Introduction
On January 18, 2018, the Department of Homeland Security (DHS) publishefhe list of countries eligible to participate in the H2A and H2B nonimmigrant visa programs for 2018 in the Federal Register (FR) at 83 FR 2646 (Jan. 18, 2018) [PDF version]. Although the list is largely similar to the 2017 [see article] and 2016 [see article] lists, there are some minor changes for 2018.
Three Countries No Longer Eligible to Participate in H2A and H2B Visa Programs
First, three countries that were eligible to participate in the H2A and H2B visa programs in 2017 are no longer eligible. Secretary of Homeland Security Kirstjen Nielsen and Secretary of State Rex Tillerson determined that Belize, Haiti, and Samoa will no longer be eligible to participate in the H2A and H2B programs. Each of these countries was determined to be ineligible to participate in the H2A and H2B nonimmigrant visa programs based on the applicable regulations. We will summarize the reasons for each country below:
Belize — Belize is listed on the U.S. Department of State’s (DOS’s) 2017 Trafficking in Persons Report as a “Tier 3” country.
Haiti — Haitian nationals applying for H2A and H2B visas had high rates of refusal. Furthermore, Haitians “demonstrated high levels of fraud and abuse and a high rate of overstaying the terms of their [H2] admission.”
Samoa — Samoa is listed by the U.S. Immigration and Customs Enforcement (ICE) as being “At Risk of Non-Compliance” in accepting the return of its nationals subject to final orders of removal from the United States
The Federal Register notice makes clear that these changes do “not affect the status of the aliens who currently hold valid [H2A] or [H2B] nonimmigrant status.” However, individuals currently in H2A or H2B status will be affected by the notice if they seek an extension of stay in H2A or H2B nonimmigrant classification or a change of status from H2A or H2B status to a different nonimmigrant status. H2A and H2B beneficiaries from Belize, Haiti, and Samoa should consult with an experienced immigration attorney for case-specific guidance if they have any specific questions about how the Federal Register notice affects their overall immigration situation.
One New Country Added to H2A and H2B Visa Programs
Mongolia was added to the list of countries eligible to participate in the H2A and H2B nonimmigrant visa programs. The Federal Register notice explains that Mongolia had been listed as “At Risk of Non-Compliance” in accepting the return of its nationals by the ICE. However, ICE no longer lists Mongolia as such because it has demonstrated increased cooperation with the United States in accepting the return of its nationals with final orders of removal.
List of Countries Eligible to Participate in the H2A and H2B Nonimmigrant Visa Programs
The Federal Register notice included a list of countries eligible to participate in the H2A and H2B nonimmigrant visa programs in 2018. Below, we will reproduce the list as a chart, courtesy of the United States Citizenship and Immigration Services (USCIS) website [PDF version]:
| Andorra | Ethiopia | Luxembourg | San Marino |
| Argentina | Fiji | Macedonia | Serbia |
| Australia | Finland | Madagascar | Singapore |
| Austria | France | Malta | Slovakia |
| Barbados | Germany | Moldova** | Slovenia |
| Belgium | Greece | Mexico | Solomon Islands |
| Brazil | Grenada | Monaco | South Africa |
| Brunei | Guatemala | Mongolia | South Korea |
| Bulgaria | Honduras | Montenegro | Spain |
| Canada | Hungary | Nauru | St. Vincent and the Grenadines |
| Chile | Iceland | The Netherlands | Sweden |
| Colombia | Ireland | Nicaragua | Switzerland |
| Costa Rica | Israel | New Zealand | Taiwan* |
| Croatia | Italy | Norway | Thailand |
| Czech Republic | Jamaica | Panama | Timor-Leste |
| Denmark | Japan | Papua New Guinea | Tonga |
| Dominican Republic | Kiribati | Peru | Turkey |
| Ecuador | Latvia | The Philippines | Tuvalu |
| El Salvador | Lichtenstein | Poland | Ukraine |
| Estonia | Lithuania | Portugal | United Kingdom |
| Romania | Uruguay | ||
| Vanuatu |
*Moldova is designated to participate in the H-2A program, but it is not eligible to participate in the H-2B program.
**With respect to all references to “country” or “countries” in this document, it should be noted that the Taiwan Relations Act of 1979, Pub. L. No. 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 C.F.R. § 214.2(h)(5)(i)(F)(1)(i) and 8 C.F.R. § 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.
As the USCIS footnote explains, Moldova is only designated to participate in the H2A program. This means that nationals of Moldova are not eligible for H2B visas. We explained why Moldova is only designated for participation in the H2A visa program in our article on the 2016 list [see article]. Every other country on the list is designated for participation in both the H2A and H2B visa programs.
Special Exemption
In general, only nationals of H2A and H2B designated countries are eligible to have H2A or H2B petitions approved on their behalf. However, the DHS may approve an H2A or H2B petition filed on behalf of a national of a non-participating country if it determines that the approval of such a petition would be in the U.S. interest. The regulations providing for this special exemption are found in 8 C.F.R. 214.2(h)(5)(i)(F)(1)(D)(ii) and 8 C.F.R. 214.2(h)(6)(i)(E)(2). An employer or potential beneficiary with questions about this provision should first consult with an experienced immigration attorney for a case-specific consultation.
Conclusion
The list of countries designated for participation in the H2A and H2B visa programs is updated annually every January 18. The DHS reserves the right to change the terms of participation of any country in the interim in its discretion. Individuals with questions about the H2A and H2B nonimmigrant visa programs should consult with an experienced immigration attorney for case-specific guidance.
For those who are interested, please see our archived articles on the 2016 and 2017 lists:
2016 list [see article]
2017 list [see article]
To learn more about work visas in general, please see the full category on our website [see category].
