Identification of Foreign Countries Whose Nationals Are Eligible To Participate in the H-2A and H-2B Nonimmigrant Worker Programs, 2689-2692 [2021-00671]
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Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Notices
Meeting Objectives: The objective of
the meeting is to update the general
public, and private industry partners, on
the status of the Voluntary Agreement,
PPE Plan of Action, and potential future
Plans of Action.
Meeting Closed to the Public: By
default, the DPA requires meetings held
to implement a voluntary agreement or
plan of action be open to the public.6
However, attendance may be limited if
the Sponsor 7 of the voluntary
agreement finds that the matter to be
discussed at a meeting falls within the
purview of matters described in 5 U.S.C.
552b(c). The Sponsor of the Voluntary
Agreement, the FEMA Administrator,
found that a portion of this meeting to
implement the Voluntary Agreement
involves matters which fall within the
purview of matters described in 5 U.S.C.
552b(c) and that portion of the meeting
will therefore be closed to the public.
Specifically, the meeting to
implement the Voluntary Agreement
may require participants to disclose
trade secrets or commercial or financial
information that is privileged or
confidential. Disclosure of such
information allows for meetings to be
closed pursuant to 5 U.S.C. 552b(c)(4).
In addition, the success of the Voluntary
Agreement depends wholly on the
willing and enthusiastic participation of
private sector participants. Failure to
close this meeting could have a strong
chilling effect on participation by the
private sector and cause a substantial
risk that sensitive information will be
prematurely released to the public,
resulting in participants withdrawing
their support from the Voluntary
Agreement and thus significantly
frustrating the implementation of the
Voluntary Agreement. Frustration of an
agency’s objective due to premature
disclosure of information allows for the
closure of a meeting to pursuant to 5
U.S.C. 552b(c)(9)(B).
Pete Gaynor,
Administrator, Federal Emergency
Management Agency.
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 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 81 countries whose
nationals are eligible to participate in
the H–2A program and 80 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 January 19, 2021, and
shall be without effect after January 18,
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:
SUMMARY:
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.1 Such designation must be
[FR Doc. 2021–00505 Filed 1–12–21; 8:45 am]
BILLING CODE 9111–19–P
6 See
50 U.S.C. 4558(h)(7).
individual designated by the President in
subsection (c)(2) [of section 708 of the DPA] to
administer the voluntary agreement, or plan of
action.’’ 50 U.S.C. 4558(h)(7).
7 ‘‘[T]he
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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
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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 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 (including but not
limited to 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 overstay 2 rates for
nationals of the country (including but
not limited to H–2 nonimmigrants),
non-compliance with the terms and
conditions of the H–2 visa programs by
nationals of the country, and the
country’s level of compliance with U.S.
immigration policies.
In evaluating the U.S. interest, the
Secretary of Homeland Security, with
the concurrence of the Secretary of
State, further considers visa overstay
rates of 10 percent or higher to pose an
unreasonably high risk to the integrity
of our immigration system. The
Department believes that a failure of one
out of every 10 nationals of a country to
comply with his or her nonimmigrant
status through timely departure is
indicative of significant underlying
problems relating to the country’s
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 InCountry 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 2019 U.S. Customs and Border
Protection H–2A and H–2B nonimmigrant overstay
data.
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designation for H–2A or H–2B program
participation. Naturally, with greater
numbers of participants from any
country comes more significant risk
when the overstay rate of a country’s
nationals is unreasonably high. DHS
believes that countries with more than
50 expected departures in a given fiscal
year whose nationals overstay at rate of
more than 10 percent (i.e., at least 5
overstays) present an appreciable and
considerable degree of risk to the
integrity of these nonimmigrant
programs.
Accordingly, the Secretary of
Homeland Security, with the
concurrence of the Secretary of State,
will ascribe significant 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. Overstay rates greater than 10
percent and/or involving more expected
than 50 departures will bear
increasingly negative weight. Overstay
rates that are lower than 10 percent or
which involve less than 50 expected
departures may also be weighed
negatively, but less so as the numbers
decrease.
Similarly, the Department of
Homeland Security recognizes that
countries designated under longstanding 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, will terminate designation of such
countries from the H–2A and H–2B
nonimmigrant visa programs in
recognition that the U.S. typically
cannot continue to admit individuals
from countries that do not consistently
cooperate with the removal of their
citizens and nationals. Note that, as
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.
