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  • News: CBP, DHS Interim Final Rule on Elimination of Nonimmigrant Visa Exemption for Certain Caribbean Residents Coming to the United States as H-2A Agricultural Workers

    [Federal Register Volume 81, Number 25 (Monday, February 8, 2016)]
    [Rules and Regulations]
    [Pages 6430-6433]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 2016-02488]
    
    
    =======================================================================
    -----------------------------------------------------------------------
    
    DEPARTMENT OF HOMELAND SECURITY
    
    8 CFR Part 212
    
    [USCBP-2016-0003; CBP Dec. 16-03]
    RIN 1651-AB09
    
    
    Elimination of Nonimmigrant Visa Exemption for Certain Caribbean 
    Residents Coming to the United States as H-2A Agricultural Workers
    
    AGENCY: U.S. Customs and Border Protection, DHS.
    
    ACTION: Interim final rule; solicitation of comments.
    
    -----------------------------------------------------------------------
    
    SUMMARY: This interim final rule revises Department of Homeland 
    Security regulations to eliminate 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, these 
    nonimmigrants will be required to have both a valid passport and visa. 
    The Department of State is revising its parallel regulations.
    
    DATES: Effective Date: The effective date of the rule is February 19, 
    2016.
        Comment Date: Comments must be received by April 8, 2016.
    
    ADDRESSES:  Please submit comments, identified by docket number, by one 
    of the following methods:
    
    [[Page 6431]]
    
         Federal eRulemaking Portal: http://www.regulations.gov. 
    Follow the instructions for submitting comments via docket number 
    USCBP-2016-0003.
         Mail: Border Security Regulations Branch, Office of 
    International Trade, U.S. Customs and Border Protection, 90 K Street 
    NE., 10th Floor, Washington, DC 20229-1177.
        Instructions: All submissions received must include the agency name 
    and docket number for this rulemaking. All comments received will be 
    posted without change to http://www.regulations.gov, including any 
    personal information provided.
        Docket: For access to the docket to read background documents or 
    comments received, go to http://www.regulations.gov. Comments submitted 
    will be available for public inspection in accordance with the Freedom 
    of Information Act (5 U.S.C. 552) and 19 CFR 103.11(b) on normal 
    business days between the hours of 9 a.m. and 4:30 p.m. at the Border 
    Security Regulations Branch, Office of International Trade, U.S. 
    Customs and Border Protection, 90 K Street NE., 10th Floor, Washington, 
    DC. Arrangements to inspect submitted comments should be made in 
    advance by calling Mr. Joseph Clark at (202) 325-0118.
    
    FOR FURTHER INFORMATION CONTACT: Rafael Henry, U.S. Customs and Border 
    Protection, Office of Field Operations, (202) 344-3251, or via email at 
    rafael.e.henry@cbp.dhs.gov.
    
    SUPPLEMENTARY INFORMATION: 
    
    I. Public Comments
    
        Interested persons are invited to submit written comments on all 
    aspects of this interim final rule. U.S. Customs and Border Protection 
    (CBP) also invites comments on the economic, environmental, or 
    federalism effects of this rule. We urge commenters to reference a 
    specific portion of the rule, explain the reason for any recommended 
    change, and include data, information, or authorities that support such 
    recommended change.
    
    II. Background
    
        In general, nonimmigrant aliens are required to present an 
    unexpired passport and a valid unexpired visa in order to be admitted 
    to the United States. See section 212(a)(7)(B)(i) of the Immigration 
    and Nationality Act, as amended (INA) (8 U.S.C. 1182(a)(7)(B)(i)). 
    However, either or both of these requirements may be waived by the 
    Secretary of Homeland Security \1\ and the Secretary of State, acting 
    jointly, in specified situations, as provided in section 212(d)(4) of 
    the INA (8 U.S.C. 1182(d)(4)). The Department of Homeland Security 
    (DHS) regulations list those classes of persons that are not required 
    to present a visa (or a passport, in some cases). See 8 CFR 212.1.
    ---------------------------------------------------------------------------
    
