Proposed Certified Seasonal Employer Exemption Could Significantly Expand Access To H-2B Workers

On June 9, 2026, the House Appropriations Committee approved draft Fiscal Year 2027 Department of Homeland Security appropriations legislation containing one of the most significant proposed H-2B reforms in recent years : the creation of a new Certified Seasonal Employer (CSE) exemption from the H-2B cap.

If enacted, the proposal could provide substantial relief to employers that have consistently participated in the H-2B program and have struggled with the uncertainty associated with the annual visa cap and supplemental visa allocations.

What Is the CSE Exemption?

Section 409 of the House FY 2027 Department of Homeland Security Appropriations Bill would create a new cap exemption for certain H-2B employers that have demonstrated a history of participation in the program.

Under the proposed legislation, an employer that received H-2B labor certifications during each of the previous five fiscal years would be eligible to petition for cap-exempt H-2B workers in Fiscal Year 2027.

The proposed legislative language may be reviewed here:

House FY 2027 Homeland Security Appropriations Bill (Section 409)

How Would the Exemption Work?

The proposal would allow a qualifying employer to petition for H-2B workers up to the highest number of workers certified for that employer during any one of the previous five fiscal years.

For example, if an employer received labor certifications for:

• 20 workers in FY 2022;
• 28 workers in FY 2023;
• 35 workers in FY 2024;
• 30 workers in FY 2025; and
• 32 workers in FY 2026,

the employer’s highest certified worker count would be 35 workers.

Under the proposed legislation, the employer could request up to 35 H-2B workers in FY 2027 without those workers being counted against the annual H-2B cap. Any workers requested above that number would remain subject to the regular H-2B numerical limitation.

Unlike recent supplemental visa allocations, the proposal is not based upon a fixed nationwide numerical allocation. Instead, eligibility would be determined based upon each employer’s own certification history.

It is important to note that the proposed CSE exemption would not eliminate or modify the existing H-2B filing process. Employers would still be required to:

• Obtain a Prevailing Wage Determination (ETA 9141);
• Conduct recruitment and file the ETA 9142B with the Department of Labor;
• Obtain a Temporary Labor Certification;
• File Form I-129 with USCIS;
• Obtain USCIS approval;
• Complete consular processing (or change of status, if applicable).

The proposal affects only whether certain workers would be counted against the annual H-2B cap.

Why Is This Important?

For many employers, obtaining labor certification is only the first step. Even after receiving certification from the U.S. Department of Labor, employers frequently face uncertainty regarding visa availability because of the annual statutory H-2B cap.

Over the past several years, Congress and the Department of Homeland Security have relied on supplemental visa allocations to address labor shortages. While helpful, those allocations have generally been temporary and subject to changing eligibility requirements.

The proposed CSE exemption would represent a fundamentally different approach by providing a predictable pathway for experienced H-2B employers to access workers without relying upon annual supplemental visa announcements.

For employers that consistently use the H-2B program, the proposal could significantly improve workforce planning and reduce uncertainty regarding labor availability. Many long-term H-2B employers could effectively become exempt from the annual cap for a substantial portion of their workforce, allowing them to make hiring decisions with a level of certainty that has historically been unavailable under the H-2B program.

Which Employers May Benefit?

The proposal could benefit a wide range of seasonal employers that have historically relied upon H-2B workers, including:

• Landscaping companies;
• Construction contractors;
• Grounds maintenance companies;
• Forestry employers;
• Hospitality businesses;
• Seafood processors;
• Amusement and recreation employers; and
• Other seasonal industries that regularly participate in the H-2B program.

Employers with continuous H-2B certifications during the previous five fiscal years would likely be in the strongest position to benefit if the legislation becomes law.

Legislative Status and Next Steps

On June 9, 2026, the House Appropriations Committee approved the Fiscal Year 2027 Department of Homeland Security Appropriations Bill containing the proposed CSE exemption for H-2B employers.

While committee approval is an important milestone, the proposal has not yet become law.

Under the U.S. legislative process, the bill must still:

1. Be considered and passed by the full House of Representatives;
2. Be considered by the U.S. Senate, which may adopt, reject, or modify the House language;
3. Be reconciled if the House and Senate pass different versions of the legislation;
4. Be approved by both chambers in identical form; and
5. Be signed by the President.

Because appropriations legislation frequently undergoes revisions during the legislative process, there is no guarantee that the CSE exemption will remain unchanged or ultimately be enacted. Nevertheless, inclusion of this provision in legislation approved by the House Appropriations Committee represents a significant step forward and reflects growing congressional recognition of the workforce challenges facing seasonal employers that depend upon the H-2B program.

What Should Employers Do Now?

Employers that have participated in the H-2B program during recent years may wish to review their certification history and identify the highest number of workers certified during the previous five fiscal years.

If enacted, that historical certification record could become critically important in determining eligibility for cap-exempt workers under the proposed CSE exemption.

If enacted, the CSE exemption could fundamentally change how many established H-2B employers plan for future labor needs and file H-2B petitions.

The Bernard Firm will continue monitoring developments regarding this legislation and will provide updates as additional information becomes available.

If you have questions regarding the H-2B program or how the proposed CSE exemption may affect your business, please contact The Bernard Firm.