oversight

H-2A Agricultural Guestworker Program: Changes Could Improve Services to Employers and Better Protect Workers

Published by the Government Accountability Office on 1997-12-31.

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

                 United States General Accounting Office

GAO              Report to Congressional Committees




December 1997
                 H-2A AGRICULTURAL
                 GUESTWORKER
                 PROGRAM
                 Changes Could Improve
                 Services to Employers and
                 Better Protect Workers




GAO/HEHS-98-20
      United States
GAO   General Accounting Office
      Washington, D.C. 20548

      Health, Education, and
      Human Services Division

      B-276220

      December 31, 1997

      Congressional Committees

      As mandated by Division C of the Omnibus Consolidated Appropriations Act, 1997 (P.L.
      104-208) and the Conference Report for the Agricultural Rural Development, FDA
      Appropriation Act of 1997 (P.L. 104-726), this report presents information on (1) the likelihood
      of a widespread agricultural labor shortage and its impact on the need for nonimmigrant
      guestworkers and (2) the H-2A program’s ability to meet the needs of agricultural employers
      while protecting domestic and foreign agricultural workers, both at present and if a significant
      number of nonimmigrant guestworkers is needed in the future. We are sending this report to
      you because of your committees’ oversight responsibilities for federal agencies involved in the
      H-2A program. (See list of addressees on p. 2.)

      We are providing copies of this report to Members of Congress who contacted us about this
      mandate; the Secretary of Labor, the Assistant Secretaries for the Employment and Training
      Administration, Employment Standards Administration, and Occupational Safety and Health
      Administration; the Attorney General and the Commissioner of the Immigration and
      Nationalization Service; the Secretary of Agriculture; the Secretary of State; and others who
      request them.

      If you have any questions about this report, please contact Carlotta C. Joyner, Director,
      Education and Employment Issues, at (202) 512-7014. This report was prepared under the
      direction of Charles Jeszeck, Assistant Director. Other major contributors to this report are
      listed in appendix XI.




      Richard L. Hembra
      Assistant Comptroller General
B-276220

List of Addressees

The Honorable Richard G. Lugar
Chairman
The Honorable Tom Harkin
Ranking Minority Member
Committee on Agriculture, Nutrition,
  and Forestry
United States Senate

The Honorable Orrin G. Hatch
Chairman
The Honorable Patrick J. Leahy
Ranking Minority Member
Committee on the Judiciary
United States Senate

The Honorable James M. Jeffords
Chairman
The Honorable Edward M. Kennedy
Ranking Minority Member
Committee on Labor and Human Resources
United States Senate

The Honorable Robert F. Smith
Chairman
The Honorable Charles W. Stenholm
Ranking Minority Member
Committee on Agriculture
House of Representatives

The Honorable William F. Goodling
Chairman
The Honorable William L. Clay
Ranking Minority Member
Committee on Education and the Workforce
House of Representatives

The Honorable Henry J. Hyde
Chairman
The Honorable John Conyers, Jr.
Ranking Minority Member
Committee on the Judiciary
House of Representatives




                     Page 2                GAO/HEHS-98-20 H-2A Guestworker Program
B-276220




           Page 3   GAO/HEHS-98-20 H-2A Guestworker Program
Executive Summary


             During congressional deliberations on the Illegal Immigration Reform and
Purpose      Immigrant Responsibility Act of 1996, concerns surfaced about whether
             enough farmworkers would be available to meet the needs of agriculture
             after the act’s new constraints on foreign workers’ ability to enter the
             country were implemented. The H-2A nonimmigrant guestworker program
             provides a way for U.S. agricultural employers to bring nonimmigrant
             foreign workers into the United States to perform seasonal agricultural
             work on a temporary basis when domestic workers are unavailable.1
             During fiscal year 1996, agricultural employers used the H-2A program to
             bring in about 15,000 workers, less than 1 percent of the U.S. agricultural
             field workforce.

             The Congress asked whether the H-2A guestworker program could provide
             a sufficient supply of agricultural workers in the event of a significant farm
             labor shortage. As a result, the 1996 law, included in the Omnibus
             Consolidated Appropriations Act, 1997, directed GAO to review various
             aspects of the H-2A program.2 This review addresses a number of issues,
             including (1) the likelihood of a widespread agricultural labor shortage
             and its impact on the need for nonimmigrant guestworkers and (2) the
             H-2A program’s ability to meet the needs of agricultural employers while
             protecting domestic and foreign agricultural workers, both at present and
             if a significant number of nonimmigrant guestworkers is needed in the
             future.


             The Immigration Reform and Control Act of 1986 created the current
Background   program, commonly referred to as the “H-2A” program, under which
             employers may bring workers into the country on a temporary,
             nonimmigrant basis. The purpose of the H-2A program is to ensure
             agricultural employers an adequate labor supply while also protecting the
             jobs, as well as the wages and working conditions, of domestic
             farmworkers. Under the program, agricultural employers who anticipate a
             shortage of domestic workers can request nonimmigrant foreign workers.
             The Department of State issues nonimmigrant visas for H-2A workers only
             after the Department of Justice, through its Immigration and
             Naturalization Service (INS), has approved the employer’s petition for
             authorization to bring in workers. Justice does not approve the petition
             until the Department of Labor has approved the employer’s application for

             1
              See 8 U.S.C. 1101(a)(15)(H)(ii)(a).
             2
             Division C of the Omnibus Consolidated Appropriations Act, 1997 (P.L. 104-208). The Conference
             Report for the Agricultural Rural Development, FDA Appropriation Act of 1997 (P.L. 104-726) also
             mandated that GAO study the H-2A program.