        \1\ Pursuant to sections 102(a), 441, 1512(d) and 1517 of the 
    Homeland Security Act of 2002, Public Law 107-296, 116 Stat. 2135, 6 
    U.S.C. 112(a), 251, 552(d), 557, and 8 CFR 2.1, the authorities of 
    the Attorney General, as described in section 212 of the INA (8 
    U.S.C. 1182), were transferred to the Secretary of Homeland 
    Security, and the reference to the Attorney General in the statute 
    is deemed to refer to the Secretary.
    ---------------------------------------------------------------------------
    
        The H-2A nonimmigrant classification applies to an alien seeking to 
    enter the United States to perform agricultural labor or services of a 
    temporary or seasonal nature in the United States. Generally, H-2A 
    agricultural workers are required to possess and present both a 
    passport and a valid unexpired H-2A visa when entering the United 
    States. Certain residents of the Caribbean, however, are exempted by 
    regulation from having to possess and present a valid unexpired H-2A 
    visa, and only must possess and present a valid unexpired passport to 
    be admitted to the United States as a temporary agricultural worker.
        Specifically, a visa is currently not required for H-2A 
    agricultural workers who are British, French, or Netherlands nationals, 
    or nationals of Barbados, Grenada, Jamaica, or Trinidad and Tobago, who 
    have their residence in British, French, or Netherlands territory 
    located in the adjacent islands of the Caribbean area, or in Barbados, 
    Grenada, Jamaica, or Trinidad and Tobago. 8 CFR 212.1(b)(1)(i). 
    Additionally, a visa is currently not required for the spouse or child 
    accompanying or following to join such an H-2A agricultural worker. 8 
    CFR 212.1(b)(1)(iii). The current regulation also provides that a visa 
    is not required for the beneficiary of a valid, unexpired indefinite 
    certification granted by the Department of Labor (DOL) for employment 
    in the U.S. Virgin Islands, if the beneficiary is proceeding to those 
    islands for such purpose and is a British, French, or Netherlands 
    national, or national of Barbados, Grenada, Jamaica, or Trinidad and 
    Tobago, who has his or her residence in British, French, or Netherlands 
    territory located in the adjacent islands of the Caribbean area, or in 
    Barbados, Grenada, Jamaica, or Trinidad and Tobago. The regulation also 
    provides that a visa is not required for the spouse or child 
    accompanying or following to join such a beneficiary. 8 CFR 
    212.1(b)(1)(ii)-(iii). Department of State (State) regulations also 
    describe the visa exemption for these classes of Caribbean residents. 
    See 22 CFR 41.2(e). However, as discussed below, the justification for 
    providing this visa exemption for such beneficiaries and their spouses 
    and children is now obsolete; further, this visa exemption creates a 
    security loophole that could be exploited by persons who pose a danger 
    to the United States.
        The visa exemption for agricultural workers from the specified 
    Caribbean countries dates back more than 70 years and 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. Given the passage of time, this basis for 
    the exemption no longer justifies it.
        Since H-2A agricultural workers from the specified Caribbean 
    countries are exempt from the visa requirement, they do not undergo the 
    same visa issuance process as H-2A applicants from other countries. The 
    absence of a visa requirement for these H-2A workers means that these 
    individuals do not undergo a face-to-face consular interview, the 
    adjudication of the applicants eligibility and qualification for the 
    intended position, screening for potential fraudulent employment, and 
    the associated fingerprint and security checks prior to seeking 
    admission at a U.S. port of entry. Further, in the absence of the visa 
    requirement, there is significantly less advance opportunity for the 
    U.S. Government to determine whether other requirements for H-2A 
    classification, such as the bar to collection of prohibited fees from 
    prospective H-2 workers, have been satisfied.
        DHS, in conjunction with the Department of State (``State''), has 
    determined that the nonimmigrant visa exemption for these classes of 
    Caribbean residents, coming to the United States as H-2A agricultural 
    workers or as the spouses or children accompanying or following these 
    workers, is outdated and incongruent with the visa requirement for 
    other H-2A agricultural workers from other countries. DHS and State 
    believe that eliminating the visa exemption furthers the national 
    security interests of the United States.
        The application of the general visa requirement to the class of 
    Caribbean agricultural workers described above will ensure that these 
    applicants for admission, like other H-2A agricultural workers, are 
    sufficiently screened via State's visa issuance process prior to 
    arrival in the United States. In addition, the visa requirement will 
    ensure that these persons possess evidence of the intended purpose of 
    their stay in the
    
