The H-2B Visa: A Practical Employer Guide to the Lottery, the Timing, and the Temporary-Need Test
You have a seasonal spike, a peak-load surge, or a one-time project, and you need workers the U.S. labor market is not supplying. The H-2B program is built for exactly this situation. It is also, as of 2026, a timed race that most employers do not realize they are running until they have already lost it.
I have represented hotels in resort towns, landscapers, roofers, industrial fabricators, and — increasingly in recent years — families hiring long-term nannies through the H-2B program. The legal framework is not complicated. The calendar is what eats employers alive. This guide explains the program as it actually works in 2026, after the lottery, the supplemental-visa rules, and the compressed response windows that now govern the process.
Seasonal employers sometimes hope to rehire a former J-1 Summer Work Travel worker on the H-2B — that article explains why the lottery and the no-cost-shifting rule often make it impractical.”
What the H-2B Visa Is — and What It Isn’t
The H-2B program allows U.S. employers to bring foreign workers to the United States for temporary non-agricultural jobs when qualified, able, willing U.S. workers are not available and the employment of foreign workers will not adversely affect the wages and working conditions of U.S. workers. It is administered jointly by the Department of Labor (which certifies the temporary need and the wage) and USCIS (which approves the petition). Agricultural jobs go through the H-2A program; non-agricultural jobs go through H-2B.
The statutory cap is 66,000 visas per fiscal year, split evenly between the two halves of the fiscal year: 33,000 for jobs starting between October 1 and March 31, and 33,000 for jobs starting between April 1 and September 30. That is the base cap. In recent years, DHS and DOL have nearly every year issued supplemental visas on top of that base — for fiscal year 2026, an additional 64,716 visas were authorized by rule. The supplemental regime is discussed below.
H-2B workers can be admitted for up to the period of their approved temporary labor certification, with a cumulative maximum of three years of H-2B status. After three years, the worker must depart the United States for an uninterrupted period before becoming eligible for H-2B again. Spouses and unmarried children under 21 may accompany the worker in H-4 status.
What H-2B is not: it is not a path to a green card, not a general work visa, and not a bridge for long-term staffing needs. If the job is permanent and the labor shortage is permanent, H-2B is the wrong tool. The program is engineered around the premise that the need is discrete in time.
The Lottery: Why the First Three Days of the Window Decide Everything
Since fiscal year 2020, H-2B has been a lottery in practice. When DOL receives more Applications for Temporary Employment Certification in the first three calendar days of a filing window than there are visas available, it randomly assigns the filings into processing groups — Group A, Group B, Group C, and so on. Group A gets processed first. If Group A alone exceeds the cap, every filer in Group B, C, and below is simply too late.
Two filing windows open each year:
- July 3–5 for an October 1 start date (first half of fiscal year)
- January 2–3 for an April 1 start date (second half of fiscal year)
The conventional wisdom for a long time was that the first half of the fiscal year was the easier half because hospitality and construction employers skewed heavily toward the April 1 start. That edge has narrowed. Every landscaping company in Texas, every resort hotel near a highway, every hospitality employer needing summer staff files for April 1. The second half is now just as competitive. When I counsel an employer about which half to file for, the answer is usually: whichever matches your actual need. Gaming the calendar by a few months to shift halves rarely works.
Because the lottery is decided on what you filed in the first three days of the window, the employer who shows up on day four has already missed the cycle.
The Six-Month Lead Time
The timing math is what trips up most employers who come to us thinking they have plenty of time.
Work backward from the intended start date. The H-2B Application for Temporary Employment Certification must be filed with DOL no more than 90 and no fewer than 75 calendar days before the start date of need. Before you can file that application, you need a Prevailing Wage Determination (PWD) from the National Prevailing Wage Center. The PWD is requested on Form ETA-9141, and although processing times fluctuate, employers should plan on 45 days to several months between submission and issuance. DOL’s own guidance recommends requesting the PWD at least 60 days before it is needed.
