Notice2022-24539
Identification of Foreign Countries Whose Nationals Are Eligible To Participate in the H-2A and H-2B Nonimmigrant Worker Programs
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
November 10, 2022
Effective
November 10, 2022
Issuing agencies
Homeland Security Department
Abstract
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. Each such notice shall be effective for one year after its date of publication. This notice announces that the Secretary of Homeland Security, in consultation with the Secretary of State, is identifying 86 countries whose nationals are eligible to participate in the H-2A program and 87 countries whose nationals are eligible to participate in the H-2B program for the coming year.
Full Text
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<title>Federal Register, Volume 87 Issue 217 (Thursday, November 10, 2022)</title>
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[Federal Register Volume 87, Number 217 (Thursday, November 10, 2022)]
[Notices]
[Pages 67930-67933]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-24539]
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DEPARTMENT OF HOMELAND SECURITY
[Docket No. DHS-2011-0108]
RIN 1601-ZA11
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.
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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. Each such notice shall be effective for one year
after its date of publication. This notice announces that the Secretary
of Homeland Security, in consultation with the Secretary of State, is
identifying 86 countries whose nationals are eligible to participate in
the H-2A program and 87 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 November 10,
2022 and shall be without effect on November 10, 2023.
FOR FURTHER INFORMATION CONTACT: Ihsan Gunduz, Office of Strategy,
Policy, and Plans, Department of Homeland Security, Washington, DC
20528, (202) 282-9708.
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 lists, 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
specific factors serving the U.S. interest that are taken into account
when considering whether to designate or terminate the designation of a
country include, but are not limited to: fraud (e.g., fraud in the H-2
petition or visa application process by nationals of the country, the
country's level of cooperation with the U.S. government in addressing
H-2 associated visa fraud, and the country's level of information
sharing to combat immigration-related fraud), nonimmigrant visa
overstay \2\ rates for nationals of the country (including but not
limited to H-2A and H-2B nonimmigrant visa overstay rates), and non-
compliance with the terms and conditions of the H-2 visa programs by
nationals of the country.
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\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 is a nonimmigrant lawfully admitted to the
United States for an authorized period, but who remained in the
United States beyond his or her authorized period of admission. U.S.
Customs and Border Protection (CBP) identifies two types of
overstays: (1) individuals for whom no departure was recorded
(Suspected In-Country Overstays), and (2) individuals whose
departure was recorded after their authorized period of admission
expired (Out-of-Country Overstays). For purposes of this Federal
Register Notice, DHS uses Fiscal Year 2021 CBP nonimmigrant overstay
data for the H-2A and H-2B nonimmigrant visa categories and the
Fiscal Year 2020 Entry/Exit Overstay Report for all other visa
categories. See: <a href="https://www.dhs.gov/sites/default/files/2021-12/CBP%20-%20FY%202020%20Entry%20Exit%20Overstay%20Report_0.pdf">https://www.dhs.gov/sites/default/files/2021-12/CBP%20-%20FY%202020%20Entry%20Exit%20Overstay%20Report_0.pdf</a>.
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As previously indicated, see 86 FR 2689; 86 FR 62559, in evaluating
the U.S. interest, the Secretary of Homeland Security, with the
concurrence of the Secretary of State, will generally ascribe a
negative weight to evidence that a country had a suspected in-country
visa overstay rate of 10 percent or higher with a number of expected
departures of 50 individuals or higher in either the H-2A or H-2B
classification according to U.S. Customs and Border Protection overstay
data, and generally, with the concurrence of the Secretary of State,
will terminate designation of that country from the H-2A or H-2B
nonimmigrant visa program, as appropriate, unless, after consideration
of other relevant factors, it is
[[Page 67931]]
determined not to be in the U.S. interest to do so.
Similarly, DHS recognizes that countries designated under long-
standing practice by U.S. Immigration and Customs Enforcement (ICE) as
``At Risk of Non-Compliance'' or ``Uncooperative'' with removals based
on ICE data put the integrity of the immigration system and the
American people at risk. Therefore, unless other favorable factors in
the U.S. interest outweigh such designations by ICE, the Secretary of
Homeland Security, with the concurrence of the Secretary of State,
generally will terminate designation of such countries from the H-2A
and H-2B nonimmigrant visa programs. Because there are separate lists
for the H-2A and H-2B categories, it is possible that, in applying the
above-described regulatory criteria for listing countries, a country
may appear on one list but not on the other.
