U.S. Alert – Final Rule Eliminating Nonimmigrant Visa Exemption (Video)
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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.