[Federal Register Volume 83, Number 130 (Friday, July 6, 2018)]
[Rules and Regulations]
[Pages 31447-31450]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-14534]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF HOMELAND SECURITY

8 CFR Part 212

[Docket No: USCBP-2016-0003]; [CBP Decision No. 18-06]
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, Department of Homeland 
Security.

ACTION: Final rule.

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

SUMMARY: This finalizes interim amendments to the Department of 
Homeland Security's (DHS) regulations, published in the Federal 
Register on February 8, 2016, that eliminated 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 of 
the interim final rule, these nonimmigrants are required to have both a 
valid passport and visa. The Department of State (DOS) revised its 
regulations in a parallel interim final rule and is issuing a parallel 
final rule to adopt all interim changes as final.

DATES: This rule is effective on August 6, 2018.

FOR FURTHER INFORMATION CONTACT: Stephanie E. Watson, U.S. Customs and 
Border Protection, Office of Field Operations, (202) 325-4548, or via 
email at [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background

    On February 8, 2016, DHS published an interim final rule (IFR) in 
the Federal Register (81 FR 6430) requiring a British, French, or 
Netherlands national, or a 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, to obtain a valid, unexpired visa if the alien is proceeding to 
the United States as an H-2A agricultural worker. The IFR also

[[Page 31448]]

eliminated the visa exemption for spouses and children accompanying or 
following to join such workers. Additionally, the IFR eliminated a visa 
exemption for workers in the U.S. Virgin Islands, as well for their 
spouses and children accompanying or following to join such workers, 
pursuant to an unexpired indefinite certification granted by the 
Department of Labor (DOL). DOS published a parallel rule in the Federal 
Register on the same day. See 81 FR 5906; see also 81 FR 7454 
(correction).\1\
---------------------------------------------------------------------------

    \1\ There was one substantive difference between the DOS and DHS 
IFRs. The DOS IFR removed Antigua from its list of exempt countries 
in its title 22 regulations. The DHS title 8 regulations did not 
include Antigua in its list of exempt countries. As such, the DHS 
IFR did not reference Antigua.
---------------------------------------------------------------------------

    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. Prior to the DHS and 
DOS interim final rules, H-2A agricultural workers were generally 
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, were exempted by regulation from having to possess 
and present a valid unexpired H-2A visa to be admitted to the United 
States as a temporary agricultural worker. Specifically, a visa was 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. 
Additionally, a visa was not required for the spouse or child 
accompanying or following such an H-2A agricultural worker to the 
United States.
    DHS, in conjunction with DOS, determined that the nonimmigrant visa 
exemption for these classes of Caribbean residents, when coming to the 
United States as H-2A agricultural workers or as the spouses or 
children accompanying or following these workers, was outdated and 
incongruent with the visa requirement for other H-2A agricultural 
workers from other countries. Both departments determined that 
eliminating the visa exemption furthered the national security 
interests of the United States and ensured that these applicants for 
admission, like other H-2A agricultural workers, would be appropriately 
screened via DOS's visa issuance process prior to arrival in the United 
States. By requiring a visa, DOS can ensure that these persons possess 
positive evidence of the intended purpose of their stay in the United 
States upon arrival at a U.S. port of entry. Removing the visa 
exemption also lessens the possibility that persons who pose security 
risks to the United States, as well as other potential immigration 
violators, may improperly gain admission to the United States.

II. Discussion of Comments

A. Overview

    Although the interim regulatory amendments were promulgated without 
prior public notice and comment procedures pursuant to the good cause 
and foreign affairs exceptions in section 553 of the Administrative 
Procedure Act (APA) (5 U.S.C. 553(b)(3)(B) and 5 U.S.C. 553(a)(1), 
respectively), the IFR provided for the submission of public comments 
that would be considered before adopting the interim amendments as 
final. The prescribed 30-day public comment period closed on April 8, 
2016. During this time, DHS received three comments. Two of the 
comments were supportive of the rule and one was critical of it.

