DHS and DOL Authorize 64,716 Supplemental H-2B Visas for FY 2026

Quick Hits

• As in prior years, DHS and DOL have authorized 64,716 supplemental H-2B visas for FY 2026.
• Supplemental visas are divided into three allocations with different start dates and filing windows.
• Employers must attest to irreparable harm and retain supporting documentation.

Background on the H-2B Program

The H-2B program enables employers to hire foreign workers to fill temporary nonagricultural positions when qualified U.S. workers are not available.

The Immigration and Nationality Act (INA) sets the annual statutory cap for H-2B visas at 66,000, distributed semi-annually with up to 33,000 visas available in each half of the fiscal year. However, demand for H-2B workers has consistently exceeded this cap. During the January 2026 filing period, the DOL’s Office of Foreign Labor Certification published the assignment groups for 10,062 applications requesting more than 162,000 positions—a significant increase from the prior year’s 8,759 applications requesting nearly 150,000 positions.

In recognition of this ongoing demand, the U.S. Congress has authorized supplemental visas in recent fiscal years. For FY 2026, section 101 of the Continuing Appropriations Act (Public Law 119-37) permits the secretary of DHS to provide up to 64,716 supplemental H-2B visas for employers whose employment needs cannot be met under the statutory cap.

Supplemental Visa Allocations and Timeline

The 64,716 supplemental visas are divided into three allocations based on employment start dates:

• First Allocation (18,490 visas): For start dates between January 1 and March 31, 2026. This allocation is limited to returning workers who were issued H-2B visas or held H-2B status from FY 2023-2025. Petitions must be filed within fourteen days after the second-half statutory cap is reached.
• Second Allocation (27,736 visas, plus any unused visas from the first allocation): For start dates between April 1 and April 30, 2026. This allocation is limited to returning workers who were issued H-2B visas or held H-2B status from FY 2023-2025. Petitions must be filed between fifteen and forty-five days after the second-half cap is reached.
• Third Allocation (18,490 visas, plus any unused from the first and second allocations): For start dates between May 1 and September 30, 2026. No returning worker requirement. Petitions must be filed between forty-five days after the second-half cap is reached and September 15, 2026. 

Irreparable Harm Attestation Required

To access supplemental visas, employers must submit an attestation under penalty of perjury affirming that their business is suffering—or will suffer—irreparable harm without the requested H-2B workers. The DOL defines “irreparable harm” as “permanent and severe financial loss.” Employers can justify irreparable harm based on evidence such as contracts, work orders, payroll records, or other types of evidence. Employers must also prepare a detailed written statement to provide upon request from DHS and/or DOL.

Next Steps

Given the strict filing windows and the speed at which supplemental visas have been exhausted in prior years, early preparation is essential for employers seeking access to these additional H-2B visas. Additionally, documentation of irreparable harm will be critical to withstanding potential government scrutiny.

Ogletree Deakins’ Immigration Practice Group will continue to monitor developments and will post updates on the Immigration blog as additional information becomes available.

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