United States | DHS temporary final rule authorizes H-2B supplemental visas for FY 2026

The Department of Homeland Security will issue a temporary final rule, scheduled for publication on Feb. 3, 2026, authorizing up to 64,716 additional H‑2B visas for fiscal year (FY) 2026 with phased allocations, an “irreparable‑harm attestation” and certain filing-window dates.

Key Points:

• Effective date: The rule is effective from Jan. 30–Sept. 30, 2026, except for 20 CFR 655.69 (outlining certain document-retention provisions for H-2B employers for FYs 2022–26), which is effective from Jan. 30, 2026–Sept. 30, 2029.
• Availability: According to the rule, the supplemental visas “will be available only to those American businesses that are suffering or will suffer impending irreparable harm, i.e., those facing permanent and severe financial loss, as attested by the employer.”
• Three allocation groups: The visas will be distributed in three allocations, each with a specific filing window, based on the petitioner’s start date of need through the end of the fiscal year. The three allocations are grouped as follows:
• • Allocation one: 18,490 immediately available visas limited to returning workers issued H‑2B visas in FYs 2023, 2024 or 2025 and with Jan. 1–March 31, 2026, needed start dates. Petitions must be filed no later than 14 days after the second half of the statutory cap is reached.
  • Allocation two: 27,736 visas, plus any unused visas from the first allocation, limited to workers issued H‑2B visas in FYs 2023, 2024 or 2025 and with April 1–30, 2026, needed start dates. Petitions must be filed no later than 15 days after the second half of the statutory cap is reached.
  • Allocation three: 18,490 visas, plus any unused visas from the first or second allocations, for nonimmigrant workers available for eligible workers with May 1–Sept. 30, 2026, needed start dates. Petitions must be filed no earlier than 45 days after the second half of the statutory cap is reached.
• Petitioner eligibility requirements: Eligible petitioners must meet certain criteria to qualify for the FY 2026 supplemental caps in accordance with the temporary final rule. The criteria include but are not limited to:
  • Meeting all existing H-2B eligibility requirements
  • Properly filing Form I-129 with U.S. Citizenship and Immigration Services
  • Submitting an attestation affirming that the employer is suffering irreparable harm or will suffer impending irreparable harm without the ability to employ all of the H-2B workers requested on the petition
• Excluded petitions: H-2B petitions under provisions related to the FY 2026 supplemental numerical allocations received after Sept. 15, 2026, will not be accepted. H-2B petitions received after Sept. 30, 2026, will not be approved.

Additional Information: As previously reported by BAL, the Department of Labor announced that it “will make an additional 35,000 H-2B temporary nonagricultural worker visas available for Fiscal Year (FY) 2026, on top of the congressionally mandated 66,000 H-2B visas that are available each fiscal year.”

This alert has been provided by the BAL U.S. Practice Group.

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