    [[Page 6432]]
    
    United States upon arrival at a U.S. port of entry. This will lessen 
    the possibility that persons who pose security risks to the United 
    States and other potential immigration violators may improperly gain 
    admission to the United States.
        Furthermore, extending the visa requirement to these Caribbean H-2A 
    agricultural workers will allow U.S. Government officials to interview 
    prospective H-2A workers and will help to better ensure that such 
    workers are protected from certain employment and recruitment-based 
    abuses, including, but not limited to, the imposition of fees 
    prohibited under 8 CFR 214.2(h)(5)(xi). In addition, the visa 
    requirement will help ensure that agricultural workers have been 
    informed, and are aware of, their rights and responsibilities before 
    departing from their home countries to engage in H-2A agricultural 
    work. See 8 U.S.C. 1375b.
        As a result of the termination of the relevant worker program in 
    the U.S. Virgin Islands, DOL no longer grants indefinite certifications 
    for employment in the U.S. Virgin Islands. See section 3 of the Virgin 
    Islands Nonimmigrant Alien Adjustment Act of 1982, Public Law 97-271, 
    96 Stat. 1157, as amended (8 U.S.C. 1255 note). Therefore, the visa 
    exemption for certain Caribbean residents for the beneficiary of a 
    valid, unexpired indefinite certification granted by DOL for employment 
    in the U.S. Virgin Islands, if the beneficiary was proceeding to those 
    islands for such purpose, or for the spouse or child accompanying or 
    following to join such a beneficiary, set forth in 8 CFR 
    212.1(b)(1)(ii)-(iii), is now obsolete.
        Accordingly, DHS, in conjunction with State, is eliminating the 
    visa exemption for these Caribbean H-2A agricultural workers and the 
    spouses or children accompanying or following these workers. 8 CFR 
    212.1(b)(1). This means that, in addition to a valid passport, these 
    nonimmigrant aliens are now required to obtain a nonimmigrant visa 
    prior to traveling to the United States. In order to obtain a visa, 
    these nonimmigrant aliens will have to submit a visa application to and 
    appear for an interview at the applicable U.S. embassy \2\ or 
    consulate, and undergo Department of State's visa screening process. 
    Additionally, DHS, in conjunction with State, is eliminating the 
    obsolete visa exemption for the beneficiaries of DOL indefinite 
    certifications for employment in the U.S. Virgin Islands and their 
    spouses and children. State is publishing a parallel amendment to 22 
    CFR 41.2(e) in the Federal Register.
    ---------------------------------------------------------------------------
    
        \2\ See http://www.usembassy.gov/.
    ---------------------------------------------------------------------------
    
        As a result of the elimination of 8 CFR 212.1(b)(1), current 8 CFR 
    212.1(b)(2) is being redesignated as 8 CFR 212.1(b). DHS is also making 
    a technical correction updating the language in current 8 CFR 
    212.1(b)(2)(ii)(C) referring to ``a current Certificate of Good Conduct 
    issued by the Royal Virgin Islands Police Department'' to refer to ``a 
    current certificate issued by the Royal Virgin Islands Police Force'' 
    in new 8 CFR 212.1(b)(2)(iii).
    