             Page 4                                             GAO/HEHS-98-20 H-2A Guestworker Program
                   Executive Summary




                   certification that a labor shortage exists and that the wages and working
                   conditions of U.S. workers similarly employed will not be adversely
                   affected by bringing in guestworkers. The Department of Agriculture
                   (USDA) acts in an advisory role that includes conducting wage surveys for
                   Labor’s determination of the minimum wage rates to be paid by employers
                   of H-2A workers—the so-called “adverse effect wage rate”— which is
                   designed to mitigate any negative effect employment of these workers may
                   have on domestic workers similarly employed.

                   Labor is also responsible for ensuring that agricultural employers comply
                   with their contractual obligations to H-2A workers and for enforcing labor
                   laws covering domestic workers, including the wage, housing, and
                   transportation provisions of the Migrant and Seasonal Agricultural Worker
                   Protection Act. For example, workers who complete 50 percent of the
                   contract period are due reimbursement for transportation from the place
                   of recruitment, while those who complete the entire contract are
                   guaranteed work or wages for a minimum of three-quarters of the contract
                   period and reimbursement for transportation home. Agricultural
                   employers must provide the same minimum wages, benefits, and working
                   conditions to H-2A workers that are provided to domestic workers
                   employed in “corresponding employment.”


                   A sudden widespread farm labor shortage requiring the importation of
Results in Brief   large numbers of foreign workers is unlikely to occur in the near future.
                   There appears to be no national agricultural labor shortage now, but
                   localized labor shortages may exist for specific crops or geographical
                   areas. Although many farmworkers—an estimated 600,000—are not legally
                   authorized to work in the United States, INS does not expect its
                   enforcement activities to significantly reduce the aggregate supply of
                   farmworkers. INS expects limited impact from its enforcement activities
                   because of the prevalence of fraudulently documented farmworkers and
                   INS’ competing enforcement priorities. In fiscal year 1996, less than
                   5 percent of the 4,600 INS worksite enforcement efforts were directed at
                   agricultural workplaces. INS conducts enforcement efforts largely in
                   response to complaints, and it receives few complaints about agricultural
                   employers. INS officials in both field and headquarters positions stated
                   unanimously that operational impediments prevented the agency from
                   significantly reducing the number of unauthorized farmworkers. The
                   prevalence of unauthorized and fraudulently documented farmworkers
                   does, however, leave individual growers vulnerable to sudden labor
                   shortages if INS does target its enforcement efforts on their establishments.



                   Page 5                                 GAO/HEHS-98-20 H-2A Guestworker Program
                                 Executive Summary




                                 Although few agricultural employers seek workers through the H-2A
                                 program, those that do are generally successful in obtaining foreign
                                 agricultural workers on both a regular and an emergency basis. During
                                 fiscal year 1996 and the first 9 months of fiscal year 1997, Labor approved
                                 99 percent of all H-2A applications. However, both employers and Labor
                                 officials have difficulty meeting time frames specified by law and
                                 regulation. And because Labor does not collect key program management
                                 information, it is unable to determine the extent and cause of missed time
                                 frames. In addition, the multiple agencies and levels of government
                                 implementing the program may result in redundant oversight and
                                 confusion for both employers and workers.

                                 While INS enforcement efforts are unlikely to create a significant increase
                                 in demand for H-2A workers, changes in program operations could
                                 improve the ability of growers to obtain workers when needed—whether
                                 or not a nationwide labor shortage exists—and better protect the wages
                                 and working conditions of both domestic and foreign workers. These
                                 include reducing both the time required to process applications and the
                                 period of time the worker must be employed to qualify for a wage
                                 guarantee.



Principal Findings

A Widespread Farm Labor          A widespread farm labor shortage does not appear to exist now and is
Shortage Is Unlikely in the      unlikely in the near future. Although there is widespread agreement that a
Near Future, Although            significant portion of the farm labor force is not legally authorized to
                                 work, INS enforcement activity is unlikely to generate significant farm
Localized Shortages Are          labor shortages.
Possible

Ample Supplies of Farm Labor     Although data limitations make the direct measurement of a labor
Appear to Be Available in Most   shortage difficult, GAO’s own analysis suggests, and many farm labor
Areas                            experts, government officials, and grower and farm labor advocates agree,
                                 that a widespread farm labor shortage has not occurred in recent years
                                 and does not now appear to exist. For example, GAO’s analysis of the
                                 monthly and annual unemployment rates of 20 large agricultural
                                 counties—those that contain large amounts of fruit, tree nut, and
                                 vegetable production in dollar value—found that 13 counties maintained
                                 annual double-digit unemployment rates, and 19 had rates above the




                                 Page 6                                 GAO/HEHS-98-20 H-2A Guestworker Program
                              Executive Summary




                              national average during 1994 through 1996. As of June 1997, 11 counties
                              still exhibited monthly unemployment rates double the national average of
                              5.2 percent, and 15 of the 20 counties had rates at least 2 percentage points
                              higher than the national rate. Only two of the counties had unemployment
                              rates below the June 1997 national average. These high unemployment
                              rates generally existed over the entire year, even during peak agricultural
                              periods. The lack of evidence of widespread farm labor shortages,
                              however, does not preclude the existence or potential for more localized
                              shortages in a specific crop or remote geographic area.