B. Discussion

    For ease of discussion, DHS has divided the one critical comment 
received on the IFR into two subparts that raise related, but separate, 
issues.
    Comment: The commenter stated that, by eliminating this exemption, 
DHS is upending a long-standing opportunity for individuals from these 
specific locations to easily come to the United States and earn 
substantially more money than they could at home. According to the 
commenter, implementation of this rule, which creates new costs and 
inconveniences for individuals from these areas, could dramatically 
decrease or essentially prevent these workers from coming to the United 
States. The commenter states that, in the case of a Jamaican worker, 
the cost of securing a visa will be more than the average Jamaican 
worker could likely afford.
    Response: While the visa exemption for agricultural workers from 
the specified Caribbean countries dates back more than 70 years, it 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. This basis for the exemption no longer 
exists and continuing to provide an exemption for these individuals 
would be incongruent with the visa requirements for H-2A workers from 
other countries. While removing this exemption may make the process 
more difficult for individuals from these specified areas, it creates 
an equitable standard for everyone who would like to enter the United 
States as an H-2A agricultural worker or as the spouse or child 
accompanying or following such an individual. It also better ensures 
that individuals from the specified Caribbean areas seeking admission 
as H-2A nonimmigrants, and their spouses and children, are in fact 
eligible for admission under the desired classification and permits 
greater screening for potential fraudulent employment. Furthermore, by 
eliminating this exemption, the United States Government is better 
situated to ensure that workers are protected from illegal employment 
and recruitment-based abuses, including the imposition of fees 
prohibited under 8 CFR 214.2(h)(5)(xi).
    Comment: According to the same commenter, in eliminating this 
exemption, DHS and DOS are making the United States less secure by 
creating an incentive for individuals to seek to enter the United 
States illegally. The commenter states that the employers who would 
have hired the aliens affected by the IFR will now look to fill their 
positions by hiring other workers, potentially even illegal migrants, 
who may be willing to work for minimum wage or less. The commenter 
states that the new demand for inexpensive labor may encourage aliens 
to attempt to migrate to the United States illegally.
    Response: The exemption itself posed a security risk to the United 
States. Prior to the amendments in the IFR, H-2A agricultural workers 
from these specified Caribbean areas did not undergo the same visa 
issuance process as H-2A applicants from other countries. These 
individuals did not have to undergo a face-to-face consular interview 
and the associated fingerprint and security checks prior to seeking 
admission at a U.S. port of entry. As of February 19, 2016, the 
effective date of the IFR, these individuals have been subject to the 
same procedures as other H-2A applicants, providing consistency with 
the applicable procedures required for applicants from other countries, 
which include a more thorough screening afforded by the visa 
application process.
    DHS does not believe that requiring these individuals to obtain a 
visa will encourage illegal migration. Rather, removing this exemption 
lessens the possibility that persons who pose security risks to the 
United States, as well as other potential immigration

[[Page 31449]]

violators, may improperly gain admission to the United States. As 
mentioned above, although the removal of this exemption may make the 
process more difficult for individuals from these specified areas, it 
creates an equitable standard for H-2A applicants and furthers the 
national security interests of the United States.
    Comment: The two supportive comments stated that the amendments in 
the IFR improve national security, facilitate the legitimate movement 
of people into the United States, and promote equality among all 
individuals seeking to come to the United States as temporary 
agricultural workers. One commenter also noted that the amendments 
provide protection for H-2A workers by ensuring that they learn more 
about their rights and responsibilities when being interviewed for a 
visa.
    Response: CBP agrees with these comments and concurs that the 
amendments to the regulations support the benefits described.

C. Conclusion

    After careful consideration of the comments received, for the 
reasons stated above, as well as the reasons outlined in the interim 
final rule, CBP is adopting the interim regulations, published on 
February 8, 2016, as final without change.

III. Statutory and Regulatory Requirements

A. Executive Orders 13563, 12866, and 13771

    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. Executive Order 13771 (``Reducing Regulation and 
Controlling Regulatory Costs'') directs agencies to reduce regulation 
and control regulatory costs and provides that ``for every one new 
regulation issued, at least two prior regulations be identified for 
elimination, and that the cost of planned regulations be prudently 
managed and controlled through a budgeting process.''
    OIRA has designated this rule not significant under Executive Order 
12866. Nonetheless, DHS has considered the potential costs and benefits 
of this rule, as presented below, to inform the public of the costs and 
benefits of this rule.
    This rule is not an E.O. 13771 regulatory action because this rule 
is not significant under E.O. 12866. See Section 4 of Executive Order 
13771 and OMB's Memorandum titled ``Guidance Implementing Executive 
Order 13771, Titled `Reducing Regulation and Controlling Regulatory 
Costs''' (April 5, 2017).\2\ Additionally, in this memorandum, OMB 
indicated that when a final rule neither increases nor decreases the 
cost of the interim final rule, the regulatory action does not need to 
be offset under this executive order. This final rule does not increase 
or decrease the cost of the interim final rule. For this reason, as 
well, this rule is not subject to the offset requirements of Executive 
Order 13771.
---------------------------------------------------------------------------

