Exercise of Time-Limited Authority To Increase the Fiscal Year 2026 Numerical Limitation for the H-2B Temporary Nonagricultural Worker Program

8 CFR Chapter I

For the reasons discussed in the joint preamble, part 214 of chapter I of title 8 of the Code of Federal Regulations is amended as follows:

PART 214--NONIMMIGRANT CLASSES

0 1. The authority citation for part 214 continues to read as follows:

Authority: 6 U.S.C. 202, 236; 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1186a, 1187, 1188, 1221, 1281, 1282, 1301-1305, 1357, and 1372; sec. 643, Pub. L. 104-208, 110 Stat. 3009-708; Public Law 106- 386, 114 Stat. 1477-1480; section 141 of the Compacts of Free Association with the Federated States of Micronesia and the Republic of the Marshall Islands, and with the Government of Palau, 48 U.S.C. 1901 note and 1931 note, respectively; 48 U.S.C. 1806; 8 CFR part 2; Pub. L. 115-218, 132 Stat. 1547 (48 U.S.C. 1806).

0 2. Effective January 30, 2026, through September 30, 2026, amend Sec. 214.2 by adding paragraph (h)(6)(xvi) to read as follows:

Sec. 214.2 Special requirements for admission, extension, and maintenance of status.

* * * * *

(h) * * *

(6) * * *

(xvi) Special requirements for additional cap allocations under the Continuing Appropriations, Agriculture, Legislative Branch, Military Construction and Veterans Affairs, and Extensions Act, 2026, Public Law 119-37--(A) Public Law 119-37--(1) General supplemental allocations. Notwithstanding the numerical limitations set forth in paragraph (h)(8)(i)(C) of this section, for fiscal year 2026 only, the Secretary has authorized up to an additional 64,716 aliens who may receive H-2B nonimmigrant visas pursuant to section 101 of Division A of the Continuing Appropriations, Agriculture, Legislative Branch, Military Construction and Veterans Affairs, and Extensions Act, 2026, Public Law 119-37. Except for visas made available under paragraph (h)(6)(xvi)(A)(1)(iii) of this section, an alien must be a returning worker to be eligible to receive an H-2B nonimmigrant visa under this paragraph (h)(6)(xvi)(A)(1). The term “returning worker” under this paragraph (h)(6)(xvi)(A)(1) means a person who was issued an H-2B visa or was otherwise granted H-2B status in fiscal year 2023, 2024, or 2025. Notwithstanding Sec. 248.2 of this chapter,

an alien may not change status to H-2B nonimmigrant under this paragraph (h)(6)(xvi)(A)(1). The additional H-2B visas authorized under this paragraph will be made available as follows:

(i) 18,490 visas immediately available for aliens who are returning workers with employment start dates between January 1 and March 31, 2026.

(ii) 27,736 visas available, plus any unused visas that were made available under (h)(6)(xvi)(A)(l)(i), for aliens who are returning workers with employment start dates between April 1 and 30, 2026.

(iii) 18,490 visas available plus any unused visas that were made available under (h)(6)(xvi)(A)(l)(i) or (ii), for aliens with employment start dates between May 1 and September 30, 2026.

(B) Eligibility. In order to file a petition with USCIS under this paragraph (h)(6)(xvi), the petitioner must:

(1) Comply with all other statutory and regulatory requirements for H-2B classification, including, but not limited to, requirements in this section, under part 103 of this chapter, and under parts 655 of Title 20 and 503 of Title 29; and

(2) Submit to USCIS, at the time the employer files its petition, a U.S. Department of Labor attestation, in compliance with this section and 20 CFR 655.64, evidencing that:

(i) Its business is suffering irreparable harm or will suffer impending irreparable harm (that is, permanent and severe financial loss) without the ability to employ all of the H-2B workers requested on the petition filed pursuant to this paragraph (h)(6)(xvi);

(ii) All workers requested and/or instructed to apply for a visa have been issued an H-2B visa or otherwise granted H-2B status in fiscal year 2023, 2024, or 2025, unless the H-2B worker is a beneficiary for an H-2B petition with employment start dates between May 1 and September 30, 2026;

