USA IMMIGRATION NEWS

USCIS Clarifies requirements for beneficiaries from non H-2A or H-2B Eligible Countries List

Friday, 26 June 2009

USCIS recently released a memo providing further clarification as to the adjudicator's responsibility in determining whether a national from a country not eligible to participate in the H-2A or H-2B programs be accorded H-2A or H-2B status. The memo detailed four key factors in assessing the discretionary determination as to whether to grant H-2A or H-2B status to such individuals.

An H-2A visa allows a foreign national entry into the U.S. for temporary or seasonal agricultural work. Whereas the H-2B visa is available to employers of foreign workers not working in the agricultural field but also applies to work that is temporary in nature.

The H-2A and H-2B regulations limit the eligibility for H-2A and H-2B classification to beneficiaries who are from certain countries listed as eligible for H-2A and H-2B classification.

Nationals from the following countries are eligible to participate in the H-2A and H-2B visa programs: Argentina, Australia, Belize, Brazil, Bulgaria, Canada, Chile, Costa Rica, Dominican Republic, El Salvador, Guatemala, Honduras, Indonesia, Israel, Jamaica, Japan, Mexico, Moldova, New Zealand, Peru, Philippines, Poland, Romania, South Africa, South Korea, Turkey, Ukraine, and the United Kingdom. The list of eligible countries is updated by DHS regularly.

However, there is an exception to the requirement that the beneficiary of an approved H-2A or H-2B petition be a national of one of the countries listed above for individuals from non-eligible countries, upon a determination by the Secretary of Homeland Security, that it is in the interest of the U.S.

The memo details four factors that are to be given weight when determining whether the evidence submitted by a petitioner on behalf of beneficiaries from countries not listed as eligible for H-2A or H-2B classification, satisfy the "U.S. interest" requirement.

1. Evidence that the beneficiary was previously admitted to the United States in H-2A or H-2B status and complied with the terms of his/her status,
2. Evidence that a worker with the required skills is not available from a country on the list of eligible countries,
Potential for abuse, fraud, or other harm to the integrity of the H-2A or H-2B program through the potential admission of these worker(s) that a petitioner plans to hire, and
3. Other factors that would serve the U.S. interest, if any.

Each request for a U.S. interest exception is assessed on a case-by-case basis and contemplates the totality of circumstances, rather than merely failure to satisfy all four of the factors listed above.

For additional information regarding the above or for assistance with your US visa application please visit migrationexpert.com.