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Even where the Secretary of
Homeland Security has terminated
designation of a country as not being in
the U.S. interest, however, DHS,
through USCIS, may allow, on a caseby-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 the
individual alien’s 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
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2646 (Jan. 18, 2018) (removing 3
countries and adding 1 country); 84 FR
133 (Jan. 18, 2019) (removing 2
countries from both the H–2A program
and the H–2B program, removing 1
country from only the H–2B program,
and adding 2 countries to both programs
and 1 country to only the H–2A
program); 85 FR 3067 (January 17, 2020)
(remained unchanged).
Determination of Countries With
Continued Eligibility
The Secretary of Homeland Security
has determined, with the concurrence of
the Secretary of State, that 81 countries
previously designated to participate in
the H–2A program in the January 17,
2020 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 17, 2020 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: Mongolia (H–2A only), the
Independent State of Samoa (‘‘Samoa’’),
and Tonga.
Mongolia has a high H–2A visa
overstay rate. In FY 2019, DHS
estimated that 67 H–2A visa holders
from Mongolia were expected to depart
the United States. However, DHS
estimated that 40.3% of those H–2A visa
holders from Mongolia overstayed their
period of authorized stay. This high H–
2A visa overstay rate demonstrates an
unacceptable level of harm to the
integrity of the H–2A visa program;
continued eligibility of Mongolian
nationals for the H–2A visa program
thus does not serve the U.S. interest.
Therefore, the Secretary of Homeland
Security, with the concurrence of the
Secretary of State, is removing Mongolia
from the list of eligible countries for the
H–2A program. By contrast, in FY 2019,
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DHS estimated that none of the H–2B
visa holders from Mongolia overstayed
their period of authorized stay. Given
this compliance with H–2B program,
and absent additional derogatory
information indicating an unacceptable
potential for fraud or program abuse,
DHS and DOS are not removing
Mongolia from the list of eligible
countries for the H–2B program at this
time.
Samoa has been designated as ‘‘At
Risk of Non-Compliance’’ according to
ICE’s FY 2020 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. Samoa was
removed from the H–2 list in 2018 due
to its designation as ‘‘At Risk of NonCompliance.’’ 83 FR 2646, 2647. When
Samoa demonstrated increased
cooperation with the United States
regarding the return of its nationals with
final orders of removal, DHS and DOS
added Samoa back to the list of H–2
eligible countries in 2019. 84 FR 133,
135. However, Samoa reverted back to
being ‘‘At Risk of Non-Compliance’’ in
ICE’s FY 2019 mid-year assessment and
has continued to be ‘‘At Risk of NonCompliance’’ since then. Samoa’s
inconsistent cooperation with the
United States regarding the return of its
nationals and citizens with final orders
of removal does not serve the U.S.
interest. Therefore, the Secretary of
Homeland Security, with the
concurrence of the Secretary of State, is
removing Samoa from the list of H–2A
and H–2B eligible countries.
Tonga has been designated as ‘‘At
Risk of Non-Compliance’’ according to
ICE’s FY 2020 mid-year assessment of
the country’s cooperation with respect
to the refusal to accept ICE charter
flights for the repatriation of its
nationals that have been ordered
removed from the United States.
Tonga’s inconsistent cooperation with
the United States regarding the return of
its nationals and citizens with final
orders of removal does not serve the
U.S. interest. Therefore, the Secretary of
Homeland Security, with the
concurrence of the Secretary of State, is
removing Tonga from the list of H–2A
and H–2B eligible countries.
On the basis of the foregoing analysis,
DHS has removed three countries from
the H–2A and/or H–2B country
eligibility lists for 2021. Nonetheless,
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
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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 or section
1045 of the NDAA for FY 2019, Public
Law 115–232. However, any ultimate
determination of eligibility 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 Philippines should be
designated as eligible to participate in
the H–2B non-immigrant visa program
because the participation of the
Philippines is in the U.S. interest
consistent with the regulations
governing this program.
The U.S. military realignment away
from Japan and subsequent military
construction on Guam requires a
sizeable workforce that cannot be
sustained by the local workforce in
Guam. According to the U.S.
Department of Defense, the need for
more labor to work in military
construction is likely to grow
significantly in the next five years.
Additionally, the influx of military
personnel and activity on Guam will
cause a surge in demand in the civilian
construction sector (i.e., homes,
expansion of hospitals, commercial
projects, etc.). The U.S. Department of
Interior continues to register the
significant dependence that Guam and
the Commonwealth of the Northern
Mariana Islands (CNMI) has on foreign
workers from the Philippines to
supplement necessary and essential
components of their workforce. As such,
to ensure the labor needs of the U.S.
military realignment projects in Guam
and the labor shortages experienced in
the CNMI are met properly, adding the
Philippines to the H–2B eligible
countries list serves the U.S. interest.
