H-2B Numbers + the Shutdown: Why Spring/Summer 2026 Is at Risk

The hard cap (and why demand overwhelms supply)

• By statute, H-2B has 66,000 visas/year, split 33,000 for Oct–Mar and 33,000 for Apr–Sep. USCIS confirmed the first-half FY2026 cap was hit on Sept. 12, 2025—before the fiscal year even began.

• Real-world demand dwarfs that cap. In FY2023, DOL certifications reflected >215,000 requested H-2B positions—over 3× the statutory limit.

“Extra” visas aren’t automatic

• In recent years, DHS/DOL has used a temporary final rule to add up to 64,716 supplemental visas (often rounded to ~65k), carved up by half-year and with slices for returning workers and certain nationalities. That was true in FY2024–FY2025—but each year required a fresh rule. There is no standing guarantee for FY2026.

H-2C: the new idea that’s on ice

• A House bill introduced Sept. 18, 2025 (the Essential Workers for Economic Advancement Act, H.R. 5494) proposes an H-2C category for non-agricultural jobs—separate from H-2B—with a market-tied structure (initial 65,000 positions in year one under summaries), aimed at employers that can show persistent vacancies. Debate paused with the shutdown; it’s a proposal, not law.

Where the shutdown bites

• Since Oct. 1, 2025, DOL’s OFLC has stopped processing Prevailing Wage Determinations and H-2B Temporary Labor Certifications (TLCs), and isn’t taking new filings. Without a PWD/TLC, employers can’t prep wages, job orders, or meet the early-January filing window for Spring starts.

• Even after reopening, expect backlogs: cases queued since Oct. 1 + a surge the moment FLAG comes back online. That compresses what’s normally ~30–60 days of TLC processing into a much shorter runway before January filing windows.

Why this creates systemic instability

• First-half FY2026 cap is already gone (reached Sept. 12). Any supplemental visas for FY2026 would require new DHS/DOL action—and possibly Congress, if they want broader changes (e.g., returning-worker relief in statute). There’s no published timeline for FY2026 supplements or an H-2C debate once the government reopens. Meanwhile, business planning stands still.

What can realistically happen next?

Policy levers once the government reopens

1. DHS/DOL Supplemental Rule for FY2026

   They could issue another time-limited increase (like past years), with returning-worker set-asides and phased releases by half-year. This is the fastest relief path but still discretionary and subject to timing.

2. USCIS flexibilities

   After prior lapses, USCIS has sometimes allowed late filings when delay was shutdown-caused (extraordinary circumstances). Not guaranteed, but worth watching.

3. Congressional action

   
   

   • Targeted returning-worker language (reviving versions used in earlier appropriations) could quickly boost supply.

   • Broader reforms like H-2C (H.R. 5494) would need regular order—debate, markups, votes—so not immediate.

What you should tell clients (action list)

• Document everything: keep evidence that PWD/TLC steps were blocked by the shutdown (portal notices, screenshots, counsel letters). This supports any future equitable relief arguments.

• Pre-assemble filings: draft job orders, temporary-need evidence, recruitment plans, corporate docs now so you can file the day FLAG reopens.

• Scenario plan for:

  
  

  • No supplemental visas (second-half only).

  • Late supplemental release (phased, returning-worker first).

  • Delayed TLCs pushing start dates.

  
  

• Consider returning-worker eligibility across your historical H-2B usage to be ready if DHS mirrors past TFR carve-outs.

• Communicate early with customers about potential service delays/capacity constraints tied to federal timing—not your operations.