(iii) The employer will provide documentary evidence of the facts in paragraphs (h)(6)(xvi)(B)(2)(i) through (ii) of this section to DHS and/or DOL upon request;

(iv) The employer will agree to fully cooperate with any compliance review, evaluation, verification, or inspection conducted by DHS, including an on-site inspection of the employer's facilities, interview of the employer's employees and any other individuals possessing pertinent information, and review of the employer's records related to the compliance with immigration laws and regulations, including but not limited to evidence pertaining to or supporting the eligibility criteria for the FY 2026 supplemental allocations outlined in paragraph (h)(6)(xvi)(B) of this section, as a condition for the approval of the petition; and

(v) The employer will fully cooperate with any audit, investigation, compliance review, evaluation, verification or inspection conducted by DOL, including an on-site inspection of the employer's facilities, interview of the employer's employees and any other individuals possessing pertinent information, and review of the employer's records related to the compliance with applicable laws and regulations, including but not limited to evidence pertaining to or supporting the eligibility criteria for the FY 2026 supplemental allocations outlined in 20 CFR 655.64(a) and 655.69(a), as a condition for the approval of the H-2B petition. The employer must attest to this on Form ETA-9142-B-CAA-10 and must further attest on Form ETA-9142-B- CAA-10 that it will not impede, interfere, or refuse to cooperate with an employee of the Secretary of the U.S. Department of Labor who is exercising or attempting to exercise DOL's audit or investigative authority pursuant to 20 CFR part 655, subpart A, and 29 CFR 503.25.

(C) Processing--(1) Petitions filed pursuant to paragraph (h)(6)(xvi)(A)(1)(i) of this section requesting FY 2026 employment start dates from January 1, 2026 to March 31, 2026. USCIS will reject petitions filed pursuant to paragraph (h)(6)(xvi)(A)(1)(i) of this section requesting employment start dates before January 1, 2026. USCIS will also reject petitions filed pursuant to paragraph (h)(6)(xvi)(A)(1)(i) of this section requesting employment start dates between January 1 and March 31, 2026 that are received after the applicable numerical limitation has been reached or 15 days or later after the INA section 214(g) cap for the second half FY 2026 has been met. If USCIS determines by this latter date that it has received fewer petitions than needed to reach the USCIS projections for this supplemental allocation under paragraph (h)(6)(xvi)(A)(1)(i) of this section, it will make the unused visas from this allocation available under the allocation described in paragraph (h)(6)(xvi)(A)(1)(ii) of this section for aliens who are returning workers with employment start dates between April 1 and 30, 2026.

(2) Petitions filed pursuant to paragraph (h)(6)(xvi)(A)(1)(ii) of this section requesting FY 2026 employment start dates from April 1, 2026 to April 30, 2026. USCIS will reject petitions filed pursuant to paragraph (h)(6)(xvi)(A)(1)(ii) of this section requesting employment start dates from April 1 to April 30, 2026 that are received earlier than 15 days after the INA section 214(g) cap for the second half FY 2026 has been met. USCIS will also reject petitions filed pursuant to paragraph (h)(6)(xvi)(A)(1)(ii) of this section requesting employment start dates between April 1 and 30, 2026 that are received after the applicable numerical limitation has been reached, or 45 days or later after the INA section 214(g) cap for the second half FY 2026 has been met. If USCIS determines by this latter date that it has received fewer petitions than needed to reach the USCIS projections for this supplemental allocation under paragraph (h)(6)(xvi)(A)(1)(ii) of this section, it will make the unused visas from this allocation available under the allocation described in paragraph (h)(6)(xvi)(A)(1)(iii) of this section for aliens with employment start dates between May 1 and September 30, 2026.

(3) Petitions filed pursuant to paragraph (h)(6)(xvi)(A)(1)(iii) of this section requesting FY 2026 employment start dates from May 1, 2026 to September 30, 2026. USCIS will reject petitions filed pursuant to paragraph (h)(6)(xvi)(A)(1)(iii) of this section requesting employment start dates from May 1, 2026 to September 30, 2026 that are received earlier than 45 days after the INA section 214(g) cap for the second half FY 2026 has been met, after the applicable numerical limitation has been reached, or after September 15, 2026.

