Important Pabian Law Client Alert: Details Of FY 2026 H-2B Visa Cap Relief

Pabian Law Clients and Friends,

We have some wonderful news to share as you head into the weekend! Late this afternoon, the U.S. Department of Homeland Security (DHS) and the U.S. Department of Labor (DOL) jointly announced that they will increase the FY 2026 H-2B visa cap by 64,716 visas. This announcement is a huge surprise (and great news overall!), as the government previously announced that they would only be releasing 35,000 total supplemental visas. We are unsure what caused the change, but it is welcome news for organizations who rely on the H-2B visa program.

Importantly, this year's cap relief is significantly different from recent years. It changes the way the visas are allocated, and there are no visas reserved for the country-specific allocation made available in prior years (El Salvador, Guatemala, Honduras, Haiti, Colombia, Ecuador, and Costa Rica).

***Pabian Law will be hosting a client-only webinar on Thursday, February 5^th at 12pm EST to walk clients through the in's and out's of this year's cap relief. I will email our clients separately with registration information.***

Apologies in advance for a long email, but this affects all of our H-2B visa seasonal clients – regardless of season – and contains important information. Please read on for vital information.

Introductory summary of the visa allocation

The 64,716 visas are to be allocated as follows:

• Winter-season employers (only start dates from January 1^st through March 31^st are eligible): 18,490 visas for returning workers* only, regardless of nationality. These visas will be immediately available for winter-season employers with start dates of January 1^st through March 31^st, only, as soon as the rule is published (we expect the rule to be published on February 3^rd).
  • Note: the release of visas for winter-season employers is good news overall, but it is extremely frustrating that these visas have been limited to employers with start dates between January 1^st and March 31^st. This seems to arbitrarily exclude employers with November or December start dates listed on their H-2B visa applications.
  • Based on demand in previous years, we expect these visas to remain available for at least one month after their release (likely through at least the end of February).
• Early summer-season employers (April 1^st to April 30^th start dates): 27,736 visas for returning workers only, regardless of nationality. These visas will be allocated to summer-season employers with start dates of April 1^st through April 30^th, only. These visas will not be available until around late-February or March, depending on when the summer-season cap is reached.
  • This allocation was fully used last year soon after release. However, there are more visas this year, so it is possible that more employers will be able to take advantage. With that being said, we still anticipate that only April 1^st employers will be able to receive these visas and they will be fully used before employers with later April start dates are able to apply. Please see the section below for more information regarding which lottery groups we anticipate will be eligible.
• Late summer-season employers: (May 1^st to September 30^th start dates) 18,490 visas regardless of returning worker status and regardless of nationality. These visas will be allocated to summer-season employers with start dates of May 1^st or later, only. These visas will not be available until either March or April, depending on when the summer-season cap is reached.
  • This allocation was not fully used last year. Additionally, there are significantly more visas this year than the 5,000 last year. However, there may be significantly more demand this year given the expansion to include May 1^st employers (last year it was May 15^th to September 30^th) and the removal of the returning worker requirement. However, although it is very difficult to predict given how different cap relief is this year, we still anticipate these visas to be available for most employers with May start dates (and possibly beyond).
  • Note: this is the first time in recent memory that supplemental visas will be available for any worker, regardless of returning worker status or country of citizenship. However, as mentioned above, these unrestricted visas will only be available to employers who have already made plans to file H-2B applications listing start dates of May 1^st or later.

*"Returning Workers" are classified as workers who were issued H-2B visas or held H-2B status in fiscal years 2023, 2024, or 2025.

For 2026 Summer-season employers (ONLY) – (start dates on or after 4/1/2026)

While it is great news that the full number of visas have been released, the fact that the visa allocation is different this year is a surprise. For example, employers who may have been hoping for "special allocation" workers from central American countries will now have to change their plans. However, as we have been advising, relying on cap relief is never a certainty.

