Understanding the H-2B Program, Cap, and Lottery: How strategic planning can save next season!
- Meagan Kirchner
- May 29
- 4 min read
The H-2B visa program has become a critical resource for many U.S. employers—especially in the green industry—helping landscaping contractors and other seasonal businesses meet their labor needs by bringing in foreign workers primarily from Mexico and Central America. However, a key limitation has been the statutory cap: a hard annual limit of 66,000 visas, split evenly between the first half and second half of the federal fiscal year (October 1 – March 31 and April 1 – September 30).
Given the huge demand—particularly for spring and summer landscaping jobs—only 33,000 visas are available for each half of the year. To manage this high demand, the Department of Labor uses a lottery system during the initial filing window. Employers who apply in the first three days are sorted randomly into lottery groups (Group A, B, C, etc.), with Group A having the highest priority for visa issuance.
This randomness can make the H-2B program feel like a game of roulette, where luck plays a big role. But understanding the system’s nuances and program mechanics can help employers strategize effectively and improve their odds of success.
Brief Note on Cap Relief
In recent years, Congress has occasionally provided temporary “cap relief” measures, allowing the Department of Homeland Security to issue additional visas beyond the statutory 66,000 cap. For FY2025, DHS allocated a total of 64,716 additional visas distributed across the two halves of the fiscal year specifically for returning workers—those who have held an H-2B visa at least once in any of the previous three fiscal years. Additionally, 20,000 visas were reserved for workers from Guatemala, El Salvador, Honduras, Haiti, Colombia, Ecuador, or Costa Rica as part of broader immigration and regional cooperation efforts.
While these cap relief allocations have provided welcome opportunities for many employers, they remain temporary and politically uncertain. With the new administration now in office, it is unclear what, if any, cap relief measures will be available for FY2026. Because of this unpredictability, employers should view cap relief as a potential bonus but continue to plan their hiring strategies primarily around the fixed statutory cap and proven program mechanics like the Fall Strategy.
Why the Fall Strategy Works: Cap Exemption Explained
A crucial fact about the H-2B program is that a worker only counts against the visa cap once per federal fiscal year. The federal fiscal year runs from October 1 through September 30 of the following year.
This means if a worker receives an H-2B visa starting on or after October 1, their visa counts against the next fiscal year’s cap, not the current year’s. Importantly, once counted in that fiscal year, they become cap exempt for any subsequent H-2B employment during that same fiscal year, even if they leave the U.S. and return home.
The Expanded Fall Strategy
This cap exemption mechanic enables what’s known as the Fall Strategy. Employers who face poor lottery results for the busy spring and summer months can strategically shift to hiring workers for the fall or winter (starting October 1 or later). This means hiring workers when demand is lower, and visa caps are less competitive. If hiring in the same job occupation, it is critical to surrender the spring certification and keep the end date the same.
Beyond the classic scenario of hiring the same workers for a fall cleanup period to salvage the remainder of the season, the Fall Strategy also works well for employers who hire a completely different job function with no overlap in the winter.
For example, a landscaping company may hire snow plow drivers or other winter-specific workers beginning October 1. Since these winter roles don’t overlap with spring/summer landscaping, employers can staff each seasonal operation while maximizing their H-2B cap exemption benefits.
Workers hired this way are counted against the new fiscal year’s cap but become cap exempt for that entire fiscal year. This means they can return for spring or summer work without going through the lottery again — a powerful way to secure reliable seasonal labor despite the program’s limitations.
The Bottom Line
The H-2B lottery and cap system can feel unpredictable, but smart employers can use strategies like the Fall Strategy to improve their chances of success. Whether by shifting hiring to fall months or hiring a different seasonal workforce in winter, understanding how cap exemption works and timing applications accordingly can help businesses keep their essential workers year-round.
At the same time, employers should stay informed about cap relief developments, but not rely on them due to political uncertainty. Planning ahead with proven strategies remains the best way to navigate the H-2B program’s challenges.
The window to get a prevailing wage determination back in time for winter hiring is rapidly closing, as the Department of Labor is currently taking 30–35 days to process prevailing wage requests. If you’re interested in leveraging the Fall Strategy to secure your seasonal workforce, contact me now to get started.
Contact us at Kirchner Law today to get your case started before it's too late. info@kirchnerimmigration.com or 434-226-0586.
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