2018-00812. Identification of Foreign Countries Whose Nationals Are Eligible To Participate in the H-2A and H-2B Nonimmigrant Worker Programs

AGENCY:

Office of the Secretary, DHS.

ACTION:

Notice.

SUMMARY:

Under Department of Homeland Security (DHS) regulations, U.S. Citizenship and Immigration Services (USCIS) may generally only approve petitions for H-2A and H-2B nonimmigrant status for nationals of countries that the Secretary of Homeland Security, with the concurrence of the Secretary of State, has designated by notice published in the Federal Register. That notice must be renewed each year. This notice announces that the Secretary of Homeland Security, in consultation with the Secretary of State, is identifying 83 countries whose nationals are eligible to participate in the H-2A program and 82 countries whose nationals are eligible to participate in the H-2B program for the coming year.

DATES:

Effective Date: This notice is effective January 18, 2018, and shall be without effect after January 18, 2019.

FOR FURTHER INFORMATION CONTACT:

Eric B. Johnson, Office of Policy, Department of Homeland Security, Washington, DC 20528, [phone].

SUPPLEMENTARY INFORMATION:

Background

Generally, USCIS may approve H-2A and H-2B petitions for nationals of only those countries ^[1] that the Secretary of Homeland Security, with the concurrence of the Secretary of State, has designated as participating countries. Such designation must be published as a notice in the Federal Register and expires after one year. USCIS, however, may allow a national from a country not on the list to be named as a beneficiary of an H-2A or H-2B petition based on a determination that such participation is in the U.S. interest. See 8 CFR 214.2(h)(5)(i)(F) and 8 CFR 214.2(h)(6)(i)(E).

In designating countries to include on the list, the Secretary of Homeland Security, with the concurrence of the Secretary of State, will take into account factors including, but not limited to: (1) The country's cooperation with respect to issuance of travel documents for citizens, subjects, nationals, and residents of that country who are subject to a final order of removal; (2) the number of final and unexecuted orders of removal against citizens, subjects, nationals, and residents of that country; (3) the number of orders of removal executed against citizens, subjects, nationals, and residents of that country; and (4) such other factors as may serve the U.S. interest. See 8 CFR 214.2(h)(5)(i)(F)(1)(i) and 8 CFR 214.2(h)(6)(i)(E)(1). Examples of factors serving the U.S. interest that could result in the non-inclusion of a country or the removal of a country from the list include, but are not limited to, fraud, abuse, overstay rates, and non-compliance with the terms and conditions of the H-2 visa programs by nationals of that country.

In December 2008, DHS published in the Federal Register two notices, “Identification of Foreign Countries Whose Nationals Are Eligible to Participate in the H-2A Visa Program,” and “Identification of Foreign Countries Whose Nationals Are Eligible to Participate in the H-2B Visa Program,” which designated 28 countries whose nationals are eligible to participate in the H-2A and H-2B programs. See 73 FR 77043 (Dec. 18, 2008); 73 FR 77729 (Dec. 19, 2008). The notices ceased to have effect on January 17, 2010 and January 18, 2010, respectively. See 8 CFR 214.2(h)(5)(i)(F)(2) and 8 CFR 214.2(h)(6)(i)(E)(3). In implementing these regulatory provisions, the Secretary of Homeland Security, with the concurrence of the Secretary of State, has published a series of notices on a regular basis. See 75 FR 2879 (Jan. 19, 2010) (adding 11 countries); 76 FR 2915 (Jan. 18, 2011) (removing Indonesia and adding 15 countries); 77 FR 2558 (Jan. 18, 2012) (adding 5 countries); 78 FR 4154 (Jan. 18, 2013) (adding 1 country); 79 FR 3214 (Jan.17, 2014) (adding 4 countries); 79 FR 74735 (Dec. 16, 2014) (adding 5 countries); 80 FR 72079 (Nov. 18, 2015) (removing Moldova from the H-2B program and adding 16 countries); 81 FR 74468 (Oct. 26, 2016) (adding 1 country).