Even where the Secretary of Homeland Security has determined to
terminate or decided not to designate a country, DHS, through USCIS,
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 it is in the U.S. interest for
that individual noncitizen to be a beneficiary of an H-2 petition.
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 the first lists of eligible
countries for the H-2A and H-2B Visa Programs in the Federal Register.
These 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,'' 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, 2009, and January 18,
2009, respectively. Since the publication of the first lists in 2008,
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 to both programs); 76 FR 2915 (Jan. 18, 2011) (removing
one country from and adding 15 countries to both programs); 77 FR 2558
(Jan. 18, 2012) (adding five countries to both programs); 78 FR 4154
(Jan. 18, 2013) (adding one country to both programs); 79 FR 3214
(Jan.17, 2014) (adding four countries to both programs); 79 FR 74735
(Dec. 16, 2014) (adding five countries to both programs); 80 FR 72079
(Nov. 18, 2015) (removing one country from the H-2B program and adding
16 countries to both programs); 81 FR 74468 (Oct. 26, 2016) (adding one
country to both programs); 83 FR 2646 (Jan. 18, 2018) (removing three
countries from and adding one country to both programs); 84 FR 133
(Jan. 18, 2019) (removing two countries from and adding 2 countries to
both programs, removing one country from only the H-2B program, and
adding one country to only the H-2A program); 85 FR 3067 (January 17,
2020) (leaving the lists unchanged); 86 FR 2689 (Jan. 13, 2021)
(removing two countries from both programs, removing one country from
only the H-2A program, and adding one country to only the H-2B
program); and 86 FR 62559 (Nov. 10, 2021) (removing one country from
only the H-2A program, adding one country to only the H-2B program, and
separately adding five countries to both programs).
Determination of Countries With Continued Eligibility
The Secretary of Homeland Security has determined, with the
concurrence of the Secretary of State, that the 85 countries previously
designated to participate in the H-2A program in the November 10, 2021
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 the 86 countries previously designated to
participate in the H-2B program in the November 10, 2021 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.
Consistent with the previous notices, 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 lists 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 1049 of the
National Defense Authorization Act (NDAA) for FY 2018, Public Law 115-
91, section 1045 of the NDAA for FY 2019, Public Law115-232, or section
9502 of the NDAA for FY 2021, Public Law 116-283. However, any ultimate
determination of eligibility will be made according to all the relevant
factors and evidence in each individual circumstance.
Countries Now Designated as Eligible
The Secretary of Homeland Security has also determined, with the
concurrence of the Secretary of State, the Kingdom of Eswatini
(Eswatini) should be designated as an eligible country to participate
in both the H-2A and H-2B nonimmigrant visa programs because its
participation is in the U.S. interest consistent with the regulations
governing these programs.
Nationals of Eswatini do not present significant visa overstay
concerns and are generally compliant with the terms and conditions of
all visa categories. Additionally, the Department of State (DOS) does
not have significant fraud concerns associated with visa applications
submitted by nationals of Eswatini. DOS believes that adding Eswatini
to the H-2 eligible country lists would further strengthen an already
strong relationship with the United States. Eswatini continues to be a
valued partner and is working closely with DOS on the implementation of
[[Page 67932]]
DOS Counterterrorism Bureau's Personal Identification Secure Comparison
and Evaluation System (PISCES) to combat transnational crime and
improve interdiction capabilities at major border crossings. On August
10, 2022, the United States Ambassador to Eswatini and Government of
Eswatini National Commissioner of Police signed a Memorandum of Intent
agreeing to move forward with the deployment of PISCES throughout
Eswatini. Therefore, adding Eswatini to both the H-2A and H-2B eligible
countries lists serves the U.S. interest.
