[Federal Register Volume 81, Number 25 (Monday, February 8, 2016)]
[Rules and Regulations]
[Pages 6430-6433]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-02488]


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DEPARTMENT OF HOMELAND SECURITY

8 CFR Part 212

[USCBP-2016-0003; CBP Dec. 16-03]
RIN 1651-AB09


Elimination of Nonimmigrant Visa Exemption for Certain Caribbean 
Residents Coming to the United States as H-2A Agricultural Workers

AGENCY: U.S. Customs and Border Protection, DHS.

ACTION: Interim final rule; solicitation of comments.

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SUMMARY: This interim final rule revises Department of Homeland 
Security regulations to eliminate the nonimmigrant visa exemption for 
certain Caribbean residents seeking to come to the United States as H-
2A agricultural workers and the spouses or children who accompany or 
follow these workers to the United States. As a result, these 
nonimmigrants will be required to have both a valid passport and visa. 
The Department of State is revising its parallel regulations.

DATES: Effective Date: The effective date of the rule is February 19, 
2016.
    Comment Date: Comments must be received by April 8, 2016.

ADDRESSES:  Please submit comments, identified by docket number, by one 
of the following methods:

[[Page 6431]]

     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments via docket number 
USCBP-2016-0003.
     Mail: Border Security Regulations Branch, Office of 
International Trade, U.S. Customs and Border Protection, 90 K Street 
NE., 10th Floor, Washington, DC 20229-1177.
    Instructions: All submissions received must include the agency name 
and docket number for this rulemaking. All comments received will be 
posted without change to http://www.regulations.gov, including any 
personal information provided.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov. Comments submitted 
will be available for public inspection in accordance with the Freedom 
of Information Act (5 U.S.C. 552) and 19 CFR 103.11(b) on normal 
business days between the hours of 9 a.m. and 4:30 p.m. at the Border 
Security Regulations Branch, Office of International Trade, U.S. 
Customs and Border Protection, 90 K Street NE., 10th Floor, Washington, 
DC. Arrangements to inspect submitted comments should be made in 
advance by calling Mr. Joseph Clark at (202) 325-0118.

FOR FURTHER INFORMATION CONTACT: Rafael Henry, U.S. Customs and Border 
Protection, Office of Field Operations, (202) 344-3251, or via email at 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. Public Comments

    Interested persons are invited to submit written comments on all 
aspects of this interim final rule. U.S. Customs and Border Protection 
(CBP) also invites comments on the economic, environmental, or 
federalism effects of this rule. We urge commenters to reference a 
specific portion of the rule, explain the reason for any recommended 
change, and include data, information, or authorities that support such 
recommended change.

