Identification of Foreign Countries Whose Nationals Are Eligible To Participate in the H-2A and H-2B Nonimmigrant Worker Programs, 133-136 [2019-00074]

Agencies

• DEPARTMENT OF HOMELAND SECURITY

[Federal Register Volume 84, Number 13 (Friday, January 18, 2019)]
[Notices]
[Pages 133-136]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-00074]


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                                                Federal Register
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Federal Register / Vol. 84, No. 13 / Friday, January 18, 2019 / 
Notices

[[Page 133]]



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 \1\ 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 84 countries 
whose nationals are eligible to participate in the H-2A program and 81 
countries whose nationals are eligible to participate in the H-2B 
program for the coming year.
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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.

DATES: This designations in this notice are effective from January 19, 
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2019, and shall be without effect after January 18, 2020.

FOR FURTHER INFORMATION CONTACT: Eric B. Johnson, Office of Strategy, 
Policy, and Plans, 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 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. 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 exclusion of 
a country or the removal of a country from the list include, but are 
not limited to: Fraud, abuse, denial rates, overstay rates, human 
trafficking concerns, and other forms of non-compliance with the terms 
and conditions of the H-2 visa programs by nationals of that country.
    USCIS, however, may allow 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 such participation is in the U.S. interest. 
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 in the Federal Register two 
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,'' which 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); 76 FR 2915 (Jan. 18, 
2011) (removing 1 country 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 1 country from the H-2B program and adding 16 countries); 81 
FR 74468 (Oct. 26, 2016) (adding 1 country); 83 FR 2646 (Jan. 18, 2018) 
(removing 3 countries and adding 1 country).

Countries With Continued Eligibility

    The Secretary of Homeland Security has determined, with the 
concurrence of the Secretary of State, that 81 countries previously 
designated in the January 18, 2018 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,

[[Page 134]]

with the concurrence of the Secretary of State, that 79 countries 
previously designated in the January 18, 2018 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 now determined, with the 
concurrence of the Secretary of State, that the following countries 
should no longer be designated as eligible countries because they no 
longer meet the regulatory standards identified above: Dominican 
Republic (H-2B only), Ethiopia, and the Philippines.
    The Dominican Republic has a high H-2B visa overstay rate. In 
Fiscal Year (FY) 2017, DHS estimated that nearly 30 percent of H-2B 
visa holders from the Dominican Republic overstayed their period of 
authorized stay. DHS recognizes that some of these individuals may have 
ultimately returned to the Dominican Republic without incurring 
ineligibilities (e.g., accrual of unlawful presence). However, this 
high H-2B visa overstay rate demonstrates an unacceptable potential for 
abuse, fraud, or other harm to the integrity of the H-2B visa program 
and thus continued eligbility for H-2B visas does not serve the U.S. 
interest. By comparison, in FY 2017, DHS estimated that less than 10 
percent of H-2A visa holders from the Dominican Republic overstayed 
their period of authorized stay. Given this lower H-2A visa overstay 
rate, and absent additional derogatory information indicating a 
potential for fraud or abuse, DHS and DOS are not removing the 
Dominican Republic from the list of eligible countries for the H-2A 
program at this time.
    Ethiopia has been designated as ``At Risk of Non-Compliance'' since 
2016, according to the U.S. Immigration and Customs Enforcement (ICE) 
biannual assessment of 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. 
DHS appreciates and recognizes Ethiopian efforts to improve 
cooperation, to include accepting repatriation charter flights and 
conducting interviews for travel documents as necessary. As such, DHS 
and Ethiopia are still working to fully implement a dependable and 
repeatable case management process for removals. When Ethiopia is 
longer considered ``At Risk of Non-Compliance,'' DHS and DOS would 
consider restoring Ethiopia to the list of H-2A and H-2B eligible 
countries.
    The Philippines has a high H-2B overstay rate. In FY 2017, DHS 
estimated that nearly 40 percent of H-2B visa holders from the 
Philippines overstayed their period of authorized stay. Additionally, 
among all U.S. posts throughout the world, U.S. Embassy Manila issues 
the greatest number of T-derivative visas (T-2, T-3, T-4, T-5, T-6), 
which are reserved for certain family members of principal T-1 
nonimmigrants (certain victims of a severe form of trafficking in 
persons). U.S. Embassy Manila issued approximately 40 percent of the 
total T-derivative visas issued worldwide from FY 2014-2016. A recent 
review of certain T-1 status recipients, whose spouses were issued T-2 
visas during this same period, shows that approximately 60 percent were 
determined to have been trafficked to the United States on H-2B visas. 
DHS and DOS are concerned about the high volume of trafficking victims 
from the Philippines who were originally issued H-2B visas and the 
potential that continued H-2B visa issuance may encourage or serve as 
an avenue for future human trafficking from the Philippines. DHS and 
DOS also believe that these overstay and human trafficking concerns are 
severe enough to warrant removal from the H-2A visa program as well. 
This concern is informed by a four-fold increase in H-2A visa 
applications from nationals of the Philippines between FY 2015-2018. 
The Philippines' continued inclusion creates the potential for abuse, 
fraud, and other harm to the integrity of the H-2A or H-2B visa 
programs.
    Accordingly, DHS has removed these three countries from the H-2A 
and/or H-2B eligibility lists for 2019, though their nationals 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). For example, 
USCIS may favorably consider a beneficiary of an H-2B petition who is 
not a national of a country included on the H-2B eligibility list as 
serving the national interest, depending on the totality of the 
circumstances, if the petition qualifies under section 1045 of the 
National Defense Authorization Act (NDAA) for FY 2019, Public Law 115-
232. Other facts USCIS may consider include, among other things, 
whether a beneficiary has previously been admitted to the United States 
in H-2B status and complied with the terms of the program. However, a 
determination will be made according to all of 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 the following three 
countries should be designated as eligible H-2A and/or H-2B countries 
because they are now meeting the standards set out in the regulation: 
Mozambique, Paraguay (H-2A only), and Samoa.
    Mozambique does not present significant overstay or fraud concerns 
as evidenced by validation studies confirming a less than one percent 
overstay rate for travelers for business or tourism in the United 
States. Additionally, Mozambique has demonstrated that inclusion in the 
H-2A and H-2B visa programs serves the U.S. interest. Specifically, 
construction of necessary facilities in one of the largest untapped 
liquefied natural gas deposits in the world, located in the Rovuma 
basin in Northern Mozambique, will require an estimated 60,000 
employees, including Mozambique nationals, some of whom will benefit 
from relevant work experience in the United States with American 
businesses seeking to construct some of these facilities. Establishing 
and maintaining a U.S. presence in the Rovuma basin is a foreign policy 
priority.
    Paraguay has a low visa overstay rate and cooperates with the 
United States regarding the return of their nationals with final orders 
of removal. Additionally, Paraguay's Ministry of Agriculture has 
recently indicated its intent to manage a special program targeting 
young Paraguayans with agriculture-related education to obtain 
agricultural work experience in the United States and use this 
experience to improve their family farms upon their return to Paraguay. 
As evidence of its commitment, the Ministry of Agriculture has 
negotiated with a local bank to provide each H-2A recipient with a loan 
up to $10,000 for agricultural investment in their own farms. DHS 
anticipates that the incentives offered by the Ministry will help 
sustain the traditionally low overstay rates for Paraguayans and that 
adding Paragruay to the H-2A countries list in turn will serves the 
U.S. interest.

