USCIS Reaches H-2B Cap for FY 2027: What International Employers and U.S. LLC Owners Need to Know
Updated: September 15, 2026
Topic: H-2B temporary workers, FY2027 cap, international employers, EINs, and U.S. businesses
USCIS has announced that it received enough petitions to reach the statutory H-2B cap for the first half of fiscal year 2027. USCIS says it will reject new cap-subject H-2B petitions received after September 4, 2026 when they request an employment start date before April 1, 2027. [1]
The announcement matters to U.S. employers and international founders who operate seasonal or other temporary nonagricultural businesses. It does not mean every H-2B petition is closed, and it does not apply to workers or petitions that qualify for an exemption from the H-2B cap. It also does not turn an EIN, LLC, or U.S. bank account into work authorization.
The practical takeaway is that employers should identify whether a petition is cap-subject or cap-exempt, review the Department of Labor’s temporary labor certification requirements, and plan future filing windows carefully. H-2B approval remains a separate immigration and labor-certification process.
What did USCIS announce?
USCIS’s H-2B program page states that, as of September 4, 2026, the agency received enough petitions to meet the statutory cap for the first half of FY2027. USCIS will reject new cap-subject petitions received after that date when the petition requests an employment start date before April 1, 2027. [1]
The H-2B program allows qualifying U.S. employers or U.S. agents to petition for foreign nationals to perform temporary nonagricultural services or labor. The employer must satisfy program requirements, and a prospective worker generally cannot begin the process based only on a company’s formation documents or federal tax identification number.
| Question | Current answer |
|---|---|
| What cap period is affected? | The first half of FY2027, covering employment beginning October 1, 2026 through March 31, 2027 |
| When did USCIS say the cap was reached? | September 4, 2026 |
| What happens to new cap-subject petitions received after that date? | USCIS says it will reject those requesting a start date before April 1, 2027 |
| Are all H-2B petitions blocked? | No. Cap-exempt petitions may still be accepted, subject to the applicable requirements |
| Does an EIN or LLC create work authorization? | No |
| Who decides the immigration petition? | USCIS, after the required labor-certification and petition process |
How does the H-2B cap work?
Congress has set the H-2B cap at 66,000 workers per fiscal year. USCIS explains that 33,000 numbers are allocated for workers whose employment begins in the first half of the fiscal year—from October 1 through March 31—and 33,000 are allocated for the second half—from April 1 through September 30. [1]
Unused numbers from the first half may be available for employers seeking workers in the second half, but unused numbers do not carry over from one fiscal year to the next. Once the cap is reached, USCIS may accept petitions only for workers or circumstances that qualify for a cap exemption.
The cap is a numerical limit, not a guarantee of approval for petitions filed before the cap is reached. Employers must still satisfy the temporary-need, worker-availability, wage, labor-certification, petition, and immigration requirements.
What is an H-2B cap-exempt petition?
USCIS’s program framework recognizes that once the cap is reached, petitions may continue for workers who are exempt from the H-2B cap. The precise exemption depends on the applicable law and facts. Employers should not label a petition “cap-exempt” merely because the business is small, foreign-owned, newly formed, or unable to find workers.
A cap analysis should consider the worker, the employment, the petition category, prior H-2B history, and the current USCIS instructions. A petitioner should obtain professional immigration guidance when the exemption is unclear rather than relying on a general online summary.
What must an employer prove?
USCIS states that an H-2B petitioner must establish that there are not enough U.S. workers who are able, willing, qualified, and available to perform the temporary work. The petitioner must also show that employing H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers. [1]
The employer’s need must be temporary even if the underlying business or position could continue in the future. USCIS identifies several temporary-need categories, including a one-time occurrence, seasonal need, peak-load need, and intermittent need.
The employer should prepare a factual explanation supported by records. A statement that the company is busy or international is not enough by itself. The employer may need to explain the business cycle, expected duration, staffing history, projected demand, and why the work meets the temporary-need standard.
What does the Department of Labor require?
Before filing the immigration petition with USCIS, an employer generally must obtain an approved temporary labor certification from the Department of Labor. DOL states that an H-2B employer must have a U.S. place of business, a way to be contacted about employment, an employer relationship with the workers, and a valid Federal Employer Identification Number for the temporary employment certification application. [2]
DOL’s process begins before the USCIS Form I-129 petition. The employer generally requests a prevailing wage determination, files an H-2B job order with the relevant State Workforce Agency, submits Form ETA-9142B and supporting documents to the Office of Foreign Labor Certification, and conducts recruitment of U.S. workers after receiving the required notice.