Add it up: a PWD request that takes about 45 days, then an Application for Temporary Employment Certification filed 75 to 90 days before the start date, plus the PERM-style prevailing wage mechanics and the need for a precise job description before you even start, and you are looking at six months of runway from first conversation to a worker on the job site. For an April 1 start date, that means we should be talking in early October. For an October 1 start date, we should be talking in April.
Employers who call in November wanting H-2B workers on the ground by April are, every year, too late for the April 1 lottery.
The Four Categories of Temporary Need
The heart of every H-2B case is demonstrating that your need is temporary, not permanent. DOL’s labor-certification regulations recognize four categories, and employers must fit into exactly one. The categories look similar on paper; they are very different in practice.
Seasonal Need (The Easiest Category, When It Fits)
A seasonal need is tied to a season of the year — by an event, by weather, by a traditional pattern — and the employer has a period of the year when the work is not performed at all. The classic example is a hotel in Gardiner, Montana, serving Yellowstone’s summer visitor flow. The hotel employs housekeepers and desk staff from roughly May through October; from November through April, those positions do not exist. A landscaping company in a northern climate with no winter work is another clean case. Ski resort staff in the reverse half of the calendar is another. See our guide to H-2A seasonality for the analogous analysis on the agricultural side — the underlying concept translates well.
Seasonal is the easiest category to prove if it genuinely fits, because the off-season gap in your payroll tells the story for you. What disqualifies seasonal: year-round operation with fluctuating staffing needs. If you have employees doing the work all year and you just need more during part of the year, that is not seasonal — it is peak-load.
Peak-Load Need (The Hardest Category)
Peak-load is the correct category for employers who keep a regular workforce year-round but need to scale up during certain periods. A convenience store on an interstate keeps one or two employees through the winter but needs five in July. An auto dealer handling a recall needs extra mechanics for the duration of the recall. A hotel that stays open year-round but sees occupancy triple during tourist season has a peak-load story.
The problem with peak-load is the evidentiary burden. DOL wants three years of data showing the pattern. If the peak-load story is not immediately obvious from payroll records alone, we need to build the picture. That often means tables and simple graphs submitted as part of the application:
- Total paid-employee hours per month, by year
- Sales or revenue per month, by year
- Occupancy rate per month (for lodging)
- Number of FTE equivalents per month
- For retail or hospitality, customer count or transaction count per month
A convenience store might graph employee hours against monthly sales to show the two curves tracking together and peaking in the summer. A hotel might graph occupancy against housekeeping hours. The goal is to let a DOL adjudicator see the seasonality of the peak at a glance, with the data behind the graph available to support it. If you come to us with a peak-load case, plan on sending us three years of payroll reports and financial summaries — we will use them to build the evidence package.
One-Time Occurrence
A one-time occurrence is a discrete, finite event that will not recur: a construction project with a known end date, a plant retooling, a specialized installation. The employer must show that the event created the need, that the employer has not employed workers to do this work in the past, and that the employer will not need them in the future.
I have handled one-time cases for industrial fabricators expanding a facility with welders from abroad — clear start, clear end, obvious fit. More recently, the most common one-time case I see is a family hiring a long-term nanny. The need is framed as a three-year need ending when the youngest child enters preschool or kindergarten. A firm terminating event makes the one-time story work; without a terminating event, DOL will not accept the framing. “The nanny will leave when we don’t need her anymore” is not a terminating event. “Our youngest starts kindergarten in fall 2028” is.
These one-time nanny cases often involve a family’s former J-1 au pair, whose earlier childcare for the same family complicates the one-time-occurrence framing — a wrinkle worth understanding before filing.
Intermittent Need
The intermittent category fits employers who do not maintain permanent staff for a particular function and need to bring in workers sporadically for short periods. A contractor who erects tents for outdoor concerts only during concert dates, with no other work for those workers between events, is the textbook example. Few employers fit. If you have year-round employees doing any version of the work, intermittent is not your category.
