Notice2023-24210
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 9, 2023
Effective
November 9, 2023
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 87 countries whose nationals are eligible to participate in the H-2A program and 88 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 88 Issue 216 (Thursday, November 9, 2023)</title>
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[Federal Register Volume 88, Number 216 (Thursday, November 9, 2023)]
[Notices]
[Pages 77343-77346]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-24210]
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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 87 countries whose nationals are eligible to participate in
the H-2A program and 88 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 9,
2023 and shall be without effect on November 8, 2024.
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
[[Page 77344]]
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).\2\ 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 \3\ 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\ DHS has published a Notice of Proposed Rulemaking (NPRM) in
the Federal Register in which it is proposing to eliminate the
requirement to designate countries whose nationals are eligible to
participate in the H-2A and H-2B programs from DHS regulations. The
rule is in a proposal stage and does not impact the designation of
eligible countries contained in this notice. The regulations
requiring the designation of countries whose nationals are eligible
to participate in the H-2 programs will remain in effect until such
time as DHS publishes any final rule amending such regulations and
such final rule goes into effect, if applicable. See 88 FR 65040.
\3\ 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 2022 CBP nonimmigrant overstay
data for the H-2A and H-2B nonimmigrant visa categories and the
Fiscal Year 2022 Entry/Exit Overstay Report for all other visa
categories.
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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 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, in
the totality of the circumstances, 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). An
additional factor for beneficiaries of H-2B petitions, although not
necessarily determinative, 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 Law 115-232, section 9502 of the NDAA for FY 2021, Public Law
116-283, or section 5901 of the NDAA for FY 2023, Public Law 117-263.
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
[[Page 77345]]
only the H-2B program); 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); and 87
FR 67930 (Nov. 10, 2022) (adding one country 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 86 countries previously
designated to participate in the H-2A program in the November 10, 2022
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 87 countries previously designated to
participate in the H-2B program in the November 10, 2022 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, as described above. An additional factor
for beneficiaries of H-2B petitions, although not necessarily
determinative, 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
Law 115-232, section 9502 of the NDAA for FY 2021, Public Law 116-283,
or section 5901 of the NDAA for FY 2023, Public Law 117-263. 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, that Bolivia 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.
Bolivia consistently cooperates with accepting its nationals
subject to a final order of removal. Furthermore, nationals of Bolivia
do not present significant visa overstay concerns; their overstay rates
are consistent with other countries currently listed as eligible to
participate in the H-2A and H-2B programs. Bolivian nationals are
generally compliant with the terms and conditions of all visa
categories. For instance, DOS's recent validation study of B1/B2 visas
found that under two percent of Bolivian nationals overstayed their B1/
B2 visas. Due to the current economic situation in Bolivia, adding
Bolivia to these programs would contribute to DOS's goals of promoting
economic development and improving bilateral commercial relationships
in Bolivia. Additionally, the H-2A and H-2B programs will provide an
alternative, lawful, pathway to irregular migration for Bolivian
nationals seeking an economic opportunity in the United States. Based
on the foregoing reasons, adding Bolivia 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. Bolivia
8. Bosnia and Herzegovina
9. Brazil
10. Brunei
11. Bulgaria
12. Canada
13. Chile
14. Colombia
15. Costa Rica
16. Croatia
17. Republic of Cyprus
18. Czech Republic
19. Denmark
20. Dominican Republic
21. Ecuador
22. El Salvador
23. Estonia
24. The Kingdom of Eswatini
25. Fiji
26. Finland
27. France
28. Germany
29. Greece
30. Grenada
31. Guatemala
32. Haiti
33. Honduras
34. Hungary
35. Iceland
36. Ireland
37. Israel
38. Italy
39. Jamaica
40. Japan
41. Kiribati
42. Latvia
43. Liechtenstein
44. Lithuania
45. Luxembourg
46. Madagascar
47. Malta
48. Mauritius
49. Mexico
50. Monaco
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. Paraguay
62. Peru
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
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83. Tuvalu
84. Ukraine
85. United Kingdom
86. Uruguay
87. 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. Bolivia
8. Bosnia and Herzegovina
9. Brazil
10. Brunei
11. Bulgaria
12. Canada
13. Chile
14. Colombia
15. Costa Rica
16. Croatia
17. Republic of Cyprus
18. Czech Republic
19. Denmark
20. Dominican Republic
21. Ecuador
22. El Salvador
23. Estonia
24. The Kingdom of Eswatini
25. Fiji
26. Finland
27. France
28. Germany
29. Greece
30. Grenada
31. Guatemala
32. Haiti
33. Honduras
34. Hungary
35. Iceland
36. Ireland
37. Israel
38. Italy
39. Jamaica
40. Japan
41. Kiribati
42. Latvia
43. Liechtenstein
44. Lithuania
45. Luxembourg
46. Madagascar
47. Malta
48. Mauritius
49. Mexico
50. Monaco
51. Mongolia
52. Montenegro
53. Mozambique
54. Nauru
55. The Netherlands
56. New Zealand
57. Nicaragua
58. North Macedonia (formerly Macedonia)
59. Norway
60. Panama
61. Papua New Guinea
62. Peru
63. The Philippines
64. Poland
65. Portugal
66. Romania
67. Saint Lucia
68. San Marino
69. Serbia
70. Singapore
71. Slovakia
72. Slovenia
73. Solomon Islands
74. South Africa
75. South Korea
76. Spain
77. St. Vincent and the Grenadines
78. Sweden
79. Switzerland
80. Taiwan
81. Thailand
82. Timor-Leste
83. Turkey
84. Tuvalu
85. Ukraine
86. United Kingdom
87. Uruguay
88. 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 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. 2023-24210 Filed 11-8-23; 8:45 am]
BILLING CODE 4410-10-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.