II. Background

    In general, nonimmigrant aliens are required to present an 
unexpired passport and a valid unexpired visa in order to be admitted 
to the United States. See section 212(a)(7)(B)(i) of the Immigration 
and Nationality Act, as amended (INA) (8 U.S.C. 1182(a)(7)(B)(i)). 
However, either or both of these requirements may be waived by the 
Secretary of Homeland Security \1\ and the Secretary of State, acting 
jointly, in specified situations, as provided in section 212(d)(4) of 
the INA (8 U.S.C. 1182(d)(4)). The Department of Homeland Security 
(DHS) regulations list those classes of persons that are not required 
to present a visa (or a passport, in some cases). See 8 CFR 212.1.
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    \1\ Pursuant to sections 102(a), 441, 1512(d) and 1517 of the 
Homeland Security Act of 2002, Public Law 107-296, 116 Stat. 2135, 6 
U.S.C. 112(a), 251, 552(d), 557, and 8 CFR 2.1, the authorities of 
the Attorney General, as described in section 212 of the INA (8 
U.S.C. 1182), were transferred to the Secretary of Homeland 
Security, and the reference to the Attorney General in the statute 
is deemed to refer to the Secretary.
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    The H-2A nonimmigrant classification applies to an alien seeking to 
enter the United States to perform agricultural labor or services of a 
temporary or seasonal nature in the United States. Generally, H-2A 
agricultural workers are required to possess and present both a 
passport and a valid unexpired H-2A visa when entering the United 
States. Certain residents of the Caribbean, however, are exempted by 
regulation from having to possess and present a valid unexpired H-2A 
visa, and only must possess and present a valid unexpired passport to 
be admitted to the United States as a temporary agricultural worker.
    Specifically, a visa is currently not required for H-2A 
agricultural workers who are British, French, or Netherlands nationals, 
or nationals of Barbados, Grenada, Jamaica, or Trinidad and Tobago, who 
have their residence in British, French, or Netherlands territory 
located in the adjacent islands of the Caribbean area, or in Barbados, 
Grenada, Jamaica, or Trinidad and Tobago. 8 CFR 212.1(b)(1)(i). 
Additionally, a visa is currently not required for the spouse or child 
accompanying or following to join such an H-2A agricultural worker. 8 
CFR 212.1(b)(1)(iii). The current regulation also provides that a visa 
is not required for the beneficiary of a valid, unexpired indefinite 
certification granted by the Department of Labor (DOL) for employment 
in the U.S. Virgin Islands, if the beneficiary is proceeding to those 
islands for such purpose and is a British, French, or Netherlands 
national, or national of Barbados, Grenada, Jamaica, or Trinidad and 
Tobago, who has his or her residence in British, French, or Netherlands 
territory located in the adjacent islands of the Caribbean area, or in 
Barbados, Grenada, Jamaica, or Trinidad and Tobago. The regulation also 
provides that a visa is not required for the spouse or child 
accompanying or following to join such a beneficiary. 8 CFR 
212.1(b)(1)(ii)-(iii). Department of State (State) regulations also 
describe the visa exemption for these classes of Caribbean residents. 
See 22 CFR 41.2(e). However, as discussed below, the justification for 
providing this visa exemption for such beneficiaries and their spouses 
and children is now obsolete; further, this visa exemption creates a 
security loophole that could be exploited by persons who pose a danger 
to the United States.
    The visa exemption for agricultural workers from the specified 
Caribbean countries dates back more than 70 years and was created 
primarily to address U.S. labor shortages during World War II by 
expeditiously providing a source of agricultural workers from the 
British Caribbean to meet the needs of agricultural employers in the 
southeastern United States. Given the passage of time, this basis for 
the exemption no longer justifies it.
    Since H-2A agricultural workers from the specified Caribbean 
countries are exempt from the visa requirement, they do not undergo the 
same visa issuance process as H-2A applicants from other countries. The 
absence of a visa requirement for these H-2A workers means that these 
individuals do not undergo a face-to-face consular interview, the 
adjudication of the applicants eligibility and qualification for the 
intended position, screening for potential fraudulent employment, and 
the associated fingerprint and security checks prior to seeking 
admission at a U.S. port of entry. Further, in the absence of the visa 
requirement, there is significantly less advance opportunity for the 
U.S. Government to determine whether other requirements for H-2A 
classification, such as the bar to collection of prohibited fees from 
prospective H-2 workers, have been satisfied.
    DHS, in conjunction with the Department of State (``State''), has 
determined that the nonimmigrant visa exemption for these classes of 
Caribbean residents, coming to the United States as H-2A agricultural 
workers or as the spouses or children accompanying or following these 
workers, is outdated and incongruent with the visa requirement for 
other H-2A agricultural workers from other countries. DHS and State 
believe that eliminating the visa exemption furthers the national 
security interests of the United States.
    The application of the general visa requirement to the class of 
Caribbean agricultural workers described above will ensure that these 
applicants for admission, like other H-2A agricultural workers, are 
sufficiently screened via State's visa issuance process prior to 
arrival in the United States. In addition, the visa requirement will 
ensure that these persons possess evidence of the intended purpose of 
their stay in the

[[Page 6432]]

