2020-00795. 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 84 countries whose nationals are eligible to participate in the H-2A program and 81 countries whose nationals are eligible to participate in the H-2B program for the coming year.

DATES:

The designations in this notice are effective from January 19, 2020, and shall be without effect after January 18, 2021.

FOR FURTHER INFORMATION CONTACT:

Ihsan Gunduz, Office of Strategy, Policy, and Plans, 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 that the Secretary of Homeland Security, with the concurrence of the Secretary of State, has designated as participating countries.^[1] Such designation must be published as a notice in the Federal Register and expires after one year. 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 exclusion of a country or the removal of a country from the list include, but are not limited to: Fraud, abuse, nonimmigrant overstay ^[2] rates (including but not limited to H-2 nonimmigrants), and other forms of non-compliance with the terms and conditions of the H-2 visa programs by nationals of that country.

USCIS, however, may allow, on a case-by-case basis, a national from a country that is 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. Determination of such U.S. interest will take into account factors, including but not limited to: (1) Evidence from the petitioner demonstrating that a worker with the required skills is not available either from among U.S. workers or from among foreign workers from a country currently on the list described in 8 CFR 214.2 (h)(5)(i)(F)(1)(i) (H-2A nonimmigrants) or 214.2(h)(6)(1)(E)(1) (H-2B nonimmigrants), as applicable; (2) evidence that the beneficiary has been admitted to the United States previously in H-2A or H-2B status; (3) the potential for abuse, fraud, or other harm to the integrity of the H-2A or H-2B visa program through the potential admission of a beneficiary from a country not currently on the list; and (4) such other factors as may serve the U.S. interest. See 8 CFR 214.2(h)(5)(i)(F)(1)(ii) and 8 CFR 214.2(h)(6)(i)(E)(2).

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 were 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 1 country 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 1 country from the H-2B program and adding 16 countries); 81 FR 74468 (Oct. 26, 2016) (adding 1 country); 83 FR 2646 (Jan. 18, 2018) (removing 3 countries and adding 1 country); 84 FR 133 (Jan. 18, 2019) (removing 2 countries from both the H-2A program and the H-2B program, removing 1 country from only the H-2B program, and adding 2 countries to both programs and 1 country to only the H-2A program).

Countries With Continued Eligibility

The Secretary of Homeland Security has determined, with the concurrence of the Secretary of State, that 84 countries previously designated to participate in the H-2A program in the January 18, 2019 notice continue to meet the regulatory standards 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 to participate in the H-2B program in the January 18, 2019 notice continue to meet the regulatory standards for eligible countries and therefore should remain designated as countries whose nationals are eligible to participate in the H-2B program. These determinations take into account how the regulatory factors identified above apply to each of these countries.

Countries Designated as Eligible

The Secretary of Homeland Security has now determined, with the concurrence of the Secretary of State, that the countries designated as eligible shall remain unchanged for 2020.

Consistent with the 2019 notice, nationals of non-designated countries may still be beneficiaries of approved H-2A and H-2B petitions upon the request of the petitioner if USCIS determines, as a matter of discretion and on a case-by-case basis, 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)(ii) and 8 CFR 214.2(h)(6)(i)(E)(2). USCIS may favorably consider a beneficiary of an H-2A or H-2B petition who is not a national of a country included on the H-2A or H-2B eligibility list as serving the national interest, depending on the totality of the circumstances. Factors USCIS may consider include, among other things, whether a beneficiary has previously been admitted to the United States in H-2A or H-2B status and complied with the terms of the program. An additional factor for beneficiaries of H-2B petitions, although not necessarily determinative standing alone, would be whether the H-2B petition qualifies under section 1045 of the National Defense Authorization Act (NDAA) for FY 2020, Public Law 116-92. However, any ultimate determination of eligibility will be made according to all of the relevant factors and evidence in each individual circumstance.

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. Estonia

21. Fiji

22. Finland

23. France

24. Germany

25. Greece

26. Grenada

27. Guatemala

28. Honduras

29. Hungary

30. Iceland

31. Ireland

32. Israel

33. Italy

34. Jamaica

35. Japan

36. Kiribati

37. Latvia

38. Liechtenstein

39. Lithuania

40. Luxembourg

41. Macedonia

42. Madagascar

43. Malta

44. Mexico

45. Moldova

46. Monaco

47. Mongolia

48. Montenegro

49. Mozambique

50. Nauru

51. The Netherlands

52. New Zealand

53. Nicaragua

54. Norway

55. Panama

56. Papua New Guinea

57. Paraguay

58. Peru

59. Poland

60. Portugal

61. Romania

62. Samoa

63. San Marino

64. Serbia

65. Singapore

66. Slovakia

67. Slovenia

68. Solomon Islands

69. South Africa

70. South Korea

71. Spain

72. St. Vincent and the Grenadines

73. Sweden

74. Switzerland

75. Taiwan

76. Thailand

77. Timor-Leste

78. Tonga

79. Turkey

80. Tuvalu

81. United Kingdom

82. Ukraine

83. Uruguay

84. 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. Ecuador

18. El Salvador

19. Estonia

20. Fiji

21. Finland

22. France

23. Germany

24. Greece

25. Grenada

26. Guatemala

27. Honduras

28. Hungary

29. Iceland

30. Ireland

31. Israel

32. Italy

33. Jamaica

34. Japan

35. Kiribati

36. Latvia

37. Liechtenstein

38. Lithuania

39. Luxembourg

40. Macedonia

41. Madagascar

42. Malta

43. Mexico

44. Monaco

45. Mongolia

46. Montenegro

47. Mozambique

48. Nauru

49. The Netherlands

50. New Zealand

51. Nicaragua

52. Norway

53. Panama

54. Papua New Guinea

55. Peru

56. Poland

57. Portugal

58. Romania

59. Samoa

60. San Marino

61. Serbia

62. Singapore

63. Slovakia

64. Slovenia

65. Solomon Islands

66. South Africa

67. South Korea

68. Spain

69. St. Vincent and the Grenadines

70. Sweden

71. Switzerland

72. Taiwan

73. Thailand

74. Timor-Leste

75. Tonga

76. Turkey

77. Tuvalu

78. Ukraine

79. United Kingdom

80. Uruguay

81. Vanuatu

This notice does not affect the status of aliens who currently hold valid H-2A or H-2B nonimmigrant status. Aliens 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, for employment on or after the effective date of this notice. Similarly, aliens 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 his 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.

Chad F. Wolf,

Acting Secretary of Homeland Security.

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.

2.  An overstay occurs when a nonimmigrant who was lawfully admitted to the United States for an authorized period remains in the United States beyond his or her authorized period of admission. For purposes of this Federal Register Notice, DHS uses FY 2018 U.S. Customs and Border Protection H-2A and H-2B nonimmigrant overstay data.