H-2 Non-Immigrant Visa Changes

The Department of Homeland Security (DHS), in consultation with the Department of State (DOS), has made several changes to the H-2 program that occurred on November 9^th and November 17^th.

November 9^th Changes

A key change that occurred on Nov. 9, 2023, was the decision to add add Bolivia to the list of countries eligible to participate in the H-2A and H-2B programs. The announced of the lists of countries whose nationals are eligible to participate in the H-2A (Agricultural) and H-2B visa (non-agricultural) are published in a notice in the Federal Register.

DHS maintains its authority to amend the eligible countries lists at any time through publication of a Federal Register Notice, should DHS and DOS, in conjunction determine that a country fails to meet the requirements for continued designation. Factors that could result in the exclusion of a country or the removal of a country from the list include fraud, abuse, nonimmigrant visa overstay rates, and other forms of noncompliance with the terms and conditions of the H-2 visa programs by nationals of that country that are contrary to U.S. interest.

The H-2A and H-2B visa programs allow U.S. employers to bring foreign nationals to the United States to fill temporary agricultural and nonagricultural jobs, respectively. Typically, USCIS approves H-2A and H-2B petitions only for nationals of countries that the secretary of homeland security has designated as eligible to participate in the programs. However, USCIS may approve H-2A and H-2B petitions, including those that were pending as of the date of publication of the Federal Register Notice, for nationals of countries not on the lists on a case-by-case basis only if doing so is determined to be in the interest of the United States.

Effective Nov. 9, nationals of the following countries are eligible to receive H-2A and H-2B visas:

Exceptions

Countries that are eligible to participate in the H-2B program but are not eligible to participate in the H-2A program include Mongolia and the Philippines. Furthermore, Paraguay is eligible to participate in the H-2A program but is not eligible to participate in the H-2B program.

Application to current H-2 Holders

This notice does not affect the status of H-2 beneficiaries who currently are in the United States unless they apply to extend their stay in H-2 status on the basis of a petition filed on or after the date of publication of the Federal Register Notice. Similarly, this notice would not affect the eligibility of an H-2 beneficiary to apply for an H-2 visa and/or seek admission to the United States based on an H-2 petition approved prior to the date of publication of the Federal Register Notice. It does apply to nonimmigrants changing status in the United States to H-2A or H-2B. Each country’s designation is valid from Nov. 9, 2023, until Nov. 8, 2024.

November 17^th Changes

On Nov. 17, the Department of Homeland Security (DHS) and the Department of Labor (DOL) jointly published a temporary final rule increasing the numerical limit (or cap) on H-2B nonimmigrant visas by up to 64,716 additional visas for all of fiscal year (FY) 2024.

Who Can Petition for the Additional H-2B Visas

Only U.S. businesses that are suffering irreparable harm or will suffer impending irreparable harm (permanent and severe financial loss) if they cannot employ all the H-2B workers that they request on their Form I-129 petition may file H-2B petitions under this temporary increase. In addition, employers may only request workers who have been issued an H-2B visa or otherwise granted H-2B status in FY 2021, 2022, or 2023, unless they are petitioning for workers under the 20,000 country-specific allocation.

The joint temporary final rule provisions pertaining to the 64,716 supplemental visas do not apply to petitions that are not subject to the H-2B cap, including those petitions filed for an H-2B extension of stay request or on behalf of certain fish roe processors. Those petitions may continue to be filed under the normal rules of the H-2B program.

To assist U.S. businesses that need workers to begin work on different start dates, the supplemental visas will be distributed in several allocations, including two separate allocations for the second half of FY 2024.

Allocation of Supplemental H-2B Visas

Of the 64,716 additional visas, 44,716 are available only for returning workers (workers who received an H-2B visa or were otherwise granted H-2B status in one of the last three fiscal years). The remaining 20,000 visas are country specific and set aside for nationals of El Salvador, Guatemala, Honduras, Haiti, Colombia, Ecuador, and Costa Rica (country-specific allocation) who are exempt from the returning worker requirement. To qualify for the additional 64,716 visas, petitions must be received at the Texas Service Center by Sept. 16, 2024.

This alert is for informational purposes only. If you have any questions, please contact us via email at info@poonahimmigrationlaw.com for further information.