United States upon arrival at a U.S. port of entry. This will lessen 
the possibility that persons who pose security risks to the United 
States and other potential immigration violators may improperly gain 
admission to the United States.
    Furthermore, extending the visa requirement to these Caribbean H-2A 
agricultural workers will allow U.S. Government officials to interview 
prospective H-2A workers and will help to better ensure that such 
workers are protected from certain employment and recruitment-based 
abuses, including, but not limited to, the imposition of fees 
prohibited under 8 CFR 214.2(h)(5)(xi). In addition, the visa 
requirement will help ensure that agricultural workers have been 
informed, and are aware of, their rights and responsibilities before 
departing from their home countries to engage in H-2A agricultural 
work. See 8 U.S.C. 1375b.
    As a result of the termination of the relevant worker program in 
the U.S. Virgin Islands, DOL no longer grants indefinite certifications 
for employment in the U.S. Virgin Islands. See section 3 of the Virgin 
Islands Nonimmigrant Alien Adjustment Act of 1982, Public Law 97-271, 
96 Stat. 1157, as amended (8 U.S.C. 1255 note). Therefore, the visa 
exemption for certain Caribbean residents for the beneficiary of a 
valid, unexpired indefinite certification granted by DOL for employment 
in the U.S. Virgin Islands, if the beneficiary was proceeding to those 
islands for such purpose, or for the spouse or child accompanying or 
following to join such a beneficiary, set forth in 8 CFR 
212.1(b)(1)(ii)-(iii), is now obsolete.
    Accordingly, DHS, in conjunction with State, is eliminating the 
visa exemption for these Caribbean H-2A agricultural workers and the 
spouses or children accompanying or following these workers. 8 CFR 
212.1(b)(1). This means that, in addition to a valid passport, these 
nonimmigrant aliens are now required to obtain a nonimmigrant visa 
prior to traveling to the United States. In order to obtain a visa, 
these nonimmigrant aliens will have to submit a visa application to and 
appear for an interview at the applicable U.S. embassy \2\ or 
consulate, and undergo Department of State's visa screening process. 
Additionally, DHS, in conjunction with State, is eliminating the 
obsolete visa exemption for the beneficiaries of DOL indefinite 
certifications for employment in the U.S. Virgin Islands and their 
spouses and children. State is publishing a parallel amendment to 22 
CFR 41.2(e) in the Federal Register.
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    \2\ See http://www.usembassy.gov/.
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    As a result of the elimination of 8 CFR 212.1(b)(1), current 8 CFR 
212.1(b)(2) is being redesignated as 8 CFR 212.1(b). DHS is also making 
a technical correction updating the language in current 8 CFR 
212.1(b)(2)(ii)(C) referring to ``a current Certificate of Good Conduct 
issued by the Royal Virgin Islands Police Department'' to refer to ``a 
current certificate issued by the Royal Virgin Islands Police Force'' 
in new 8 CFR 212.1(b)(2)(iii).

III. Statutory and Regulatory Requirements

A. Administrative Procedure Act

    The implementation of this rule as an interim final rule, with 
provisions for post-promulgation public comments, is based on the good 
cause exception found in section 553 of the Administrative Procedure 
Act (APA) (5 U.S.C. 553(b)(B)). There is reasonable concern that 
publication of the rule as a proposed rule, which would permit 
continuation of the current visa exemption, could lead to an increase 
in applications for admissions in bad faith by persons who would 
otherwise have been denied visas and are seeking to avoid the visa 
requirement and consular screening process during the period between 
the publication of a proposed and a final rule. Accordingly, DHS finds 
that it is impracticable and contrary to the public interest to publish 
this rule with prior notice and comment period. Under the good cause 
exception, this rule is exempt from the notice and comment and delayed 
effective date requirements of the APA.
    In addition, DHS is of the opinion that eliminating the visa 
exemption and requiring a visa for Caribbean H-2A agricultural workers, 
and the spouses or children accompanying or following these workers, is 
a foreign affairs function of the U.S. Government under section 553(a) 
of the APA (5 U.S.C. 553(a)). As this rule implements this function, 
DHS is of the opinion that this rule is also exempt from the notice and 
comment and 30-day delayed effective date requirements of the APA by 
virtue of the foreign affairs exception in 5 U.S.C. 553(a)(1). DHS is 
nevertheless providing the opportunity for the public to provide 
comments.

