oversight

H-2A Visa Program: Modernization and Improved Guidance Could Reduce Employer Application Burden

Published by the Government Accountability Office on 2012-09-12.

Below is a raw (and likely hideous) rendition of the original report. (PDF)

                 United States Government Accountability Office

GAO              Report to the Chairman, Subcommittee
                 on Livestock, Dairy, Poultry, Marketing
                 and Agriculture Security, Committee on
                 Agriculture, Nutrition, and Forestry,
                 U.S. Senate
September 2012
                 H-2A VISA PROGRAM

                 Modernization and
                 Improved Guidance
                 Could Reduce
                 Employer Application
                 Burden




GAO-12-706
                                               September 2012

                                               H-2A VISA PROGRAM
                                               Modernization and Improved Guidance Could
                                               Reduce Employer Application Burden
Highlights of GAO-12-706, a report to the
Chairman, Subcommittee on Livestock, Dairy,
Poultry, Marketing and Agriculture Security,
Committee on Agriculture, Nutrition, and
Forestry, U.S. Senate


Why GAO Did This Study                         What GAO Found
The H-2A visa program allows U.S.              Over 90 percent of employer applications for H-2A workers were approved in
employers anticipating a shortage of           fiscal year (FY) 2011, but some employers experienced processing delays. For
domestic agricultural workers to hire          example, the Department of Labor (Labor) processed 63 percent of applications
foreign workers on a temporary basis.          in a timely manner in FY 2011, but 37 percent were processed after the deadline,
State workforce agencies and three             including 7 percent that were approved less than 15 days before workers were
federal agencies—the Departments of            needed. This left some employers little time for the second phase of the
Labor, Homeland Security, and State            application process, which is managed by the Department of Homeland Security
review applications for such workers.          (DHS), and for workers to obtain visas from the Department of State (State).
GAO was asked to examine (1) any
                                               Although workers can apply for visas online, most of the H-2A process involves
aspects of the application process that
                                               paper handling, which contributes to processing delays. In addition, employers
present challenges to agricultural
employers, and (2) how federal
                                               who need workers at different times of the season must repeat the entire process
agencies have addressed any                    for each group of workers. Although the agencies lack data on the reasons for
employer challenges with the                   processing delays, employers reported delays due to increased scrutiny by Labor
application process. GAO analyzed              and DHS when these agencies implemented new rules and procedures intended
Labor and DHS data; interviewed                to improve program integrity and protect workers. For example, in FY 2011,
agency officials and employer                  Labor notified 63 percent of employers that their applications required changes or
representatives; and conducted site            additional documentation to comply with its new rules, up sharply from previous
visits in New York, North Carolina, and        years.
Washington.
                                               Percentage of Employer Applications Requiring Changes or Additional Documentation (FY
What GAO Recommends                            2006-2011)

GAO recommends that (1) Labor and
DHS use their new electronic
application systems to collect data on
reasons applications are delayed and
use this information to improve the
timeliness of application processing;
(2) Labor allow employers to submit
one application for groups of similar
workers needed in a single season;
and (3) Labor review and revise, as
appropriate, its guidance to states
regarding methods for determining the
acceptability of employment practices
in employers’ applications. DHS and            Federal agencies are taking steps to improve the H-2A application process.
Labor agreed with the recommendation           Labor and DHS are developing new electronic application systems, but both
to collect additional data and Labor           agencies’ systems have been delayed. Labor also recently began using e-mail to
agreed with the recommendation to              resolve issues with employers, and all three agencies provided more information
update its guidance. Labor disagreed           to employers to clarify program requirements. Even with these efforts, some
with the recommendation it allow               employers view Labor’s decisions as inconsistent. For example, some employers
employers to apply once per season.            received different decisions about issues such as whether they can require
GAO believes the recommendation is
                                               workers to have experience in farm work and questioned the methods states
still valid and that a single application
                                               used to decide whether the job qualifications in their applications were
does not preclude timely testing of the
labor market as workers are needed.            acceptable. We found states used different methods to determine acceptable
                                               qualifications, which is allowed under Labor’s guidance.
View GAO-12-706. For more information,
contact Revae Moran at (202) 512-7215 or
moranr@gao.gov

                                                                                          United States Government Accountability Office
Contents


Letter                                                                                    1
               Background                                                                 3
               Employers Cited Challenges with the Largely Paper-Based Process,
                 Implementation of New Rules and Procedures, and Complexity             12
               Agencies Took Steps to Improve the Process, but Delays in
                 Modernization and Unclear Guidance Continue to Pose
                 Challenges                                                             27
               Conclusions                                                              33
               Recommendations for Executive Action                                     34
               Agency Comments and Our Evaluation                                       34

Appendix I     Comments from the Department of Labor                                    37



Appendix II    Comments from the Department of Homeland Security                        41



Appendix III   GAO Contact and Staff Acknowledgments                                    44



Tables
               Table 1: Key Department of Labor H-2A Program Requirements                 5
               Table 2: Status of Agency Plans to Deliver Online H-2A
                        Applications, Including Original and Current Planned
                        Implementation Dates                                            27
               Table 3: Examples of Labor’s Efforts to Provide Additional
                        Guidance to Employers on H-2A Program Requirements,
                        2010 to 2012                                                    29
               Table 4: Standards States Use to Determine Acceptable Terms and
                        Conditions in H-2A Job Orders                                   31



Figures
               Figure 1: Deadlines for Applying for Workers under the H-2A
                        Program                                                          8
               Figure 2: H-2A Application Processing Times, Fiscal Year 2011            14
               Figure 3: Percent of Worldwide H-2A Visa Applications Processed
                        by Posts in Mexico, Fiscal Year 2011                            16


               Page i                                    GAO-12-706 H-2A Application Process
Figure 4: The Paper-based H-2A Application Process                                        18
Figure 5: Percentage of Employer Applications Issued Deficiency
         Notices from Labor, Fiscal Year 2006-2011                                        22
Figure 6: Number of Employer Appeals of Labor’s Deficiency
         Notices/Denials, Fiscal Year 2006-2011                                           23
Figure 7: Percentage of Employer Applications Receiving Requests
         for Evidence from DHS, Fiscal Year 2006-2011                                     25




Abbreviations

DHS               Department of Homeland Security
INA               Immigration and Nationality Act
Labor             Department of Labor
State             Department of State




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Page ii                                              GAO-12-706 H-2A Application Process
United States Government Accountability Office
Washington, DC 20548




                                   September 12, 2012

                                   The Honorable Kirsten Gillibrand
                                   Chairman
                                   Subcommittee on Livestock, Dairy, Poultry, Marketing
                                     and Agriculture Security
                                   Committee on Agriculture, Nutrition, and Forestry
                                   United States Senate

                                   Dear Madam Chairman:

                                   The nation’s agricultural sector relies on hired farm workers to bring
                                   products to market. Obtaining enough workers at the right time is critical,
                                   especially for producers of crops with short harvest seasons. Because it
                                   is difficult for some agricultural employers to find enough U.S. workers,
                                   federal law allows these employers to apply for permission to hire foreign
                                   workers on a temporary or seasonal basis and arrange for their entry into
                                   the country under special visas, known as H-2A visas. 1 About 55,000 H-
                                   2A visas were issued in fiscal year 2011, according to the Department of
                                   State (State). To ensure protections for workers and proper vetting of
                                   these foreign workers before entry, state workforce agencies and three
                                   federal agencies are involved in administering the H-2A process—the
                                   Departments of Labor (Labor), Homeland Security (DHS), and State.
                                   Before employers can employ H-2A workers, they must apply for a
                                   certification from Labor that a labor shortage exists in their particular case
                                   and U.S. workers will not be adversely affected by hiring H-2A workers. If
                                   Labor determines these conditions are met, an employer can submit a
                                   petition to DHS to employ foreign workers. If DHS approves the petition,
                                   foreign workers can apply to State for a H-2A visa. In 1997, we reviewed
                                   the H-2A program and made recommendations to improve service to
                                   employers and reduce the amount of time it takes federal agencies to
                                   process employer applications for H-2A workers. 2 Agencies have
                                   implemented some of our recommendations, but questions about whether



                                   1
                                    8 U.S.C. §§ 1101(a)(15)(H)(ii)(a) and 1188.
                                   2
                                    GAO, GAO- H-2A Agricultural Guestworker Program: Changes Could Improve Services
                                   to Employers and Better Protect Workers, GAO/HEHS-98-20 (Washington, D.C.: Dec. 31,
                                   1997). GAO, GAO- H-2A Agricultural Guestworkers: Status of Efforts to Improve Program
                                   Services, GAO/T-HEHS-00-134 (Washington, D.C.: June 15, 2000).




                                   Page 1                                            GAO-12-706 H-2A Application Process
the H-2A program meets employers’ needs were raised in recent
congressional hearings. In response to your request, to identify ways to
expedite the application process while maintaining worker protections and
national security, we examined (1) what aspects of the application
process, if any, present challenges to agricultural employers, and (2) how
federal agencies have addressed any employer challenges with the
application process.