(4) USCIS will not approve a petition filed pursuant to this paragraph (h)(6)(xvi) on or after October 1, 2026.

(D) Numerical limitations under 8 CFR 214.2(h)(6)(xvi)(A)(1). When calculating the numerical limitations under paragraph (h)(6)(xvi)(A)(1) of this section, as authorized under section 101 of Division A of Public Law 119-37, Continuing Appropriations, Agriculture, Legislative Branch, Military Construction and Veterans Affairs, and Extensions Act, 2026, USCIS will make numbers for each allocation available to petitions in the order in which the petitions subject to the respective limitation are received. USCIS will make projections of the number of petitions necessary to achieve the numerical limit of approvals, taking into account historical data related to approvals, denials, revocations, and other relevant factors. USCIS will monitor the number of petitions received (including the number of workers requested when necessary) and will notify the public of the dates that USCIS has received the necessary number of petitions (the “final receipt

dates”) under paragraph (h)(6)(xvi)(A)(1). The day the public is notified will not control the final receipt dates. When necessary to ensure the fair and orderly allocation of numbers subject to the numerical limitations in (h)(6)(xvi)(A)(1), USCIS may randomly select from among the petitions received on the final receipt dates the remaining number of petitions deemed necessary to generate the numerical limit of approvals. This random selection will be made via computer-generated selection. Petitions subject to a numerical limitation not randomly selected or that were received after the final receipt dates that may be applicable under paragraph (h)(6)(xvi)(A)(1) will be rejected. If the final receipt date is any of the first five business days on which petitions subject to the applicable numerical limits described in paragraph (h)(6)(xvi)(A)(1) may be received, USCIS will randomly apply all of the numbers among the petitions received on any of those five business days.

(E) Sunset. This paragraph (h)(6)(xvi) expires on October 1, 2026.

(F) Non-severability. The requirement to file an attestation under paragraph (h)(6)(xvi)(B)(2) of this section is intended to be non- severable from the remainder of this paragraph (h)(6)(xvi), including, but not limited to, the numerical allocation provisions at paragraph (h)(6)(xvi)(A)(1) of this section. In the event that any part of this paragraph (h)(6)(xvi) is enjoined or held to be invalid by any court of competent jurisdiction, the remainder of this paragraph (h)(6)(xvi) is also intended to be enjoined or held to be invalid in such jurisdiction, without prejudice to workers already present in the United States under this paragraph (h)(6)(xvi), as consistent with law. * * * * *

20 CFR Chapter V

Accordingly, for the reasons stated in the joint preamble, 20 CFR part 655 is amended as follows:

PART 655--TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES

0 3. The authority citation for part 655 continues to read as follows:

Authority: Section 655.0 issued under 8 U.S.C. 1101(a)(15)(E)(iii), 1101(a)(15)(H)(i) and (ii), 8 U.S.C. 1103(a)(6), 1182(m), (n) and (t), 1184(c), (g), and (j), 1188, and 1288(c) and (d); sec. 3(c)(1), Pub. L. 101-238, 103 Stat. 2099, 2102 (8 U.S.C. 1182 note); sec. 221(a), Pub. L. 101-649, 104 Stat. 4978, 5027 (8 U.S.C. 1184 note); sec. 303(a)(8), Pub. L. 102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 323(c), Pub. L. 103-206, 107 Stat. 2428; sec. 412(e), Pub. L. 105-277, 112 Stat. 2681 (8 U.S.C. 1182 note); sec. 2(d), Pub. L. 106-95, 113 Stat. 1312, 1316 (8 U.S.C. 1182 note); 29 U.S.C. 49k; Pub. L. 107-296, 116 Stat. 2135, as amended; Pub. L. 109-423, 120 Stat. 2900; 8 CFR 214.2(h)(4)(i); 8 CFR 214.2(h)(6)(iii); and sec. 6, Pub. L. 115-218, 132 Stat. 1547 (48 U.S.C. 1806).

Subpart A issued under 8 CFR 214.2(h).

Subpart B issued under 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c), and 1188; and 8 CFR 214.2(h).

Subpart E issued under 48 U.S.C. 1806.