    III. Statutory and Regulatory Requirements
    
    A. Administrative Procedure Act
    
        The implementation of this rule as an interim final rule, with 
    provisions for post-promulgation public comments, is based on the good 
    cause exception found in section 553 of the Administrative Procedure 
    Act (APA) (5 U.S.C. 553(b)(B)). There is reasonable concern that 
    publication of the rule as a proposed rule, which would permit 
    continuation of the current visa exemption, could lead to an increase 
    in applications for admissions in bad faith by persons who would 
    otherwise have been denied visas and are seeking to avoid the visa 
    requirement and consular screening process during the period between 
    the publication of a proposed and a final rule. Accordingly, DHS finds 
    that it is impracticable and contrary to the public interest to publish 
    this rule with prior notice and comment period. Under the good cause 
    exception, this rule is exempt from the notice and comment and delayed 
    effective date requirements of the APA.
        In addition, DHS is of the opinion that eliminating the visa 
    exemption and requiring a visa for Caribbean H-2A agricultural workers, 
    and the spouses or children accompanying or following these workers, is 
    a foreign affairs function of the U.S. Government under section 553(a) 
    of the APA (5 U.S.C. 553(a)). As this rule implements this function, 
    DHS is of the opinion that this rule is also exempt from the notice and 
    comment and 30-day delayed effective date requirements of the APA by 
    virtue of the foreign affairs exception in 5 U.S.C. 553(a)(1). DHS is 
    nevertheless providing the opportunity for the public to provide 
    comments.
    
    B. Executive Orders 13563 and 12866
    
        Executive Orders 13563 and 12866 direct agencies to assess the 
    costs and benefits of available regulatory alternatives and, if 
    regulation is necessary, to select regulatory approaches that maximize 
    net benefits (including potential economic, environmental, public 
    health and safety effects, distributive impacts, and equity). Executive 
    Order 13563 emphasizes the importance of quantifying both costs and 
    benefits, of reducing costs, of harmonizing rules, and of promoting 
    flexibility. DHS is of the opinion this rule is not subject to the 
    requirements of Executive Orders 13563 and 12866, due to the foreign 
    affairs exception described above. However, DHS has nevertheless 
    reviewed the interim final rule to ensure its consistency with the 
    regulatory philosophy and principles set forth in those Executive 
    Orders.
        Currently, British, French, and Netherlands nationals and nationals 
    of Barbados, Grenada, Jamaica, and Trinidad and Tobago, who have their 
    residence in British, French, or Netherlands territory located in the 
    adjacent islands of the Caribbean area or in Barbados, Grenada, 
    Jamaica, or Trinidad and Tobago, are not required to obtain a visa 
    before traveling to the United States as H-2A agricultural workers. 
    This rule would require these prospective H-2A agricultural workers to 
    obtain a visa prior to travel to the United States. Any spouses or 
    children of these workers will also now have to obtain a visa before 
    being brought to the United States. Since more than 99 percent of such 
    workers \3\ came from Jamaica, our analysis will focus on that country. 
    This rule will also eliminate the visa exemption for workers in the 
    U.S. Virgin Islands pursuant to an unexpired indefinite certification 
    granted by DOL. Because these certifications have been obsolete for 
    many years,\4\ eliminating them will have no effect on the economy; 
    hence, we will exclude this provision for the remainder of the 
    analysis.
    ---------------------------------------------------------------------------
    
        \3\ CBP's BorderStat Database (internal database), accessed 
    November 2, 2015.
        \4\ See section 3 of the Virgin Islands Nonimmigrant Alien 
    Adjustment Act of 1982, Pub. L. 97-271, 96 Stat. 1157, as amended (8 
    U.S.C. 1255 note).
    ---------------------------------------------------------------------------
    