To identify potential challenges employers experience when applying for
H-2A workers, we interviewed representatives from 25 employers and 12
agricultural employer associations. We identified these employers through
national employer associations and regional associations in the states we
visited. We also visited three states (New York, North Carolina, and
Washington), which we selected because they account for a sizable
proportion of all H-2A workers (about 24 percent of H-2A positions
certified in fiscal year 2011 according to data reported by Labor) and vary
in geographic location. Within each state, we interviewed a combination
of state workforce agency officials, representatives from agricultural
employer associations, employers, and farm worker advocates.
Information obtained from our site visits and employer interviews cannot
be generalized to all states or agricultural employers. To review the
timeliness of application processing, we analyzed data from Labor for
fiscal years 2006 through 2012 and from DHS for fiscal years 2006
through 2011. To assess the reliability of the data, we reviewed agency
documentation, interviewed Labor and DHS officials, tested the electronic
data, and compared our results with related information reported by the
agencies. Based on these reviews, we determined that the data used to
determine the timeliness of application processing were sufficiently
reliable for the purposes of this report. We reviewed Labor’s data on the
number of H-2A workers employers requested and the number of H-2A
workers certified by Labor, and determined that these data were not
sufficiently reliable for our purposes. As a result, we did not report the
total number of H-2A workers requested and certified. We will issue a
separate management letter to Labor detailing our findings related to this
information. We also reviewed employer appeals of Labor’s adverse
rulings to identify the reasons for the appeals and the extent to which




Page 2                                      GAO-12-706 H-2A Application Process
                     Labor’s decisions were affirmed or reversed. 3 To identify actions taken by
                     the agencies to address employer challenges, we interviewed federal
                     officials who process H-2A applications at Labor, DHS, and State. We
                     also reviewed agency procedures, relevant federal laws and regulations,
                     and some recent legislative proposals to modify or replace the H-2A
                     program. We conducted this performance audit from October 2011 to
                     September 2012 in accordance with generally accepted government
                     auditing standards. Those standards require that we plan and perform the
                     audit to obtain sufficient, appropriate evidence to provide a reasonable
                     basis for our findings and conclusions based on our audit objectives. We
                     believe that the evidence obtained provides a reasonable basis for our
                     findings and conclusions based on our audit objectives.



Background
Origin of the H-2A   The H-2A program was preceded by several other temporary worker
Program              programs designed to address farm labor shortages in the United States.
                     During World War I, the Congress authorized the issuance of rules
                     providing for the temporary admission of otherwise inadmissible aliens,
                     and this led to the establishment of a temporary farm labor program
                     designed to replace U.S. workers directly involved in the war effort. 4
                     Similarly, initially through an agreement with Mexico, a guest worker
                     program was authorized during World War II that brought in over 4 million
                     Mexican workers from 1942 to 1964, called “braceros” to work on farms
                     on a seasonal basis. 5 Although the Bracero program expanded the farm
                     labor supply, the program also affected domestic farm workers through
                     reduced wages and employment, according to a 2009 Congressional




                     3
                      Such decisions include Labor’s decisions to send the employer a deficiency notice
                     requesting additional documentation or corrections to an employer’s application package
                     or Labor’s denial of an employer’s request for permission to hire foreign workers under the
                     H-2A program. Employers may appeal Labor’s deficiency notices or denials to an
                     Administrative Law judge within Labor’s Office of Administrative Law Judges. This judge
                     may affirm, reverse, or modify Labor’s decision; remand the case back to Labor for further
                     action; or dismiss the case.
                     4
                     Act of February 5, 1917, ch. 29, § 3, 39 Stat. 874, 875-78.
                     5
                      Agreement Between the United States of America and Mexico Respecting the Temporary
                     Migration of Mexican Agricultural Workers, U.S.-Mex., Aug. 4, 1942, 1942 U.S.T. 209.




                     Page 3                                               GAO-12-706 H-2A Application Process
Research Service report. 6 The Bracero program has been criticized by
labor groups, which identified issues such as mistreatment of workers and
lax enforcement of work contracts. While the Bracero program was still in
effect, the Immigration and Nationality Act of 1952 (INA) established the
statutory authority for a guestworker program that included workers
performing temporary services or labor, known as “H-2” after the specific
provision of the law. 7 The Immigration Reform and Control Act of 1986
amended the INA and effectively divided the H-2 program into two
programs: the H-2A program expressly for agricultural employers and the
H-2B program expressly for nonagricultural employers. 8

The H-2A program was created to help agricultural employers obtain an
adequate labor supply while also protecting the jobs, wages, and working
conditions of U.S. farm workers. 9 The H-2A law and regulations contain
several requirements to protect U.S. workers from adverse effects
associated with the hiring of temporary foreign workers and to protect
foreign workers from exploitation. 10 Under the program, employers must
provide H-2A workers a minimum level of wages, benefits, and working
conditions. For example, employers must pay a prescribed wage rate,
provide the workers housing that meets minimum standards for health
and safety, pay for workers’ travel costs to and from their home country,
and guarantee workers will be paid for three-quarters of the work contract
even if less work is needed. 11 (see table 1 for more information about the
conditions of employment that employers are expected to provide
workers).




6
 Congressional Research Service, The Effects on U.S. Farm Workers of an Agricultural
Guest Worker Program. Linda Levine, Specialist in Labor Economics, (Washington, D.C.:
Dec. 28, 2009).
7
 Pub. L. No. 82-414, § 101(a)(15)(H)(ii), 66 Stat. 163, 169 (codified as amended at 8
U.S.C. § 1101(a)(15)(H)(ii)(A) and (B)). INA bars the admission of a foreign worker who
seeks to enter the United States under a H-2A visa, unless the Secretary of Labor
provides a certification to the Secretaries of State and DHS.
8
 Pub. L. No. 99-603, § 301(a), 100 Stat. 3359, 3411 (codified as amended at 8 U.S.C. §
1101(a)(15)(H)(ii)(A)).
9
H.R. Rpt. 99-682, pt. 1, at 79 (1986).
10
    8 U.S.C. §§ 1101(a)(15)(H)(ii)(A) and 1188, and 20 C.F.R. pt. 655, subpt. B (2012).
11
    20 U.S.C. § 655.122(c), (d), (h), (i) and (l) (2012).




Page 4                                                      GAO-12-706 H-2A Application Process
Table 1: Key Department of Labor H-2A Program Requirements

Issue                            Requirements
Recruitment of U.S. Workers      •   Demonstrate need for a specific number of H-2A workers by completing specific U.S.
                                     recruitment activities coordinated through the state workforce agency.
                                 •   Contact certain former employees and engage in positive recruitment of U.S. workers.
                                 •   Hire any qualified, eligible U.S. worker until half of the contract work period is over (known as
                                                                                                                      a
                                     50 percent rule) and only reject U.S. workers for lawful, job-related reasons.
                                 •   Offer U.S. workers terms and working conditions not less favorable than those offered to H-2A
                                     workers.
Rates of Pay                     Pay all covered workers (H-2A and U.S. workers in corresponding employment) at least the highest
                                 of various wage rates specified in regulation. Wages may be calculated on the basis of hourly or
                                 “piece” rates of pay.
Recordkeeping                    Employers must keep accurate records of hours of work offered and hours actually worked each
                                 day. On or before each payday (which must be at least twice monthly), each worker must be given
                                 an hours and earnings statement showing hours offered, hours actually worked, hourly rate and/or
                                 piece rate of pay, and if piece rates are used, units produced daily. The statement must also
                                 indicate total earnings for the pay period and all deductions from wages.
Written Disclosure of the Work   Provide each worker a copy of the work contract—in a language understood by the worker—that
Contract                         describes the terms and conditions of employment, or in the absence of a written work contract, a
                                 copy of the job order submitted and approved by the department.
Guarantees to All Workers        Guarantee to offer to each covered worker employment for a total number of hours equal to at least
                                 75% of the workdays in the contract period—called the “three-fourths guarantee.”
Housing and Meals                •  Provide housing, which meets all applicable safety standards, at no cost to H-2A workers and to
                                    workers in corresponding employment who are not reasonably able to return to their residence
                                    within the same day.
                                 •  Provide each covered worker with three meals per day or furnish free and convenient cooking
                                    and kitchen facilities where workers can prepare their own meals.
Transportation                   Provide daily transportation between the workers’ living quarters and the employer’s worksite at no
                                 cost to covered workers living in employer-provided housing. Employer-provided transportation must
                                 meet all applicable safety standards, be properly insured, and be operated by licensed drivers.
Inbound & Outbound Expenses      If not previously advanced or otherwise provided, the employer must reimburse workers for
                                 reasonable costs incurred for inbound transportation and subsistence costs once the worker
                                 completes 50% of the work contract period and outbound transportation and subsistence costs upon
                                 completion of the work contract.
Prohibitions Against             •   Comply with all applicable laws and regulations, including the prohibition against holding or
Confiscating Workers’                confiscating workers’ passports or other immigration documents.
Documents and Charging           •   Employers must not seek or receive payment of any kind from workers for anything related to
Certain Fees                         obtaining the H-2A labor certification, including the employer’s attorney or agent fees,
                                     application fees, or recruitment costs.
Notification of Worker           Notify Labor in writing within 2 workdays if any worker (H-2A or U.S. worker) voluntarily abandons
Abandonment or Termination       the job or is terminated for cause before the end of the certified work period. The employer also
                                 must notify DHS within 2 workdays if an H-2A worker abandons or is terminated from the job.
                                           Source: Department of Labor H-2A Compliance Fact Sheets.

                                           a
                                            Employers applying individually (not part of a joint application) who did not use more than 500 days
                                           of agricultural labor in any quarter during the preceding calendar year are exempt from the 50 percent
                                           rule. 20 C.F.R. § 655.135(d) (2012).




