[Federal Register Volume 88, Number 216 (Thursday, November 9, 2023)]
[Notices]
[Pages 77343-77346]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-24210]


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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 87 countries whose nationals are eligible to participate in 
the H-2A program and 88 countries whose nationals are eligible to 
participate in the H-2B program for the coming year.

DATES: The designations in this notice are effective from November 9, 
2023 and shall be without effect on November 8, 2024.

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

[[Page 77344]]

designating countries to include on the lists, the Secretary of 
Homeland Security, with the concurrence of the Secretary of State, will 
take into account factors including, but not limited to: (1) the 
country's cooperation with respect to issuance of travel documents for 
citizens, subjects, nationals, and residents of that country who are 
subject to a final order of removal; (2) the number of final and 
unexecuted orders of removal against citizens, subjects, nationals, and 
residents of that country; (3) the number of orders of removal executed 
against citizens, subjects, nationals, and residents of that country; 
and (4) such other factors as may serve the U.S. interest. See 8 CFR 
214.2(h)(5)(i)(F)(1)(i) and 8 CFR 214.2(h)(6)(i)(E)(1).\2\ 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 (e.g., fraud in the H-2 
petition or visa application process by nationals of the country, the 
country's level of cooperation with the U.S. government in addressing 
H-2 associated visa fraud, and the country's level of information 
sharing to combat immigration-related fraud), nonimmigrant visa 
overstay \3\ rates for nationals of the country (including but not 
limited to H-2A and H-2B nonimmigrant visa overstay rates), and non-
compliance with the terms and conditions of the H-2 visa programs by 
nationals of the country.
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    \1\ With respect to all references to ``country'' or 
``countries'' in this document, it should be noted that the Taiwan 
Relations Act of 1979, Public Law 96-8, Section 4(b)(1), provides 
that ``[w]henever the laws of the United States refer or relate to 
foreign countries, nations, states, governments, or similar 
entities, such terms shall include and such laws shall apply with 
respect to Taiwan.'' 22 U.S.C. 3303(b)(1). Accordingly, all 
references to ``country'' or ``countries'' in the regulations 
governing whether nationals of a country are eligible for H-2 
program participation, 8 CFR 214.2(h)(5)(i)(F)(1)(i) and 8 CFR 
214.2(h)(6)(i)(E)(1), are read to include Taiwan. This is consistent 
with the United States' one-China policy, under which the United 
States has maintained unofficial relations with Taiwan since 1979.
    \2\ DHS has published a Notice of Proposed Rulemaking (NPRM) in 
the Federal Register in which it is proposing to eliminate the 
requirement to designate countries whose nationals are eligible to 
participate in the H-2A and H-2B programs from DHS regulations. The 
rule is in a proposal stage and does not impact the designation of 
eligible countries contained in this notice. The regulations 
requiring the designation of countries whose nationals are eligible 
to participate in the H-2 programs will remain in effect until such 
time as DHS publishes any final rule amending such regulations and 
such final rule goes into effect, if applicable. See 88 FR 65040.
    \3\ 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 Fiscal Year 2022 CBP nonimmigrant overstay 
data for the H-2A and H-2B nonimmigrant visa categories and the 
Fiscal Year 2022 Entry/Exit Overstay Report for all other visa 
categories.
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    As previously indicated, see 86 FR 2689; 86 FR 62559, in evaluating 
the U.S. interest, the Secretary of Homeland Security, with the 
concurrence of the Secretary of State, will generally ascribe a 
negative weight to evidence that a country had a suspected in-country 
visa overstay rate of 10 percent or higher with a number of expected 
departures of 50 individuals or higher in either the H-2A or H-2B 
classification according to U.S. Customs and Border Protection overstay 
data, and generally, with the concurrence of the Secretary of State, 
will terminate designation of that country from the H-2A or H-2B 
nonimmigrant visa program, as appropriate, unless, after consideration 
of other relevant factors, it is determined not to be in the U.S. 
interest to do so.
    Similarly, DHS recognizes that countries designated under long-
