[Federal Register Volume 86, Number 215 (Wednesday, November 10, 2021)]
[Notices]
[Pages 62559-62563]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-24534]


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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 85 countries whose nationals are eligible to participate in 
the H-2A program and 86 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 10, 
2021 and shall be without effect on November 10, 2022.

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

[[Page 62560]]

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). 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 (such as 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 \2\ 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\ 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 FY 2020 CBP nonimmigrant overstay data. 
including but not limited to H-2A and H-2B overstay data.
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    As previously indicated, see 86 FR 2689, 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 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 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).
    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, 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 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 and adding 
2 countries from 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) (remained unchanged); and 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).

Determination of Countries With Continued Eligibility

    The Secretary of Homeland Security has determined, with the 
concurrence of the Secretary of State, that 80 countries previously 
designated to participate in the H-2A program in the January 13,

[[Page 62561]]

2021 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 80 countries previously 
designated to participate in the H-2B program in the January 13, 2021 
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.

Countries No Longer Designated as Eligible

    The Secretary of Homeland Security has determined, with the 
concurrence of the Secretary of State, that Moldova should no longer be 
designated as an H-2A eligible country because it no longer meets the 
regulatory standards identified above. Specifically, The Department of 
State (DOS) has evidence of agents recruiting applicants for H and J 
visas in Moldova collecting recruitment fees prohibited under U.S. law 
for certain visas including H-2A. The United States Government has also 
documented increasingly sophisticated levels of fraud by Moldovan 
nationals seeking to obtain H-2A visas with a photocopy of a bona fide 
unnamed petition and fraudulent work contracts. Considering these 
factors, and absent significant mitigating factors, the continued 
eligibility of Moldova to participate in the H-2A program no longer 
serves the U.S. interest. Therefore, the Secretary of Homeland 
Security, with the concurrence of the Secretary of State, is removing 
Moldova from the list of H-2A eligible countries. In a November 18, 
2015 Federal Register Notice, the Secretary of Homeland Security, with 
the concurrence of the Secretary of State, removed Moldova from the 
list of eligible countries to participate the H-2B program. As such, 
Moldova will no longer be eligible to participate in either the H-2A 
and H-2B programs. However, Moldova's eligibility for the H-2A program 
remains effective until the prior designation expires on January 18, 
2022.
    Based on the foregoing analysis, DHS, with the concurrence of DOS, 
has removed one country from the H-2A eligible country list. 
Nonetheless, and as already noted, 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 list 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 standing alone, 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 Law115-232, or section 
9502 of the NDAA for FY 2021, Public Law 116-23. 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 Bosnia and Herzegovina, the 
Republic of Cyprus, the Dominican Republic (currently only eligible for 
H-2A), Haiti, Mauritius, and Saint Lucia should be designated as 
eligible countries to participate in the H-2A and H-2B non-immigrant 
visa programs because the participation of these countries is in the 
U.S. interest consistent with the regulations governing these programs.
    Bosnia and Herzegovina consistently cooperates with accepting its 
nationals subject to a final order of removal. Additionally, DOS 
Consular Affairs does not have significant fraud concerns associated 
with visa applications submitted by nationals of Bosnia and 
Herzegovina. Bosnians historically participate in the Summer Work 
Travel and other exchange programs without presenting significant 
overstay, fraud, or abuse concerns. Additionally, nationals of Bosnia 
and Herzegovina do not present significant overstay concerns in other 
nonimmigrant visa categories. Inclusion of Bosnia and Herzegovina in 
the H-2A and H-2B programs would bolster the bilateral relationship, 
further contributing to the United States' goals of countering malign 
foreign influence and promoting Euro-Atlantic integration. As such, 
adding Bosnia and Herzegovina to the H-2A and H-2B eligible countries 
lists serves the U.S. interest.
    Nationals of the Republic of Cyprus (ROC) do not present 
significant overstay concerns and are consistently compliant with the 
terms and conditions of visa categories. ROC also consistently 
cooperates on accepting its nationals subject to a final order of 
removal. Furthermore, DOS's recent validation studies have not 
identified significant fraud concerns with Cypriot travelers to and 
from the United States. Its strategic location, European Union 
membership, and support for democratic principles make the ROC an 
increasingly important partner for the United States. Adding the ROC to 
the H-2 eligible country lists would both demonstrate an immediate 
commitment to strengthening the bilateral relationship and help counter 
malign foreign influence. Additionally, ROC participation in the H-2A 
and H-2B non-immigrant visa programs further serves the U.S. interest 
and Embassy Nicosia's Integrated Country Strategy goals of engaging 
both the Greek and Turkish Cypriot communities and improving people-to-
people contact across the island. Based on the foregoing reasons, 
adding the ROC to the H-2A and H-2B eligible countries lists serves the 
U.S. interest.
    The Dominican Republic was removed from the list of H-2B eligible 
countries in a January 18, 2019 Federal Register Notice because in FY 
2017, DHS estimated that nearly 30 percent of H-2B visa holders from 
the Dominican Republic overstayed their period of authorized stay. 
However, according to FY 2019 overstay rates in H-2B categories, DHS 
estimated that about five percent of nationals of the Dominican 
Republic overstayed their period of authorized stay. The Government of 
the Dominican Republic has a strong working relationship with DHS with 
respect to accepting its nationals subject to a final order of removal 
which proceeded uninterrupted throughout the COVID-19 pandemic. There 
have been no specific fraud trends observed in the H-2A and H-2B visa 
categories or other nonimmigrant visa categories. The Dominican 
Republic is a valued partner and works with the United States to 
advance U.S. interests in the region, such as combatting drug 
trafficking, protecting the security of U.S. citizens, and promoting 
democracy in the region. The Dominican Republic's location at the 
crossroads of transportation routes through the Caribbean, its status 
as a top