                                           Page 5                                                      GAO-12-706 H-2A Application Process
Current Use of the H-2A   In fiscal year 2011, Labor received about 4,900 employer applications
Program                   requesting permission to hire H-2A workers. 12 State issued about 55,000
                          H-2A visas in fiscal year 2011 and about 94 percent of these visas were
                          processed by Mexican posts, according to data reported by State.
                          Employers requested H-2A workers to help support the production of
                          various commodities, such as fruit, vegetables, tobacco, and grain. While
                          many of these employers requested help with general farm work, others
                          sought workers with special skills, such as sheepherders or combine
                          operators. Employers in some states rely more heavily on H-2A workers
                          to meet their labor needs. In fiscal year 2011, Labor reported that over
                          half of the H-2A positions it certified were located in five southeastern
                          states—North Carolina, Florida, Georgia, Louisiana, and Kentucky. 13
                          Although California is the largest producer of agricultural products in the
                          country, the state is ranked thirteenth in its employment of H-2A workers,
                          according to a recent Labor report. H-2A workers are expected to work
                          temporarily and must leave the country once the temporary work contract
                          is complete, but may return in future years to meet employers’ seasonal
                          needs under specific circumstances. 14 In fiscal year 2011, about 27
                          percent of H-2A employers requested H-2A workers for 6 months or less
                          and about 73 percent of employers requested workers for 7 to 12 months.

                          H-2A workers represent a small proportion of the approximately 1 million
                          hired agricultural workers that the U.S. Department of Agriculture
                          estimates are in the United States, many of whom are not legally
                          authorized to work in the country (referred to as undocumented workers).
                          Research suggests that about half of all U.S. agricultural workers are
                          undocumented. 15 An employer may inadvertently hire undocumented


                          12
                            Employers can request multiple H-2A workers on one application. H-2A employers
                          represent a small proportion of the approximately 2.2 million U.S. farms in fiscal year
                          2010, according to estimates reported by the U.S. Department of Agriculture.
                          13
                            The top 10 states in the number of positions approved by Labor under the H-2A program
                          in fiscal year 2011 were North Carolina, Florida, Georgia, Louisiana, Kentucky, Arizona,
                          New York, Washington, Virginia, and South Carolina.
                          14
                            20 C.F.R. § 655.135(i) (2011). For qualifying work, workers may get extensions up to a
                          maximum total stay of 3 years and then, after being out of the United States for at least 3
                          months, apply for readmission in future years for additional qualifying work. 8 C.F.R. §
                          214.2(h)(5)(viii)(C) (2012).
                          15
                            The U.S. Department of Agriculture’s Economic Research Service analyzed Labor’s
                          National Agricultural Workers Survey data and found that, on average, the proportion of
                          hired crop farm workers who were not legally authorized to work in the United States from
                          2007 to 2009 was around 50 percent.




                          Page 6                                                GAO-12-706 H-2A Application Process
                       workers if the workers give the employer fraudulent documents.
                       Employers may also choose to violate the law and knowingly hire
                       undocumented workers rather than employing U.S. workers or
                       participating in the H-2A program and meeting its associated
                       requirements. 16 However, employers knowingly hiring undocumented
                       workers rather than using the legal H-2A process risk penalties or
                       workforce disruption through DHS’s enforcement of immigration law or
                       from state actions that may affect the availability of undocumented
                       workers.


Overview of the H-2A   To request H-2A workers, employers apply consecutively to their state
Application Process    workforce agency, 17 Labor, and DHS; and prospective workers apply to
                       State for H-2A visas. Under the law and Labor’s H-2A regulations, state
                       workforce agencies, Labor, and employers are subject to specific
                       deadlines for processing H-2A applications (see fig. 1). 18 DHS and State
                       are not subject to processing deadlines under relevant statutes and
                       regulations, according to agency officials.




                       16
                         To limit liability should employers inadvertently hire undocumented workers, employers
                       may follow statutorily prescribed procedures for verifying that an individual is legally
                       authorized to work in the United States. 8 U.S.C. § 1324a(a)(3) and (b).
                       17
                         State workforce agencies oversee and provide employment and workforce development
                       services. Employers who need workers in more than one state within the same
                       geographic area may submit applications for H-2A workers to any one of the state
                       workforce agencies covering the anticipated locations. 20 C.F.R. § 655.121(a)(1) (2012).
                       18
                         8 U.S.C. § 1188(c) and 20 C.F.R. §§ 121(a), 655.130 - 655.133, 655.140 - 655.143, and
                       655.160. Prior to 1999, Labor had more time to review employer applications. Congress
                       amended the INA in 1999 to allow employers to submit applications to Labor later and
                       require Labor to make certification decisions earlier, effectively compressing the minimum
                       time available for Labor to process applications from 40 days to 15. Agriculture, Rural
                       Development, Food and Drug Administration, and Related Agencies Appropriations Act,
                       2000, Pub. L. No. 106-78, § 748,113 Stat. 1135, 1167(codified at 8 U.S.C. § 1188(c)(3))
                       (1999). Specifically, the 1999 act changed the requirement that employers file applications
                       from at least 60 days before the first date the employer needs workers to at least 45 days
                       before the date of need. Labor was then required to issue certification decisions no later
                       than 30 days before the employer’s date of need rather than 20 days before the date of
                       need.




                       Page 7                                               GAO-12-706 H-2A Application Process
Figure 1: Deadlines for Applying for Workers under the H-2A Program




                                        Page 8                        GAO-12-706 H-2A Application Process
Employers interested in hiring H-2A workers must seek approval of the
proposed terms and conditions of employment from their state workforce
agencies and submit application packages to Labor. 19 First, employers
must submit job orders to their state workforce agencies describing the
jobs they are seeking to fill and the number of workers needed. The state
workforce agencies review the job orders for compliance with Labor’s H-
2A regulations and may provide employers information about the wages
and employment practices that apply in their states. 20 During their review,
state workforce agencies may ask employers to make corrections or
provide additional documentation. Upon approval, the state workforce
agencies begin assisting employers in trying to recruit U.S. workers.
Employers must conduct various recruitment activities and accept
referrals of all eligible U.S. workers that apply for the jobs until the date on
which the H-2A workers depart for the place of work.

Following approval of their job orders by the state workforce agencies,
employers apply for temporary employment certifications from Labor by
submitting the job orders, applications, and appendices signed by the
employers stating that they are in compliance with and will continue to
comply with all applicable federal requirements. 21 If an application is
incomplete or incorrect, Labor may send the employer a notice of
deficiency asking for additional documentation or corrections. After the
employer provides the additional information or makes the needed
corrections and Labor determines the application and job order are
complete and meet all requirements, it will send a notice of acceptance
and direct the employer to complete specific recruitment activities and
submit additional documentation, such as a report describing the
employer’s efforts to recruit U.S. workers. Labor is to then grant the
employer a temporary labor certification if the employer has established
the need for the agricultural service or labor to be performed on a
temporary or seasonal basis and complied with all the procedural
requirements as well as all applicable regulatory requirements imposed to



19
 20 C.F.R. pt. 655, subpt. B (2012).
20
 States develop and carry out surveys of employers and use other data collection
methods to determine wages and employment standards in their state.
21
 The regulation refers to the job order as a Form ETA-790. Applications for temporary
employment certification may be filed by an individual employer, an agent working for the
employer (e.g., lawyer or labor contractor), or by an employer association on behalf of
multiple employers.




Page 9                                               GAO-12-706 H-2A Application Process
ascertain that (1) there are not sufficient U.S. workers who are qualified
and available to perform the work, and (2) employing foreign workers will
not adversely affect the wages and working conditions of similarly
employed U.S. workers. 22

After receiving temporary employment certifications from Labor,
employers submit petitions to DHS requesting that a specific number of
individuals be classified as H-2A workers for the certified job openings. 23
The petition includes Labor’s certification, information about the employer,
the positions the H-2A workers will fill, and the workers’ names, if listed by
the employer. 24 If questions arise, DHS may send the employer a request
for additional documentation.

Following approval of the employer’s petition by DHS, prospective
workers can apply with State for H-2A visas, if a visa is required. 25 State
operates visa-issuing posts abroad. 26 Employers may work with foreign
labor contractors who help them recruit workers and help workers with the
visa application process. State’s process for determining who will be
issued or refused a visa contains several steps, including reviewing visa
applications, checking databases to identify issues, such as security
concerns, collecting potential workers’ fingerprints and photos, and
conducting in-person interviews of workers. State may deny a visa based
on certain criminal and related grounds, security and related grounds, or




22
 8 U.S.C. § 1188(a) and 20 C.F.R. § 655.161 (2012).
23
 8 C.F.R. § 214.2(h)(5) (2012).
24
   Employers are required to provide the names of the workers if they are requesting to
extend a worker’s length of stay or if the worker comes from a country that is not on DHS’s
list of countries from which H-2A workers may be requested. Naming specific workers on
the application to DHS is otherwise voluntary. 8 C.F.R. § 214.2(h)(2)(iiii) (2012). When
workers’ names are identified in the applications, DHS checks these names against
databases to identify issues, such as criminal histories, that may prevent the individuals
from entering the United States.
25
  22 C.F.R. pt. 41, subpt. J (2012). A visa is not required for H-2A workers coming from
Jamaica and certain other Caribbean countries. 8 C.F.R. § 212.1(b) (2012). In these
cases, the worker may go directly to a designated port of entry and apply for admission.
According to DHS officials, DHS and State are in the process of drafting regulations to end
this exemption from the visa requirement, which had its origin several decades ago, and
was never revised. Canadian citizens are also visa exempt.
26
 The term “post” refers to a U.S. consulate or embassy abroad.




