[Federal Register Volume 89, Number 217 (Friday, November 8, 2024)]
[Notices]
[Pages 88799-88803]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-25790]


-----------------------------------------------------------------------

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 that the Secretary of

[[Page 88800]]

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 88 countries 
whose nationals are eligible to participate in the H-2A program and 89 
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 7, 
2024 and shall be without effect on November 8, 2025.

FOR FURTHER INFORMATION CONTACT: Patrice Francis, 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 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.
---------------------------------------------------------------------------

    \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 published a Notice of Proposed Rulemaking (NPRM) in the 
Federal Register that proposes to eliminate the requirement to 
designate countries whose nationals are eligible to participate in 
the H-2A and H-2B programs from DHS regulations. 88 FR 65040 (Sep. 
20, 2023). 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 remain in effect 
until such time as DHS publishes any final rule amending such 
regulations and such final rule goes into effect, if applicable.
    \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 2023 CBP nonimmigrant overstay 
data for the H-2A and H-2B nonimmigrant visa categories and the 
Fiscal Year 2023 Entry/Exit Overstay Report for all other visa 
categories.
---------------------------------------------------------------------------

    As previously indicated, see 88 FR 77343, 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. 
The FY 2024 NDAA, which took effect on

[[Page 88801]]

December 22, 2023, extended the current exemption from the temporary 
need requirement for an additional 5 years, through the end of the day 
on December 30, 2029. See FY 2024 NDAA, Public Law 118-31 section 1807.
    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, DHS 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 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); 87 FR 67930 (Nov. 
10, 2022) (adding one country to both programs); and 88 FR 77343 (Nov. 
9, 2023) (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 87 countries previously 
designated to participate in the H-2A program in the November 9, 2023 
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 88 countries previously designated to 
participate in the H-2B program in the November 9, 2023 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. 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, 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. The FY 2024 NDAA, which took effect on 
December 22, 2023, extended the current exemption from the temporary 
need requirement for an additional 5 years, through the end of the day 
on December 30, 2029. See FY 2024 NDAA, Public Law, 118-31, section 
1807. 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 Belize 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.
    Belize consistently cooperates with accepting its nationals subject 
to a final order of removal. Furthermore, Belizean nationals are 
generally compliant with the terms and conditions of all visa 
categories. Nationals of Belize do not present significant visa 
overstay concerns and its overstay rates are generally consistent with 
other countries currently listed as eligible to participate in the H-2A 
and H-2B programs. In FY 2023, visa overstay rates for Belizean 
nationals were less than five percent across all visa categories. 
Adding Belize to these programs would contribute to DOS's goals of 
promoting economic development and improving bilateral commercial 
relationships with Belize. Additionally, while irregular migration of 
Belizean nationals to the United States remains low, inclusion of 
Belize in the H-2A and H-2B programs will provide an alternative, 
lawful, pathway to irregular migration for Belizean nationals seeking 
economic opportunities in the United States.
    DHS recognizes that Belize was previously removed from the H-2A and 
H-2B eligible countries list in 2018. At that time, DHS explained that 
Belize did not meet the standards for inclusion on the list due to its 
``Tier 3'' placement on the U.S. Department of State's 2017 Trafficking 
in Persons report.\4\ A ``Tier 3'' placement is given to a country that 
does not fully meet the Trafficking Victims Protection Act's (TVPA) 
minimum standards and is not making significant efforts to meet those 
standards.\5\ Belize has since been rated as a ``Tier 2'' placement, 
meaning that, while the country does not yet fully meet the TVPA's 
minimum standards, it is making significant efforts towards compliance 
with those standards.\6\ Accordingly, DHS does not have the same 
concerns regarding Belize's

[[Page 88802]]

inclusion on the list as previously, and DHS has determined that, based 
on a review of the relevant factors, adding Belize to both the H-2A and 
H-2B eligible countries lists serves the U.S. interest.
---------------------------------------------------------------------------

    \4\ 83 FR 2646, 2647 (Jan. 18, 2018).
    \5\ Id.
    \6\ U.S. Department of State Office to Monitor and Combat 
Trafficking in Persons, ``2024 Trafficking in Persons Report,'' June 
2024, https://www.state.gov/reports/2024-trafficking-in-persons-report.
---------------------------------------------------------------------------

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. Belize
8. Bolivia
9. Bosnia and Herzegovina
10. Brazil
11. Brunei
12. Bulgaria
13. Canada
14. Chile
15. Colombia
16. Costa Rica
17. Croatia
18. Republic of Cyprus
19. Czech Republic
20. Denmark
21. Dominican Republic
22. Ecuador
23. El Salvador
24. Estonia
25. The Kingdom of Eswatini
26. Fiji
27. Finland
28. France
29. Germany
30. Greece
31. Grenada
32. Guatemala
33. Haiti
34. Honduras
35. Hungary
36. Iceland
37. Ireland
38. Israel
39. Italy
40. Jamaica
41. Japan
42. Kiribati
43. Latvia
44. Liechtenstein
45. Lithuania
46. Luxembourg
47. Madagascar
48. Malta
49. Mauritius
50. Mexico
51. Monaco
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. Paraguay
63. Peru
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

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

[[Page 88803]]

86. Ukraine
87. United Kingdom
88. Uruguay
89. 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. 2024-25790 Filed 11-7-24; 8:45 am]
BILLING CODE 4410-10-P