The H-2B Lottery. What Are Your Chances, and What to Do If Luck is Against You?

The annual allotted cap of 66,000 H-2B visas consistently fails to meet the demand.  To address the sheer volume of H-2B applications it receives, the Department of Labor uses a system of randomized selection to determine the order in which it processes the applications.  This system is commonly referred to as the H-2B lottery. 

In this article, we explain the why and how of the H-2B lottery process, as well as options for employers who “lose” the lottery.

Background

There are only a limited number of H-2B visas available every year.  Exceptions aside, the general H-2B annual cap is 66,000.  Half of that total, 33,000, is reserved for temporary work that start in the first half of the fiscal year (10/1 to 3/31).  The other 33,000 is reserved for the second half (4/1 to 9/30).

Spots are granted on a first come, first serve basis.  Therefore, it is advantageous to submit H-2B petitions as early as possible.  But employers can’t just submit a labor certification application years before they need the workers.  By law, the earliest submission date is 90 days before the workers are needed.

Because all the employers want to be the first to capture the H-2B spots, they will have no choice but to indicate either 10/1 or 4/1 as their first day of need.

This is why, 90 days before the start of each fiscal year half, all the employers who want H-2B workers will flood the Department of Labor (“DOL”) with applications for labor certifications. 

This is a deeply flawed system that disregards American businesses’ diverse seasonal needs.  Unfortunately, Congress has done little to correct the problem, so experienced H-2B employers have learned to adjust their business practice to the flaws.  But we digress.

Submission Period for ETA-9142B, Application for Temporary Labor Certification (“TLC”)

To address the large flood of simultaneous applications it receives every half a year, DoL institutes a lottery system to give every employer an equal chance to secure H-2B visa.

DOL accepts TLC applications electronically through its FLAG system.  To account for possible slowdowns, freezes, or server crash caused by large volume of electronic submissions, the Department stretches the initial submission period to three days.  All TLC applications received during such a three-day period are considered to be submitted at the same time. 

Submission periods hover around January 1-3 and July 3-5.

Group Assignment for TLC Applications

Once the submission period ends, DOL randomly places all TLC applications into groups.  Groups are ordered by alphabet, starting with “A.”  Group A has TLC applications that, combined, request for a total of around 33,000 visa spots.  Subsequent groups – B, C, D, and so on – each contain about 1000 applications that request for a total of no more than 20,000 visa spots.  DOL will begin by processing all the TLC applications in group A.  Afterwards, it moves on to group B and subsequent groups.

If an employer is assigned to group A, the visa spots are theirs to lose.  Their TLC applications are adjudicated first, so they get the earliest chance to obtain the certifications, which allows them to complete H-2B application process and get the visas first.  Be mindful that being assigned to group A is not a guarantee for H-2B success.  Employers still need to timely respond to any Notice of Deficiency from DOL and submit a thorough H-2B petition to USCIS.

Group B may still have a chance, because not all group A employers respond to Notice of Deficiency on time.  Some group A employers do withdraw their applications.  Each group after B, however, have an ever-decreasing chance of getting H-2B visa spots.

What Happens If an Employer is Assigned to a Later Group?

There is advantage to staying the course.  Starting January 2023, DOL began assigning temporary registration number to employers who submit TLC applications.  Once assigned and activated, this registration number remains effective for up to three years.  Employers with successful TLC applications in the past may offer this number in future applications as an additional piece of evidence, potentially speeding up future adjudications.

Employers who are assigned to later groups may elect to continue the process, respond to Notice of Deficiency and conduct recruitment as instructed in the Notice of Acceptance.  Even though continuing may not result in H-2B visas this year (but read on for supplemental visas), employer may save some hassles in future years.  Employers who wish to terminate the process may withdraw their applications.

Wait for Supplemental Visa Spots

While not a guarantee, DHS and DOL have consistently provided supplement visas to the H-2B cap.  FY 2026 saw an injection of 64,716 supplemental visas that were divided into three smaller allocations based on the employers’ periods of need.  For the first two allocations, spots are reserved only for “returning workers,” those who have held H-2B status anytime during the previous three years. 

Requirements attached to supplemental visas change frequently, likely as a result of DHS both adjusting to the increasing demands for H-2B and appeasing the political priorities of the administration in power.  For example, workers from certain Central American and Caribbean countries used to be eligible supplemental visas even if they hadn’t held H-2B status in previous years.  That special carve out was removed since the current administration came into power.

With H-2B demands remaining high for the foreseeable future, it is a relatively safe bet that supplement visas will continue to happen.  Employers should pay careful attention to the changing requirements when the additional visas are announced.

Apply for Cap-Exempt H-2B Visas

Some H-2B visas are not subject to the cap.  Those include: Workers already in the U.S. under H-2B status and are extending their employment or changing employers; fish roe processing workers, and workers in Guam or CNMI.

Further Reading

We hope you find this information helpful.  For more on the H-2B visa, including timeline and employer obligations, visit our blog.  If you have other questions, contact us.