U.S. Alert – Final Rule Eliminating Nonimmigrant Visa Exemption

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.