Some additional information about the supplemental visas is as follows:

• Division into two groups: As with last year, the rule provides separate allocations for early-season and late-season filers. The reason for this is likely an attempt to be equitable, since (if there were no separate group) all supplemental visas would be gone before late-season filers had a chance to file (they would likely be completely used up by April 1^st filers alone).
• Timing: Under the rule, summer-season employers will not be able to file for supplemental visas until at least 15 days (for "early-season" filers) or 45 days (for "late-season" filers) after the summer-season H-2B cap is reached. The cap is usually reached sometime in late-February or early-March. Therefore, supplemental visas may be released sometime in March (for "early-season" filers) and April (for "late-season" filers).
• If you are an April 1^st employer, your cap strategy will likely be impacted by your DOL lottery assignment: in early January, April 1^st applications are assigned a lottery grouping by the DOL. Group A (plus just over half of B) is generally safe to obtain out-of-country visas under the initial cap. However, the later groupings are not. If you are assigned a later grouping, you can either decide to focus on in-country recruiting (our strong recommendation), or you may decide that you are committed to an out-of-country recruiting strategy and you would like to try to submit a petition for cap relief. Due to the high demand expected for summer-season supplemental visas, we expect that not all April 1^st lottery groups will be eligible for cap relief. Based on past years, Groups C and D have been eligible but Group E was at risk of missing out. This year, given the additional visas (27,736 vs. 19,000), we are hopeful that Group E and possibly even F could be eligible. However, because cap relief is so different this year from past years, it is very difficult to estimate with any certainty.
• In-country recruiting is still the best option: Regardless of your start date and regardless of this cap relief announcement, the best way to avoid risks associated with the H-2B cap is to focus on recruiting in-country workers who are cap-exempt.
• Next steps: There is no action we can take at the current time. However, based on the above and your start date/lottery groupings, please let us know if you are interested in filing petitions for cap relief and for which positions. We will then reach out in March to discuss specific filing details.

For 2025-26 Winter-season employers (ONLY) – (start dates between 1/1/26 & 3/31/26)

When can you file petitions?

This rule will not be officially published until the end of the day on February 3^rd (at the earliest), and therefore, no petitions can be filed with U.S. Citizenship and Immigration Services (USCIS) until Wednesday, February 4^th at the earliest (and possibly not until later in the week depending on timing). However, as long as a petition is filed within the first 5 business days after the rule is published, the petitions will be accepted for review even if there is a lottery (which is highly unlikely since we expect visas to be available until March).

When could petitions be approved/workers arrive?

USCIS guarantees adjudication of petitions within 15 calendar days. Therefore, for petitions filed next week, we would expect to receive a decision from USCIS in mid-to-late February. Depending on the processing time for visas at the U.S. embassy/consulate abroad for a specific country, workers could likely begin arriving as soon as early- or mid-March if the petition is approved.

Who can file?

The temporary Final Rule implements special filing procedures that are similar to those instituted in previous years. Specifically, in order to file an H-2B petition to apply for the additional visas, employers must:

• Have an approved H-2B labor certification from the DOL for winter-season employment (with a start date between 1/1 and 3/31), which has open (unused) spots;
• Sign an attestation that they will experience irreparable harm (i.e., "permanent and severe financial loss") if they cannot hire all of the H-2B workers requested (employers must maintain documentation demonstrating such harm for a three-year period); and
• For returning workers only: sign an attestation that all workers are "returning workers" (i.e., held an H-2B visa or H-2B status in the 2023, 2024, or 2025 fiscal year).

Please note: The rule mentions that employers filing petitions to request supplemental visas will be subject to increased likelihood of a random audit to confirm compliance with the H-2B regulations, including the "irreparable harm" and "returning worker" requirements. Additionally, the irreparable harm standard (i.e., "permanent and severe financial loss"), although not clearly defined in the regulations, is a very high burden to prove and carries liability risk in an audit if it cannot be proven. Therefore, supplemental cap petitions should always be seen as a last resort when facing severe harm without H-2B workers.

Demand for visas

We anticipate that there will be a fair level of demand for these additional 18,490 visas. However, based on last year, we do not anticipate that a lottery will be necessary. If there is an unexpectedly high level of demand that requires a lottery, DHS will place all H-2B visa petitions received within the first five (5) business days after the first day of filing into the lottery. Therefore, all petitions received by DHS between February 4^th and February 10^th would be entered into the lottery with equal chances. Regardless, we are taking steps to ensure that we file our clients' petitions as soon as possible.

**Next steps (for winter-season employers only)

If you are a Pabian Law winter-season client and you have mentioned an interest in submitting a supplemental cap petition, we will reach out to you with more information on next steps (if you don't hear from us by early next week, please check in). If you have not already mentioned your interest, but are interested in filing a supplemental cap petition for the 2025-26 winter season (and you have a certified employment start date on your H-2B application between January 1^st and March 31^st), could you please let us know which position(s) you would like to file for by the end of the day, on Monday, February 2^nd?

Please let us know if you have any questions. Wishing you all a great weekend.

Thank you,

Keith and the Pabian Law Team

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