The Detailed Job Description Is the Trap
For H-2B, the Prevailing Wage Determination depends on a detailed job description that matches a Standard Occupational Classification code and an O*NET job family. The DOL analyst reviewing your request matches your description against wage data for that specific classification. Ambiguity in the job description — duties that could plausibly fit two different occupations, skill requirements that are unclear, a title that does not match the duties — triggers a Request for Information.
An RFI in the PWD stage is the kiss of death to the timeline. Government response cycles on these are not quick. If your application gets hung up on a PWD question, the downstream filing window may close before you get an answer. The best insurance against an RFI is a job description that leaves the DOL analyst nothing to guess about: specific duties, specific skill requirements, specific experience level, specific supervision structure, specific location.
When we take on an H-2B case, the first deliverable is a clean job description. That is where most of the upfront work happens.
The RFE Seven-Day Rule That Is Really a One-to-Two-Day Rule
If your Application for Temporary Employment Certification draws an RFE from DOL challenging your temporary-need showing, the response window on paper is seven calendar days. That sounds workable. In a lottery environment, it is not.
Here is what happens in practice. You file during the three-day window. DOL runs the lottery. You land in Group A. You get an RFE challenging your peak-load evidence. You have seven days to respond. But once you respond, DOL still needs to accept the certification, after which you then have to move to the recruitment phase — a job order with the State Workforce Agency, recruitment advertising, recruitment reporting. By the time advertising has run for its required period, you are weeks later. And the cap does not wait.
The practical rule I give clients is: assume you have one or two days to respond meaningfully, not seven. If the RFE arrives on a Friday, the weekend is effectively lost. That means the evidence package we build in the original filing has to be strong enough to not draw an RFE in the first place, or strong enough that if an RFE does come, our response is already ninety percent assembled on the shelf. Workers who came on a J-1 sometimes look to the H-2B to stay; for the trade-offs and limits, see the J-1 intern and trainee year
Supplemental Visas: The Backdoor When the Lottery Goes Against You
For fiscal year 2026, on January 30, 2026, DHS and DOL jointly issued a temporary final rule authorizing up to 64,716 additional H-2B visas on top of the base 66,000 cap. These supplemental visas are distributed in three allocations based on the employer’s date of need. They are available only to employers who attest that they are suffering — or will suffer — impending irreparable harm without the workers.
Of the 64,716 supplemental visas for fiscal year 2026:
- 46,000 are reserved for “returning workers” — workers who held H-2B status in one of the three prior fiscal years. This allocation rewards employers who use the program repeatedly and reduces the training burden of new-worker onboarding.
- The remaining approximately 18,716 are set aside for nationals of El Salvador, Guatemala, Honduras, Haiti, Colombia, Ecuador, and Costa Rica, who are exempt from the returning-worker requirement.
The supplemental allocation has practical implications for employers who miss the main lottery. If you drew Group B or Group C and the main cap closed before your number came up, you can still finish the Application for Temporary Employment Certification, obtain the TLC, and then file for supplemental visas when your allocation window opens. And if your need can be met by workers from one of the seven Central American, South American, and Caribbean countries named above, you are not competing with the much larger returning-worker pool.
One practitioner observation on that second allocation. I have read on AILA listservs that El Salvador operates a national hiring agency: an employer can list the skills needed, and the agency will screen and send potential candidates. I have not used the El Salvador channel directly — my Montana practice has not had H-2B employers needing Central American recruitment — but for employers who are open to recruiting from the supplemental countries, it is worth investigating. Verify the current mechanism with the country’s embassy or consulate before committing to a recruitment strategy.
Eligible Countries
The worker being hired must be a national of a country that DHS designates as eligible to participate in the H-2B program. The list is updated annually in the Federal Register, typically in November. DHS’s most recent designation covers the majority of the countries employers typically recruit from, but the list does change. Before committing to recruit from a particular country, verify that the country is on the current list.