Page 10                                              GAO-12-706 H-2A Application Process
                          an applicant’s status as illegal entrant or immigration violator, among
                          other reasons. 27

                          After receiving the H-2A visa, a worker may present himself at a port of
                          entry to apply for admission into the United States. Upon arrival, DHS’s
                          Customs and Border Protection officers verify the worker’s eligibility for
                          admission and determine the specific length of stay. Generally, DHS
                          grants the H-2A worker admission for a period of time authorized on the
                          temporary labor certification.


Recent Legislative        Several bills were introduced in 2011 to expand use of an electronic
Proposals to Change the   system to verify workers’ employment eligibility that, if passed, could
H-2A Program              reduce the availability of undocumented workers and increase the use of
                          the H-2A program. Some of the federal legislative proposals would
                          expand the use of an electronic employment authorization system known
                          as E-Verify, which is currently operated by DHS and the Social Security
                          Administration. 28 A number of states have enacted laws mandating that
                          some or all employers within their state use E-Verify for new hires. Some
                          agricultural employer associations have raised concerns that requiring the
                          use of E-Verify could cause agricultural employers to lose many of their
                          workers. Such a labor shortage could result in more applications for
                          foreign workers through the H-2A program.

                          Other legislative proposals introduced in 2011 would modify or replace
                          the H-2A program. Congress has considered making changes to the H-
                          2A program as part a larger effort to address immigration issues.
                          Specifically, a legislative proposal known as the Agricultural Job
                          Opportunities, Benefits, and Security Act—or AgJOBS—is said to
                          represent a compromise between major stakeholders and includes
                          provisions to change the H-2A program and develop a new program to
                          legalize the status of undocumented farm workers through a two-stage
                          process. AgJOBS has been introduced several times and was introduced
                          in the Senate as part of the Comprehensive Immigration Reform Act of



                          27
                            8 U.S.C. § 1182(a(2), (3) and (6) and 22 C.F.R. § 21.121 (2012).
                          28
                            E-Verify is an internet-based system intended to electronically verify U.S. work eligibility.
                          For more information, see GAO, Employment Verification: Federal Agencies Have Taken
                          Steps to Improve E-Verify, but Significant Challenges Remain, GAO-11-146 (Washington,
                          D.C.: Dec. 17, 2010).




                          Page 11                                                 GAO-12-706 H-2A Application Process
                        2011 on June 22, 2011. 29 Three other proposed bills would add a role for
                        the U.S. Department of Agriculture in administering the program. Another
                        proposal would, among other things, change the application filing
                        deadline for employers from 45 days to 30 days prior to the date of need
                        and deem any application approved if Labor fails to make a decision
                        within 30 days of the employer’s filing date. Other proposals include
                        provisions that would allow employers to hire H-2A workers as dairy
                        workers or livestock herders without being required to show that such
                        positions are of a temporary or seasonal nature.



Employers Cited
Challenges with the
Largely Paper-Based
Process,
Implementation of
New Rules and
Procedures, and
Complexity
Most Applications are   In fiscal year 2011, most employers’ applications for H-2A workers were
Approved, but Some      approved, but some employers experienced delays in having their
Employers Experience    applications for H-2A workers processed. Labor approved 94 percent of
                        the H-2A applications for foreign agricultural workers and processed 63
Processing Delays       percent of approved applications by the statutory deadline of at least 30




                        29                                                           th
                         Comprehensive Immigration Reform Act of 2011, S. 1258, 112 Cong. tit. I, pt. V (2011).




                        Page 12                                           GAO-12-706 H-2A Application Process
days prior to the date workers were to begin work. 30 However, Labor did
not process 37 percent of applications by the deadline, including 7
percent of applications approved less than 15 days before workers were
needed, leaving little time for employers to petition DHS and for workers
to obtain visas from State. According to Labor officials, employers’ failure
to provide required documentation, such as an approved housing
inspection, contributes to processing delays. DHS approved 98 percent of
the employer petitions for H-2A workers in fiscal year 2011, and about 72
percent of these petitions were processed within 7 days. However, 28
percent took longer and DHS took a month or longer to process 6 percent
of the petitions (see fig. 2). An official at DHS told us that employers have
up to 84 days plus the applicable mailing time to provide additional
documentation requested by the agency, which can significantly affect
how long it takes the agency to process a petition.




30
   Our analysis of Labor’s timeliness excluded emergency cases, which are applications
filed less than 45 days prior to the employer’s date of need. We calculated the number of
calendar days prior to the certified start date that determinations were made. Labor
reported that 85 percent of its determinations were timely in fiscal year 2011. Labor
changed the method it uses to calculate timeliness in fiscal year 2011 after the agency
began allowing employers additional time (up to 5 days) to submit the documentation
required to receive a certification. Labor’s method for calculating timeliness allows cases
that receive deficiency notices—63 percent of cases in fiscal year 2011—an additional 5
days to submit documentation and considers these cases timely as long as the agency
made a determination at least 24 days prior to the date of need (5 days past the deadline).
This 5 day extension comes at the expense of processing time available for DHS and
State in advance of the date of need because DHS cannot initiate its process in advance
of Labor’s certification.




Page 13                                              GAO-12-706 H-2A Application Process
Figure 2: H-2A Application Processing Times, Fiscal Year 2011




Page 14                                         GAO-12-706 H-2A Application Process
State does not monitor visa processing wait times specifically for H-2A
visas, but some employers and State officials we interviewed said delays
can occur when large groups of workers apply for visas at peak times
during the year at the Monterrey consulate in Mexico, which processes a
large proportion of all H-2A visas. State issued visas to 94 percent of the
potential H-2A workers who requested them in fiscal year 2011, but it
does not collect information on how long it takes posts to process them.
Individual posts report estimates of typical wait times for interview
appointments and processing of visas in general, but State does not
collect data from posts on the amount of time it takes them to process H-
2A visas.

H-2A visa processing is concentrated in Mexico. According to data
reported by State, in fiscal year 2011, 94 percent of all H-2A visas for
workers from all countries worldwide were issued in Mexico and about
half were processed by the consulate in Monterrey (see fig. 3). Based on
staff estimates, State officials told us that during the peak season at its
Monterrey consulate it may take up to 11 days from the time the workers’
appointments for finger printing are scheduled until their visas are
available for pick up at the consulate. 31 These times can be much shorter
at posts that are less busy or during periods that are less busy, according
to officials with whom we spoke.




31
  After filling out an application, workers must complete a two-part process to obtain an H-
2A visa. According to agency officials, first, they visit an Applicant Service Center where
they are photographed and fingerprinted. Next, they visit a consulate or embassy where
they are interviewed by a Consular Officer during a second appointment on a separate
day.




Page 15                                               GAO-12-706 H-2A Application Process
Figure 3: Percent of Worldwide H-2A Visa Applications Processed by Posts in
Mexico, Fiscal Year 2011




Although Labor and DHS have data on their respective application
processing times, Labor, DHS, and State lack an integrated system for
tracking the applications from the beginning of the process through visa
approval. Moreover, they do not collect data to determine the extent to
which employers obtain workers by the time they are needed, and the
agencies cannot document the total processing time required to complete
the H-2A application process. The agencies involved in the H-2A
application process largely perform their steps independently and
measure their progress independently, in part because none of them has
clear authority or responsibility to assess the performance of the process
as a whole in achieving timely results for employers, toward which they
each contribute. Nor are the agencies expressly required to coordinate
their efforts to process applications for H-2A workers. When asked about
whether a study could be conducted to determine whether H-2A workers
arrive by the employer’s date of need, officials from DHS said they are
unable to track this information and State officials indicated that this



Page 16                                        GAO-12-706 H-2A Application Process
                            would be beyond the scope of their responsibility. They also said
                            conducting such a study would be difficult because it would involve
                            matching data from multiple agency data systems and could be costly.
                            Each agency has its own strategic plan and performance measures, but
                            none has examined the performance of the H-2A process as a whole.
                            Although the agencies lack data on the reasons for processing delays,
                            our internal control standards suggest agencies monitor critical operating
                            data to support program improvement efforts. 32

                            While the agencies do not collect information on the extent to which
                            workers arrive by the date employers state that they are needed, a few
                            employers told us that their workers did not arrive on time. In addition,
                            while not all employers identified delays, about 260 employers who
                            participated in the program in 2010 told the National Council of
                            Agricultural Employers that their H-2A workers began work after the start
                            date they requested on their applications. 33 Seven employers told us that,
                            in the past year, their workers arrived late. For example, one apple
                            grower told us that due in part to processing delays at Labor and DHS in
                            2010, more than 30 workers arrived 5 days late, resulting in a loss of 15
                            thousand bushels of apples. Another employer in New York told us that
                            his workers arrived nearly 3 months late, resulting in a loss of about
                            $200,000 worth of unpicked apples, due in part to processing delays at
                            Labor and DHS. Moreover, employers frequently expect delays in the
                            application process according to representatives of four employer
                            associations. A representative for an employer association in North
                            Carolina told us that his members have come to expect that workers will
                            arrive a week late on average. However, in part due to the lack of
                            integrated data, the extent to which these delays can be attributed to
                            employers or specific agencies is unknown.