| Stage | Main authority or filing | Purpose |
|---|---|---|
| Employer and job review | Department of Labor | Establishes whether the employer and temporary job meet labor-certification requirements |
| Prevailing wage | Form ETA-9141 or applicable DOL process | Determines the required wage framework |
| Job order and H-2B application | State Workforce Agency and Form ETA-9142B | Publicizes the job and starts temporary labor certification review |
| U.S. worker recruitment | Employer under DOL instructions | Tests the availability of qualified U.S. workers |
| Immigration petition | Form I-129 with USCIS | Requests H-2B classification after the labor-certification stage |
| Visa or admission | Department of State and CBP, where applicable | Allows an approved worker to seek visa issuance and admission |
DOL encourages electronic filing through the FLAG system. The agency also states that an H-2B application package generally includes the application and appendices, a valid prevailing wage determination tracking number, a copy of the job order, and supporting documentation. [2]
Why an EIN and LLC matter—but do not solve the immigration problem
The DOL process requires a valid Federal Employer Identification Number for the temporary employment certification application. An EIN helps identify the employer for federal tax administration and may be part of the employer’s documentation. It does not prove that the company has a qualifying temporary need, does not replace the labor certification, and does not create an H-2B visa number.
An LLC is formed under state law. It may operate a U.S. business, sign contracts, hire workers, or maintain a bank account if it satisfies the relevant requirements. But forming an LLC does not authorize the company to employ foreign nationals under H-2B status.
A non-U.S. founder should therefore treat business formation and immigration staffing as separate workstreams. The formation documents, EIN evidence, payroll records, business plan, contracts, seasonal demand information, and labor-certification materials should be consistent, but each government process has a different purpose.
What should international employers do after the cap is reached?
Review the requested employment start date
The USCIS announcement is specifically tied to cap-subject petitions requesting a start date before April 1, 2027. Employers should review whether a later start date fits the business need and the applicable filing timetable. A later date does not by itself guarantee that a petition will be accepted or approved.
Check for a legitimate exemption
Review the current USCIS instructions and the facts of the petition to determine whether the worker or employment may be cap-exempt. Do not rely on a newly formed U.S. entity, foreign ownership, or an EIN as a substitute for the legal exemption analysis.
Plan the DOL timeline early
DOL advises employers to request a prevailing wage determination well before it is needed and to submit the job order and H-2B application within the regulatory timing windows. Because DOL certification precedes the USCIS petition, late planning can make a desired start date impractical even when visa numbers are available.
Keep recruitment evidence
Maintain copies of job orders, advertisements, contact with former U.S. workers, employee notices, recruitment reports, wage information, payroll records, and communications with the State Workforce Agency or DOL. The business should be able to explain what it did to test the U.S. labor market.
Keep the business and immigration records consistent
The employer name, FEIN, worksite, job duties, wages, dates, number of workers, and temporary-need explanation should align across the LLC records, EIN information, DOL filings, USCIS petition, payroll records, and contracts. Inconsistencies should be corrected or explained rather than concealed.
What the H-2B announcement does not change
The cap announcement does not change ITIN rules, EIN issuance, LLC formation, tax filing requirements, payroll obligations, or U.S. banking decisions. It also does not create an immigration benefit for every international business owner.
A founder with an ITIN may have an individual federal tax-processing number. A company with an EIN may have a business tax identifier. An LLC may be a state-law business entity. None of these documents, alone or together, guarantees H-2B classification, work authorization, visa issuance, admission, or approval of a bank account.
How ITIN.com’s services fit into the process
ITIN.com can help eligible clients prepare and coordinate ITIN, EIN, and LLC formation services, as well as provide banking-assistance preparation. ITIN.com does not issue immigration status, sponsor H-2B workers, certify temporary labor needs, or guarantee USCIS approval.
The IRS issues ITINs and EINs, state authorities form LLCs, the Department of Labor handles the temporary labor-certification stage, and USCIS adjudicates the H-2B petition. Banking partners independently decide whether to approve accounts. Immigration-specific questions should be reviewed with qualified immigration counsel and the relevant agencies.
Bottom line
USCIS has reached the H-2B cap for the first half of FY2027 and says it will reject new cap-subject petitions received after September 4, 2026 that request employment before April 1, 2027. International founders with seasonal or temporary U.S. businesses should review cap-exempt possibilities, plan the DOL certification process early, and separate business-identity documents from immigration authorization.
An EIN and LLC may be important parts of an employer’s business records, but they are not substitutes for DOL certification, Form I-129, the H-2B cap analysis, or USCIS approval.
Important: This article is general information based on USCIS and U.S. Department of Labor materials available on September 15, 2026. It is not immigration, legal, tax, payroll, or banking advice. H-2B eligibility, cap exemptions, labor certification, visa issuance, and admission depend on the employer’s and worker’s facts and current agency rules.