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five overseas U.S. citizen tourist destination, the family connections 
for nearly two million U.S. citizens, and its close proximity to U.S. 
territory, make its continued development and stability vital to the 
interests of the United States as defined in the National Security 
Strategy. Therefore, adding the Dominican Republic to the H-2B eligible 
countries list serves the U.S. interest.
    The Government of Haiti has been a valued partner, and consistently 
cooperated on accepting the return of its nationals subject to a final 
order of removal which proceeded almost uninterrupted throughout the 
COVID-19 pandemic, despite the political, environmental, and economic 
challenges facing Haiti. Adding Haiti back to H-2A and H-2B programs 
serves the U.S. interest and is consistent with the whole-of-government 
efforts to address the root causes of irregular migration and create 
lawful pathways for a safe, orderly, and legal migration.\3\ Given the 
recent challenges (political instability, increasing gang-related 
violence, and a 7.2 magnitude earthquake) that have faced Haiti, DHS 
and DOS assess that the H-2A and H-2B programs will provide a 
stabilizing lawful channel for Haitian nationals seeking economic 
opportunities. Adding Haiti back to these programs will provide 
Haitians the opportunity not only to contribute to the U.S. economy, 
but also apply their earnings and technical experience to advance 
Haiti's reconstruction and stabilization. Sustainable development and 
the stability of Haiti is vital to the interests of the United States 
as a close partner and neighbor. While some factors, including 
nonimmigrant visa overstay and refusal rates that precipitated Haiti's 
removal from H-2A and H-2B programs in 2018 remain a concern, the 
foregoing favorable factors in the U.S. interest outweigh these 
concerns. DOS will continue to monitor visa applications for fraud 
trends and compliance with travel regulations. Based on the foregoing 
analysis, adding Haiti back to the H-2A and H-2B eligible countries 
lists serves the U.S. interest.
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    \3\ E.O. 14010 of Feb 2, 2021. https://www.federalregister.gov/documents/2021/02/05/2021-02561/creating-a-comprehensive-regional-framework-to-address-the-causes-of-migration-to-manage-migration.
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    Nationals of Mauritius do not present significant visa overstay 
concerns and there are no outstanding issues with the repatriation of 
nationals of Mauritius with a final order of removal from the United 
States. Additionally, DOS conducted two separate validation studies on 
proper use of certain visa categories and the results indicated that 
over 99 percent of nationals of Mauritius complied with the terms and 
conditions of their visas. Additionally, DHS visa overstay data across 
all visa categories does not indicate a significant concern over the 
course of several years. Furthermore, eligibility for H-2A and H-2B 
nonimmigrant worker programs would bolster the bilateral and economic 
relationship. Therefore, adding Mauritius to the H-2A and H-2B eligible 
countries lists serves the U.S. interest.
    Saint Lucia does not present significant overstay or fraud concerns 
across all nonimmigrant visas. Furthermore, adding Saint Lucia to both 
H-2A and H-2B programs is in the U.S. national interest. First, by 
providing economic opportunities to Saint Lucians in agriculture and 
seafood processing, inclusion will directly meet one of the key goals 
of the country's newly elected government, thereby bolstering bilateral 
relations at a time when the country is reexamining its foreign policy 
directions. Second, by affording Saint Lucian nationals greater 
familiarity with U.S. agriculture and aquaculture best practices, the 
country's designation for H-2A and H-2B participation by its nationals 
will increase the productivity of their businesses in these sectors 
upon their nationals' return from the United States, thus advancing 
U.S. economic development goals of strengthening entrepreneurship and 
diversifying the economy away from its current heavy reliance on 
tourism. Finally, Saint Lucia is consistently cooperative with the 
United States on accepting their nationals subject to a final order of 
removal. As such, adding Saint Lucia 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, 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. Bosnia and Herzegovina
8. Brazil
9. Brunei
10. Bulgaria
11. Canada
12. Chile
13. Colombia
14. Costa Rica
15. Croatia
16. Republic of Cyprus
17. Czech Republic
18. Denmark
19. Dominican Republic
20. Ecuador
21. El Salvador
22. Estonia
23. Fiji
24. Finland
25. France
26. Germany
27. Greece
28. Grenada
29. Guatemala
30. Haiti
31. Honduras
32. Hungary
33. Iceland
34. Ireland
35. Israel
36. Italy
37. Jamaica
38. Japan
39. Kiribati
40. Latvia
41. Liechtenstein
42. Lithuania
43. Luxembourg
44. Madagascar
45. Malta
46. Mauritius
47. Mexico
48. Monaco
49. Montenegro
50. Mozambique
51. Nauru
52. The Netherlands
53. New Zealand
54. Nicaragua
55. North Macedonia (formerly Macedonia)
56. Norway
57. Panama
58. Papua New Guinea
59. Paraguay
60. Peru
61. Poland
62. Portugal
63. Romania
64. Saint Lucia
65. San Marino
66. Serbia
67. Singapore
68. Slovakia
69. Slovenia
70. Solomon Islands
71. South Africa
72. South Korea
73. Spain
74. St. Vincent and the Grenadines
75. Sweden
76. Switzerland
77. Taiwan
78. Thailand
79. Timor-Leste
80. Turkey
81. Tuvalu
82. Ukraine
83. United Kingdom

