On November 09, 2022, the Department of Homeland Security (DHS), in consultation with the Department of State (DOS), has announced the lists of countries whose nationals are eligible to participate in the H-2A and H-2B visa programs in the next year. The notice listing the eligible countries will be published in the Federal Register on November 10, 2022.

Effective November 10, 2022, the secretary of homeland security, with the concurrence of the secretary of state, has decided to:

• Add the Kingdom of Eswatini (Eswatini) to the list of countries eligible to participate in the H-2A and H-2B programs.

DHS maintains its authority to amend the eligible countries lists at any time through the publication of a Federal Register Notice, should DHS and DOS determine that a country fails to meet the requirements for continued designation. Examples of 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 November 10, 2022, nationals of the following countries are eligible to receive H-2A and H-2B visas:

*Mongolia and the Philippines are eligible to participate in the H-2B program but are not eligible to participate in the H-2A program.

**Paraguay is eligible to participate in the H-2A program but is not eligible to participate in the H-2B program.

***Regarding 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 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.

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 November 10, 2022, until November 9, 2023.

For more information on these programs, see the H-2A Temporary Agricultural Workers and H-2B Temporary Non-Agricultural Workers pages on our website.

We regularly update our blog section to acquaint the community with to latest changes in Immigration policies. Please note the information in this blog is for informational purposes only and is not intended to be nor should it be construed as legal advice. We can promptly and efficiently represent clients located anywhere in the US or abroad on US Immigration Policies. If you seek further clarification, don't hesitate to contact SanSha Law Office at [email protected] or call us at 469-777-6161.