Inadequate Use of           Several employers and agency officials told us that reliance on paper
Technology Contributes to   handling can contribute to delays. While State has an online application
Delays                      process that workers can use to apply for a visa, most of the employer’s
                            portion of the H-2A application process requires paper handling.



                            32
                             GAO, Internal Control Management and Evaluation Tool, GAO-01-1008G (Washington,
                            D.C.: August, 2001).
                            33
                              See National Council of Agricultural Employers, H-2A Temporary Agricultural Employee
                            Program (Vienna, V.A.: Nov., 2011).




                            Page 17                                            GAO-12-706 H-2A Application Process
                                       Specifically, employers must submit paper applications and paper copies
                                       of supporting documentation to state workforce agencies, Labor, and
                                       DHS (see fig. 4). If the state workforce agency, Labor, or DHS require
                                       additional information from employers, they often mail their requests to
                                       employers rather than using e-mail. Employers then mail their responses
                                       back to the agencies. This system may result in a lengthy back-and-forth
                                       process. For example, one employer told us that responding to Labor’s
                                       deficiency notices—notices explaining why an application cannot be
                                       accepted and what corrections needed to be made—sometimes involves
                                       using a pen to strike whole paragraphs on the original application and
                                       then mailing the entire application back to Labor using overnight mail.
                                       Another employer told us that his workers arrived late by the time he
                                       responded to multiple inquiries from Labor and DHS.

Figure 4: The Paper-based H-2A Application Process




                                       Some employers told us that this largely paper-based system can result
                                       in lost documentation, delays in communicating with employers, and
                                       missed opportunities to quickly resolve minor issues. For example, one



                                       Page 18                                    GAO-12-706 H-2A Application Process
employer told us that he experienced delays in 2010 when he mailed his
Labor-approved temporary employment certification to DHS, but the
agency did not receive it. When the employer called Labor and asked for
a replacement, Labor officials told him that they could not send him
another one because they do not issue duplicate certifications to
employers in order to prevent fraud. After some delay, the employer was
able to have DHS request the required documentation from Labor.
Similarly, another employer told us that he had to resubmit his paperwork
and pay an additional fee when his temporary employment certification
was misplaced by DHS’s processing center. Officials at DHS also told us
that paper handling errors, such as not correctly entering employer
responses to agency requests for additional documentation, sometimes
result in delays in application processing and that moving to an electronic
system could help resolve these issues. 34 Relying less on paper may
improve the customer experience for employers using this program.
Federal requirements encourage agencies to take specific steps to be
results-oriented and customer focused. For example, the Government
Performance and Results Act establishes that agencies should develop
strategic plans to measure the performance and results of their activities
and the President has issued an executive order to improve the quality of
service to the public and meet expectations for modern customer service
through better use of technology. 35

Representatives from all of the employer associations we spoke to told us
that they had problems communicating with Labor. For example, some
employers told us that they did not receive any communication from
Labor after submitting their applications until they were mailed deficiency
notices telling them that the application could not be accepted. Labor
officials told us that, in the past, they would call employers to resolve
minor problems or errors, but they now send paper copies of all
deficiency notices to employers by mail to better document the process



34
   We previously identified inefficiencies with DHS’s paper-based processes. DHS agreed
with our recommendation to improve the use of technology. See GAO, Immigration
Benefits: Additional Efforts Needed to Help Ensure Alien Files Are Located when Needed,
GAO-07-85 (Washington, D.C.: Oct. 27, 2006); Information Technology: Near-Term Effort
to Automate Paper-Based Immigration Files Needs Planning Improvements, GAO- 06-375
(Washington, D.C.: Mar. 31, 2006); and Immigration Benefits: Improvements Needed to
Address Backlogs and Ensure Quality of Adjudications, GAO-06-20 (Washington, D.C.:
Nov. 21, 2005).
35
 5 U.S.C. § 306 and Exec. Order No. 13,571.




Page 19                                            GAO-12-706 H-2A Application Process
and use e-mail to resolve minor deficiencies when possible. 36 In addition,
Labor officials said that, due to limited resources, they do not have the
capacity to dedicate staff to answering phone calls and that their analysts
focus on processing applications rather than responding to inquires from
employers. They also noted that they use helpdesk e-mail boxes to
provide employers and their representatives with an opportunity to
communicate with the agency. In addition, they said the H-2A application
fees paid by employers to defray processing costs cannot be used for
ongoing administration of the program. 37

Communication between agencies is also primarily done through paper
notifications. The agencies do not communicate their decisions to one
another electronically because they lack data sharing capabilities.
Specifically, Labor does not communicate with DHS when the agency
approves an employer’s request for H-2A workers. By regulation,
employers are required to provide the original temporary employment
certification approved by Labor to DHS, rather than Labor sending it to
DHS directly. 38 Officials at DHS told us that the two agencies would need
a memorandum of agreement to allow DHS staff to access Labor’s
system in order to obtain information electronically about the employer’s
labor certification. Furthermore, although DHS forwards its petition
approvals directly to State, the agency does not e-mail the documents to
State because, according to agency officials, the two agencies lack
mutual encryption technology to protect personally identifiable
information. Instead, State must scan the approved petition and
supporting documentation in order to adjudicate and process visas for
workers. According to State officials, it takes 2 days to scan most
employers’ petition approval notices after receiving them from DHS.

In addition, employers who need workers at different times of the season
must repeat all of the steps of the application process for each group of
workers needed within a single season, regardless of whether the same



36
  Labor is required by statute to issue a deficiency notice, when applicable, within seven
days, ensuring that an employer or its representative receives information about an
application within 7 days. 29 U.S.C. § 1188(c)(2).
37
  Revenues generated from H-2A application fees are deposited and combined with other
revenue in the General Fund of the U.S. Treasury. The Immigration and Nationality Act
provides no mechanism for dedicated use of these funds by the Secretary of Labor.
38
 8 C.F.R. § 214.2(h)(5)(i)(A) (2012).




Page 20                                               GAO-12-706 H-2A Application Process
                        tasks are involved. Some employers need to stagger the arrival of
                        workers at different points of the harvest season, so that they have the
                        greatest number of workers when the workload is heaviest. Currently, in
                        order to have workers arrive at different points of the season, employers
                        must repeat each step of the application process and file full, separate
                        applications for each additional set of workers, even when the
                        applications are substantially similar and the only difference is the date
                        they indicate workers are needed. According to a representative of an
                        employer association, this can be unnecessarily burdensome because it
                        can be paper-intensive and costly. According to Labor officials, the
                        reason employers need to submit multiple applications is that Labor
                        needs to establish that there is a shortage of U.S. workers each time
                        agricultural employers request foreign workers by reviewing the
                        employer’s documentation of recruitment efforts. However, it is less clear
                        why other parts of the application would require resubmission when
                        changes are not required. Some employers we spoke to told us they
                        would prefer being able to file one application and list several different
                        start dates instead of having to resubmit the full application separately for
                        each group of workers, especially if they need workers to arrive within a
                        few weeks of each other, when labor market conditions are unlikely to
                        change substantially.


Implementation of New   Employers also reported encountering delays due to increased scrutiny
Rules and Procedures    from DHS and Labor after the agencies implemented new rules and
Lengthen Agencies’      procedures in 2008 and 2010, respectively, intended to increase program
                        integrity and worker protection. Labor’s H-2A regulations remained largely
Processing Times        unchanged from 1987 until 2008, when Labor issued new regulations
                        allowing employers to attest that they met the regulatory requirements of
                        the program, such as providing workers adequate housing, rather than
                        requiring them to submit documentation to demonstrate compliance. 39
                        Labor later determined that the 2008 regulations did not sufficiently
                        protect workers and issued new regulations in 2010 that reinstated many
                        of the 1987 regulations, including requiring employers to submit
                        documents with their applications to demonstrate compliance. 40 Labor
                        officials told us that the recent regulatory changes resulted in an
                        increased number of deficiency notices while employers adjusted to the


                        39
                         52 Fed. Reg. 20,496 (June 1, 1987) and 73 Fed. Reg. 77,110 (Dec. 18, 2008).
                        40
                         75 Fed. Reg. 6,884 (Feb. 12, 2010).




                        Page 21                                           GAO-12-706 H-2A Application Process
changes. For example, the percentage of employer applications for which
Labor issued deficiency notices increased from 7 percent in fiscal year
2006 to 63 percent in fiscal year 2011 (see fig. 5). Labor officials told us
their case management system does not currently have the ability to
aggregate the reasons for deficiency notices, but that they can identify the
reasons on a case-by-case basis. Labor officials also told us that many of
these notices were issued because employers used the wrong forms or
failed to provide the required documentation in a timely manner.