INS Enforcement Efforts Are   GAO   estimates that approximately 600,000 farmworkers in the United
Unlikely to Significantly     States lack legal authorization to work. However, INS officials around the
Reduce the Number of          country were unanimous in their statements that they do not expect their
Unauthorized Farmworkers      enforcement efforts to have any general impact on the supply of farm
                              labor either nationally or regionally, given the large number of fraudulently
                              documented farmworkers and competing enforcement priorities. Most of
                              INS’ investigation resources are focused on identifying aliens who have
                              committed criminal acts, including violent criminal alien gang and
                              drug-related activity, and on detecting and deterring fraud and smuggling.
                              In fiscal year 1996, 304 INS staff years were devoted to noncriminal
                              investigations, including worksite enforcement for all industries—an
                              average of about 6 INS staff years per state. Fewer than 5 percent of the
                              4,600 investigations completed in fiscal year 1996 involved employers in
                              agricultural production or services. Furthermore, fewer than 700 workers,
                              about 4 percent of all employees at those worksites, were arrested during
                              INS’ enforcement operations at these worksites. INS officials do not expect
                              a significant increase in enforcement efforts directed at agriculture in the
                              near future.

                              The prevalence of such a large number of unauthorized and fraudulently
                              documented farmworkers leaves individual employers vulnerable to
                              sudden labor shortages if INS targeted enforcement efforts at their
                              establishments. Although INS efforts are under way to improve employers’
                              ability to identify fraudulent documents, these efforts are still in the early
                              stages and are not likely to have any significant impact on the availability
                              of illegally documented farmworkers in the near future. The degree to
                              which these initiatives, if fully implemented, would affect the number of
                              unauthorized workers and the supply of agricultural workers is unknown;
                              full implementation would require legislative action.




                              Page 7                                  GAO/HEHS-98-20 H-2A Guestworker Program
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Although Employers        Agricultural employers receive certification from Labor for most of the
Obtain H-2A Workers,      workers they request through the H-2A program on both a regular and an
Applications Are Not      emergency basis, regardless of the skill level required. Labor’s
                          Employment and Training Administration (ETA) issued certifications for
Processed in a Timely     99 percent of the 3,689 applications filed nationwide from October 1, 1995,
Manner                    through June 30, 1997, and certified all but 11 percent of the 41,549 job
                          openings requested on these applications. However, Labor does not
                          always process applications on time, which makes it difficult to ensure
                          that employers will be able to get workers when they need them. The H-2A
                          program has statutory and regulatory deadlines, such as a requirement
                          that employers file an application for workers at least 60 days before they
                          are needed and that Labor issue a decision on certification of a labor
                          shortage at least 20 days before the date of need. GAO’s analysis showed
                          that in fiscal year 1996, at least one-third of Labor’s certifications missed
                          the statutory 20-day deadline, limiting the time available to process visas
                          through INS and the State Department. Although no data were available on
                          how many employers failed to obtain the required workers by the date of
                          need, GAO identified some applications that were not even certified by
                          Labor until after the date of need.


Lack of Data Makes It     Labor does not collect data necessary to determine the extent and cause of
Difficult to Monitor      its failure to meet regulatory and statutory deadlines for both regular and
Timeliness and Oversee    emergency applications. A program official told us that while the agency
                          does not maintain data on timeliness, he will hear from agricultural
Program                   employers about any missed deadlines. Without adequate data, GAO could
                          not corroborate Labor’s explanation that the delay in meeting the
                          certification deadline was due to reasons outside the control of the office
                          responsible for certifications, such as the time required to inspect
                          farmworker housing and employers’ failure to provide in a timely manner
                          the required documentation of efforts to recruit domestic workers and of
                          health care coverage.


INS Involvement in        After receiving Labor’s certification, INS must approve an employer’s
Petition Approval Adds    petition for H-2A visas before workers can apply to the State Department
Little Value to Process   for visas, a procedure that can add up to 3 weeks to processing time. INS
                          officials agreed, however, that the INS petition approval process adds little
                          value to the process because petitions for H-2A visas, unlike other visa
                          petitions, do not generally identify individual workers. Therefore, INS
                          examiners only check to make sure that Labor has issued a certification
                          and that the employer has submitted the correct fees for the petition.



                          Page 8                                 GAO/HEHS-98-20 H-2A Guestworker Program
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                              Moreover, this verification that Labor has issued a certification is done
                              again by the State Department, according to officials at the two
                              consulates—Monterrey and Hermosillo, Mexico—that process almost all
                              H-2A visas.


Requirement to Request        Even if all processing deadlines are met, agricultural employers, their
Workers 60 Days in            advocates, and state employment officials told us that the workers may
Advance Is Problematic        not be available when needed. This is because the weather and other
                              factors make it hard to estimate 60 days in advance when workers will be
                              needed. This is especially true for crops with short harvest periods. This
                              difficulty may help explain why many employers were late filing
                              applications for certification with Labor: 42 percent of all applications in
                              fiscal year 1996 were filed late. The 60-day deadline may also encourage
                              employers to estimate the earliest possible date, which can have negative
                              consequences for workers who arrive before the employer has work for
                              them: These workers are then left with no income until work is available.


Insufficient Information      Employers, advocates, and agency officials expressed frustration about
and Multiple Agencies         the poor information on H-2A procedures. Labor’s handbook on the H-2A
Administering H-2A            Labor certification process includes information that is outdated, hard to
                              understand, and incomplete. Program participants can also be confused by
Program Can Make              the multiple agencies and levels of government involved in the H-2A
Program Participation         program, which fosters redundant agency oversight and the inability to
More Difficult                determine compliance with program requirements. In some states, for
                              example, employer-provided farmworker housing is subject to federal,
                              state, and local housing regulations and must be inspected by multiple
                              agencies. Some redundancy may also result in employers
                              misunderstanding program requirements. Employers and employer and
                              labor advocates in California, for example, told GAO that tents for
                              farmworkers were effectively prohibited because they had to be heated
                              and cooled. However, both federal and state housing officials said that
                              tents are permitted and that air-conditioning is not required.