[[Page 135]]

    Samoa is no longer considered ``At Risk of Non-Compliance'' 
according to ICE's mid-year assessment of 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. Since being removed from the H-2 list last year due 
to its previous ``At Risk of Non-Compliance'' designation, and as a 
direct result of its removal from the H-2A and H-2B programs, Samoa has 
demonstrated increased cooperation with the United States regarding the 
return of their nationals with final orders of removal. Samoa is now 
considered ``Cooperative'' by ICE. The Government of Samoa has assured 
the United States it will continue to cooperate. Samoa's improved 
cooperation with regard to removals is sufficient enough to no longer 
be considered ``At Risk of Non-Compliance'' and its continued 
cooperation with regard to removals serves the U.S. interest. 
Therefore, Samoa is being adding back onto the list of H-2A and H-2B 
eligible countries.

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. Estonia
21. Fiji
22. Finland
23. France
24. Germany
25. Greece
26. Grenada
27. Guatemala
28. Honduras
29. Hungary
30. Iceland
31. Ireland
32. Israel
33. Italy
34. Jamaica
35. Japan
36. Kiribati
37. Latvia
38. Liechtenstein
39. Lithuania
40. Luxembourg
41. Macedonia
42. Madagascar
43. Malta
44. Mexico
45. Moldova
46. Monaco
47. Mongolia
48. Montenegro
49. Mozambique
50. Nauru
51. The Netherlands
52. New Zealand
53. Nicaragua
54. Norway
55. Panama
56. Papua New Guinea
57. Paraguay
58. Peru
59. Poland
60. Portugal
61. Romania
62. Samoa
63. San Marino
64. Serbia
65. Singapore
66. Slovakia
67. Slovenia
68. Solomon Islands
69. South Africa
70. South Korea
71. Spain
72. St. Vincent and the Grenadines
73. Sweden
74. Switzerland
75. Taiwan
76. Thailand
77. Timor-Leste
78. Tonga
79. Turkey
80. Tuvalu
81. Ukraine
82. United Kingdom
83. Uruguay
84. 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. Ecuador
18. El Salvador
19. Estonia
20. Fiji
21. Finland
22. France
23. Germany
24. Greece
25. Grenada
26. Guatemala
27. Honduras
28. Hungary
29. Iceland
30. Ireland
31. Israel
32. Italy
33. Jamaica
34. Japan
35. Kiribati
36. Latvia
37. Lichtenstein
38. Lithuania
39. Luxembourg
40. Macedonia
41. Madagascar
42. Malta
43. Mexico
44. Monaco
45. Mongolia
46. Montenegro
47. Mozambique
48. Nauru
49. The Netherlands
50. New Zealand
51. Nicaragua
52. Norway
53. Panama
54. Papua New Guinea
55. Peru
56. Poland
57. Portugal
58. Romania
59. Samoa
60. San Marino
61. Serbia
62. Singapore
63. Slovakia
64. Slovenia
65. Solomon Islands
66. South Africa
67. South Korea
68. Spain
69. St. Vincent and the Grenadines

[[Page 136]]

70. Sweden
71. Switzerland
72. Taiwan
73. Thailand
74. Timor-Leste
75. Tonga
76. Turkey
77. Tuvalu
78. Ukraine
79. United Kingdom
80. Uruguay
81. 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.

Kirstjen M. Nielsen,
Secretary.
[FR Doc. 2019-00074 Filed 1-17-19; 8:45 am]
 BILLING CODE 9110-9M-P