The Departments of Homeland Security (DHS) and Labor (DOL) have jointly issued a temporary rule authorizing up to 64,716 additional H-2B visas for fiscal year 2026, effective from January 30, 2026, through September 30, 2026. This action, taken under authority extended by President Trump through Public Law 119-37, targets American businesses experiencing or at risk of irreparable harm due to insufficient workforce. The visas are distributed in three allocations based on employment start dates, with a focus on returning workers to ensure program integrity and expedite hiring. This development addresses ongoing labor demands in key industries while incorporating safeguards for U.S. workers.
Background on the H-2B Program
The H-2B visa program allows U.S. employers to hire foreign workers for temporary nonagricultural jobs when qualified U.S. workers are unavailable. Established under the Immigration and Nationality Act (INA), the program is capped at 66,000 visas annually, split evenly between the first and second halves of the fiscal year. Employers must obtain a temporary labor certification (TLC) from DOL, confirming no adverse impact on U.S. wages or working conditions, before petitioning DHS via U.S. Citizenship and Immigration Services (USCIS).
Historically, demand has exceeded the cap, prompting Congress to grant temporary supplemental authority in recent years. For FY 2026, this authority stems from section 105 of the FY 2024 Omnibus, extended by Public Law 119-37, allowing DHS, in consultation with DOL, to increase visas up to the highest prior returning worker exemption level of 64,716, as seen in FY 2007. Key players include DHS Secretary Kristi Noem and DOL Secretary Lori Chavez-DeRemer, who determined that certain businesses' needs cannot be met without this expansion.
Statutory Authority and Determination
The rule invokes INA section 214, enabling DHS to regulate nonimmigrant admissions, and the extended authority under Public Law 119-37, signed by President Trump on November 12, 2025. DHS, after consulting DOL, concluded that some employers face unmet needs for temporary labor, risking permanent financial loss. This echoes prior fiscal years' supplemental caps, where similar increases addressed high demand, with USCIS reaching caps increasingly early—on September 12, 2025, for the first half of FY 2026.
The determination aligns with precedents like the FY 2016 returning worker exemption, emphasizing returning workers to mitigate risks of program abuse. DOL's data shows over 162,000 worker positions requested for April 1, 2026, starts, underscoring demand in sectors like landscaping, hospitality, and construction.
Details of the Visa Allocations
The 64,716 supplemental visas are divided into three allocations, all requiring employers to attest to irreparable harm and obtain a TLC:
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First Allocation (January 1 to March 31, 2026): 18,490 visas for returning workers (those with H-2B status in FY 2023-2025). Petitions are accepted immediately upon rule publication but rejected if filed after the cap is reached or 15 days after the second-half statutory cap.
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Second Allocation (April 1 to April 30, 2026): 27,736 visas for returning workers, plus any unused from the first allocation. Filing begins 15 days after the second-half statutory cap, with rejections after the cap or 45 days post-cap.
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Third Allocation (May 1 to September 30, 2026): 18,490 visas, plus unused from prior allocations, exempt from the returning worker requirement. Filing starts 45 days after the second-half cap, ending September 15, 2026.
Employers must submit Form I-129 with the attestation Form ETA-9142-B-CAA-10, affirming harm and compliance. DHS will not approve petitions after September 30, 2026.
Eligibility, Procedures, and Compliance
Eligibility hinges on demonstrating irreparable harm—permanent severe financial loss—via attestation and retained evidence, such as financial statements or contracts. Employers attest to employing only returning workers (except in the third allocation) and cooperating with audits. DOL and DHS may audit for compliance, with violations leading to revocation, debarment, or penalties.
Procedures mirror standard H-2B processes: obtain TLC, file Form I-129, and attest via Form ETA-9142-B-CAA-10. Premium processing is available. This framework draws from past rules, like FY 2025's similar increase, where over 87,000 workers were approved.
Potential Implications and Perspectives
Short-term, the rule provides relief to industries facing labor shortages, potentially stabilizing operations in critical sectors like manufacturing and tourism. Long-term, it may influence workforce trends, though limited to FY 2026.
Perspectives vary: Employers and industry groups, citing low unemployment (e.g., BLS data showing 7.1 million job openings in November 2025), view it as essential for economic stability. Labor advocates emphasize protections, noting DOL's role in ensuring no adverse effects on U.S. workers. Without endorsement, the rule balances business needs against worker safeguards, amid debates on immigration reform.
Key takeaways include the targeted relief for businesses in distress, with built-in protections for U.S. workers through attestations and audits. Potential next steps involve monitoring cap usage and evaluating labor market data for future adjustments. Ongoing debates may focus on permanent cap reforms or enhanced enforcement, as the authority expires September 30, 2026.