Worker Protection             Violations of H-2A worker protection provisions, including the
Provisions Are Difficult to   requirement that foreign guestworkers be guaranteed wages equivalent to
Enforce                       at least three-quarters of the amount specified for the entire contract
                              period, are difficult to identify and enforce. H-2A guestworkers may be
                              less aware of U.S. laws and protections than domestic workers, and they
                              are unlikely to complain about worker protection violations, such as the



                              Page 9                                 GAO/HEHS-98-20 H-2A Guestworker Program
                            Executive Summary




                            three-quarter guarantee, fearing they will lose their jobs or will not be
                            hired in the future. Labor, for example, received no complaints from
                            workers employed by H-2A employers in fiscal year 1996, even though
                            GAO’s analysis suggests it is likely that some workers did not receive their
                            guaranteed wages. In general, Labor officials reported that it is hard to
                            ensure that abusive employers do not participate in the H-2A program.

                            Labor officials also noted operational impediments in enforcing these
                            protections. For example, the three-quarter guarantee is only applicable at
                            the end of the contract period, and H-2A workers must leave the country
                            soon after the contract ends. Labor officials said that monitoring the
                            three-quarter guarantee is difficult because they cannot interview workers
                            after they return to Mexico to confirm their work hours and earnings.
                            These enforcement difficulties create an incentive for less scrupulous
                            employers to request contract periods longer than necessary: If workers
                            leave the worksite before the contract period ends, the employer is not
                            obligated to honor the three-quarter guarantee or pay for the workers’
                            transportation home. And if a worker abandons the contract, it can be very
                            difficult to determine whether he or she has left the country or is instead
                            remaining and taking jobs from domestic workers.

                            The H-2A program requires that agricultural employers provide H-2A
                            workers the same minimum wages, benefits, and working conditions as
                            those provided to domestic workers employed in “corresponding
                            employment.” Current Labor regulations guarantee wages for the first
                            week of work to domestic workers who are referred to agricultural
                            employers through the interstate clearance system of the Employment
                            Service,3 unless the employer informs the state employment service of a
                            delay in the date of need at least 10 days in advance. However, no
                            provisions are made to provide the same guarantee to H-2A workers,
                            resulting in a disparity of treatment and the potential for personal hardship
                            for foreign workers.


Agencies Could Handle a     In the unlikely event of a national farm labor shortage, Labor, INS, and state
Major Increase in Program   employment service officials told GAO they could handle an unanticipated,
Workload With Additional    major, short-term increase in program workload. In the event of a
                            significant, sustained national increase in the demand for agricultural
Resources                   guestworkers, however, Labor and INS officials agreed that they would
                            need additional resources to effectively process the increased number of

                            3
                             The U.S. Employment Service, part of Labor’s ETA, is a national system of public employment service
                            offices, supported by federal funds and operated by the states, which provide employment services to
                            individuals seeking employment and to employers seeking workers.



                            Page 10                                            GAO/HEHS-98-20 H-2A Guestworker Program
                       Executive Summary




                       applications. Although the administration’s Domestic Policy Council has
                       met with officials from Labor, INS, USDA, and State to address this issue, no
                       proposals are currently available for review.


                       To improve the H-2A program’s ability to meet the needs of agricultural
Recommendations        employers while protecting the wages and working conditions of
                       farmworkers, GAO is making recommendations to the Congress, the
                       Attorney General, and the Secretary of Labor. These recommended actions
                       would improve service to employers by allowing them to request workers
                       45 days in advance of need rather than requiring 60-day notice. This
                       shorter time period could be met by (1) removing INS from the petition
                       approval process and (2) having Labor more closely monitor its
                       performance in meeting deadlines. The recommendations also maintain
                       protection for domestic workers by keeping the same number of days
                       allowed for recruitment of domestic workers prior to certification of a
                       labor shortage, and better protect H-2A workers by extending to them the
                       same guarantee of first-week wages that now applies to domestic workers
                       in corresponding employment and by revising the regulations regarding
                       the three-quarter wage guarantee. Other recommendations would improve
                       service to both employers and workers by providing them better
                       information about the program and consolidating enforcement
                       responsibilities within Labor.


                       Labor, the State Department, and USDA all commented on a draft of this
Agency Comments        report. Labor and State, agencies responsible for implementing GAO’s
and GAO’s Evaluation   recommendations, generally agreed with the report’s findings and most of
                       its recommendations. For example, Labor concurred with GAO’s
                       recommendation that the Attorney General delegate authority for approval
                       of H-2A visa petitions from INS to the Secretary of Labor. In contrast, USDA,
                       which serves in an advisory capacity, while agreeing with some of GAO’s
                       findings and recommendations, submitted detailed comments on
                       statements, conclusions, and recommendations presented in the draft
                       report that it believed were either inaccurate or required clarification. (See
                       apps. VIII, IX, and X for Labor’s, State’s, and USDA’s comments,
                       respectively.)

                       Labor specifically agreed with GAO’s finding that “a farm labor shortage
                       does not now exist and is unlikely in the foreseeable future.” However, it
                       also contended that there is evidence of a farm labor surplus, and also




                       Page 11                                GAO/HEHS-98-20 H-2A Guestworker Program
Executive Summary




noted the potential for implementation of work requirements of the recent
welfare reform legislation to provide agricultural labor.

