What is the H-2A and H-2B Visa Program?
The H-2A Visa Program permits U.S. employers to employ foreign nationals in temporary agricultural employment. Under the H-2B visa status, however, a U.S. employer may offer employment to a foreign national for non-agricultural temporary work. The U.S. Citizenship and Immigration Service (USCIS) with few exceptions approves applications submitted under the H-2A and H-2B visa categories only when the countries for which prospective employees are sought, have been authorized to work in the U.S. by the Department of Homeland Security.
Under an H-2A visa, farm workers engaging in seasonal work in the agricultural field may be offered employment by a U.S. employer. The H-2B Program as previously noted is not limited to agricultural work, although it must still be temporary in nature. Entertainers, minor league athletes and film workers are among the pool of applicants that may be approved to work in the U.S. under the H-2B visa.
In 2009, temporary admission into the U.S. offered to non-immigrant persons under the H-2A status extended to 149,763 workers. Under the H-2B status, 56,381 non-immigrant persons were permitted to work in the U.S.
The Federal Register published the list of 53 new countries approved by the Department of Homeland Security to participate in the H-2A and H-2B Visa Programs January 18, 2011. This authorization expires January 18, 2012. The new list offered by the Federal Register does not have any bearing on employees who are currently legally employed under the H-2A and H-2B status. The Department of Homeland Security may within its own discretion grant an H-2A or H-2B visa to a foreign national from a country that is not listed on the generally approved list, if it has been determined that the U.S. will benefit from the services offered by the applicant. This decision is not appealable and is only subject to review by the Department of Homeland Security.
The 53 New Countries Approved by the Department of Homeland Security
As of January 18, 2011, the Department of Homeland Security has authorized the following countries to participate in the H-2A and H-2B Visa Program: Argentina, Australia, Barbados, Belize, Brazil, Bulgaria, Canada, Chile, Costa Rica, Croatia, Dominican Republic, Ecuador, El Salvador, Estonia, Ethiopia, Fiji, Guatemala, Honduras, Hungary, Ireland, Israel, Jamaica, Japan, Kiribati, Latvia, Lithuania, Macedonia, Mexico, Moldova, Nauru, The Netherlands, Nicaragua, New Zealand, Norway, Papua New Guinea, Peru, Philippines, Poland, Romania, Samoa, Serbia, Slovakia, Slovenia, Solomon Islands, South Africa, South Korea, Tonga, Turkey, Tuvalu, Ukraine, United Kingdom, Uruguay, and Vanuatu.
For the first time, this year the following countries were approved: Barbados, Estonia, Fiji, Hungary, Kiribati, Latvia, Macedonia, Nauru, Papua New Guinea, Samoa, Slovenia, Solomon Islands, Tonga, Tuvalu, and Vanuatu. Program eligibility, however, has not been extended to Indonesia for 2011, because based on a variety of factors used to determine whether the H-2A and H-2B visa status should be offered, the Department of Homeland Security found that the renewal of approval need not be provided to Indonesia for this year.
Factors Used to Determine H-2A and H-2B Visa Program Eligibility
The Secretary of Homeland Security in conjunction with the Secretary of State takes the following four factors into account when determining which countries will be authorized to work under the H-2A and H-2B visa categories (please bear in mind that this list is not exhaustive):
- Cooperation regarding the issuance of documentation required for travel with citizens, subjects, nationals and residents of the country to whom a final order of removal may be issued;
- The amount of final orders of removal that are unexecuted against citizens, subjects, nationals and residents of the applicable country;
- The amount of executed orders of removal against citizens, subjects, nationals and residents of the applicable country; and
The U.S. interest, which may implicate a host of additional factors not listed herein.
Law Offices of Ron Katiraei