Pabian Law clients and friends,
The winter-season H-2B visa cap has officially been reached. U.S. Citizenship & Immigration Services (USCIS) announced today that the H-2B numerical cap was reached on September 4, 2026 for the first half of the government’s 2027 fiscal year (the 2026/27 winter season). In short, due to the numerical limit set by Congress when H-2B visas were created and the significant demand that we saw this season, there are no additional H-2B visas remaining for employers with seasonal start dates between October 1, 2026 and March 31, 2027.
***As they did last year, the U.S. Department of Labor moved extremely quickly after processing October 1st filings. As a result, we saw some organizations with mid-October start dates successfully file before the numerical cap was reached, but results were very varied in terms of which petition start dates made it in under the numerical cap. This is because the U.S. Department of Labor moved forward with post-October 1st start date applications essentially all at once, where we saw later start dates processed before some earlier ones. Overall, consistent with what we predicted earlier in the year, October 1st was the only truly safe start date, while some mid-October cases were able to make it depending on their specific processing timeline.***
A few brief notes/reminders on what this means:
- As a reminder, workers that transfer from one H-2B employer to another (i.e., “in-country transfers”) are exempt from the numerical cap. The cap only applies to those coming from outside the United States or those seeking to change visa type (example: J-1 visa to H-2B visa).
- The cap was officially reached on September 4, 2026. Any cap-subject H-2B petitions received by USCIS after that date will not be accepted.
- If we filed an out-of-country (cap-subject) petition for your organization that was received by USCIS prior to September 4, 2026, the petition should have been counted toward the cap. Even if not yet approved, the petition will continue to be processed.
- Cap relief (supplemental visas): For employers who are still thinking about the possibility of filing for out-of-country visas for the winter 2026-27 season, we strongly advise against this. You would need to rely on cap relief, and even in the best of years, workers on cap-relief petitions have not been able to arrive until January or February (last year it was February or March). For more detail on cap relief, see below:
- The U.S. Department of Homeland Security (DHS) has released supplemental visas (i.e., “cap relief”) due to unprecedented demand for the past several years in a row. Therefore, cap relief could be issued again this year, but availability and timing are very unclear. Last year the supplemental visas for winter-season employers were announced in late-December and did not become available until early-February, which was later than prior years and too late to be useful for most winter-season organizations. Although an earlier timeline could be possible, there is certainly no guarantee, especially given the current immigration environment. Finally, filing a cap relief petition comes with additional hurdles, such as an increased likelihood of government audits to confirm compliance with the H-2B regulations, including the very strict “irreparable harm” and “returning worker” requirements. Therefore, cap relief should only be used as a last resort. *For these reasons, in-country (cap-exempt) recruiting remains the best option for winter-season employers who have not yet filled all open H-2B spots.*
- This announcement only relates to the winter-season cap. Summer-season employers (those with start dates that fall from April 1st through September 30th) are not affected by this announcement. A completely separate summer-season cap will be available for employers with April 1, 2027 start dates.
Please do not hesitate to contact us with any questions.
Thank you,
Keith and the Pabian Law Team