    \2\ This memorandum is available at: https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/memoranda/2017/M-17-21-OMB.pdf.
---------------------------------------------------------------------------

    Prior to publishing the IFR in February 2016, a British, French, 
and Netherlands national and a national of Barbados, Grenada, Jamaica, 
and Trinidad and Tobago, who have his or her residence in a British, 
French, or Netherlands territory located in the adjacent islands of the 
Caribbean area or in Barbados, Grenada, Jamaica, or Trinidad and 
Tobago, were not required to obtain a visa before traveling to the 
United States as H-2A agricultural workers. The IFR required these 
prospective H-2A agricultural workers to obtain a visa prior to travel 
to the United States. Any spouses or children of these workers also now 
have to obtain a visa before being brought to the United States. Since 
99 percent of such workers \3\ came from Jamaica, our analysis will 
focus on that country. The IFR also eliminated 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 has no effect on the 
economy; hence, we will ignore this provision for the remainder of the 
analysis.
---------------------------------------------------------------------------

    \3\ Source: Communication with the Office of Field Operations 
(OFO) on October 11, 2016.
    \4\ 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).
---------------------------------------------------------------------------

    Data on the number of visa applications Jamaican travelers need to 
obtain as a result of this rule is not available. A U.S Citizenship and 
Immigration Services (USCIS) database tracks the number of petitions 
for H-2A workers from Jamaica, but does not include the spouses or 
children who 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 are 
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 190 workers 
from Jamaica under this program from FY 2011-2015 \5\ and an annual 
average of 4,215 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 190 (our primary estimate) to 4,215 
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 costs workers or employers between $36,100 
(our primary estimate) and $800,850 per year.
---------------------------------------------------------------------------

    \5\ Source: Communication with USCIS on October 17, 2016.
    \6\ Source: CBP's BorderStat Database (internal database), 
accessed October 5, 2016.
---------------------------------------------------------------------------

    Under this rule, workers are required 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,\7\ 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

[[Page 31450]]

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 $3.62/hour \8\ and a range of 190 to 4,215 workers per year, we 
estimate the cost of the time to Jamaican workers as a result of this 
rule to be between $7,050 (our primary estimate) and $156,398 per year. 
Combining this with the cost of the visa application fee, we estimate 
that the total annual cost of this rule is between $43,150 and 
$957,248.
---------------------------------------------------------------------------

    \7\ The supporting statement for Form DS-160 is available here: 
https://www.reginfo.gov/public/do/PRAViewDocument?ref_nbr=201707-1405-001.
    \8\ Derived from International Labor Organization's ILOSTAT 
internet Database. Available at http://www.ilo.org/ilostat. Accessed 
October 12, 2016. Our weekly wage estimate (18,832 Jamaican Dollars 
per week) is from the ``Mean nominal monthly earnings of employees 
by type of scenario'' report for all sectors in 2013 which is the 
last data year available. 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 which is the last year available for 
this data point. We converted the wage rate to U.S. dollars using 
the currency converter available at http://www.xe.com/currencyconverter/ on October 12, 2016. 18,832 Jamaican Dollars 
divided by 40.7 hours per week, multiplied by 0.0078155 U.S. dollars 
per Jamaican dollar = $3.62 U.S. dollars per hour.
---------------------------------------------------------------------------

    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 ensures that they are properly 
screened prior to arrival in the United States. This lessens 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. Also, prescreening and 
appearing before consular officers provide greater opportunities to 
ensure compliance with DHS and DOL H-2A rules, including those 
regulatory provisions prohibiting the payment of fees by workers in 
connection with or as a condition of employment or recruitment.

B. 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). Since a general notice of proposed rulemaking was 
not necessary, a regulatory flexibility analysis is not required.

C. Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local, and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions are necessary 
under the provisions of the Unfunded Mandates Reform Act of 1995.

D. Executive Order 13132

    The rule will not have substantial direct effects on the States, on 
the relationship between the National Government and the States, or on 
the distribution of power and responsibilities among the various levels 
of government. Therefore, in accordance with section 6 of Executive 
Order 13132, this rule does not have sufficient federalism implications 
to warrant the preparation of a federalism summary impact statement.

Amendments to the Regulations

    For the reasons set forth above, the interim final rule amending 8 
CFR part 212, which was published at 81 FR 6430 on February 8, 2016, is 
adopted as final without change.

    Dated: June 14, 2018.
Kristjen Nielsen,
Secretary.
[FR Doc. 2018-14534 Filed 7-5-18; 8:45 am]
 BILLING CODE P