Labor suggested two revisions to GAO’s recommendations. Labor agreed
that the structure of the three-quarter guarantee could result in employers
overestimating the contract period in the expectation that less work and
lower earnings toward the end of the contract period will encourage
workers to “abandon” employment and, thereby, relieve the employer of
the three-quarter guarantee and return transportation reimbursement
obligations. While Labor agreed to evaluate possible solutions to this
problem, it said that given fluctuations in the amount of work required
during a growing season, applying the guarantee on an incremental basis
may not be the most appropriate solution. Labor also suggested a revision
to the recommendation regarding authority to suspend employers with
serious labor standard or H-2A contract violations: The agency suggested
that the authority should be extended to the Wage and Hour Division of
the Employment Standards Administration rather than transferring it from
ETA. GAO revised both recommendations accordingly.


Although USDA agreed with some of the draft report’s findings, conclusions,
and recommendations, it submitted detailed comments on aspects of the
draft report that it believed were either inaccurate or require clarification.
These comments can be grouped into several broad areas concerning
GAO’s analysis of (1) conditions in agricultural labor markets; (2) the
magnitude and consequences of INS enforcement operations; (3) H-2A
program operations, specifically late filings of applications; and (4) the
effectiveness of protections covering both domestic and H-2A workers,
specifically the three-quarter guarantee and the application processing
deadlines. For example, although USDA did not explicitly disagree with the
finding that widespread labor shortages do not currently exist, it
contended that the central issue is whether an adequate supply of qualified
labor is currently available to agricultural employers. Information
provided by USDA does not alter GAO’s assessment that the overwhelming
weight of the evidence indicates that widespread farm labor shortages do
not currently exist and are unlikely to occur in the near future. While USDA
takes issue with individual components of GAO’s analysis, the current
quantitative analysis of key market indicators, coupled with the numerous
in-depth interviews with agricultural employers, associations, and other
interested parties, provides a reliable assessment of current farm labor
market conditions.




Page 12                                GAO/HEHS-98-20 H-2A Guestworker Program
Executive Summary




Justice’s INS, Labor, and USDA provided technical comments, which were
included where appropriate. The Department of State had no substantive
or technical comments.




Page 13                             GAO/HEHS-98-20 H-2A Guestworker Program
Contents



Executive Summary                                                                               4


Chapter 1                                                                                      18
                      Background                                                               18
Introduction          Scope and Methodology                                                    22

Chapter 2                                                                                      24
                      Local Labor Shortages Are Possible, but No National Agricultural         24
No Widespread           Labor Shortage Appears to Exist
Agricultural Labor    INS Enforcement Efforts Are Not Likely to Significantly Reduce           30
                        the Availability of Agricultural Labor
Shortage Is
Anticipated
Chapter 3                                                                                      38
                      Statutory and Regulatory Deadlines for H-2A Process                      38
H-2A Program Can Be   Employers Receive Labor Certification for Most of the Workers            44
Improved to Better      They Request
                      Completing Certification and Visa Processing by Date of Need             46
Meet the Needs of       May Not Provide Workers When Needed by Employers
Agricultural          Labor Often Issues Certifications After the Date of Need                 46
Employers and         INS Petition Approval Process Can Increase Program Processing            48
                        Time
Workers               State Department Has Processed Substantially More H-2A Visas             50
                        in Recent Years
                      Involvement of Multiple Levels of Government and Agencies May            53
                        Result in Redundant Oversight Activities and Participant
                        Confusion
                      Worker Protection Provisions Under H-2A Program Hard to                  58
                        Enforce
                      H-2A Workers Do Not Receive Same Guarantee for Wages                     62
                        Provided to Domestic Workers
                      Questions About Location of Enforcement Responsibility Within            62
                        Labor
                      Sustained Increase in Demand for Guestworkers Would Require              63
                        Additional Agency Resources




                      Page 14                              GAO/HEHS-98-20 H-2A Guestworker Program
                       Contents




Chapter 4                                                                                       64
                       Conclusions                                                              64
Conclusions and        Recommendations                                                          67
Recommendations
Chapter 5                                                                                       69
                       Labor Stressed Existence of Agricultural Labor Surplus                   69
Agency Comments        USDA Had Multiple Concerns With Report Findings, Conclusions,            70
and Our Evaluation       and Recommendations

Appendixes             Appendix I: Primary Congressional Contacts in Addition to                80
                         Report Addressees
                       Appendix II: Objectives, Scope, and Methodology                          81
                       Appendix III: Economic Data on U.S. Farmworkers and                      92
                         Agricultural Production
                       Appendix IV: Characteristics of H-2A Participants                        99
                       Appendix V: INS Worksite Enforcement Activities, Fiscal Year            107
                         1996
                       Appendix VI: Stakeholder Perspectives on Worker Protection              111
                         Requirements Under H-2A Program
                       Appendix VII: Appeal Rights During the H-2A Process                     113
                       Appendix VIII: Comments From the Department of Labor                    114
                       Appendix IX: Comments From the Department of State                      121
                       Appendix X: Comments From the U.S. Department of Agriculture            122
                       Appendix XI: GAO Contacts and Staff Acknowledgments                     144

Related GAO Products                                                                           148