B. Executive Orders 13563 and 12866

    Executive Orders 13563 and 12866 direct agencies to assess the 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. DHS is of the opinion this rule is not subject to the 
requirements of Executive Orders 13563 and 12866, due to the foreign 
affairs exception described above. However, DHS has nevertheless 
reviewed the interim final rule to ensure its consistency with the 
regulatory philosophy and principles set forth in those Executive 
Orders.
    Currently, British, French, and Netherlands nationals and nationals 
of Barbados, Grenada, Jamaica, and Trinidad and Tobago, who have their 
residence in British, French, or Netherlands territory located in the 
adjacent islands of the Caribbean area or in Barbados, Grenada, 
Jamaica, or Trinidad and Tobago, are not required to obtain a visa 
before traveling to the United States as H-2A agricultural workers. 
This rule would require these prospective H-2A agricultural workers to 
obtain a visa prior to travel to the United States. Any spouses or 
children of these workers will also now have to obtain a visa before 
being brought to the United States. Since more than 99 percent of such 
workers \3\ came from Jamaica, our analysis will focus on that country. 
This rule will also eliminate the visa exemption for workers in the 
U.S. Virgin Islands pursuant to an unexpired indefinite certification 
granted by DOL. Because these certifications have been obsolete for 
many years,\4\ eliminating them will have no effect on the economy; 
hence, we will exclude this provision for the remainder of the 
analysis.
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    \3\ CBP's BorderStat Database (internal database), accessed 
November 2, 2015.
    \4\ See section 3 of the Virgin Islands Nonimmigrant Alien 
Adjustment Act of 1982, Pub. L. 97-271, 96 Stat. 1157, as amended (8 
U.S.C. 1255 note).
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    Data on the number of visa applications Jamaican travelers would 
need to obtain as a result of this rule is not available. A USCIS 
database tracks the number of petitions for H-2A workers from Jamaica, 
but does not include the spouses or children who would now also need 
visas to travel to the United States. A CBP database tracks the number 
of Jamaican nationals arriving under the H-2A program, but counts 
multiple arrivals by a single person as separate arrivals. For the 
purposes of this analysis, we use the number of petitions as our 
primary estimate of the number of visas that

[[Page 6433]]

would be needed under this rule. We use the number of total travelers 
from Jamaica under the H-2A program to illustrate the upper bound of 
costs that could result from this rule.
    Employers petitioned on behalf of an annual average of 165 workers 
from Jamaica under this program from FY 2011-2013,\5\ and an annual 
average of 4,010 Jamaicans arrived during that time period,\6\ which 
includes arrivals by H-2A agricultural workers as well as their spouses 
and children. This number also includes multiple arrivals in the same 
year by the same individuals. Because the number of unique individuals 
arriving from Jamaica under the H-2A program is not available, we 
calculate costs based on a range of 165 (our primary estimate) to 4,010 
prospective visa applicants. The current nonimmigrant visa application 
processing fee, also called the Machine-Readable Visa (MRV) fee, is 
$190. We assume this fee will be paid by the employer for the workers 
and by the employees for their spouses and children. We estimate that 
the imposition of the fee will cost workers or employers in aggregate 
between $31,350 (our primary estimate) and $761,900 per year.
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    \5\ Communication with USCIS on August 7, 2014.
    \6\ CBP's BorderStat Database (internal database), accessed 
August 4, 2014.
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    Under this rule, workers would have to apply for a visa using Form 
DS-160 and undergo an interview at a U.S. embassy or consulate prior to 
traveling to the United States. According to the Paperwork Reduction 
Act estimate for Form DS-160, the Department of State estimates that 
the visa application takes 1.25 hours to complete. The interview itself 
typically lasts approximately 5-10 minutes; however, when accounting 
for potential wait time, the interview process may take up to 2 hours. 
Since the only U.S. embassy in Jamaica is in Kingston, visa applicants 
may have to travel up to 3.5 hours each way to appear for an interview, 
depending on their location. We therefore assume that filling out the 
D-160, traveling to and from the embassy for the visa interview, and 
the visa interview itself will require a total of 10.25 hours of the 
applicant's time. To the extent the actual time burden to travel to and 
from the interview is less than we estimated, costs would be lower. 
Using the average Jamaican wage rate of $3.25/hour \7\ and a range of 
165 to 4,010 workers per year, we estimate the cost of the time to 
Jamaican nationals in aggregate as a result of this rule to be between 
$5,497 (our primary estimate) and $133,583 per year. Combining this 
with the cost of the visa application fee, we estimate that the total 
annual cost of this rule is between $36,847 and $895,483.
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    \7\ Derived from International Labor Association's LABORSTA 
Internet Database. Available at http://laborsta.ilo.org/STP/guest. 
Accessed August 5, 2014. Our weekly wage estimate (14,826 Jamaican 
Dollars per week) is from the ``Wages, by economic activity'' report 
for all sectors in 2008. Our weekly hours worked estimate (40.7 
hours per week) is from the ``Hours of work, by economic activity'' 
report for all sectors in 2008. We converted the wage rate to U.S. 
dollars using the currency converter available at http://www.xe.com/currencyconverter on August 5, 2014. 14,826 Jamaican Dollars divided 
by 40.7 hours per week, multiplied by 0.008913 Jamaican dollars per 
U.S. dollar = $3.25 U.S. dollars per hour.
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    We are unable to quantify the benefits of this rule; therefore we 
discuss the benefits qualitatively. Requiring these prospective H-2A 
agricultural workers to obtain visas will ensure that they are properly 
screened prior to arrival in the United States. This will lessen the 
possibility that a person who poses a security risk to the United 
States and other potential immigration violators may improperly gain 
admission to the United States. DHS has determined that visitors from 
the countries affected by this rule are not a lower security risk than 
those coming from other countries; therefore, CBP believes that they 
should be subject to the same screening prior to arriving at their port 
of entry. Also, prescreening and appearing before consular officers 
will provide greater opportunities to ensure compliance with DHS and 
DOL H-2A rules, including those regulatory provisions prohibiting 
charging fees to workers in connection with or as a condition of their 
employment or recruitment.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.), as amended 
by the Small Business Regulatory Enforcement and Fairness Act of 1996, 
requires an agency to prepare a regulatory flexibility analysis that 
describes the effect of a proposed rule on small entities when the 
agency is required to publish a general notice of proposed rulemaking. 
A small entity may be a small business (defined as any independently 
owned and operated business not dominant in its field that qualifies as 
a small business per the Small Business Act); a small not-for-profit 
organization; or a small governmental jurisdiction (locality with fewer 
than 50,000 people). Because this interim final rule is exempt from 
notice and comment rulemaking under 5 U.S.C. 553, a regulatory 
flexibility analysis is not required.