standing practice by U.S. Immigration and Customs Enforcement (ICE) as 
``At Risk of Non-Compliance'' or ``Uncooperative'' with removals based 
on ICE data put the integrity of the immigration system and the 
American people at risk. Therefore, unless other favorable factors in 
the U.S. interest outweigh such designations by ICE, the Secretary of 
Homeland Security, with the concurrence of the Secretary of State, 
generally will terminate designation of such countries from the H-2A 
and H-2B nonimmigrant visa programs. Because there are separate lists 
for the H-2A and H-2B categories, it is possible that, in applying the 
above-described regulatory criteria for listing countries, a country 
may appear on one list but not on the other.
    Even where the Secretary of Homeland Security has determined to 
terminate or decided not to designate a country, DHS, through USCIS, 
may allow, on a case-by-case basis, a national from a country that is 
not on the list to be named as a beneficiary of an H-2A or H-2B 
petition based on a determination that it is in the U.S. interest, in 
the totality of the circumstances, for that individual noncitizen to be 
a beneficiary of an H-2 petition. Determination of such U.S. interest 
will take into account factors, including but not limited to: (1) 
evidence from the petitioner demonstrating that a worker with the 
required skills is not available either from among U.S. workers or from 
among foreign workers from a country currently on the list described in 
8 CFR 214.2(h)(5)(i)(F)(1)(i) (H-2A nonimmigrants) or 
214.2(h)(6)(1)(E)(1) (H-2B nonimmigrants), as applicable; (2) evidence 
that the beneficiary has been admitted to the United States previously 
in H-2A or H-2B status; (3) the potential for abuse, fraud, or other 
harm to the integrity of the H-2A or H-2B visa program through the 
potential admission of a beneficiary from a country not currently on 
the list; and (4) such other factors as may serve the U.S. interest. 
See 8 CFR 214.2(h)(5)(i)(F)(1)(ii) and 8 CFR 214.2(h)(6)(i)(E)(2). An 
additional factor for beneficiaries of H-2B petitions, although not 
necessarily determinative, would be whether the H-2B petition qualifies 
under section 1049 of the National Defense Authorization Act (NDAA) for 
FY 2018, Public Law 115-91, section 1045 of the NDAA for FY 2019, 
Public Law 115-232, section 9502 of the NDAA for FY 2021, Public Law 
116-283, or section 5901 of the NDAA for FY 2023, Public Law 117-263.
    In December 2008, DHS published the first lists of eligible 
countries for the H-2A and H-2B Visa Programs in the Federal Register. 
These notices, ``Identification of Foreign Countries Whose Nationals 
Are Eligible to Participate in the H-2A Visa Program,'' and 
``Identification of Foreign Countries Whose Nationals Are Eligible to 
Participate in the H-2B Visa Program,'' designated 28 countries whose 
nationals were eligible to participate in the H-2A and H-2B programs. 
See 73 FR 77043 (Dec. 18, 2008); 73 FR 77729 (Dec. 19, 2008). The 
notices ceased to have effect on January 17, 2009, and January 18, 
2009, respectively. Since the publication of the first lists in 2008, 
with the concurrence of the Secretary of State, has published a series 
of notices on a regular basis. See 75 FR 2879 (Jan. 19, 2010) (adding 
11 countries to both programs); 76 FR 2915 (Jan. 18, 2011) (removing 
one country from and adding 15 countries to both programs); 77 FR 2558 
(Jan. 18, 2012) (adding five countries to both programs); 78 FR 4154 
(Jan. 18, 2013) (adding one country to both programs); 79 FR 3214 
(Jan.17, 2014) (adding four countries to both programs); 79 FR 74735 
(Dec. 16, 2014) (adding five countries to both programs); 80 FR 72079 
(Nov. 18, 2015) (removing one country from the H-2B program and adding 
16 countries to both programs); 81 FR 74468 (Oct. 26, 2016) (adding one 
country to both programs); 83 FR 2646 (Jan. 18, 2018) (removing three 
countries from and adding one country to both programs); 84 FR 133 
(Jan. 18, 2019) (removing two countries from and adding 2 countries to 
both programs, removing one country from only the H-2B program, and 
adding one country to only the H-2A program); 85 FR 3067 (January 17, 
2020) (leaving the lists unchanged); 86 FR 2689 (Jan. 13, 2021) 
(removing two countries from both programs, removing one country from 
only the H-2A program, and adding one country to

[[Page 77345]]

only the H-2B program); 86 FR 62559 (Nov. 10, 2021) (removing one 
country from only the H-2A program, adding one country to only the H-2B 
program, and separately adding five countries to both programs); and 87 
FR 67930 (Nov. 10, 2022) (adding one country to both programs).