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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. Madagascar
42. Malta
43. Mexico
44. Moldova
45. Monaco
46. Montenegro
47. Mozambique
48. Nauru
49. The Netherlands
50. New Zealand
51. Nicaragua
52. North Macedonia (formerly Macedonia)
53. Norway
54. Panama
55. Papua New Guinea
56. Paraguay
57. Peru
58. Poland
59. Portugal
60. Romania
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61. San Marino
62. Serbia
63. Singapore
64. Slovakia
65. Slovenia
66. Solomon Islands
67. South Africa
68. South Korea
69. Spain
70. St. Vincent and the Grenadines
71. Sweden
72. Switzerland
73. Taiwan
74. Thailand
75. Timor-Leste
76. Turkey
77. Tuvalu
78. Ukraine
79. United Kingdom
80. Uruguay
81. 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. Liechtenstein
38. Lithuania
39. Luxembourg
40. Madagascar
41. Malta
42. Mexico
43. Monaco
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18:08 Jan 12, 2021
44. Mongolia
45. Montenegro
46. Mozambique
47. Nauru
48. The Netherlands
49. New Zealand
50. Nicaragua
51. North Macedonia (formerly Macedonia)
52. Norway
53. Panama
54. Papua New Guinea
55. Peru
56. Philipinnes
57. Poland
58. Portugal
59. Romania
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
70. Sweden
71. Switzerland
72. Taiwan
73. Thailand
74. Timor-Leste
75. Turkey
76. Tuvalu
77. Ukraine
78. United Kingdom
79. Uruguay
80. Vanuatu
This notice does not affect the current
status of aliens who at the time of
publication of this notice hold valid H–
2A or H–2B nonimmigrant status.
Aliens 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, for
employment on or after the effective
date of this notice. Similarly, aliens
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 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.
The Senior Official Performing the
Duties of the Deputy Secretary, Kenneth
T. Cuccinelli II, having reviewed and
approved this document, is delegating
the authority to electronically sign this
document to Ian J. Brekke, who is the
Senior Official Performing the Duties of
the General Counsel for DHS, for
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purposes of publication in the Federal
Register.
Ian J. Brekke,
Senior Official Performing the Duties of the
General Counsel.
[FR Doc. 2021–00671 Filed 1–12–21; 8:45 am]
BILLING CODE 4410–10–P
INTERNATIONAL TRADE
COMMISSION
[Investigation Nos. 332–584]
Squash: Effect of Imports on U.S.
Seasonal Markets, With A Focus on the
U.S. Southeast
Notice of investigation and
scheduling of a public hearing.
ACTION:
Following receipt on
December 7, 2020, of a request from the
U.S. Trade Representative (USTR),
under section 332(g) of the Tariff Act of
1930, the U.S. International Trade
Commission (Commission) instituted
Investigation No. 332–584, Squash:
Effect of Imports on U.S. Seasonal
Markets, with a Focus on the U.S.
Southeast. The USTR asked that the
investigation cover all imports that fall
within the product description of U.S.
Harmonized Tariff Schedule subheading
0709.93.20 (squash, fresh or chilled).
DATES:
March 25, 2021: Deadline for filing
requests to appear at the public hearing.
March 29, 2021: Deadline for filing
prehearing briefs and statements.
April 1, 2021: Deadline for filing
electronic copies of oral hearing
statements.
April 8, 2021: Public hearing.
April 15, 2021: Deadline for filing
post-hearing briefs and statements.
April 27, 2021: Deadline for filing all
other written submissions.
December 7, 2021: Transmittal of
Commission report to the USTR.
ADDRESSES: All Commission offices,
including the Commission’s hearing
rooms, are located in the U.S.
International Trade Commission
Building, 500 E Street SW, Washington,
DC. All written submissions should be
addressed to the Secretary, U.S.
International Trade Commission, 500 E
Street SW, Washington, DC 20436. The
public record for this investigation may
be viewed on the Commission’s
electronic docket (EDIS) at https://
edis.usitc.gov.
