184(g)(4).
\117\ A TLC approved by DOL must accompany an H-2B petition. The
employment start date stated on the petition must match the start
date listed on the TLC. See 8 CFR 214.2(h)(6)(iv)(A) and (D).
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On November 12, 2025, the President signed Public Law 119-37. This
law extends authorization under the same terms and conditions provided
in section 105 of Division G, Title I of the FY 2024 Omnibus \118\
authorizing the Secretary of Homeland Security to increase the number
of H-2B visas available to U.S. employers in FY 2026, and expires on
January 30, 2026.\119\ After consulting with the Secretary of Labor,
the Secretary of Homeland Security has determined it is appropriate to
exercise her discretion and raise the H-2B cap by up to a total of
64,716 visas for FY 2026. The total supplemental allocation will be
divided into three separate allocations. One allocation for 18,490
immediately
[[Page 5062]]
available visas for returning workers issued H-2B visas in FY 2023, FY
2024, or FY 2025 with a need for workers to begin between January 1
through March 31, 2026. And two allocations for the second half of FY
2026 (a first one for 27,736 visas for returning workers issued H-2B
visas in FY 2023, FY 2024, and FY 2025 with a need for workers to begin
between April 1 through April 30, 2026; and a second one for 18,490
visas for workers to begin between May 1 through September 30, 2026).
As with previous supplemental allocations, USCIS will make these
supplemental visas available only to businesses that qualify and meet
the requirements for the supplemental visas. These businesses must
attest that they are suffering irreparable harm or will suffer
impending irreparable harm without the ability to employ all the H-2B
workers requested on their petition.
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\118\ Further Consolidated Appropriations Act, 2024, Public Law
118-47 (Mar. 23, 2024). Specifically, 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.
\119\ 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).
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This TFR will cover FY 2026. While the Departments cannot predict
with certainty what labor market conditions will be during the second
half of FY 2026, they believe that the structure of this TFR is
reasonable because: (1) the availability of the second half FY
supplemental visas is contingent on the exhaustion of the second half
FY statutory cap, (2) strong historical demand for H-2B workers, and
(3) mainstream estimates of labor market conditions for FY 2026
indicate a general continuation of labor market tightness from a
historical perspective.\120\
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\120\ December 2025 Federal Open Market Committee (FOMC)
projections for unemployment rate in 2026 were a median of 4.4% with
a central tendency between 4.3 and 4.4%. See <a href="https://www.federalreserve.gov/monetarypolicy/fomcprojtabl20251210.htm">https://www.federalreserve.gov/monetarypolicy/fomcprojtabl20251210.htm</a> (last
accessed Jan. 8, 2026).
Table 2--DOL Certified Worker Demand,* FY 2021 Through FY 2025
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Number of DOL DOL certified workers
Fiscal year Number of certified workers with requested start
certifications requested dates April 1 or later
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2021........................................... 7,772 159,081 100,522
2022........................................... 10,674 205,037 127,654
2023........................................... 12,126 220,552 128,115
2024........................................... 13,115 227,277 127,383
2025........................................... 13,310 226,558 118,252
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5-year Average \**\........................ 11,399 207,701 120,385
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Source: USCIS analysis of DOL Office of Foreign Labor Certification (OFLC) Performance data, available at <a href="https://www.dol.gov/agencies/eta/foreign-labor/performance">https://www.dol.gov/agencies/eta/foreign-labor/performance</a> (accessed Jan. 8, 2026).
Note:
* All data are for applications listed as having a case status of ``Certification'', ``Partial Certification'',
``Determination--Certification'', or ``Determination--Partial Certification.'' Furthermore, data have been
adjusted to a fiscal year using the employment begin date provided on the TLC application. As such, counts
differ from counts based on the Disclosure Files of OFLC H-2B Performance data. This adjustment was made so
that the OFLC data more closely aligns to USCIS I-129 data.
** Averages are rounded to the nearest whole number.
With respect to histori
[…truncated; see source link]Indexed from Federal Register on February 3, 2026.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.