Tables                 Table III.1: Annual and Monthly Unemployment Rates for 20                93
                         Counties With Significant Production in Fruits, Tree Nuts, and
                         Vegetables, 1994-96 and June 1997
                       Table III.2: Food Stamp Waiver and Labor Surplus Area                    94
                         Designations for 20 Counties With Significant Production in
                         Fruits, Tree Nuts, and Vegetables, 1997
                       Table III.3: Average Hourly Wages of Agricultural Workers,               96
                         1989-96
                       Table III.4: Average Hourly Piece-Rate Wages of Agricultural             97
                         Workers, 1989-95




                       Page 15                              GAO/HEHS-98-20 H-2A Guestworker Program
          Contents




          Table III.5: Total Annual Acreage, Tonnage and Dollar Value of           98
            National Fruit and Vegetable Production, and Numbers of
            Workers Employed, 1986-97
          Table IV.1: H-2A Workers Entering the United States, by Country         100
            of Origin, Fiscal Year 1987-96
          Table IV.2: Number and Result of Applications for H-2A                  104
            Certifications, by Region, Fiscal Year 1994-97
          Table V.1: INS District Offices, by Region                              110

Figures   Figure 2.1: INS Staff Years by Type of Investigation, Fiscal Year        32
            1996
          Figure 3.1: H-2A Process for Obtaining Permission to Bring in            40
            Foreign Workers
          Figure 3.2: Time Requirements for Applying for Agricultural              43
            Workers Under the H-2A Program
          Figure 3.3: Country of Origin for H-2A Workers Has Shifted From          45
            Jamaica to Mexico, 1987-96
          Figure 3.4: Number of H-2A Visas Processed, Fiscal Years 1987-97         50
          Figure 3.5: Multiple Agencies Enforce Farmworker Protections in          55
            New York
          Figure II.1: Terms of the Work                                           82
          Figure IV.1: Distribution of Applications and Workers Certified,        103
            by Region, Fiscal Year 1996
          Figure IV.2: Comparison of Age Distribution of Domestic Workers         106
            With H-2A Workers at a Major H-2A Employer, Fiscal Year 1996
          Figure V.1: INS Worksite Enforcement Activities Completed at            108
            Agriculture-Related Employers, October 1996-July 1997




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Contents




Abbreviations

AEWR       adverse effect wage rate
BLS        Bureau of Labor Statistics
CLASS      Consular Lookout and Support System
ESA        Employment Standards Administration
ETA        Employment and Training Administration
EVP        Employment Verification Pilot
ICS        Interstate Clearance System
INS        Immigration and Naturalization Service
IIRIRA     Illegal Immigration Reform and Immigration Responsibility
                 Act of 1996
IRCA       Immigration Reform and Control Act
JEVP       Joint Employment Verification Pilot
MSPA       Migrant and Seasonal Agricultural Worker Protection Act
NASS       National Agricultural Statistics Service
NAWS       National Agricultural Workers Survey
OIG        Office of Inspector General
OSHA       Occupational Safety and Health Administration
RAW        Replenishment Agricultural Worker
SAW        Special Agricultural Worker
SESA       state employment service agency
SSA        Social Security Administration
USDA       U.S. Department of Agriculture
WHD        Wage and Hour Division
WICLO      West Indies Central Labour Organisation


Page 17                              GAO/HEHS-98-20 H-2A Guestworker Program
Chapter 1

Introduction


               During congressional deliberations on the Illegal Immigration Reform and
               Immigrant Responsibility Act of 1996, concerns surfaced about whether
               there would be enough farmworkers to meet the needs of the agricultural
               industry after the act’s new constraints on foreign workers’ ability to enter
               the country were implemented. The H-2A nonimmigrant guestworker
               program provides a way for U.S. agricultural employers to import
               nonimmigrant foreign workers to perform seasonal agricultural work on a
               temporary basis when domestic workers are unavailable.4 During fiscal
               year 1996, agricultural employers used the H-2A program to import about
               15,000 workers, less than 1 percent of the agricultural field labor force.5

               The Congress asked whether the H-2A guestworker program could provide
               a sufficient supply of agricultural workers if a significant farm labor
               shortage occurred. As a result, the 1996 law, included in the Omnibus
               Consolidated Appropriations Act, 1997, directed us to review various
               aspects of the H-2A program. These issues are included in two general
               objectives: (1) the likelihood of a widespread agricultural labor shortage
               and its impact on the need for nonimmigrant guestworkers and (2) the
               H-2A program’s ability to meet the needs of agricultural employers while
               protecting domestic and foreign agricultural workers, both now and if a
               significant number of nonimmigrant guestworkers is needed in the future.
               (See app. I for a list of primary congressional contacts in addition to the
               report addressees and app. II for a detailed listing of the questions agreed
               upon in discussions.)


               Throughout the 20th century, the Congress has authorized numerous
Background     programs to allow U.S. agricultural employers to use foreign temporary
               guestworkers in the event of a domestic labor shortage. For example,
               during World War I, the Congress authorized a temporary farm labor
               program to replace workers who were in the military; that program
               admitted almost 77,000 Mexicans to the United States. During a similar
               labor shortage created by World War II, the Congress authorized a
               program to bring Mexican guestworkers, called “braceros,” to the United
               States. The Bracero program operated under a series of legislative

               4
                See 8 U.S.C. 1101(a)(15)(H)(ii)(a).
               5
                Estimates of the size of the agricultural workforce differ. As of July 1997, the Department of
               Agriculture (USDA) reported about 1.4 million workers employed on farms. This includes both field
               and livestock workers hired directly and from contractors. The Commission on Agricultural Workers
               noted in November 1992 that a reasonable estimate would be 2.5 million workers in the United States
               performing farmwork at some time during the course of a year. Using its own and USDA data, the
               National Agricultural Workers Survey estimated that there are about 1.6 million field workers. See A
               Profile of U.S. Farmworkers: Demographics, Household Composition, Income and Use of Services
               (Washington, D.C.: U.S. Department of Labor, Apr. 1997), p. 31.



