Seasonal employers who rely on the H-2B program just received some long-awaited relief — along with a few new compliance hurdles to keep in mind.
In consultation with the U.S. Department of Homeland Security (DHS) and the U.S. Department of Labor (DOL), U.S. Citizenship and Immigration Services (USCIS) has issued a temporary final rule increasing the H-2B cap for Fiscal Year 2026 by up to 64,716 supplemental visas. These visas are in addition to the standard 66,000 annual statutory cap and are intended to help employers facing ongoing seasonal and temporary labor shortages. The rule is effective from Jan. 30, 2026, through Sept. 30, 2026.
For many businesses in hospitality, landscaping, seafood processing, construction, tourism and other seasonal industries, this expansion could be the difference between operating at full capacity and turning away work. But access to these supplemental numbers is not automatic. Employers must show they are suffering — or will imminently suffer — “irreparable harm” if they cannot secure the requested workers. In other words, the government is looking for real financial consequences, not simply inconvenience or tight labor markets.
At first glance, the structure of the supplemental release created concern, particularly for fall-season employers. Because all of the additional visas are tied to start dates of Jan. 1, 2026, or later, it initially appeared that businesses with October through December needs — many of whom had already completed recruitment and filed applications before the first-half cap was reached — would be left without meaningful relief.
Fortunately, USCIS has since provided helpful clarification that softens that outcome considerably. While the regulations typically require the employment start date on Form I-129 to match the start date on the approved Temporary Labor Certification (TLC), USCIS is allowing temporary flexibility for this supplemental increase.
Employers may reuse otherwise valid TLCs even if the certified start date has already passed. Practically speaking, this means that an employer with a TLC showing an Oct. 1, 2025, start date can file a new petition requesting a Jan. 1, 2026, (or later) start date without having to repeat the recruitment and certification process. For many employers who already invested time and expense into the TLC process, this one-time exception provides a workable path forward.
As in recent years, DHS is dividing the supplemental visas into three allocations based on start dates of need. The first 18,490 visas are reserved for January through March start dates, followed by 27,736 for April start dates — both limited to returning workers who were counted against the cap in FY 2023–2025. A final 18,490 visas for May through September start dates will not carry the returning worker restriction. Any unused numbers will roll forward.
Documenting Irreparable Harm
That said, the biggest focus this year is documentation of “irreparable harm.” Employers must submit an attestation under penalty of perjury and keep supporting evidence for at least three years. DHS and DOL have made clear that post-approval audits and investigations remain on the table, and they expect employers to be able to back up their claims with concrete proof.
General labor shortages or increased operating costs alone will not be enough. Instead, agencies are looking for evidence such as lost contracts, cancelled bookings, reduced production capacity, revenue decline or risk of shutting down operations. Financial statements, revenue projections, contracts, purchase orders, seasonal demand data and records showing unsuccessful efforts to hire U.S. workers can all be persuasive.
We strongly recommend employers treat this like preparing an audit file — organized, detailed, and supported by numbers, rather than broad statements.
Finally, timing will be critical. DHS will not accept supplemental petitions after Sept. 15, 2026, and approvals will not be issued after Sept. 30, 2026. Historically, these supplemental numbers are exhausted quickly. Early TLC preparation, early filing and thoughtful documentation will give employers the best chance of success.
For businesses that depend on seasonal labor, the message is clear: the opportunity is there, but preparation matters. With the right strategy and documentation, many employers — including those who thought they had missed their window last fall — may still be able to secure the workers they need.
If you have questions about eligibility, TLC reuse or how to document irreparable harm, the Harris Beach Murtha Immigration Practice Group is happy to help you assess your options and move quickly before the cap fills.
About Harris Beach Murtha’s Temporary and Seasonal Labor Practice
Harris Beach Murtha maintains one of the largest temporary and seasonal visa practices in the country. L.J. D’Arrigo, co-leader of the firm’s Immigration Practice Group, and Jarrod M. Sharp, Sr. Counsel, are nationally recognized for processing seasonal visas. Our immigration attorneys provide guidance to some of the largest employers in the U.S. across industry sectors, including agriculture, manufacturing, hospitality, construction, landscaping, equine, and others. We facilitate the processing of thousands of temporary workers through the H-2B and H-2A programs each season. We also have been successful in developing long-term permanent labor solutions for our clients.
Harris Beach Murtha attorneys guide employers through every step of the H-2 journey, developing successful strategies and ensuring that your business remains in compliance with the complex maze of government regulations. Contact our H-2 visa team today!
If you have questions or concerns about how this policy may impact you or your family or business, please contact attorney L.J. D’Arrigo at (518) 701-2770 and ldarrigo@harrisbeachmurtha.com, or the Harris Beach Murtha attorney with whom you most frequently work.
This alert is not a substitute for advice of counsel on specific legal issues.
Harris Beach Murtha’s lawyers and consultants practice from offices throughout Connecticut in Bantam, Hartford, New Haven and Stamford; New York state in Albany, Binghamton, Buffalo, Ithaca, New York City, Niagara Falls, Rochester, Saratoga Springs, Syracuse, Long Island and White Plains, as well as in Boston, Massachusetts, and Newark, New Jersey.
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