Just over one month in to the H-2B filing season for the second half of Fiscal Year 2026 (“FY2026”), there are finally updates regarding H-2B cap expansion. On February 3, 2026, the U.S. Department of Homeland Security (“DHS”), in consultation with the Department of Labor (“DOL”), published a temporary final rule authorizing a significant increase in the number of H-2B visas available for FY2026. This rule provides up to 64,716 supplemental H-2B visas in addition to the statutory annual cap of 66,000, in response to ongoing high demand for temporary nonagricultural workers.

Background and Legislative Authority

The Immigration and Nationality Act (“INA”) sets an annual cap of 66,000 H-2B visas, distributed semi-annually. However, persistent demand has led Congress to authorize supplemental visas in recent years. For FY2026, Public Law 119-3720 permits the Secretary of DHS, after consultation with DOL, to allocate up to 64,716 additional H-2B visas for employers unable to meet their labor needs under the regular cap.

Notably, an initial announcement on December 31, 2025, limited the supplemental release to 35,000 visas for critical infrastructure sectors only. Following advocacy from stakeholders, the Administration reversed course, increasing the number of supplemental visas and removing sector-based restrictions.

Supplemental Visa Allocations and Timing

The supplemental visas for FY2026 are divided into three allocations based on employment start dates as follows:

• First Allocation: 18,490 visas for start dates between January 1 and March 31, 2026. Petitions must be filed within 14 days after the second half of the fiscal year cap is reached. Only returning workers (counted against the cap in FY2023-2025) are eligible.
• Second Allocation: 27,736 visas for start dates between April 1 and April 30, 2026. Petitions must be filed between 15 and 45 days after the second half cap is reached. Only returning workers (counted against the cap in FY2023-2025) are eligible.
• Third Allocation: 18,490 visas for start dates between May 1 and September 30, 2026. Petitions must be filed between 45 days after the second half cap is reached and September 15, 2026. There is no returning worker requirement for this allocation.

Eligibility, Filing, and Documentation Requirements

The ability to access supplemental H-2B visas is similar to the gating requirements from prior years. Specifically, in addition to securing a temporary labor certification in the normal course, employers must submit a new version of Form ETA 9142-B-CAA-10 with the subsequent filing with U.S. Citizenship and Immigration Services, attesting under penalty of perjury to suffering or impending “irreparable harm” if unable to employ the requested H-2B workers. In order to demonstrate such harm, employers must provide concrete evidence of the same defined as permanent and severe financial loss, not merely generalized labor shortages or increased costs. Persuasive documentation may include:

• Profit and loss statements and revenue projections tied to seasonal demand.
• Financial records showing reliance on H-2B labor in prior years.
• Contracts, purchase orders, or client commitments at risk without additional workers.
• Recruitment results and hiring data evidencing unsuccessful efforts to find U.S. workers.
• A clear, detailed narrative connecting these materials is recommended to substantiate the attestation and prepare for potential government inquiries.

It is anticipated that demand will be high for these supplemental visas. As such, employers should continue to diligently work through the H-2B application process so that they are in position to file as soon as possible and be best positioned to take advantage of these extra visa allocations. If you have questions regarding these changes or would like to discuss strategies for securing H-2B visas, please reach out to a member of the Immigration Practice Group at Koley Jessen.

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