[[Page 62563]]

84. Uruguay
85. 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, 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. Bosnia and Herzegovina
8. Brazil
9. Brunei
10. Bulgaria
11. Canada
12. Chile
13. Colombia
14. Costa Rica
15. Croatia
16. Republic of Cyprus
17. Czech Republic
18. Denmark
19. Dominican Republic
20. Ecuador
21. El Salvador
22. Estonia
23. Fiji
24. Finland
25. France
26. Germany
27. Greece
28. Grenada
29. Guatemala
30. Haiti
31. Honduras
32. Hungary
33. Iceland
34. Ireland
35. Israel
36. Italy
37. Jamaica
38. Japan
39. Kiribati
40. Latvia
41. Liechtenstein
42. Lithuania
43. Luxembourg
44. Madagascar
45. Malta
46. Mauritius
47. Mexico
48. Monaco
49. Mongolia
50. Montenegro
51. Mozambique
52. Nauru
53. The Netherlands
54. New Zealand
55. Nicaragua
56. North Macedonia (formerly Macedonia)
57. Norway
58. Panama
59. Papua New Guinea
60. Peru
61. The Philippines
62. Poland
63. Portugal
64. Romania
65. Saint Lucia
66. San Marino
67. Serbia
68. Singapore
69. Slovakia
70. Slovenia
71. Solomon Islands
72. South Africa
73. South Korea
74. Spain
75. St. Vincent and the Grenadines
76. Sweden
77. Switzerland
78. Taiwan
79. Thailand
80. Timor-Leste
81. Turkey
82. Tuvalu
83. Ukraine
84. United Kingdom
85. Uruguay
86. 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 unless they seek a change of 
status to H-2.
    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. 2021-24534 Filed 11-9-21; 8:45 am]
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