Housing: Not Required, But It Becomes a Recruiting Requirement
Unlike the H-2A agricultural program, H-2B does not require the employer to provide housing. This is a legal distinction that matters less than many employers expect.
In my experience, in any resort or tourist-market employer — Bozeman, Big Sky, a ski town, a coastal resort — housing is effectively a recruiting necessity, not just a nice perk. Workers who arrive and discover that the only available rental in the market is $2,400 per month for a studio will not stay. They will find employment elsewhere in the state, within or outside the H-2B framework, within a month. Employers who solve the housing problem — by offering employer-provided housing, by partnering with a property owner to secure blocks of rooms, or by providing a housing stipend large enough to make the local market feasible — are the employers who end up with workers at the end of the season.
For agricultural operations that face a similar problem on the H-2A side, see our article on mobile housing for H-2A workers. The same logic of solving the housing problem as part of the staffing plan applies.
Fees and Costs
The employer pays for the petition. For fiscal year 2026, the fee structure is:
- Form I-129 filing fee: $1,080 for a petition with 1 to 25 named beneficiaries, or $580 for a petition with only unnamed beneficiaries.
- Asylum Program Fee (applies to all I-129 petitions): $600 for employers with 26 or more full-time employees, $300 for employers with 25 or fewer FTEs, and $0 for nonprofit organizations.
- Premium processing (optional, 15-business-day USCIS adjudication): $1,780 as of March 1, 2026, up from $1,685.
- Fraud Prevention and Detection Fee: $150 (first-time H-2B petitioners and employers petitioning new H-2B beneficiaries).
In addition, the employer pays for the recruitment advertising required by DOL, pays for the State Workforce Agency job order, pays attorney fees, and in practice pays for transportation to and from the worker’s home country (DOL considers transportation an obligation of the employer for H-2B purposes when the worker completes half of the certified work period). Consulate application fees are typically paid by the worker.
For a typical single-employer H-2B engagement with ten workers, between government fees, recruitment costs, housing adjustments, and professional fees, an employer should budget in the low five figures beyond wages.
How We Work H-2B Cases
Our role on an H-2B case is different from the typical individual-visa engagement. We work with the employer on:
- Temporary-need category analysis — fitting the employer’s actual situation into one of the four categories, and structuring the story so it is credible to DOL on first review.
- Job description drafting — the single highest-leverage document in the whole case, and the one most likely to save or sink the PWD timeline.
- Prevailing Wage Determination — filing Form ETA-9141, monitoring the request, and building the supporting documentation if a redetermination becomes necessary.
- Application for Temporary Employment Certification — Form ETA-9142B, submitted within the 75– to 90-day window before the start of need, along with the SWA job order and the recruitment plan.
- Recruitment compliance — the advertising, the SWA interactions, the recruitment report.
- The I-129 petition to USCIS after the TLC is approved.
- Supplemental-visa strategy when the main cap closes — evaluating whether returning-worker or country-allocation paths are available.
- Consular processing coordination with the worker’s home-country embassy.
For employers who have not run an H-2B case before, we typically start with an initial strategy consultation to evaluate whether your need genuinely fits an H-2B category, what your realistic timeline is, and whether the economics work for the size of your need. For employers who come to us mid-cycle after a failed filing or a denial, we can often diagnose what went wrong and build a cleaner case for the next window.
Closing Reality Check
H-2B is not a staffing solution for every employer who cannot find domestic workers. It is a narrow, timed program that works well for employers whose need genuinely fits one of the four categories, who start the process six months before they need workers on site, and who treat the job description and temporary-need showing as the most important documents in the case.
If that describes your situation, we can help. If your need is really a permanent shortage rather than a seasonal or peak-load one, the conversation is about employer-side immigration generally, not H-2B specifically — and there are better tools for that. Contact our office to start the analysis, with enough lead time to give us something to work with.