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) and 215(a)(1) of the Immigration and
Nationality Act (8 U.S.C. 1184(a)(1) and 1185(a)(1), I am designating,
with the concurrence of the Secretary of State, the following countries
as those whose nationals are eligible to participate in the H-2A
nonimmigrant worker program:
1. Andorra
2. Argentina
3. Australia
4. Austria
5. Barbados
6. Belgium
7. Bosnia and Herzegovina
8. Brazil
9. Brunei
10. Bulgaria
11. Canada
12. Chile
13. Colombia
14. Costa Rica
15. Croatia
16. Republic of Cyprus
17. Czech Republic
18. Denmark
19. Dominican Republic
20. Ecuador
21. El Salvador
22. Estonia
23. The Kingdom of Eswatini
24. Fiji
25. Finland
26. France
27. Germany
28. Greece
29. Grenada
30. Guatemala
31. Haiti
32. Honduras
33. Hungary
34. Iceland
35. Ireland
36. Israel
37. Italy
38. Jamaica
39. Japan
40. Kiribati
41. Latvia
42. Liechtenstein
43. Lithuania
44. Luxembourg
45. Madagascar
46. Malta
47. Mauritius
48. Mexico
49. Monaco
50. Montenegro
51. Mozambique
52. Nauru
53. The Netherlands
54. New Zealand
55. Nicaragua
56. North Macedonia (formerly Macedonia)
57. Norway
58. Panama
59. Papua New Guinea
60. Paraguay
61. Peru
62. Poland
63. Portugal
64. Romania
65. Saint Lucia
66. San Marino
67. Serbia
68. Singapore
69. Slovakia
70. Slovenia
71. Solomon Islands
72. South Africa
73. South Korea
74. Spain
75. St. Vincent and the Grenadines
76. Sweden
77. Switzerland
78. Taiwan
79. Thailand
80. Timor-Leste
81. Turkey
82. Tuvalu
83. Ukraine
84. United Kingdom
85. Uruguay
86. Vanuatu
Pursuant to the authority provided to the Secretary of Homeland
Security under sections 214(a)(1) and 215(a)(1) of the Immigration and
Nationality Act (8 U.S.C. 1184(a)(1) and 1185(a)(1)), I am designating,
with the concurrence of the Secretary of State, the following countries
as those whose nationals are eligible to participate in the H-2B
nonimmigrant worker program:
1. Andorra
2. Argentina
3. Australia
4. Austria
5. Barbados
6. Belgium
7. Bosnia and Herzegovina
8. Brazil
9. Brunei
10. Bulgaria
11. Canada
12. Chile
13. Colombia
14. Costa Rica
15. Croatia
16. Republic of Cyprus
17. Czech Republic
18. Denmark
19. Dominican Republic
20. Ecuador
21. El Salvador
22. Estonia
23. The Kingdom of Eswatini
24. Fiji
25. Finland
26. France
27. Germany
28. Greece
29. Grenada
30. Guatemala
31. Haiti
32. Honduras
33. Hungary
34. Iceland
35. Ireland
36. Israel
37. Italy
38. Jamaica
39. Japan
40. Kiribati
41. Latvia
42. Liechtenstein
43. Lithuania
44. Luxembourg
45. Madagascar
46. Malta
47. Mauritius
48. Mexico
49. Monaco
50. Mongolia
51. Montenegro
52. Mozambique
53. Nauru
54. The Netherlands
55. New Zealand
56. Nicaragua
57. North Macedonia (formerly Macedonia)
58. Norway
59. Panama
60. Papua New Guinea
61. Peru
62. The Philippines
63. Poland
64. Portugal
65. Romania
66. Saint Lucia
67. San Marino
68. Serbia
69. Singapore
70. Slovakia
71. Slovenia
72. Solomon Islands
73. South Africa
74. South Korea
75. Spain
76. St. Vincent and the Grenadines
77. Sweden
78. Switzerland
79. Taiwan
80. Thailand
81. Timor-Leste
82. Turkey
83. Tuvalu
84. Ukraine
85. United Kingdom
86. Uruguay
87. Vanuatu
This notice does not affect the current status of noncitizens who
at the time of publication of this notice hold valid H-2A or H-2B
nonimmigrant status. Noncitizens currently holding such status,
however, will be affected by this notice should they seek an extension
of stay in the H-2 classification, or a change of status from one H-2
status to
[[Page 67933]]
another, for employment on or after the effective date of this notice.
Similarly, noncitizens holding nonimmigrant status other than H-2 are
not affected by this notice, but will be affected by this notice if
they seek a change of status to H-2 on or after the effective date of
this notice.
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.
Alejandro N. Mayorkas,
Secretary of Homeland Security.
[FR Doc. 2022-24539 Filed 11-9-22; 8:45 am]
BILLING CODE 9110-9M-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.