Determination of Countries With Continued Eligibility

    The Secretary of Homeland Security has determined, with the 
concurrence of the Secretary of State, that the 86 countries previously 
designated to participate in the H-2A program in the November 10, 2022 
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 the 87 countries previously designated to 
participate in the H-2B program in the November 10, 2022 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.
    Consistent with the previous notices, 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 lists as serving the national interest, depending on the 
totality of the circumstances, as described above. An additional factor 
for beneficiaries of H-2B petitions, although not necessarily 
determinative, would be whether the H-2B petition qualifies under 
section 1049 of the National Defense Authorization Act (NDAA) for FY 
2018, Public Law 115-91, section 1045 of the NDAA for FY 2019, Public 
Law 115-232, section 9502 of the NDAA for FY 2021, Public Law 116-283, 
or section 5901 of the NDAA for FY 2023, Public Law 117-263. However, 
any ultimate determination of eligibility will be made according to all 
the relevant factors and evidence in each individual circumstance.

Countries Now Designated as Eligible

    The Secretary of Homeland Security has also determined, with the 
concurrence of the Secretary of State, that Bolivia should be 
designated as an eligible country to participate in both the H-2A and 
H-2B nonimmigrant visa programs because its participation is in the 
U.S. interest consistent with the regulations governing these programs.
    Bolivia consistently cooperates with accepting its nationals 
subject to a final order of removal. Furthermore, nationals of Bolivia 
do not present significant visa overstay concerns; their overstay rates 
are consistent with other countries currently listed as eligible to 
participate in the H-2A and H-2B programs. Bolivian nationals are 
generally compliant with the terms and conditions of all visa 
categories. For instance, DOS's recent validation study of B1/B2 visas 
found that under two percent of Bolivian nationals overstayed their B1/
B2 visas. Due to the current economic situation in Bolivia, adding 
Bolivia to these programs would contribute to DOS's goals of promoting 
economic development and improving bilateral commercial relationships 
in Bolivia. Additionally, the H-2A and H-2B programs will provide an 
alternative, lawful, pathway to irregular migration for Bolivian 
nationals seeking an economic opportunity in the United States. Based 
on the foregoing reasons, adding Bolivia to both the H-2A and H-2B 
eligible countries lists serves the U.S. interest.

Designation of Countries Whose Nationals Are Eligible To Participate in 
the H-2A and H-2B Nonimmigrant Worker Programs

    Pursuant to the authority provided to the Secretary of Homeland 
Security under sections 214(a)(1) and 215(a)(1) of the Immigration and 
Nationality Act (8 U.S.C. 1184(a)(1) and 1185(a)(1)), I am designating, 
with the concurrence of the Secretary of State, the following countries 
as those whose nationals are eligible to participate in the H-2A 
nonimmigrant worker program:

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

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83. Tuvalu
84. Ukraine
85. United Kingdom
86. Uruguay
87. Vanuatu

    Pursuant to the authority provided to the Secretary of Homeland 
Security under sections 214(a)(1) and 215(a)(1) of the Immigration and 
Nationality Act (8 U.S.C. 1184(a)(1) and 1185(a)(1)), I am designating, 
with the concurrence of the Secretary of State, the following countries 
as those whose nationals are eligible to participate in the H-2B 
nonimmigrant worker program:

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

    This notice does not affect the current status of noncitizens who 
at the time of publication of this notice hold valid H-2A or H-2B 
nonimmigrant status. Noncitizens currently holding such status, 
however, will be affected by this notice should they seek an extension 
of stay in the H-2 classification, or a change of status from one H-2 
status to another, for employment on or after the effective date of 
this notice. Similarly, noncitizens holding nonimmigrant status other 
than H-2 are not affected by this notice, but will be affected by this 
notice if they seek a change of status to H-2 on or after the effective 
date of this notice.
    Nothing in this notice limits the authority of the Secretary of 
Homeland Security or his designee or any other federal agency to invoke 
against any foreign country or its nationals any other remedy, penalty, 
or enforcement action available by law.

Alejandro N. Mayorkas,
Secretary of Homeland Security.
[FR Doc. 2023-24210 Filed 11-8-23; 8:45 am]
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