Subparts F and G issued under 8 U.S.C. 1288(c) and (d); sec. 323(c), Pub. L. 103-206, 107 Stat. 2428; and 28 U.S.C. 2461 note, Pub. L. 114-74 at section 701.

Subparts H and I issued under 8 U.S.C. 1101(a)(15)(H)(i)(b) and (b)(1), 1182(n) and (t), and 1184(g) and (j); sec. 303(a)(8), Pub. L. 102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 412(e), Pub. L. 105-277, 112 Stat. 2681; 8 CFR 214.2(h); and 28 U.S.C. 2461 note, Pub. L. 114-74 at section 701.

Subparts L and M issued under 8 U.S.C. 1101(a)(15)(H)(i)(c) and 1182(m); sec. 2(d), Pub. L. 106-95, 113 Stat. 1312, 1316 (8 U.S.C. 1182 note); Pub. L. 109-423, 120 Stat. 2900; and 8 CFR 214.2(h).

0 4. Effective January 30, 2026, through September 30, 2026, add Sec. 655.64 to read as follows:

Sec. 655.64 Special application filing and eligibility provisions for Fiscal Year 2026 under the supplemental cap increase under Section 105 of Division G, Title I of the Further Consolidated Appropriations Act, 2024, Public Law 118-47, as extended by the Continuing Appropriations, Agriculture, Legislative Branch, Military Construction and Veterans Affairs, and Extensions Act, 2026, Public Law 119-37.

(a) An employer filing a petition with USCIS under 8 CFR 214.2(h)(6)(xvi) to request H-2B workers to begin employment from January 1, 2026, through September 30, 2026, must meet the following requirements:

(1) The employer must attest on the Form ETA-9142-B-CAA-10 that its business is suffering irreparable harm or will suffer impending irreparable harm (that is, permanent and severe financial loss) without the ability to employ all of the H-2B workers requested on the petition filed pursuant to 8 CFR 214.2(h)(6)(xvi). The employer's attestation must identify the types of evidence the employer is relying on and will retain to meet the irreparable harm standard. The employer must attest that it has created a detailed written statement describing how it is suffering irreparable harm or will suffer impending irreparable harm and describing how such evidence demonstrates irreparable harm. In addition, the employer must attest that it will provide to DHS and/or DOL upon request all of the documentation it relied upon and retained as evidence that it meets the irreparable harm standard, including all of the supporting documentation the employer committed to retain at the time of filing on the employer's attestation form by selecting a checkbox next to the applicable type of documentation in section C, and the written statement describing how such evidence demonstrates irreparable harm

(2) The employer must attest on Form ETA-9142-B-CAA-10 that each of the workers requested and/or instructed to apply for a visa, whether named or unnamed, on a petition filed pursuant to 8 CFR 214.2(h)(6)(xvi)(A)(1)(i) and (ii), have been issued an H-2B visa or otherwise granted H-2B status during one of the last three (3) fiscal years (fiscal year 2023, 2024, or 2025), request and obtain a valid temporary labor certification in compliance with the application filing requirements set forth in 20 CFR 655.15.

(3) The employer must attest on Form ETA-9142-B-CAA-10 that the employer will comply with all the assurances, obligations, and conditions of employment set forth on its approved Application for Temporary Employment Certification

(b) An employer filing a petition with USCIS under 8 CFR 214.2(h)(6)(xvi) to request H-2B workers who will begin employment on or after January 1, 2026, through September 30, 2026, must meet the following requirements:

(1) The employer must attest on Form ETA-9142-B-CAA-10 that without the ability to employ all of the H-2B workers requested on the petition filed pursuant to 8 CFR 214.2(h)(6)(xvi), its business is suffering irreparable harm or will suffer impending irreparable harm (that is, permanent and severe financial loss), and that the employer will provide documentary evidence of this fact to DHS or DOL upon request.

(2) The employer must attest on Form ETA-9142-B-CAA-10 that each of the workers requested and/or instructed to apply for a visa, whether named or unnamed, on a petition filed pursuant to 8 CFR 214.2(h)(6)(xvi)(A)(1)(i) and (ii), have been issued an H-2B visa or otherwise granted H-2B status during one of the last three (3) fiscal years (Fiscal Years 2023, 2024, or 2025), unless the H-2B worker is counted towards the 18,490 cap described in 8 CFR (h)(6)(xvi)(A)(1)(iii).