Figure 5: Percentage of Employer Applications Issued Deficiency Notices from
Labor, Fiscal Year 2006-2011




Many employers said Labor’s implementation of these new regulations
has made the application process more difficult, resulting in delays and
costly appeals. In 2011, Labor issued denials or deficiency letters to
employers for various reasons, such as failing to establish a seasonal or
temporary need for workers, job requirements that were not consistent
with “normal and accepted” practices, and failing to provide a written
recruitment report. In addition, employer appeals increased from 15 to
441 from fiscal year 2006 to fiscal year 2011(see fig. 6). Judges
dismissed or sent most appeals back to Labor for further processing.
Based on Labor’s characterization of the 2011 rulings, we counted 72
appeals that resulted in substantive rulings in fiscal year 2011, roughly
equally divided between cases that affirmed Labor’s decision (38 cases)
and others that reversed or partially affirmed it. For example, 19 (26


Page 22                                        GAO-12-706 H-2A Application Process
percent) reversed Labor on the basis that the employer submitted the
appropriate evidence, the employer was not given enough time to submit
evidence, or the certifying officer misinterpreted Labor’s regulations,
among other reasons. 41 Appealing denials may be costly and time
consuming because employers may need to hire a specialized lawyer to
represent them at an administrative hearing according to representatives
of two employer associations with whom we spoke. According to Labor
officials, most of these appeals resulted from employers not providing
required documentation along with their H-2A applications. At the same
time, Labor officials said they initially applied a “plain and strict”
interpretation of the rules, denying applications for which employers did
not provide the required documentation within the statutory deadline for
agency processing. The officials added that most applications were
approved within a few days of the appeal because employers submitted
the required information, but they agreed that the resulting increased rate
of denials contributed to an increase in the number of appeals, creating
additional burden and delays.

Figure 6: Number of Employer Appeals of Labor’s Deficiency Notices/Denials,
Fiscal Year 2006-2011




41
  The rest of the appealed cases that resulted in rulings were mixed rulings and were
partially affirmed and partially reversed (15 cases).




Page 23                                              GAO-12-706 H-2A Application Process
Some employers experienced delays in obtaining H-2A workers caused
by application of new procedures. For example, DHS began using a
database that did not have records on some employers who had
previously used the H-2A program. Some of these employers
experienced delays when DHS began issuing requests for evidence
asking for more information, such as tax records, when the employers
were not found in the database. 42 Some employers also told us they
experienced delays in obtaining H-2A workers from Jamaica because
DHS issued requests to employers for evidence about a longstanding
practice in which, on behalf of a Jamaican governmental organization,
amounts were deducted from the workers’ paychecks to fund a health
care plan and personal savings accounts. 43 Data from DHS show that
although relatively few applications received requests for further
evidence, this number has fluctuated in recent years (see fig.7). However,
DHS’s case management system does not track the reasons for these
requests for evidence.




42
  To enhance the integrity of the program, DHS began using a web-based database
called Validation Instrument for Business Enterprises (VIBE) in 2010 to validate
information provided on employers’ petitions for H-2A workers.
43
  Employers were asked to provide documentation, such as workers’ recent pay stubs, to
show that fees are not being deducted from workers’ paychecks. DHS and Labor
regulations prohibit the collection of fees from workers’ paychecks as a condition of H-2A
employment. 8 U.S.C. § 214.2(h)(5)(xi) and 20 C.F.R. § 655.20(o) and (p)(2012). The
basis for these requests for evidence was to ensure that the practices of the Jamaican
governmental organization did not violate the regulatory bans on payment of prohibited
fees by workers, which is an essential worker protection against abuse and unfair
treatment, according to DHS officials. DHS has posted guidance on prohibited fees on its
H-2 web page and conducted national outreach to employers on this topic in June 2011.
According to agency officials, specific guidance pertaining to the Jamaican governmental
organization has not been issued and these cases are handled the same as other cases
involving deductions from workers’ paychecks. According to DHS officials, no petitions
have been denied recently due to prohibited fees and the number of requests for evidence
on this issue has decreased. Labor is currently investigating some employers who use
Jamaican workers and officials told us the agency will be publishing general guidance
clarifying the permissibility of workers voluntarily requesting deductions from wages under
the H-2A program.




Page 24                                              GAO-12-706 H-2A Application Process
                           Figure 7: Percentage of Employer Applications Receiving Requests for Evidence
                           from DHS, Fiscal Year 2006-2011




Complexity of the H-2A     Several employers also found some of the program rules and paperwork
Program Poses Challenges   requirements to be complicated and were confused about the
for Some Employers         requirements of the H-2A program because some of Labor’s decisions
                           seemed inconsistent. Six of the employer representatives we interviewed
                           cited program complexity as a challenge. The H-2A program involves
                           multiple agencies and numerous detailed program rules that sometimes
                           conflict with other laws. For example, because of confusion regarding the
                           H-2A regulations, one employer expressed uncertainty about the
                           appropriate time to reimburse workers for their in-bound travel costs,
                           payment of which must be included in the job offer. The H-2A regulations
                           specify that workers must be reimbursed upon the completion of 50
                           percent of their work contract but also that H-2A employers may be
                           subject to the Fair Labor Standards Act, 44 under which employers are to
                           make such reimbursements during the first week of employment. 45



                           44
                             20 C.F.R. §§ 655.122(h)(1) and 655.135(e) (2012). Also see Michael Prasad, We Need
                           Your Help! But It’s Gonna Cost You: Arriaga, Castellanos-Contreras, and Why Point of
                           Hire Fees Should be Paid by the Employer, 33 W. New Eng. L. Rev. 817 (2011).
                           45
                             Employment Standards Administration, Field Assistance Bulletin No. 2009-2 (Aug. 21,
                           2009).




                           Page 25                                            GAO-12-706 H-2A Application Process
Another representative of an employer association told us that employers
have difficulty knowing how much to pay workers. 46 An employer
representative in New York told us that his association advises employers
to use a contracting service or an attorney if they are considering using
the H-2A program because the program is so complex and difficult to
navigate. He noted that some small farmers don’t have the resources to
hire an attorney or contractor to help them fill out the paperwork.

Employers also frequently reported that they did not understand the H-2A
program requirements because Labor’s decisions seemed to be
inconsistent. Representatives of seven employer associations told us
Labor’s decisions on the acceptability of the terms and conditions of
employment appear inconsistent from year to year or from employer to
employer. For example, a contractor told us that an application she
submitted on behalf of a farmer in New York was approved for 10 workers
to pick apples at a piece rate of 85 cents in March 2011. However, her
next order for 45 workers on the same farm the following month was not
approved and she was instructed to pay $1 per bushel instead. One
Washington employer was allowed to include minimum requirements for
how much fruit to pick per day in a 2010 job order but was not allowed to
do so in 2011. Another grower in Washington reported being allowed to
include a termination clause in a job order while a fellow grower in the
same state doing the same type of work was not allowed to include this
information, even though the two growers applied for H-2A workers in the
same year. In Massachusetts, apple growers were allowed to include
experience requirements on their applications after appealing Labor’s
initial decision prohibiting them from doing so, but vegetable growers
were not. 47




46
  Labor’s H-2A regulations at 20 CFR 655.120(l) provide that employers must pay their H-
2A workers and workers at least the highest of: (i) the Adverse Effect Wage Rate—the
minimum wage rate Labor has determined must be offered and paid by employers to H-2A
workers so that the wages of similarly employed U.S. workers will not be adversely
affected; (ii) the prevailing wage; (iii) the prevailing piece rate; (iv) the agreed-upon
collective bargaining wage, if applicable; or (v) the Federal or State minimum wage, in
effect at the time the work is performed.
47
  In addition to rulings from previous appeals, the judge found corroborating evidence that
apple farming was a difficult and skilled job that required training and knowledge of safety
issues. He did not find similar support for vegetable and tobacco farmers. See Westward
Orchards, 2011-TLC-00411, and Volante Farms, 2011-TLC-00412




Page 26                                               GAO-12-706 H-2A Application Process
Agencies Took Steps
to Improve the
Process, but Delays in
Modernization and
Unclear Guidance
Continue to Pose
Challenges
Labor and DHS Efforts to                 To process applications more efficiently and provide better customer
Modernize the Application                service, Labor and DHS have taken steps to create new electronic
Process Have Been                        applications that will allow employers to file for H-2A workers online, but
                                         development and implementation of both applications has been delayed
Delayed                                  (see table 2).

Table 2: Status of Agency Plans to Deliver Online H-2A Applications, Including Original and Current Planned Implementation
Dates

               Originally planned             Design                     Schedule in place for development          Current planned
Agency         implementation date            complete?                  and implementation?                        implementation date
Labor          August 2011                    Yes                        Yes                                        By the end of 2012
DHS            October 2012                   No                         No                                         Agency is in the process
                                                                                                                    of developing a schedule
                                         Source: GAO analysis of documents received from Labor and DHS.


                                         Federal law and executive orders provide that federal agencies are to be
                                         customer service-focused and executive orders provide that federal
                                         agencies use technology to improve the customer experience. 48
                                         Accordingly, in fiscal year 2009, Labor implemented a web-based system
                                         for two of its other labor certification programs that allows employers to
                                         file applications online and for the agency to process them electronically.
                                         Labor is currently in the process of developing an online H-2A application
                                         to add to its existing web-based filing system, but it has been delayed.

                                         Specifically, in October 2010, Labor began designing an online H-2A
                                         application for employers that it planned to deploy in August 2011.


                                         48
                                           GPRA Modernization Act of 2010, Pub. L. No. 111–352; Exec. Order No. 12,862 (Sept.
                                         11, 1993); Exec. Order No. 13,571 (Apr. 27, 2011).




