DHS Announces Countries Eligible for H-2A and H-2B Visa Programs

The Department of Homeland Security (DHS), in consultation with the Department of State (DOS), have announced the list of countries whose nationals are eligible to participate in the H-2A and H-2B visa programs in 2021. The notice listing the eligible countries will be published in the Federal Register on Jan. 13, 2021.

For 2021, the acting secretary of homeland security and the secretary of state have agreed to:

• Add the Philippines to the list of countries eligible to participate in the H-2B program;
• No longer designate the Independent State of Samoa and Tonga as eligible countries because they no longer meet the regulatory standards for the H-2A and H-2B visa programs; and
• No longer designate Mongolia as an eligible country for the H-2A visa program because it no longer meets the regulatory standards for that program.

DHS maintains its authority to add countries to the eligible countries list at any time, and to remove any country at the time it publishes a new list, 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, denial rates, overstay rates, human trafficking concerns, 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 the Federal Register notice, for nationals of countries not on the list on a case-by-case basis only if doing so is determined to be in the interest of the United States based on submitted evidence.

Effective Jan. 19, nationals of the following countries are eligible to participate in the H-2A and H-2B programs:

*The Dominican Republic, Moldova, and Paraguay are eligible to participate in the H-2A program but they are not eligible to participate in the H-2B program.

**Mongolia and the Philippines are eligible to participate in the H-2B program but are not eligible to participate in the H-2A 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, subject to removal for failure to meet the requirements for continued designation, from Jan. 19, 2021, until Jan. 18, 2022.

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