Pabian Law Client Alert: H-2B Cap Relief Announced As DOL/DHS Plan To Release 35,000 Additional H-2B Visas For Fiscal Year 2026

Pabian Law clients and friends,

Happy New Year! I hope this email finds you well. Late this afternoon, the U.S. Department of Homeland Security (DHS) and the U.S. Department of Labor (DOL) issued a joint press release (linked here) announcing that they plan to release 35,000 supplemental H-2B visas (i.e., "cap relief") for the 2026 fiscal year. FY2026 applies to employers with H-2B start dates from October 1, 2025 through September 30, 2026.

The good news is that more H-2B visas will be made available, which is critical due to ongoing record demand for seasonal international workers, and that the government continues to understand the need for H-2B visa holders in the American workforce. The frustrating news, though is that the announcement contained very few details, and much is still unknown regarding the substance of cap relief.

Here is what we do know:

• There has not yet been any official ruling or publication issued by DHS. Therefore, the details of cap relief are not currently, known or final and are subject to change.
• The timing of the release of the visas is unclear. There is no specific date indicated in the DOL/DHS announcement; however, it does state that a rule will be published in the federal register "in the coming weeks." Therefore, it may be possible that winter-season employers could file petitions for supplemental visas as soon as January. But, this is unconfirmed and very much subject to change.
  • Note: although this announcement applies to all FY2026 employers (both winter and summer), this announcement most immediately impacts winter-season employers. Summer-season employers will not likely be able to take advantage of cap relief until late-February or March based on historical timing. Also, we do not anticipate this to have any impact on summer-season H-2B application strategy, as cap relief should be used as a last resort rather than a primary strategy for many reasons (including the hurdles mentioned below).
• The number of visas being released is far fewer than previous years. In the past few years, about 66,000 supplemental visas have been released, compared to 35,000 this year. It is unlikely that the number of additional visas ultimately released will be enough for all employers who wish to file based on past years. If demand outweighs supply, DHS may conduct a lottery to select which petitions it will accept.
  • The reduction in supplemental visas this year underscores the importance of having alternative strategies (including recruiting in-country workers who are cap exempt).
• The allocation of visas being released is unclear. Although we know that there are 35,000 additional visas being released for FY2026 overall, there was no information provided regarding how many will be allocated to winter-season employers vs. summer-season employers. Additionally, there is no indication regarding whether there will be separate allocations for "returning workers" (workers who have been issued H-2B visas recently) vs. a "country-specific allocation" (typically certain Central and South American countries).
• Employers likely need to clear additional hurdles in order to apply for cap relief: In past years, eligibility for supplemental visas has required employers to take additional steps, including (1) submitting an attestation that they will experience irreparable harm (permanent and severe financial loss) if they are not able to hire H-2B workers; and (2) undergoing additional recruitment efforts to identify potential U.S. workers. Additionally, in the past, the filing of supplemental cap petitions has increased government scrutiny, including the chance of an audit. It is unclear what the specific additional requirements will be this year – we will not know until the rule is published in the coming weeks.
• We expect that there will be many alerts and rumors circulated regarding this announcement. Although some may be informative and helpful, others may contain misinformation. When in doubt, feel free to reach out to our office to confirm the legitimacy of any cap-relief updates you may receive.

Webinars

We and our sister company, Seasonal Connect, are hosting two webinars in the next couple of weeks that will help to make further sense of H-2B visa strategy and paths moving forward for both winter and summer-season organizations. Details are below:

• Saving your Summer Season: H-2B Lottery Results, Cap Relief, & Staffing Strategies for Success (Seasonal Connect complimentary webinar)
  • Tuesday, January 13^th at 2pm EST
  • Register online at bit.ly/44Ao4kd
  • This webinar is free and open to all!
• Making Sense of the H-2B Visa Lottery and Demand (Town Hall webinar)
  • Thursday, January 15^th at 2pm EST
  • This webinar is only open to active Pabian Law clients
  • Pabian Law clients – please email if you need me to resend the registration details

We will provide additional details on cap relief as soon as they become available. In the meantime, wishing you all a very Happy New Year!

Thank you,

Keith Pabian and the Pabian Law Team

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.