The Secretary of Homeland Security has determined, with the concurrence of the Secretary of State, that 82 countries previously designated in the October 26, 2016 notice continue to meet the standards identified in that notice for eligible countries and therefore should remain designated as countries whose nationals are eligible to participate in the H-2A program. Additionally, the Secretary of Homeland Security has determined, with the concurrence of the Secretary of State, that 81 countries previously designated in the October 26, 2016 notice continue to meet the standards identified in that notice for eligible countries and therefore should remain designated as countries whose nationals are eligible to participate in the H-2B program.

Further, the Secretary of Homeland Security, with the concurrence of the Secretary of State, has determined that it is now appropriate to add one country whose nationals are eligible to participate in the H-2A and H-2B programs, and to add one country whose nationals are eligible to participate in the H-2B program. This determination is made taking into account the four regulatory factors identified above. The Secretary of Homeland Security's consideration of factors that may serve the U.S. interest included, but were not limited to, evidence of past usage of the H-2A and H-2B programs by nationals of the country to be added, as well as evidence relating to the economic impact on particular U.S. industries or regions resulting from the addition or continued non-inclusion of specific countries.

The Secretary of Homeland Security has determined, however, with the concurrence of the Secretary of State, that the following countries should no longer be designated as eligible countries because they are not meeting the standards set out in the regulation: Belize, Haiti, and Samoa.

Belize is listed on the U.S. Department of State's 2017 Trafficking in Persons Report as a “Tier 3” country. “Tier 3” means the country does not fully meet the Trafficking Victims Protection Act's minimum standards and is not making significant efforts to do so.

Haitian nationals applying for H-2A and H-2B visas present extremely high rates of refusal, and those issued H-2A or H-2B visas have historically demonstrated high levels of fraud and abuse and a high rate of overstaying the terms of their H-2 admission. Haiti has shown no improvement in these areas, and the Secretary of Homeland Security has determined, with the concurrence of the Secretary of State, that Haiti's inclusion on the 2018 H-2A and H-2B lists is no longer in the U.S. interest.

Samoa is currently listed as “At Risk of Non-Compliance” according to ICE's year-end assessment of foreign countries' cooperation in accepting back their nationals that have been ordered removed from the United States. Despite attempts to improve cooperation on removals to Samoa, there has been not been sufficient progress on removals to Samoa.

Accordingly, DHS has removed these countries from the H-2A and H-2B eligibility lists for 2018, though their nationals may still be beneficiaries of approved H-2A and H-2B petitions upon the request of the petitioner if DHS determines, as a matter of discretion, that it is in the U.S. interest for the individual to be a beneficiary of such petition. See 8 CFR 214.2(h)(5)(i)(F)(1)(D)(ii) and 8 CFR 214.2(h)(6)(i)(E)(2).

The Secretary of Homeland Security has also determined, with the concurrence of the Secretary of State, that Mongolia should be designated as an eligible H-2A and H-2B country because it is now meeting the standards set out in the regulation. Mongolia is no longer listed as “At Risk of Non-Compliance” according to ICE's year-end assessment of foreign countries that cooperate in accepting back their nationals that have been ordered deported from the United States, and has demonstrated increased cooperation with the United States regarding the return of their nationals with final orders of removal.

Designation of Countries Whose Nationals Are Eligible To Participate in the H-2A and H-2B Nonimmigrant Worker Programs

Pursuant to the authority provided to the Secretary of Homeland Security under sections 214(a)(1), 215(a)(1), and 241 of the Immigration and Nationality Act (8 U.S.C. 1184(a)(1), 1185(a)(1), and 1231), I am designating, with the concurrence of the Secretary of State, nationals from the following countries to be eligible to participate in the H-2A nonimmigrant worker program:

1. Andorra

2. Argentina

3. Australia

4. Austria

5. Barbados

6. Belgium

7. Brazil

8. Brunei

9. Bulgaria

10. Canada

11. Chile

12. Colombia

13. Costa Rica

14. Croatia

15. Czech Republic

16. Denmark

17. Dominican Republic

18. Ecuador

19. El Salvador

20. Ethiopia

21. Estonia

22. Fiji

23. Finland

24. France

25. Germany

26. Greece

27. Grenada

28. Guatemala

29. Honduras

30. Hungary

31. Iceland

32. Ireland

33. Israel

34. Italy

35. Jamaica

36. Japan

37. Kiribati

38. Latvia

39. Liechtenstein

40. Lithuania

41. Luxembourg

42. Macedonia

43. Madagascar

44. Malta

45. Mexico

46. Moldova

47. Monaco

48. Mongolia

49. Montenegro

50. Nauru

51. The Netherlands

52. Nicaragua

53. New Zealand

54. Norway

55. Panama

56. Papua New Guinea

57. Peru

58. The Philippines

59. Poland

60. Portugal

61. Romania

62. San Marino

63. Serbia

64. Singapore

65. Slovakia

66. Slovenia

67. Solomon Islands

68. South Africa

69. South Korea

70. Spain

71. St. Vincent and the Grenadines

72. Sweden

73. Switzerland

74. Taiwan

75. Thailand

76. Timor-Leste

77. Tonga

78. Turkey

79. Tuvalu

80. Ukraine

81. United Kingdom

82. Uruguay

83. Vanuatu

Pursuant to the authority provided to the Secretary of Homeland Security under sections 214(a)(1), 215(a)(1), and 241 of the Immigration and Nationality Act (8 U.S.C. 1184(a)(1), 1185(a)(1), and 1231), I am designating, with the concurrence of the Secretary of State, nationals from the following countries to be eligible to participate in the H-2B nonimmigrant worker program:

1. Andorra

2. Argentina

3. Australia

4. Austria

5. Barbados

6. Belgium

7. Brazil

8. Brunei

9. Bulgaria

10. Canada

11. Chile

12. Colombia

13. Costa Rica

14. Croatia

15. Czech Republic

16. Denmark

17. Dominican Republic

18. Ecuador

19. El Salvador

20. Estonia

21. Ethiopia

22. Fiji

23. Finland

24. France

25. Germany

26. Greece

27. Grenada

28. Guatemala

29. Honduras

30. Hungary

31. Iceland

32. Ireland

33. Israel

34. Italy

35. Jamaica

36. Japan

37. Kiribati

38. Latvia

39. Lichtenstein

40. Lithuania

41. Luxembourg

42. Macedonia

43. Madagascar

44. Malta

45. Mexico

46. Monaco

47. Mongolia

48. Montenegro

49. Nauru

50. The Netherlands

51. Nicaragua

52. New Zealand

53. Norway

54. Panama

55. Papua New Guinea

56. Peru

57. The Philippines

58. Poland

59. Portugal

60. Romania

61. San Marino

62. Serbia

63. Singapore

64. Slovakia

65. Slovenia

66. Solomon Islands

67. South Africa

68. South Korea

69. Spain

70. St. Vincent and the Grenadines

71. Sweden

72. Switzerland

73. Taiwan

74. Thailand

75. Timor-Leste

76. Tonga

77. Turkey

78. Tuvalu

79. Ukraine

80. United Kingdom

81. Uruguay

82. Vanuatu

This notice does not affect the status of aliens who currently hold valid H-2A or H-2B nonimmigrant status. Persons currently holding such status, however, will be affected by this notice should they seek an extension of stay in H-2 classification, or a change of status from one H-2 status to another. Similarly, persons holding nonimmigrant status other than H-2 status are not affected by this notice unless they seek a change of status to H-2 status.

Nothing in this notice limits the authority of the Secretary of Homeland Security or her designee or any other federal agency to invoke against any foreign country or its nationals any other remedy, penalty, or enforcement action available by law.

Elaine C. Duke,

Deputy Secretary.

Footnotes

1.  With respect to all references to “country” or “countries” in this document, it should be noted that the Taiwan Relations Act of 1979, Public Law 96-8, Section 4(b)(1), provides that “[w]henever the laws of the United States refer or relate to foreign countries, nations, states, governments, or similar entities, such terms shall include and such laws shall apply with respect to Taiwan.” 22 U.S.C. 3303(b)(1). Accordingly, all references to “country” or “countries” in the regulations governing whether nationals of a country are eligible for H-2 program participation, 8 CFR 214.2(h)(5)(i)(F)(1)(i) and 8 CFR 214.2(h)(6)(i)(E)(1), are read to include Taiwan. This is consistent with the United States' one-China policy, under which the United States has maintained unofficial relations with Taiwan since 1979.