USCIS Discusses U.S. Interest-Related Discretionary Grants of H-2A, H-2B Status

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U.S. Citizenship and Immigration Services (USCIS) issued a memorandum elaborating on the adjudicator’s responsibility to consider thoroughly the evidence submitted in support of a request that 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 notes some of the factors to be taken into consideration when making the discretionary decision whether to grant H-2A or H-2B status to such persons.

The memo (PDF) notes that nationals from the following countries are eligible to participate in the H-2A and H-2B visa programs (same countries for both 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 will be updated regularly, the agency said. Organizations or individuals, including members of Congress, interested in having a country added to the H-2A list should send a letter to the DHS Office of Policy (addressed to the Assistant Secretary for Policy) requesting such addition.

Limited exceptions to the country requirements can be made when they are determined to be in the U.S. interest. Based on regulatory requirements, USCIS said it takes into consideration the following factors when determining whether the U.S. interest requirement has been met:

1. 1. Evidence that the beneficiary has been admitted to the U.S. previously in H-2A or H-2B status and complied with the terms of his or her status;
2. 2. Evidence that a worker with the required skills is not available from a country on the list of eligible countries;
3. 3. Low 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
4. 4. Other factors that would serve the U.S. interest, if any.

Each request for a U.S. interest exception is considered on a case-by-case basis. Although USCIS will consider any evidence submitted to address each factor, the agency said it has determined that it is not necessary for a petitioner to satisfy every factor. Instead, a determination will be made based on the totality of circumstances.