Identification of Foreign Countries Whose Nationals Are Eligible To Participate in the H-2A and H-2B Nonimmigrant Worker Programs, 133-136 [2019-00074]
Download as PDF
133
Notices
Federal Register
Vol. 84, No. 13
Friday, January 18, 2019
This section of the FEDERAL REGISTER
contains documents other than rules or
proposed rules that are applicable to the
public. Notices of hearings and investigations,
committee meetings, agency decisions and
rulings, delegations of authority, filing of
petitions and applications and agency
statements of organization and functions are
examples of documents appearing in this
section.
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
Office of the Secretary, DHS.
Notice.
AGENCY:
ACTION:
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.
DATES: This designations in this notice
are effective from January 19, 2019, and
khammond on DSK30JT082PROD with NOTICES
SUMMARY:
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.
VerDate Sep<11>2014
15:54 Jan 17, 2019
Jkt 247001
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)
PO 00000
Frm 00001
Fmt 4703
Sfmt 4703
(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,
E:\FR\FM\18JAN1.SGM
18JAN1
134
Federal Register / Vol. 84, No. 13 / Friday, January 18, 2019 / Notices
khammond on DSK30JT082PROD with NOTICES
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
VerDate Sep<11>2014
15:54 Jan 17, 2019
Jkt 247001
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 Tderivative 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 Tderivative 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
PO 00000
Frm 00002
Fmt 4703
Sfmt 4703
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.
E:\FR\FM\18JAN1.SGM
18JAN1
Federal Register / Vol. 84, No. 13 / Friday, January 18, 2019 / Notices
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 NonCompliance’’ 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 NonCompliance’’ 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.
khammond on DSK30JT082PROD with NOTICES
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
VerDate Sep<11>2014
15:54 Jan 17, 2019
Jkt 247001
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:
PO 00000
Frm 00003
Fmt 4703
Sfmt 4703
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
E:\FR\FM\18JAN1.SGM
18JAN1
135
136
Federal Register / Vol. 84, No. 13 / Friday, January 18, 2019 / Notices
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.
khammond on DSK30JT082PROD with NOTICES
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
VerDate Sep<11>2014
15:54 Jan 17, 2019
Jkt 247001
PO 00000
Frm 00004
Fmt 4703
Sfmt 9990
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
E:\FR\FM\18JAN1.SGM
18JAN1
Agencies
[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]
========================================================================
Notices
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains documents other than rules
or proposed rules that are applicable to the public. Notices of hearings
and investigations, committee meetings, agency decisions and rulings,
delegations of authority, filing of petitions and applications and agency
statements of organization and functions are examples of documents
appearing in this section.
========================================================================
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.
-----------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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,
---------------------------------------------------------------------------
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