The Department of Homeland Security, in coordination with the Secretary of State, has announced the countries that will qualify for the H-2A and H-2B visa programs in the coming year. The nationals of these countries will qualify for these visa programs, and the official notice will be placed in the federal register on November 10th, 2021.

To create this list, the Secretary of Homeland Security works in conjunction with the Secretary of State to designate countries that meet certain requirements. Generally, this includes the foreign state’s cooperation with the U.S. government’s visa programs, assistance with preventing fraud and addressing overstays, as well as what is in the U.S. interest. In general, if visa holders from a given country reach a higher than one in ten rate of overstays, the country’s status on the H-2A and H-2B visa lists may be reconsidered.

For those who are unaware of the difference between these visas, the H-2A and H-2B visas are work visas that permit employers to bring foreign national workers into the U.S. for agricultural jobs (H-2A) and non-agricultural jobs (H-2B), respectively. Generally, employers may only receive approval for workers hailing from countries on this list; however, in some instances, the United States Citizenship and Immigration Services agency (USCIS) will permit others. This includes those whose cases were pending on the date of the Federal Register Notice removing a given country. However, these determinations are made on a case-by-case basis and are only approved if the agency determines that doing so would be in the best interest of the United States.

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 non-agricultural 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.

In the coming year, the Secretary of Homeland Security has made the following changes:

• The countries of Bosnia and Herzegovina, Haiti, Mauritius, Saint Lucia, and the Republic of Cyprus have been added as eligible for the H-2A and H-2B visa programs. The Dominican Republic has been added as eligible for the H-2A program but not for the H-2B.
• Moldova has been removed from the list of eligible countries for the H-2A visa program due to no longer meeting the regulatory requirements for the program. As a result, the eligibility for nationals from the country for these visas will close on January 18th, 2022.

These are the changes for the coming year, but it is important to keep in mind that additions to the eligible countries on the list can be made at any time. Also, when hiring foreign nationals, in addition to receiving visa approval, employers will be required to complete a Form I-9 for every new hire. This can be more complex when dealing with employing foreign nationals, and it is a good idea to use an electronic I-9 management tool to assist in properly completing and storing this paperwork for likely future inspection.