(3) The employer must attest on Form ETA-9142-B-CAA-10 that it will comply with all the assurances, obligations, and conditions of

employment set forth on its approved Application for Temporary Employment Certification.

(4) The employer must attest on Form ETA-9142-B-CAA-10 that it will fully cooperate with any audit, investigation, compliance review, evaluation, verification, or inspection conducted by DOL, including an on-site inspection of the employer's facilities, interview of the employer's employees and any other individuals possessing pertinent information, and review of the employer's records related to the compliance with applicable laws and regulations, including but not limited to evidence pertaining to or supporting the eligibility criteria for the FY 2026 supplemental allocations outlined in this paragraph (a) and Sec. 655.69(a), as a condition for the approval of the H-2B petition. Pursuant to this subpart A at Sec. 655.73 and 29 CFR 503.25, the employer will not impede, interfere, or refuse to cooperate with an employee of the Secretary who is exercising or attempting to exercise DOL's audit or investigative authority. DOL may consider the failure to respond to and/or comply with an investigation or audit to be a willful misrepresentation of material fact or a substantial failure to meet the terms and conditions of the H-2B Application for Prevailing Wage Determination, or Application for Temporary Employment Certification, resulting in an adverse agency action on the employer, agent, or attorney, including assessment of a civil money penalty, revocation of the temporary labor certification, and/or program debarment for not less than one year or more than five years from the date of the final agency decision under 20 CFR 655.70, 655.72, 655.73 or 29 CFR part 503. A debarred party will be disqualified from filing any labor certification applications or labor condition applications with the Department of Labor by, or on behalf of, the debarred party for the same period of time set forth in the final debarment decision.

(d) This section expires on October 1, 2026.

(e) The requirements under paragraph (a) of this section are intended to be non-severable from the remainder of this section; in the event that paragraph (a)(1), (2), (3), (4), or (5) of this section is enjoined or held to be invalid by any court of competent jurisdiction, the remainder of this section is also intended to be enjoined or held to be invalid in such jurisdiction, without prejudice to workers already present in the United States under this part, as consistent with law.

0 5. Effective January 30, 2026, through September 30, 2029, add Sec. 655.69 to read as follows:

Sec. 655.69 Special document retention provisions for Fiscal Years 2026 through 2029 under the Continuing Appropriations, Agriculture, Legislative Branch, Military Construction and Veterans Affairs, and Extensions Act, 2026, Public Law 119-37.

(a) An employer who files a petition with USCIS to employ H-2B workers in fiscal year 2026 under authority of the temporary increase in the numerical limitation under section 101 of Division A, Public Law 119-37 must maintain for a period of three (3) years from the date of certification, consistent with 20 CFR 655.56 and 29 CFR 503.17, the following:

(1) A copy of the attestation filed pursuant to regulations in 8 CFR 214.2 governing that temporary increase;

(2) Evidence establishing, at the time of filing the I-129 petition and as attested to in the attestation form, that the employer's business is suffering irreparable harm or will suffer impending irreparable harm (that is, permanent and severe financial loss) without the ability to employ all of the H-2B workers requested on the petition filed pursuant to 8 CFR 214.2(h)(6)(xvi), including a detailed written statement describing the irreparable harm and how such evidence shows irreparable harm;

(3) Documentary evidence establishing that each of the workers the employer requested and/or instructed to apply for a visa, whether named or unnamed on a petition filed pursuant to 8 CFR 214.2(h)(6)(xvi), have been issued an H-2B visa or otherwise granted H-2B status during one of the last three (3) fiscal years (fiscal year 2023, 2024, or 2025), unless the H-2B worker is counted towards the 18,490 cap described in section (h)(6)(xvi)(A)(1)(iii); and

(b) DOL or DHS may inspect these documents upon request.

(c) This section expires on October 1, 2029.

Kristi Noem, Secretary of Homeland Security. Lori Chavez-DeRemer, Secretary of Labor. [FR Doc. 2026-02131 Filed 1-30-26; 4:15 pm] BILLING CODE P