The H-2B visa cap is 66,000 workers per fiscal year, split into two halves of 33,000: one for workers whose employment starts between October 1 and March 31, and one for workers starting between April 1 and September 30. Demand for the second half, which covers spring and summer seasonal work, routinely runs past supply, which is why so many H-2B employers file on the first day the rules allow. Employers that miss the window can lose a season. Our H-2B visa services for seasonal employers are planned around the cap; this article explains how it works and what to do when it fills.

How the two halves of the H-2B cap work

The half a worker counts against is set by the employment start date on the I-129 petition, not by when the petition is filed. A petition with a start date of April 1 counts against the second half, even if it is filed in February.

If the first half does not use all of its 33,000 numbers, the unused numbers roll into the second half. Numbers do not roll from one fiscal year into the next, so anything unused by September 30 is gone.

USCIS counts petitions as it receives them and announces when it has enough to reach the cap. It then sets a final receipt date. In years when more petitions arrive on that date than there are numbers left, USCIS has used a random selection among the petitions received that day. Petitions that arrive after the cap is reached are rejected, not denied, and the employer cannot use them for that half.

Who does not count against the cap

Not every H-2B worker uses a cap number. The main exemptions:

Workers already counted against the cap in the same fiscal year, when a new employer files for them or they move to new employment
Current H-2B workers whose stay is extended
Fish roe processors, fish roe technicians, and supervisors of fish roe processing
Certain work in Guam and the Commonwealth of the Northern Mariana Islands under special statutory rules

Congress has in past years exempted returning H-2B workers who had been counted in earlier years, but that exemption is not a standing rule. Do not plan on it unless current law provides it.

Supplemental H-2B visas

In most years since 2017, Congress has given DHS authority to release additional H-2B visas beyond the 66,000 when U.S. businesses would otherwise suffer harm. When DHS uses that authority, it publishes a temporary final rule that sets the number of extra visas, who can use them, and the conditions. Recent rules have reserved some visas for returning workers and set aside others for nationals of particular countries, and they have required employers to attest that they will suffer irreparable harm without the workers and to carry out additional recruitment.

Supplemental visas are useful but unpredictable. The number, timing, and eligibility rules change every year, and some years they come late in the season. Treat them as a backup, not a plan.

Why the date of need drives the race

Three filing windows stack up behind the cap. The DOL application on Form ETA-9142B must be filed 75 to 90 days before the date of need. The I-129 can be filed no more than 120 days before the date of need, and only after DOL certifies. For an April 1 start date, the DOL window opens on January 1, which is why DOL receives a flood of applications in the first days of January. In recent seasons DOL has handled that volume by randomly ordering applications filed in the opening days of the window, so that filing at midnight does not guarantee an early place.

Employers with April 1 dates of need therefore compete for the same numbers at the same time. An employer with a May date of need files later, which can mean filing after the second half is already full. Our guide to the H-2B process for employers shows how each step is timed.

What employers can do once the cap is reached

When the cap fills before your workers are counted, the options narrow but do not disappear:

Look for cap-exempt workers

H-2B workers already counted this fiscal year can move to your company without a new cap number, if your certification and petition are in order.

Watch for supplemental visas

If DHS releases supplemental numbers, the eligibility rules usually require a fresh attestation and extra recruitment. Have your irreparable harm documentation ready.

Revisit next season’s dates

A later or earlier date of need is not a way around the cap. Your dates must match your real temporary need, which our article on H-2B temporary need explains. But a business whose season genuinely starts in winter may fall into the less crowded first half.

Consider other programs

If the work is truly agricultural, the H-2A has no cap. Some resort and hospitality employers also host students through the J-1 visa Summer Work Travel program, which is run by designated sponsors under its own rules. Neither is a substitute for H-2B where the work and the workers do not fit. Our comparison of H-2A and H-2B sets out where that line falls.

If you are planning around the H-2B cap or have been shut out of a half, a consultation with Capitol Law Partners can map the right path for your situation. Schedule a consultation.

This article is for informational purposes only and does not constitute legal advice. No attorney-client relationship is formed by this communication.

Attorney Cagatay Ersoy. Practical strategy for founders, investors, and growing companies.

Need help with this topic? See our H-2B non-agricultural worker visa page or schedule a consultation.