DHS Lists 68 Countries Whose Nationals Can Participate in H-2A, H-2B Programs

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By Laura D. Francis

Dec. 15 — The Department of Homeland Security has designated 68 countries whose nationals can participate in the H-2A and H-2B visa programs next year, according to a notice scheduled for publication in the Dec. 16 Federal Register.

Effective Jan. 18, 2015, the new list adds five countries to those eligible to participate—the Czech Republic, Denmark, Madagascar, Portugal and Sweden.

According to the DHS, regulations published in December 2008 require the agency to issue an annual list of countries whose nationals may participate in the H-2A agricultural guestworker program and the H-2B low-skilled, nonagricultural guestworker program. Since then—when 28 countries initially were designated for participation—the DHS has continued to add countries to the list, although it removed Indonesia in 2011.

The DHS said the agency, in consultation with the State Department, considers the following factors in determining which countries to include: the country's cooperation with respect to issuing travel documents for citizens, subjects, nationals and residents of that country who are subject to a final order of removal; the number of final and unexecuted orders of removal against citizens, subjects, nationals and residents of that country; the number of orders of removal executed against citizens, subjects, nationals and residents of the country; and other factors that may serve the U.S. interest.

Factors serving the U.S. interest that could result in the decision not to include a country or to remove it from the list include fraud, abuse and noncompliance with H-2A and H-2B terms and conditions by nationals of that country.

Past Usage Considered

In deciding to add the five most recent countries to the approved list, the DHS also considered evidence of past usage of the H-2A and H-2B programs by those countries' nationals, as well as evidence of the economic impact on particular U.S. industries or regions resulting from the inclusion or exclusion of specific countries.

The DHS said it also has determined that the 63 countries previously on the approved list continue to meet the standards, so their nationals continue to be eligible for the H-2A and H-2B programs.

U.S. Citizenship and Immigration Services may allow a national from a country not on the list to participate in the H-2A or H-2B program if such participation would be in the U.S. interest, the DHS said.

The notice doesn't affect the status of guestworkers currently on H-2A or H-2B visas. However, such individuals will be affected if they seek an extension of their visas or a change from one H-2 status to another. Similarly, the DHS said, individuals not holding H-2A or H-2B status aren't affected unless they seek to change to that status.

Text of the notice is available at http://op.bna.com/dlrcases.nsf/r?Open=lfrs-9rtqyz.