        Data on the number of visa applications Jamaican travelers would 
    need to obtain as a result of this rule is not available. A USCIS 
    database tracks the number of petitions for H-2A workers from Jamaica, 
    but does not include the spouses or children who would now also need 
    visas to travel to the United States. A CBP database tracks the number 
    of Jamaican nationals arriving under the H-2A program, but counts 
    multiple arrivals by a single person as separate arrivals. For the 
    purposes of this analysis, we use the number of petitions as our 
    primary estimate of the number of visas that
    
    [[Page 6433]]
    
    would be needed under this rule. We use the number of total travelers 
    from Jamaica under the H-2A program to illustrate the upper bound of 
    costs that could result from this rule.
        Employers petitioned on behalf of an annual average of 165 workers 
    from Jamaica under this program from FY 2011-2013,\5\ and an annual 
    average of 4,010 Jamaicans arrived during that time period,\6\ which 
    includes arrivals by H-2A agricultural workers as well as their spouses 
    and children. This number also includes multiple arrivals in the same 
    year by the same individuals. Because the number of unique individuals 
    arriving from Jamaica under the H-2A program is not available, we 
    calculate costs based on a range of 165 (our primary estimate) to 4,010 
    prospective visa applicants. The current nonimmigrant visa application 
    processing fee, also called the Machine-Readable Visa (MRV) fee, is 
    $190. We assume this fee will be paid by the employer for the workers 
    and by the employees for their spouses and children. We estimate that 
    the imposition of the fee will cost workers or employers in aggregate 
    between $31,350 (our primary estimate) and $761,900 per year.
    ---------------------------------------------------------------------------
    
        \5\ Communication with USCIS on August 7, 2014.
        \6\ CBP's BorderStat Database (internal database), accessed 
    August 4, 2014.
    ---------------------------------------------------------------------------
    
        Under this rule, workers would have to apply for a visa using Form 
    DS-160 and undergo an interview at a U.S. embassy or consulate prior to 
    traveling to the United States. According to the Paperwork Reduction 
    Act estimate for Form DS-160, the Department of State estimates that 
    the visa application takes 1.25 hours to complete. The interview itself 
    typically lasts approximately 5-10 minutes; however, when accounting 
    for potential wait time, the interview process may take up to 2 hours. 
    Since the only U.S. embassy in Jamaica is in Kingston, visa applicants 
    may have to travel up to 3.5 hours each way to appear for an interview, 
    depending on their location. We therefore assume that filling out the 
    D-160, traveling to and from the embassy for the visa interview, and 
    the visa interview itself will require a total of 10.25 hours of the 
    applicant's time. To the extent the actual time burden to travel to and 
    from the interview is less than we estimated, costs would be lower. 
    Using the average Jamaican wage rate of $3.25/hour \7\ and a range of 
    165 to 4,010 workers per year, we estimate the cost of the time to 
    Jamaican nationals in aggregate as a result of this rule to be between 
    $5,497 (our primary estimate) and $133,583 per year. Combining this 
    with the cost of the visa application fee, we estimate that the total 
    annual cost of this rule is between $36,847 and $895,483.
    ---------------------------------------------------------------------------
    
        \7\ Derived from International Labor Association's LABORSTA 
    Internet Database. Available at http://laborsta.ilo.org/STP/guest. 
    Accessed August 5, 2014. Our weekly wage estimate (14,826 Jamaican 
    Dollars per week) is from the ``Wages, by economic activity'' report 
    for all sectors in 2008. Our weekly hours worked estimate (40.7 
    hours per week) is from the ``Hours of work, by economic activity'' 
    report for all sectors in 2008. We converted the wage rate to U.S. 
    dollars using the currency converter available at http://www.xe.com/currencyconverter on August 5, 2014. 14,826 Jamaican Dollars divided 
    by 40.7 hours per week, multiplied by 0.008913 Jamaican dollars per 
    U.S. dollar = $3.25 U.S. dollars per hour.
    ---------------------------------------------------------------------------
    