SUMMARY:
FOR FURTHER INFORMATION CONTACT:
Project Leader Lesley Ahmed
(lesley.ahmed@usitc.gov or 202–205–
3459), Deputy Project Leader Fernando
Gracia (202–205–2747 or
E:\FR\FM\13JAN1.SGM
13JAN1
Agencies
[Federal Register Volume 86, Number 8 (Wednesday, January 13, 2021)]
[Notices]
[Pages 2689-2692]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-00671]
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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 81 countries whose nationals are eligible to participate in
the H-2A program and 80 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 January 19,
2021, and shall be without effect after January 18, 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 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 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
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 (including but not
limited to 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 overstay \2\ rates for nationals of the country
(including but not limited to H-2 nonimmigrants), non-compliance with
the terms and conditions of the H-2 visa programs by nationals of the
country, and the country's level of compliance with U.S. immigration
policies.
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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 2019 U.S. Customs and Border Protection
H-2A and H-2B nonimmigrant overstay data.
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In evaluating the U.S. interest, the Secretary of Homeland
Security, with the concurrence of the Secretary of State, further
considers visa overstay rates of 10 percent or higher to pose an
unreasonably high risk to the integrity of our immigration system. The
Department believes that a failure of one out of every 10 nationals of
a country to comply with his or her nonimmigrant status through timely
departure is indicative of significant underlying problems relating to
the country's
[[Page 2690]]
designation for H-2A or H-2B program participation. Naturally, with
greater numbers of participants from any country comes more significant
risk when the overstay rate of a country's nationals is unreasonably
high. DHS believes that countries with more than 50 expected departures
in a given fiscal year whose nationals overstay at rate of more than 10
percent (i.e., at least 5 overstays) present an appreciable and
considerable degree of risk to the integrity of these nonimmigrant
programs.
Accordingly, the Secretary of Homeland Security, with the
concurrence of the Secretary of State, will ascribe significant
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. Overstay rates greater than 10 percent and/
or involving more expected than 50 departures will bear increasingly
negative weight. Overstay rates that are lower than 10 percent or which
involve less than 50 expected departures may also be weighed
negatively, but less so as the numbers decrease.
Similarly, the Department of Homeland Security 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, will terminate designation of
such countries from the H-2A and H-2B nonimmigrant visa programs in
recognition that the U.S. typically cannot continue to admit
individuals from countries that do not consistently cooperate with the
removal of their citizens and nationals. Note that, as 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 terminated
designation of a country as not being in the U.S. interest, however,
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 the individual
alien's 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); 84 FR 133 (Jan. 18, 2019)
(removing 2 countries from both the H-2A program and the H-2B program,
removing 1 country from only the H-2B program, and adding 2 countries
to both programs and 1 country to only the H-2A program); 85 FR 3067
(January 17, 2020) (remained unchanged).
Determination of Countries With Continued Eligibility
The Secretary of Homeland Security has determined, with the
concurrence of the Secretary of State, that 81 countries previously
designated to participate in the H-2A program in the January 17, 2020
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 17, 2020 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: Mongolia (H-2A
only), the Independent State of Samoa (``Samoa''), and Tonga.
Mongolia has a high H-2A visa overstay rate. In FY 2019, DHS
estimated that 67 H-2A visa holders from Mongolia were expected to
depart the United States. However, DHS estimated that 40.3% of those H-
2A visa holders from Mongolia overstayed their period of authorized
stay. This high H-2A visa overstay rate demonstrates an unacceptable
level of harm to the integrity of the H-2A visa program; continued
eligibility of Mongolian nationals for the H-2A visa program thus does
not serve the U.S. interest. Therefore, the Secretary of Homeland
Security, with the concurrence of the Secretary of State, is removing
Mongolia from the list of eligible countries for the H-2A program. By
contrast, in FY 2019,
[[Page 2691]]
DHS estimated that none of the H-2B visa holders from Mongolia
overstayed their period of authorized stay. Given this compliance with
H-2B program, and absent additional derogatory information indicating
an unacceptable potential for fraud or program abuse, DHS and DOS are
not removing Mongolia from the list of eligible countries for the H-2B
program at this time.
Samoa has been designated as ``At Risk of Non-Compliance''
according to ICE's FY 2020 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. Samoa was removed from the H-2 list in 2018 due
to its designation as ``At Risk of Non-Compliance.'' 83 FR 2646, 2647.
When Samoa demonstrated increased cooperation with the United States
regarding the return of its nationals with final orders of removal, DHS
and DOS added Samoa back to the list of H-2 eligible countries in 2019.