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Introduction




authorizations from 1942 to 1964, bringing in between 4 million and
5 million workers for the nation’s farms, primarily in the western United
States. While the Bracero program was still in effect, the Immigration and
Nationality Act of 1952 (P.L. 82-144) authorized a guestworker program
that included agricultural workers, which is known as “H-2” after the
section of the law. Similar in structure to the Bracero program, the H-2
program was enacted as a permanent program and was primarily used by
agricultural employers in the east to contract with Caribbean workers.

The Immigration Reform and Control Act of 1986 (IRCA) divided the H-2
program into two visa categories: the H-2A program for agricultural
employers and the H-2B program for nonagricultural employers.6 The H-2A
program allows employers to bring in foreign workers to “perform
agricultural labor or services . . . of a temporary or seasonal nature.” The
purpose of the H-2A program is to ensure agricultural employers an
adequate labor supply while also protecting the jobs, as well as the wages
and working conditions, of domestic farmworkers. Under the program,
agricultural employers who anticipate a shortage of domestic workers can
request nonimmigrant foreign workers.7 The Department of Justice
authorizes the State Department to issue nonimmigrant visas for H-2A
workers only after the Department of Labor certifies that a labor shortage
exists and that the wages and working conditions of U.S. workers similarly
employed will not be adversely affected by the use of guestworkers. USDA
conducts surveys and acts in an advisory role to Labor in Labor’s
determination of the minimum wage rates to be paid by employers of H-2A
workers—the so-called “adverse effect wage rate”—which are designed to
mitigate any adverse effect the employment of these workers may have on
domestic workers similarly employed.

Federal agencies are responsible for protecting both H-2A and domestic
farmworkers from being exploited by agricultural employers. Labor’s
Wage and Hour Division (WHD), which is part of the Employment
Standards Administration (ESA), is responsible for ensuring that
agricultural employers comply with the contractual obligations that apply
to H-2A workers, including wages, benefits, and working conditions. Since
agricultural employers must offer at least the same working conditions to
willing domestic workers, WHD must also ensure compliance for domestic
workers employed in “corresponding employment.”

6
 The H-2B program allowed employers to import foreign workers to perform nonagricultural
temporary or seasonal service or labor.
7
 The procedures of the H-2A program are very similar to the operations of the agricultural provisions
of the former H-2 program.



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Chapter 1
Introduction




WHD also enforces additional protections afforded to domestic
farmworkers by the Migrant and Seasonal Agricultural Worker Protection
Act (MSPA), which establishes basic protections for domestic migrant and
seasonal farmworkers regarding wages, housing, and transportation.8 MSPA
requires that employers notify prospective workers of the wages and
working conditions before they are hired. MSPA also requires that housing
provided for workers must meet certain minimum standards for health and
safety, and that vehicles in which workers are transported meet certain
standards for safety.

Labor’s Occupational Safety and Health Administration (OSHA) is generally
responsible for regulating workplace safety and health, including the
establishment of mandatory standards for temporary labor camps and for
permanent migrant farmworker housing constructed on April 3, 1980, or
later. OSHA issued a national field sanitation standard in 1987 that required
agricultural employers to provide field laborers, at no cost, drinking water,
toilets, and handwashing facilities. In those states that operate their own
safety and health programs under federal OSHA approval, and which have
decided to retain enforcement authority over field sanitation, the state
OSHA office enforces provisions of the field sanitation standard.9 In
February 1997, Labor transferred responsibility for enforcing the field
sanitation standard in states without state safety and health programs
from OSHA to WHD.

The Immigration and Naturalization Service (INS), in addition to admitting
qualified guestworkers under the H-2A program, is responsible for
protecting domestic workers by ensuring that (1) foreign workers do not
enter the United States illegally and (2) U.S. employers do not hire illegal
workers. Within INS, border management is largely the responsibility of the
Border Patrol and Investigations, while special agents throughout the
country are responsible for identifying, apprehending, and expelling illegal
workers, and for sanctioning employers who knowingly hire foreign
workers who are not authorized to work in this country.

With the passage of IRCA in 1986, it became illegal for employers to
knowingly hire people who are not authorized to work in the United


8
 Foreign farmworkers employed under the H-2A program are not covered by MSPA.
9
 The Occupational Safety and Health Act of 1970 allows states to operate their own safety and health
programs as long as they are determined by OSHA to be at least as effective as the federal OSHA
program. Currently, 25 states operate their own programs to enforce at least some OSHA standards.
However, after February 1997, only 14 states and territories retained enforcement responsibility for
field sanitation standards.



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Introduction




States.10 All employees hired after November 6, 1986, regardless of
citizenship, are required to show employers certain documents to establish
both identity and employment eligibility. Employers, in turn, must verify
the identity and employment eligibility of everyone they hire. Employers
may not, however, discriminate against individuals on the basis of national
origin or citizenship. INS’s Worksite Enforcement program enforces this
provision. INS investigations special agents and Border Patrol officers
investigate employers, inspect eligibility verification, determine the nature
and degree of compliance, remove unauthorized aliens from the worksite,
and can sanction employers who knowingly hire aliens unauthorized to
work.

