DHS Issues Final Rule Eliminating Nonimmigrant Visa Exemption

for Certain Caribbean Residents Coming to United States as H-2A

Agricultural Workers

The Department of Homeland Security (DHS) issued a final rule on

July 6, 2018, that eliminates the nonimmigrant visa exemption for

certain Caribbean residents seeking to come to the United States as

H–2A agricultural workers and the spouses or children who

accompany or follow these workers to the United States. As a result

of the related interim final rule, these nonimmigrants must have

both a valid passport and visa. The Department of State (DOS)

revised its regulations in a parallel interim final rule and is

issuing a parallel final rule. Both the DHS and DOS final rules

take effect August 6, 2018.

DHS noted that one commenter on the interim final rule stated

that eliminating this longstanding exemption creates new costs and

inconveniences for individuals from these areas, which could

dramatically decrease or essentially prevent these workers from

coming to the United States. The commenter stated that the cost of

securing a visa would be more than the average Jamaican worker

could likely afford. DHS responded that while the visa exemption

for agricultural workers from the specified Caribbean countries

dates back more than 70 years, it was created primarily to address

U.S. labor shortages during World War II by expeditiously providing

a source of agricultural workers from the British Caribbean to meet

the needs of agricultural employers in the southeastern United

States. This basis for the exemption no longer exists, DHS said,

and continuing to provide an exemption for these individuals would

be incongruent with the visa requirements for H-2A workers from

other countries. While removing this exemption may make the process

more difficult for individuals from these specified areas, it

“creates an equitable standard for everyone who would like to

enter the United States as an H-2A agricultural worker or as the

spouse or child accompanying or following such an individual,”

DHS said. The agency added that it also “better ensures that

individuals from the specified Caribbean areas seeking admission as

H–2A nonimmigrants, and their spouses and children, are in

fact eligible for admission under the desired classification and

permits greater screening for potential fraudulent

employment.” Furthermore, the agency said that by eliminating

this exemption, the U.S. government is “better situated to

ensure that workers are protected from illegal employment and

recruitment- based abuses,” including the imposition of

prohibited fees.

DHS also stated that the exemption “posed a security

risk” because exempt workers did not undergo the same visa

issuance process as H-2A applicants from other countries, including

undergoing a face-to-face consular interview and associated

fingerprint and security checks.

The DHS final rule is at https://www.gpo.gov/fdsys/pkg/FR-2018-07-06/pdf/2018-14534.pdf.

The parallel DOS final rule is at https://www.gpo.gov/fdsys/pkg/FR-2018-07-06/pdf/2018-14513.pdf.

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