                                         Page 27                                                          GAO-12-706 H-2A Application Process
However, Labor officials told us the online application was delayed
because the agency could not award the contract to develop it while
operating under a provisional budget based on a continuing resolution.
Since then, Labor completed the design of the online H-2A application
and in June 2012 awarded the contract to develop, test, and implement it.
Labor officials told us they anticipate the online H-2A application will be
available for use by employers by the end of 2012 and, according to the
development contract, the online application should be available to
employers on November 15, 2012. According to Labor officials, the online
application will allow employers to create account profiles and check the
status of their H-2A applications. In addition, Labor officials said the
online H-2A application would also result in faster application processing,
reduced costs, better customer service, and improved data quality.

DHS also plans to implement an online petition for H-2A workers, but the
agency has experienced delays and is in the process of developing a
schedule for completing this work. The agency planned to deploy an
online H-2A petition in October 2012 as part of its Transformation
Program, which aims to replace the paper-based systems currently used
to process petitions with an electronic system. However, the
Transformation Program itself has been delayed several times since its
inception in 2005, as we have previously reported, and officials told us
they have not started work on the online H-2A petition and do not know
when it will be completed. In prior work on the Transformation Program,
we found DHS was managing the program without specific acquisition
management controls, such as reliable schedules, which contributed to
missed milestones. 49 DHS officials said they were addressing this report’s
recommendations and are in the process of developing an integrated
master schedule for all Transformation activities, including the online H-
2A petition, in accordance with GAO best practices outlined in the report.
Once the online petition for H-2A workers is available, employers will be
able to file all required documents electronically to petition for H-2A
workers, create account profiles, and check the status of their
applications. In addition, the agency could streamline benefits processing
by eliminating redundant data entry and reducing the number of required
forms.



49
  GAO, Immigration Benefits: Consistent Adherence to DHS’s Acquisition Policy Could
Help Improve Transformation Program Outcomes, GAO-12-66 (Washington, D.C.: Nov.
22, 2011).




Page 28                                           GAO-12-706 H-2A Application Process
Federal Agencies Updated                Recently and over the course of our review, in addition to taking steps to
Processes and Reached                   modernize the H-2A application process, federal agencies have taken a
Out to Employers, but                   number of other steps to improve employers’ experience with the
                                        application process. Specifically, Labor made changes to its review
Labor’s Guidance to States              process to informally resolve issues with employers and reduce
Needs Improvement                       unnecessary delays and appeals. Labor officials told us that, in 2011,
                                        they piloted using e-mail to communicate with employers in 10 states
                                        about their H-2A applications. In March 2012, Labor began using e-mail
                                        to communicate with employers in all states about their applications.
                                        Labor also changed its procedures so that it can make corrections to
                                        minor errors on an employer’s H-2A application—such as adding a
                                        missing phone number—after obtaining the employer’s permission via e-
                                        mail to correct the error. In February 2011, Labor instituted a policy that
                                        gives employers up to 5 additional days to submit required documentation
                                        on their H-2A applications rather than automatically denying them
                                        because all of the required documentation was not submitted by the
                                        deadline. 50

                                        In addition to the changes outlined above, since implementing its new
                                        regulations in March 2010, Labor provided employers with more guidance
                                        about the requirements of the H-2A program in a variety of formats (see
                                        table 3).

Table 3: Examples of Labor’s Efforts to Provide Additional Guidance to Employers on H-2A Program Requirements, 2010 to
2012

Date released                     Description
March 2010 to February 2012       Issued six rounds of answers to frequently asked questions
September 2011 and May 2012       Posted a document with tips on filing an H-2A application on its Web site
October 2011                      Developed a new Web site dedicated to the H-2A program, with program updates and materials
December 2011                     Published an H-2A Employer guide on its Web site
December 2011 and January 2012    Held webinars about the new March 2010 H-2A rules and interpretations
February 2012                     Labor officials attended and presented at conferences attended by H-2A employers
March 2012                        Created an H-2A Ombudsman Program office to help employers resolve issues
                                        Source: GAO analysis of Labor documents.




                                        50
                                          20 C.F.R. § 655.130(b) (2012). By statute, Labor is not permitted to require employers to
                                        submit their applications more than 45 days before the first date the labor or services of
                                        the H-2A worker is required. 8 U.S.C. § 1188(c)(1).




                                        Page 29                                                GAO-12-706 H-2A Application Process
Labor officials said these efforts resulted in improved timeliness and
fewer appeals in recent months. Our analysis of Labor’s data showed that
the agency’s timeliness remained relatively unchanged, although the
percentage of applications for which deficiency notices were issued and
the number of appealed decisions declined substantially over that period.
For the first half of fiscal year 2012, Labor processed 61 percent of
certified applications at least 30 days prior to the employer’s date of need
and issued deficiency notices for 38 percent of employer applications. 51
Sixty employer appeals were filed during the first half of fiscal year 2012.

Several employers we interviewed reported that they did not understand
the H-2A program requirements because Labor’s decisions seemed
inconsistent. A number of the inconsistencies employers cited concerned
job order terms and conditions, the acceptability of which varies by state.
Labor officials told us they strive for consistency and have many checks
in place to ensure consistent decisions. Specifically, they said analysts in
Labor’s processing center follow detailed standard operating procedures
and the center has multiple quality assurance methods to ensure
consistency, including supervisory review, peer review, and a quarterly
quality assurance process. In addition, according to Labor officials,
processing center analysts are given an overview of the H-2A program,
study the regulations and standard operating procedures, and shadow a
more seasoned employee before receiving their own cases to
adjudicate. 52 There are also periodic training classes that address
adjudication issues that have arisen during the last calendar year.

Labor regulations require H-2A employers to include only terms and
conditions that meet or exceed prevailing, normal, or accepted practices,
as determined by the state workforce agency. Labor’s regulations and its
guidance to states allow states to apply different standards to determine
whether various terms and conditions are acceptable. 53 For example,


51
 The first half of fiscal year 2012 refers to the period October 1, 2011 to March 31, 2012.
Results for the entire year may differ.
52
  Our internal control standards state that agency managers should identify the
knowledge and skills needed for various jobs and provide necessary training, among other
things. GAO, Standards for Internal Control in the Federal Government,
GAO/AIMD-00.21.3.1 (Washington, D.C.: Nov. 1999).
53
  The most recent comprehensive guidance to states about the H-2A program is Labor’s
1988 H-2A Program Handbook. U.S. Department of Labor, Employment and Training
Administration, H-2A Program Handbook, Handbook No. 398 (Washington, D.C.: January
1988).




Page 30                                               GAO-12-706 H-2A Application Process
                                             state workforce agencies are directed to apply a prevailing practice
                                             standard to determine whether the frequency with which an employer
                                             intends to pay H-2A workers is acceptable, while states can use a more
                                             subjective normal and common practice standard to determine whether
                                             job qualifications, such as how much experience is required, are
                                             acceptable (see table 4).

Table 4: Standards States Use to Determine Acceptable Terms and Conditions in H-2A Job Orders

Applicable standard for approving terms or conditions               Examples of terms and conditions employers address in H-2A job
of employment                                                       orders to which the standard applies
Prevailing practice: the practice used by half or more of           •   Provision of housing for workers’ families
agricultural employers employing a half or more of the              •   Advancement of required payment for inbound and outbound
workers in the occupation in the area.                                  transportation costs
                                                                    •   Frequency of payment
Normal or common practice:                                          •     Productivity standards (e.g., minimum level of fruit that must be
Although the terms “normal” and “common” are difficult to                 picked to retain employment)
quantify, the practice may be less than prevailing, but not         •     Job qualifications, such as requiring specific experience
unusual or rare.
Consistent with what is normally required by non-H-2A
employers in the same or comparable occupations and
crops in the area.
                                             Source: U.S. Department of Labor, Employment and Training Administration, H-2A Program Handbook, Handbook No. 398
                                             (Washington, D.C.: January 1988).


                                             In 1988, Labor provided states with an H-2A Program Handbook that
                                             included guidance on how to make these decisions and encouraged
                                             states to administer formal surveys to determine acceptable practices. If
                                             the state workforce agency cannot use a formal survey, Labor’s guidance
                                             suggests states make these determinations using other information
                                             sources, such as staff knowledge and experience, informal surveys,
                                             reviews of job orders used by non-H-2A employers, or consultation with
                                             experts in agriculture or farm worker advocates. In 2011, Labor began
                                             posting results from states’ prevailing practice surveys online to help
                                             employers write job orders that are consistent with prevailing, normal, and
                                             accepted practices.

                                             Labor’s guidance to states for determining acceptable practices, however,
                                             is broad and not prescriptive, leading states to apply varied methods,
                                             some of which may be insufficient. For example, the Administrative Law
                                             Judge who ruled on the Massachusetts apple and vegetable growers’
                                             appeal of Labor’s initial decision to prohibit experience requirements did
                                             not consider the Massachusetts state workforce agency’s prevailing
                                             practice survey in his ruling because of its design flaws. Further, two
                                             employer representatives told us they considered state prevailing practice


                                             Page 31                                                                  GAO-12-706 H-2A Application Process
surveys to be unreliable and inconsistent in their coverage. In addition,
officials in the three states we visited said they did not include questions
about certain terms and conditions in formal surveys and used different
methods to determine whether a particular practice was acceptable: two
states reviewed job orders filed by non-H-2A employers; the other state
informally surveyed non-H-2A employers in-person. One employer
representative expressed frustration that neighboring states used different
methods to determine acceptable practices for the same crop and that the
results differed.

