Part 2: The Cap, the Randomized Selection Process, and What Your Odds Actually Look Like
- May 26
- 4 min read
If Part 1 was about whether H-2B is the right tool for your business, Part 2 is where things get real.
The cap is the single most frustrating feature of the H-2B program — and the one most employers understand the least until they've been through a bad year. Let me break it down plainly.
The statutory cap
Congress set the annual H-2B cap at 66,000 visas per fiscal year. That number is divided into two equal halves: 33,000 for employers with start dates in the first half of the fiscal year (October 1 through March 31), and 33,000 for the second half (April 1 through September 30).
Those numbers have not changed since the program was created. The number of employers who want to use the program has grown substantially. That gap is the source of most of the chaos you hear about every season.
What happens when demand exceeds the cap
When thousands of employers file within the same three-day window, the Department of Labor uses a random process to assign each timely application a group letter — Group A, Group B, Group C, and so on. Those groups determine the order in which DOL processes applications. DOL works through all timely applications regardless of the visa cap — that's not DOL's function.
The cap is administered by USCIS, and that's where the risk lives. You cannot file your USCIS petition until you have completed the entire DOL process: the 9142B filing, the recruitment period, and the labor certification. By the time DOL certifies your application and you're ready to file with USCIS, the visa cap may already be exhausted — particularly for employers in later lottery groups.
For October 1 filings, demand is typically more manageable and most employers make it through to USCIS in time. Employers with start dates after October 1, it is more uncertain. For April 1 filings, it's a different story. Demand is significantly higher, groups can reach G or beyond, and historically only Groups A and B tend to reach USCIS before the cap is met.
The filing window itself is tied to the 9142B timeline — you file 90 to 75 days before your start date of need, and the 90-day mark is where both filing windows fall. You cannot file earlier than 90 days out, so every employer in the window is on equal footing at the start. What determines your outcome is which group DOL assigns you and whether the cap is still open by the time your certification is complete.
Supplemental visas — the safety valve that is not guaranteed
In recent years, Congress has authorized DHS and DOL to release supplemental H-2B visas above the statutory cap. For FY 2026, DHS released the maximum number permitted by law: 64,716 additional visas, structured across three allocations by start date of need.
That is a meaningful number. But here is what I tell every employer who asks about supplementals: do not plan your season around them. Supplemental visas are authorized year to year, and there is no guarantee they will be released in future years, at what number, or on what timeline. Some years they come out early. Some years the guidance is delayed well into the filing window.
The supplemental allocation is a relief valve. It is not a strategy.
Cap-exempt workers and the returning worker distinction
These two things get mixed up constantly, so let me separate them clearly.
Cap-exempt workers are not a supplemental visa issue — they simply don't count against the 66,000 cap at all. There are two situations where this applies. First, workers who are already in the U.S. in valid H-2B status and are transferring to a new employer. Second, workers who held an H-2B visa earlier in the same fiscal year, have since departed the U.S., and are now being rehired. The logic is straightforward: a worker can't have their name in the hat twice in the same fiscal year. They've already been counted once, so they're exempt from being counted again.
This is meaningfully different from "returning workers" in the supplemental visa context. Returning worker status — meaning a worker who participated in the H-2B program in one of the prior three fiscal years — is an eligibility criterion for certain supplemental visa allocations, not a standalone cap exemption. It can improve an employer's options when supplementals are released, but it doesn't exempt those workers from the statutory cap the way in-fiscal-year cap-exempt cases do. And as covered above, supplementals are never guaranteed.
The practical distinction matters when you're planning your workforce strategy. Cap-exempt cases give you genuine flexibility outside the cap. Returning worker history improves your supplemental eligibility — which helps, but only if and when supplementals are authorized.
What realistic odds look like
I get this question constantly, and the answer is genuinely complicated because it depends on several variables: which half of the fiscal year your start date falls in, which group DOL assigns you, whether you have cap-exempt workers, and whether supplemental visas are released and at what volume.
What I can tell you from experience is this: employers who understand the sequential nature of this process — DOL first, USCIS second, cap risk at the USCIS stage — who document their cases properly, who have cap-exempt workers when available, and who work with counsel who knows this program tend to fare better. Not because of luck, but because they have eliminated the avoidable errors that create delays between DOL certification and USCIS filing, which is exactly when the cap closes on you.
The cap is a structural problem that Congress created and has not fixed. What you can control is how prepared you are when the window opens.
Next up in Part 3: the DOL certification process — prevailing wage determination, the job order, the recruitment period, and what DOL is actually looking for when it reviews your application.
As always, if you have questions about your specific situation, I'm happy to talk through it.
Meagan Kirchner, Esq. is an immigration attorney and the founder of Kirchner Law PLLC (Kirchner Immigration), a Virginia-based firm providing national H-2B visa legal services. With over a decade of experience in complex business immigration, she has helped hundreds of employers navigate the H-2B temporary worker visa program from petition through worker arrival.
This content is for informational purposes only and does not constitute legal advice.
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