Notice2024-25790
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 8, 2024
Effective
November 7, 2024
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 88 countries whose nationals are eligible to participate in the H-2A program and 89 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 89 Issue 217 (Friday, November 8, 2024)</title>
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[Federal Register Volume 89, Number 217 (Friday, November 8, 2024)]
[Notices]
[Pages 88799-88803]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-25790]
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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
[[Page 88800]]
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 88 countries
whose nationals are eligible to participate in the H-2A program and 89
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 7,
2024 and shall be without effect on November 8, 2025.
FOR FURTHER INFORMATION CONTACT: Patrice Francis, 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).\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 published a Notice of Proposed Rulemaking (NPRM) in the
Federal Register that proposes to eliminate the requirement to
designate countries whose nationals are eligible to participate in
the H-2A and H-2B programs from DHS regulations. 88 FR 65040 (Sep.
20, 2023). 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 remain in effect
until such time as DHS publishes any final rule amending such
regulations and such final rule goes into effect, if applicable.
\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 2023 CBP nonimmigrant overstay
data for the H-2A and H-2B nonimmigrant visa categories and the
Fiscal Year 2023 Entry/Exit Overstay Report for all other visa
categories.
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As previously indicated, see 88 FR 77343, 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.
The FY 2024 NDAA, which took effect on
[[Page 88801]]
December 22, 2023, extended the current exemption from the temporary
need requirement for an additional 5 years, through the end of the day
on December 30, 2029. See FY 2024 NDAA, Public Law 118-31 section 1807.
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, DHS 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); 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); 87 FR 67930 (Nov.
10, 2022) (adding one country to both programs); and 88 FR 77343 (Nov.
9, 2023) (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 87 countries previously
designated to participate in the H-2A program in the November 9, 2023
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 88 countries previously designated to
participate in the H-2B program in the November 9, 2023 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, 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. The FY 2024 NDAA, which took effect on
December 22, 2023, extended the current exemption from the temporary
need requirement for an additional 5 years, through the end of the day
on December 30, 2029. See FY 2024 NDAA, Public Law, 118-31, section
1807. 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 Belize 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.
Belize consistently cooperates with accepting its nationals subject
to a final order of removal. Furthermore, Belizean nationals are
generally compliant with the terms and conditions of all visa
categories. Nationals of Belize do not present significant visa
overstay concerns and its overstay rates are generally consistent with
other countries currently listed as eligible to participate in the H-2A
and H-2B programs. In FY 2023, visa overstay rates for Belizean
nationals were less than five percent across all visa categories.
Adding Belize to these programs would contribute to DOS's goals of
promoting economic development and improving bilateral commercial
relationships with Belize. Additionally, while irregular migration of
Belizean nationals to the United States remains low, inclusion of
Belize in the H-2A and H-2B programs will provide an alternative,
lawful, pathway to irregular migration for Belizean nationals seeking
economic opportunities in the United States.
DHS recognizes that Belize was previously removed from the H-2A and
H-2B eligible countries list in 2018. At that time, DHS explained that
Belize did not meet the standards for inclusion on the list due to its
``Tier 3'' placement on the U.S. Department of State's 2017 Trafficking
in Persons report.\4\ A ``Tier 3'' placement is given to a country that
does not fully meet the Trafficking Victims Protection Act's (TVPA)
minimum standards and is not making significant efforts to meet those
standards.\5\ Belize has since been rated as a ``Tier 2'' placement,
meaning that, while the country does not yet fully meet the TVPA's
minimum standards, it is making significant efforts towards compliance
with those standards.\6\ Accordingly, DHS does not have the same
concerns regarding Belize's
[[Page 88802]]
inclusion on the list as previously, and DHS has determined that, based
on a review of the relevant factors, adding Belize to both the H-2A and
H-2B eligible countries lists serves the U.S. interest.
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\4\ 83 FR 2646, 2647 (Jan. 18, 2018).
\5\ Id.
\6\ U.S. Department of State Office to Monitor and Combat
Trafficking in Persons, ``2024 Trafficking in Persons Report,'' June
2024, <a href="https://www.state.gov/reports/2024-trafficking-in-persons-report">https://www.state.gov/reports/2024-trafficking-in-persons-report</a>.
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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. Belize
8. Bolivia
9. Bosnia and Herzegovina
10. Brazil
11. Brunei
12. Bulgaria
13. Canada
14. Chile
15. Colombia
16. Costa Rica
17. Croatia
18. Republic of Cyprus
19. Czech Republic
20. Denmark
21. Dominican Republic
22. Ecuador
23. El Salvador
24. Estonia
25. The Kingdom of Eswatini
26. Fiji
27. Finland
28. France
29. Germany
30. Greece
31. Grenada
32. Guatemala
33. Haiti
34. Honduras
35. Hungary
36. Iceland
37. Ireland
38. Israel
39. Italy
40. Jamaica
41. Japan
42. Kiribati
43. Latvia
44. Liechtenstein
45. Lithuania
46. Luxembourg
47. Madagascar
48. Malta
49. Mauritius
50. Mexico
51. Monaco
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. Paraguay
63. Peru
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
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. Belize
8. Bolivia
9. Bosnia and Herzegovina
10. Brazil
11. Brunei
12. Bulgaria
13. Canada
14. Chile
15. Colombia
16. Costa Rica
17. Croatia
18. Republic of Cyprus
19. Czech Republic
20. Denmark
21. Dominican Republic
22. Ecuador
23. El Salvador
24. Estonia
25. The Kingdom of Eswatini
26. Fiji
27. Finland
28. France
29. Germany
30. Greece
31. Grenada
32. Guatemala
33. Haiti
34. Honduras
35. Hungary
36. Iceland
37. Ireland
38. Israel
39. Italy
40. Jamaica
41. Japan
42. Kiribati
43. Latvia
44. Liechtenstein
45. Lithuania
46. Luxembourg
47. Madagascar
48. Malta
49. Mauritius
50. Mexico
51. Monaco
52. Mongolia
53. Montenegro
54. Mozambique
55. Nauru
56. The Netherlands
57. New Zealand
58. Nicaragua
59. North Macedonia (formerly Macedonia)
60. Norway
61. Panama
62. Papua New Guinea
63. Peru
64. The Philippines
65. Poland
66. Portugal
67. Romania
68. Saint Lucia
69. San Marino
70. Serbia
71. Singapore
72. Slovakia
73. Slovenia
74. Solomon Islands
75. South Africa
76. South Korea
77. Spain
78. St. Vincent and the Grenadines
79. Sweden
80. Switzerland
81. Taiwan
82. Thailand
83. Timor-Leste
84. Turkey
85. Tuvalu
[[Page 88803]]
86. Ukraine
87. United Kingdom
88. Uruguay
89. 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. 2024-25790 Filed 11-7-24; 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.