83 FR 2646 - Identification of Foreign Countries Whose Nationals Are Eligible To Participate in the H-2A and H-2B Nonimmigrant Worker Programs

DEPARTMENT OF HOMELAND SECURITY

Federal Register Volume 83, Issue 12 (January 18, 2018)

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.

[Federal Register Volume 83, Number 12 (Thursday, January 18, 2018)]
[Notices]
[Pages 2646-2648]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-00812]


-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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, (202) 282-8652.

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).
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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

[[Page 2647]]

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

[[Page 2648]]

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.
[FR Doc. 2018-00812 Filed 1-17-18; 8:45 am]
 BILLING CODE 9110-9M-P