        We are unable to quantify the benefits of this rule; therefore we 
    discuss the benefits qualitatively. Requiring these prospective H-2A 
    agricultural workers to obtain visas will ensure that they are properly 
    screened prior to arrival in the United States. This will lessen the 
    possibility that a person who poses a security risk to the United 
    States and other potential immigration violators may improperly gain 
    admission to the United States. DHS has determined that visitors from 
    the countries affected by this rule are not a lower security risk than 
    those coming from other countries; therefore, CBP believes that they 
    should be subject to the same screening prior to arriving at their port 
    of entry. Also, prescreening and appearing before consular officers 
    will provide greater opportunities to ensure compliance with DHS and 
    DOL H-2A rules, including those regulatory provisions prohibiting 
    charging fees to workers in connection with or as a condition of their 
    employment or recruitment.
    
    C. Regulatory Flexibility Act
    
        The Regulatory Flexibility Act (5 U.S.C. 601 et seq.), as amended 
    by the Small Business Regulatory Enforcement and Fairness Act of 1996, 
    requires an agency to prepare a regulatory flexibility analysis that 
    describes the effect of a proposed rule on small entities when the 
    agency is required to publish a general notice of proposed rulemaking. 
    A small entity may be a small business (defined as any independently 
    owned and operated business not dominant in its field that qualifies as 
    a small business per the Small Business Act); a small not-for-profit 
    organization; or a small governmental jurisdiction (locality with fewer 
    than 50,000 people). Because this interim final rule is exempt from 
    notice and comment rulemaking under 5 U.S.C. 553, a regulatory 
    flexibility analysis is not required.
    
    List of Subjects in 8 CFR Part 212
    
        Administrative practice and procedure, Aliens, Immigration, 
    Passports and visas, Reporting and recordkeeping requirements.
    
    Amendments to Regulations
    
        Part 212 of title 8 of the Code of Federal Regulations is amended 
    as set forth below:
    
    PART 212--DOCUMENTARY REQUIREMENTS: NONIMMIGRANT; WAIVERS; 
    ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE
    
    0
    1. The general authority citation for part 212 and the sectional 
    authority citation for Sec.  212.1(q) continue to read as follows:
    
        Authority: 8 U.S.C. 1101 and note, 1102, 1103, 1182 and note, 
    1184, 1187, 1223, 1225, 1226, 1227, 1255, 1359; 8 U.S.C. 1185 note 
    (section 7209 of Public Law 108-458); 8 CFR part 2.
        Section 212.1(q) also issued under section 702, Public Law 110-
    229, 122 Stat. 754, 854.
    
    
    0
    2. In Sec.  212.1, revise paragraph (b) to read as follows:
    
    
    Sec.  212.1  Documentary requirements for nonimmigrants.
    
    * * * * *
        (b) Nationals of the British Virgin Islands. A visa is not required 
    of a national of the British Virgin Islands who has his or her 
    residence in the British Virgin Islands, if:
        (1) The alien is seeking admission solely to visit the Virgin 
    Islands of the United States; or
        (2) At the time of embarking on an aircraft at St. Thomas, U.S. 
    Virgin Islands, the alien meets each of the following requirements:
        (i) The alien is traveling to any other part of the United States 
    by aircraft as a nonimmigrant visitor for business or pleasure (as 
    described in section 101(a)(15)(B) of the Act);
        (ii) The alien satisfies the examining U.S. immigration officer at 
    the port-of-entry that he or she is clearly and beyond doubt entitled 
    to admission in all other respects; and
        (iii) The alien presents a current certificate issued by the Royal 
    Virgin Islands Police Force indicating that he or she has no criminal 
    record.
    * * * * *
    
        Date: January 19, 2016.
    Jeh Charles Johnson,
    Secretary of Homeland Security.
    [FR Doc. 2016-02488 Filed 2-4-16; 4:15 pm]
     BILLING CODE 9111-14-P
    
    
    
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