Sec. 1009. Program eligibility
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A petition filed by an employer under subsection (c)(1) initially to grant an alien nonimmigrant status under section 101(a)(15)(H)(ii)(b) of the Immigration and Nationality Act ( 8 U.S.C. 1101(a)(15)(H)(ii)(b) ), or to extend or change to such status, may be approved only for nationals of countries that the Secretary of Homeland Security has designated as participating countries, with the concurrence of the Secretary of State, in a notice published in the Federal Register, taking into account for each such country factors, including— the fraud rate relating to petitions under section 101(a)(15)(H)(ii) of such Act ( 8 U.S.C. 1101(a)(15)(H)(ii) ) filed for by nationals of the country and visa applications under such section filed by nationals of the country; the denial rate of visa applications under such section 101(a)(15)(H)(ii) filed by nationals of the country; the overstay rate of nationals of the country who were admitted to the United States under such section 101(a)(15)(H)(ii); the number of nationals of the country who were admitted to the United States under such section 101(a)(15)(H)(ii) and who were reported by their employers to— have failed to report to work within 5 workdays of the employment start date on the petition or within 5 workdays of the date on which the worker is admitted into the United States pursuant to the petition, whichever is later; or have not reported for work for a period of 5 consecutive workdays without the consent of the employer; the number of final and unexecuted orders of removal against citizens, subjects, nationals, and residents of the country; and such other factors as may serve the United States interest.
A country may not be included on the list described in subsection
(a)if the country denies or unreasonably delays the repatriation of aliens who are subject to a final order of removal and who are citizens, subjects, nationals or residents of that country. The Secretary of Homeland Security shall include in the notice described in subsection (a), for each country included in the list of participating countries, the statistics referenced in paragraphs
(1)through
(5)of that subsection, if available, for the immediately preceding fiscal year. A national from a country not on the list described in subsection
(a)may be a beneficiary of an approved petition under such section 101(a)(15)(H)(ii) upon the request of a petitioner or potential petitioner, if the Secretary of Homeland Security, in his sole and unreviewable discretion, determines that it is in the United States interest for that alien to be a beneficiary of such petition. Determination of such a United States interest will take into account factors, including but not limited to— evidence from the petitioner demonstrating that a worker with the required skills is not available from among foreign workers from a country currently on the list described in subsection (a); evidence that the beneficiary has been admitted to the United States previously in status under such section 101(a)(15)(H)(ii); the potential for abuse, fraud, or other harm to the integrity of the visa program under such section 101(a)(15)(H)(ii) through the potential admission of a beneficiary from a country not currently on the list; and such other factors as may serve the United States interest. Once published, any designation of participating countries pursuant to subsection
(a)shall be effective for one year after the date of publication in the Federal Register and shall be without effect at the end of that one-year period.
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Sec. 1009
Program eligibility
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