84 FR 133, 135. However, Samoa reverted back to being ``At Risk of Non-
Compliance'' in ICE's FY 2019 mid-year assessment and has continued to
be ``At Risk of Non-Compliance'' since then. Samoa's inconsistent
cooperation with the United States regarding the return of its
nationals and citizens with final orders of removal does not serve the
U.S. interest. Therefore, the Secretary of Homeland Security, with the
concurrence of the Secretary of State, is removing Samoa from the list
of H-2A and H-2B eligible countries.
Tonga has been designated as ``At Risk of Non-Compliance''
according to ICE's FY 2020 mid-year assessment of the country's
cooperation with respect to the refusal to accept ICE charter flights
for the repatriation of its nationals that have been ordered removed
from the United States. Tonga's inconsistent cooperation with the
United States regarding the return of its nationals and citizens with
final orders of removal does not serve the U.S. interest. Therefore,
the Secretary of Homeland Security, with the concurrence of the
Secretary of State, is removing Tonga from the list of H-2A and H-2B
eligible countries.
On the basis of the foregoing analysis, DHS has removed three
countries from the H-2A and/or H-2B country eligibility lists for 2021.
Nonetheless, 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 or section 1045
of the NDAA for FY 2019, Public Law 115-232. However, any ultimate
determination of eligibility 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 Philippines should be
designated as eligible to participate in the H-2B non-immigrant visa
program because the participation of the Philippines is in the U.S.
interest consistent with the regulations governing this program.
The U.S. military realignment away from Japan and subsequent
military construction on Guam requires a sizeable workforce that cannot
be sustained by the local workforce in Guam. According to the U.S.
Department of Defense, the need for more labor to work in military
construction is likely to grow significantly in the next five years.
Additionally, the influx of military personnel and activity on Guam
will cause a surge in demand in the civilian construction sector (i.e.,
homes, expansion of hospitals, commercial projects, etc.). The U.S.
Department of Interior continues to register the significant dependence
that Guam and the Commonwealth of the Northern Mariana Islands (CNMI)
has on foreign workers from the Philippines to supplement necessary and
essential components of their workforce. As such, to ensure the labor
needs of the U.S. military realignment projects in Guam and the labor
shortages experienced in the CNMI are met properly, adding the
Philippines to the H-2B eligible countries list 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), 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. Madagascar
42. Malta
43. Mexico
44. Moldova
45. Monaco
46. Montenegro
47. Mozambique
48. Nauru
49. The Netherlands
50. New Zealand
51. Nicaragua
52. North Macedonia (formerly Macedonia)
53. Norway
54. Panama
55. Papua New Guinea
56. Paraguay
57. Peru
58. Poland
59. Portugal
60. Romania
[[Page 2692]]
61. San Marino
62. Serbia
63. Singapore
64. Slovakia
65. Slovenia
66. Solomon Islands
67. South Africa
68. South Korea
69. Spain
70. St. Vincent and the Grenadines
71. Sweden
72. Switzerland
73. Taiwan
74. Thailand
75. Timor-Leste
76. Turkey
77. Tuvalu
78. Ukraine
79. United Kingdom
80. Uruguay
81. 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. Liechtenstein
38. Lithuania
39. Luxembourg
40. Madagascar
41. Malta
42. Mexico
43. Monaco
44. Mongolia
45. Montenegro
46. Mozambique
47. Nauru
48. The Netherlands
49. New Zealand
50. Nicaragua
51. North Macedonia (formerly Macedonia)
52. Norway
53. Panama
54. Papua New Guinea
55. Peru
56. Philipinnes
57. Poland
58. Portugal
59. Romania
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
70. Sweden
71. Switzerland
72. Taiwan
73. Thailand
74. Timor-Leste
75. Turkey
76. Tuvalu
77. Ukraine
78. United Kingdom
79. Uruguay
80. Vanuatu
This notice does not affect the current status of aliens who at the
time of publication of this notice hold valid H-2A or H-2B nonimmigrant
status. Aliens 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,
for employment on or after the effective date of this notice.
Similarly, aliens 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 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.
The Senior Official Performing the Duties of the Deputy Secretary,
Kenneth T. Cuccinelli II, having reviewed and approved this document,
is delegating the authority to electronically sign this document to Ian
J. Brekke, who is the Senior Official Performing the Duties of the
General Counsel for DHS, for purposes of publication in the Federal
Register.
Ian J. Brekke,
Senior Official Performing the Duties of the General Counsel.
[FR Doc. 2021-00671 Filed 1-12-21; 8:45 am]
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