List of Subjects in 8 CFR Part 212

    Administrative practice and procedure, Aliens, Immigration, 
Passports and visas, Reporting and recordkeeping requirements.

Amendments to Regulations

    Part 212 of title 8 of the Code of Federal Regulations is amended 
as set forth below:

PART 212--DOCUMENTARY REQUIREMENTS: NONIMMIGRANT; WAIVERS; 
ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE

0
1. The general authority citation for part 212 and the sectional 
authority citation for Sec.  212.1(q) continue to read as follows:

    Authority: 8 U.S.C. 1101 and note, 1102, 1103, 1182 and note, 
1184, 1187, 1223, 1225, 1226, 1227, 1255, 1359; 8 U.S.C. 1185 note 
(section 7209 of Public Law 108-458); 8 CFR part 2.
    Section 212.1(q) also issued under section 702, Public Law 110-
229, 122 Stat. 754, 854.


0
2. In Sec.  212.1, revise paragraph (b) to read as follows:


Sec.  212.1  Documentary requirements for nonimmigrants.

* * * * *
    (b) Nationals of the British Virgin Islands. A visa is not required 
of a national of the British Virgin Islands who has his or her 
residence in the British Virgin Islands, if:
    (1) The alien is seeking admission solely to visit the Virgin 
Islands of the United States; or
    (2) At the time of embarking on an aircraft at St. Thomas, U.S. 
Virgin Islands, the alien meets each of the following requirements:
    (i) The alien is traveling to any other part of the United States 
by aircraft as a nonimmigrant visitor for business or pleasure (as 
described in section 101(a)(15)(B) of the Act);
    (ii) The alien satisfies the examining U.S. immigration officer at 
the port-of-entry that he or she is clearly and beyond doubt entitled 
to admission in all other respects; and
    (iii) The alien presents a current certificate issued by the Royal 
Virgin Islands Police Force indicating that he or she has no criminal 
record.
* * * * *

    Date: January 19, 2016.
Jeh Charles Johnson,
Secretary of Homeland Security.
[FR Doc. 2016-02488 Filed 2-4-16; 4:15 pm]
 BILLING CODE 9111-14-P