DHS also has taken several steps to improve employers’ experience with
the H-2A application process. Specifically, the agency took steps to
expedite petitions for H-2A workers and provide more guidance to
employers. In October 2007, DHS directed its employees to expedite the
handling and adjudication of H-2A petitions. According to our analysis, the
agency’s processing times have improved in recent years. From fiscal
year 2006 to fiscal year 2011, the percentage of petitions approved within
1 week increased from about 34 percent to 72 percent. At the same time,
the percentage of petitions that took 1 month or longer to approve
declined from about 11 percent to about 6 percent. In July 2010 and June
2011, DHS invited employers to participate in teleconferences to discuss
employers’ difficulties with some of its new systems and procedures. In
addition, the agency posted summaries of the teleconferences and
answers to employers’ frequently asked questions on its Web site.

State has addressed employer concerns with the H-2A visa application
process by hosting face-to-face meetings with employers and other key
stakeholders, making improvements to its worker processing procedures,
and taking steps to increase the capacity of its Monterrey consulate to
process H-2A visas. In 2012, State officials said they reached out to
Labor to discuss H-2A related issues. They also said the two agencies
are formalizing working groups in part to improve information sharing.
State also meets with employers and other stakeholders at annual
meetings that bring together representatives from Labor, DHS, and State.
Officials from Labor and DHS, and State’s contractor attended the most
recent of these meetings, held in Texas in January 2012. A representative
of an employer association who attended this meeting told us it was
helpful to have representatives from all three agencies there to answer
questions. After hearing at the January 2012 meeting that some
employers had difficulties with getting their Mexican H-2A workers
processed by their date of need, State directed employers with
approaching dates of need to request emergency appointments for their
workers to be processed at posts other than the Monterrey consulate.


Page 32                                     GAO-12-706 H-2A Application Process
              State officials noted that all Mexican posts have the capacity to process
              H-2A visa applications and suggested that applicants can visit other posts
              if it is difficult to get appointments at the Monterrey consulate. State also
              developed new procedures to better enable them to handle large groups
              of workers. In addition, State is expanding its Monterrey consulate, which
              currently handles most of the H-2A visas processed. Officials said the
              new facility is scheduled to open in 2014, although they were uncertain
              whether future staffing levels at the facility would increase.


              The H-2A program is a means through which agricultural employers can
Conclusions   legally hire temporary foreign workers when there is a shortage of U.S.
              workers. The H-2A application process consists of a series of sequential
              steps conducted by varied agencies, no one of which bears responsibility
              for monitoring or assessing the performance of the process as a whole.
              Negotiating this largely paper-based process can be time consuming,
              complex, and challenging for employers. The associated difficulties can
              impose a burden on H-2A employers that is not borne by employers who
              break the law and hire undocumented workers. Although Labor and DHS
              have taken some steps to incorporate new technologies, delays in the
              development of electronic application filing systems continue burdening
              employers with paperwork and may be consuming more resources from
              federal agencies than necessary. In addition, the absence of systems to
              collect data on the reasons for processing delays makes it difficult for
              these agencies to identify why employer applications are initially rejected,
              to target their efforts to address the most important issues that challenge
              employers, and to improve performance. Meanwhile, employers who
              require workers at different points of the season must bear the additional
              costs of submitting paperwork to multiple agencies for each set of
              workers. In addition, employers continue to express confusion about how
              state workforce agencies and Labor are applying Labor’s new regulations.
              Without additional clarification and transparency, employers may continue
              to submit unacceptable paperwork that requires extra resources from all
              parties to process. As immigration rules are tightened and the economy
              improves for U.S. workers, more employers may need to use the H-2A
              program to obtain foreign workers. This potential influx of new users could
              exacerbate existing problems if changes are not made to improve the
              application process.




              Page 33                                      GAO-12-706 H-2A Application Process
                      To improve the timeliness of application processing, as part of creating
Recommendations for   new online applications, we recommend that the Secretaries of Labor and
Executive Action      Homeland Security:

                      •   develop a method of automatically collecting data on the reasons for
                          deficiency notices, requests for additional evidence, and denials, and
                          use this information to develop strategies to improve the timeliness of
                          H-2A application processing. Such information could help the
                          agencies determine whether, for example, employers may need more
                          guidance or staff may need more training.

                      To reduce the burden on agricultural employers and improve customer
                      service, we recommend that the Secretary of Labor:

                      •   permit the use of a single application with staggered dates of need for
                          employers who need workers to arrive at different points of a harvest
                          season. Employers could still be required to submit evidence of their
                          recruitment efforts, but would not be required to resubmit a full
                          application for each set of workers needed during the season.
                      To promote consistency and transparency of decisions made about the
                      acceptability of employer applications and clarify program rules, we
                      recommend that the Secretary of Labor:

                      •   review and revise, as appropriate, guidance provided to state
                          workforce agencies on methods to determine the acceptability of
                          employment practices. This guidance should be made available to
                          employers and published on Labor’s Web site.

                      We provided a draft of this report to Labor, DHS, and State for review and
Agency Comments       comment. State had no comments. Labor and DHS provided written
and Our Evaluation    comments which are reproduced in appendices I and II. Labor and DHS
                      also provided technical comments, which we incorporated as appropriate.
                      DHS concurred with our recommendation that the agency develop a
                      method to automatically collect additional data through its forthcoming
                      electronic application system to improve the timeliness of application
                      processing. Similarly, Labor agreed with our recommendation that the
                      agency develop a method of automatically collecting data on the reasons
                      for deficiency notices and use this information to develop strategies to
                      improve the timeliness of H-2A application processing and noted that it
                      would explore the resources required to collect such information as part
                      of its online application system. Labor also agreed with our
                      recommendation that it update the guidance it provides to state workforce



                      Page 34                                     GAO-12-706 H-2A Application Process
agencies on methods to determine the acceptability of employment
practices.

Labor did not agree with our recommendation that it allow employers to
file a single application per season for workers arriving on different start
dates, stating that the department’s regulations define the date of need as
the first date the employer requires the services of all H-2A workers that
are the subject of the application, not an indication of the first date of
need for only some of the workers. Labor stated that having each
employer file a single application with staggered dates of need would
result in one recruitment for job opportunities that could begin many
weeks or months after the original date of need, which could nullify the
validity of the required labor market test. We are not recommending that
employers conduct a single labor market test corresponding with their
earliest date of need. Employers should still be required to submit
evidence of their recruitment efforts for every start date listed on each
application, but we believe they should not be required to resubmit a full
application package for each set of workers needed during a season.

Labor also expressed concern that our report points to the experiences of
some employers or those of a single employer to support our conclusions.
As noted earlier in this report, information obtained from our interviews
cannot be generalized to all states or all agricultural employers. In
addition, the illustrations used in this report highlight challenges
expressed by numerous employers with whom we spoke, even when we
used one employer’s experience as an example. Further, as we noted
previously, agency data are not available to document the extent of some
employer challenges, such as whether workers arrive by the date they are
needed by employers.


As agreed with your offices, unless you publicly announce the contents of
this report earlier, we plan no further distribution until 7 days from the
report date. At that time, we will send copies to the appropriate
congressional committees, the Secretaries of Homeland Security, Labor,
State, and other interested parties. In addition, this report will be available
at no charge on the GAO Web site at http://www.gao.gov.




Page 35                                       GAO-12-706 H-2A Application Process
If you or your staff members have any questions regarding this report,
please contact me at (202) 512-7215 or moranr@gao.gov. Contact points
for our Offices of Congressional Relations and Public Affairs may be
found on the last page of this report. GAO staff who made major
contributions to this report are listed in appendix III.

Sincerely yours,




Revae Moran, Director
Education, Workforce
  and Income Security Issues




Page 36                                  GAO-12-706 H-2A Application Process
Appendix I: Comments from the Department
             Appendix I: Comments from the Department of
             Labor



of Labor




             Page 37                                       GAO-12-706 H-2A Application Process
Appendix I: Comments from the Department of
Labor




Page 38                                       GAO-12-706 H-2A Application Process
Appendix I: Comments from the Department of
Labor




Page 39                                       GAO-12-706 H-2A Application Process
Appendix I: Comments from the Department of
Labor




Page 40                                       GAO-12-706 H-2A Application Process
Appendix II: Comments from the Department
             Appendix II: Comments from the Department
             of Homeland Security



of Homeland Security




             Page 41                                     GAO-12-706 H-2A Application Process
Appendix II: Comments from the Department
of Homeland Security




Page 42                                     GAO-12-706 H-2A Application Process
Appendix II: Comments from the Department
of Homeland Security




Page 43                                     GAO-12-706 H-2A Application Process
Appendix III: GAO Contact and Staff
                  Appendix III: GAO Contact and Staff
                  Acknowledgments



Acknowledgments

                  Revae Moran, Director, (202) 512-7215 or moranr@gao.gov
GAO Contact
                  In addition to the individual named above, Betty Ward-Zukerman,
Staff             Assistant Director; Hedieh Rahmanou Fusfield, Jeffrey G. Miller, and
Acknowledgments   Cathy Roark made key contributions to this report. Also contributing were
                  Hiwotte Amare, James Bennett, Kathy Leslie, Jonathan McMurray, Jean
                  McSween, Kathleen van Gelder, and Craig Winslow.




(131132)
                  Page 44                                    GAO-12-706 H-2A Application Process
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