IRCA also established the Commission on Agricultural Workers to study the
effects of the act on the agricultural industry, with special emphasis on
perishable crop production.11 The Commission was also asked to review a
number of more specific questions regarding IRCA’s impact, including the
adequacy of the supply of agricultural labor in the United States, whether
certain geographic regions need special programs or provisions to meet
their needs for agricultural labor, and the extent to which the labor
difficulties experienced by agricultural employers are related to the lack of
modern labor-management techniques. The Commission in its 1992 report
concluded that no new supplementary foreign worker programs were
warranted at that time.12 However, it also urged the continuation of
adequate monitoring and analysis of the farm labor market to facilitate
quick action if future shortages develop. Labor conducts the National
Agricultural Workers Survey (NAWS) annually, which collects detailed
information on the characteristics and work patterns of agricultural
workers, including job history data used to estimate fluctuations in farm
labor supply.




10
 Before IRCA was enacted, MSPA, which was enacted in 1983, prohibited migrant farmworker
contractors from recruiting or employing illegal aliens.
11
  “Perishable crops” is defined as “fruit, vegetable, and horticultural specialty production,” a
classification that includes the production of most labor-intensive crops. Fruit includes berries, grapes,
citrus fruits, deciduous tree fruits, avocados, bananas, coffee, dates, figs, olives, pineapples, tropical
fruit, and tree nuts. Vegetable includes all vegetables and melons grown in the open. Horticultural
specialties includes bedding plants, bulbs, florists’ greens, flower and vegetable seeds, flowers, foliage,
fruit stocks, nursery stock, ornamental plants, shrubberies, sod, mushrooms, and vegetables grown
under cover.
12
   Report of the Commission on Agricultural Workers, Commission on Agricultural Workers
(Washington, D.C.: Nov. 1992).



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              Chapter 1
              Introduction




              The Immigration Act of 199013 mandated the U.S. Commission on
              Immigration Reform to examine and make recommendations regarding the
              implementation and impact of U.S. immigration policy. In 1995, the
              Commission on Immigration Reform found a considerable oversupply of
              farmworkers throughout the country, with heavy unemployment even
              during peak harvest periods. As of September 1997, the Commission found
              that the agricultural labor market had not changed significantly. The
              Commission concluded that any new agricultural guestworker programs,
              particularly “those that seek to revisit the Bracero program,” are not
              needed, concluding that such programs expand rural poverty, and “are
              incompatible with the values of democratic societies worldwide.”14

              Although neither the Commission on Agricultural Workers nor the U.S.
              Commission on Immigration Reform recommended new programs,
              considerable congressional interest in farm labor issues continues. For
              example, in March 1996, the House rejected legislation that would have
              moved the H-2A program from Labor to the Justice Department and
              replaced the H-2A program’s certification requirements with provisions
              permitting agricultural employers to attest or state that a labor shortage
              existed in their area and that employing temporary foreign guestworkers
              would not adversely affect domestic workers. This legislation would also
              have modified the program’s housing provisions and withheld portions of
              guestworkers’ wages to be paid upon the workers’ return to the country of
              origin. The House also rejected another amendment that would have
              transferred the H-2A program to Justice, in addition to shortening filing
              and recruitment times and capping the program at 100,000 workers.
              Similar legislation has been submitted in both houses of the current
              Congress, but no action had been taken as of December 31, 1997.


              To address the objectives of this review, we collected documents and
Scope and     interviewed officials from the Departments of Labor, Justice, State, and
Methodology   Agriculture (USDA) and the Commission on Immigration Reform. We
              interviewed state health department and employment service officials in
              the three states that used the most H-2A workers in fiscal year
              1996—North Carolina, Virginia, and New York—and in the state producing
              the largest dollar value in agriculture—California. We also interviewed
              numerous agricultural employers and agricultural employer association
              representatives; H-2A and non-H-2A farmworkers; and farm labor

              13
                See P.L. 101-649, sec. 141.
              14
               U.S. Commission on Immigration Reform, Legal Immigration: Setting Priorities (Washington, D.C.:
              U.S. Commission on Immigration Reform, 1995), p. 173.



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Chapter 1
Introduction




advocates, including unions. We analyzed data from INS, the Departments
of Labor and State, grower associations, state employment service offices,
and selected state unemployment insurance programs. We also consulted
with methodological and subject area experts, such as agricultural
economists, immigration and labor experts, and policy analysts, and
reviewed literature on immigration and agricultural labor markets. We
conducted our review from April 1997 to September 1997 in accordance
with generally accepted government auditing standards. (See app. II for
more detailed information on our scope and methodology.)




Page 23                               GAO/HEHS-98-20 H-2A Guestworker Program
Chapter 2

No Widespread Agricultural Labor Shortage
Is Anticipated

                        A sudden widespread farm labor shortage requiring the importation of
                        large numbers of foreign workers is unlikely to occur in the near future.
                        There appears to be no national agricultural labor shortage now, although
                        localized labor shortages may exist for individual crops and in specific
                        geographical areas. In addition, while a significant percentage of the U.S.
                        farm labor workforce is not legally authorized to work in the United
                        States, INS does not expect its enforcement activities to significantly
                        reduce the aggregate supply of farmworkers.


                        Although the limitations of available data make the direct measurement of
Local Labor Shortages   a labor shortage difficult, our analysis suggests, and many farm labor
Are Possible, but No    experts, government officials, grower and farm labor advocates agree, that
National Agricultural   a widespread farm labor shortage has not occurred in recent years and
                        does not currently exist. However, the lack of evidence of a widespread
Labor Shortage          farm labor shortage does not preclude the potential for, or existence of,
Appears to Exist        localized shortages particular to specific crops or geographic areas. Many
                        grower advocates, USDA officials, and farm labor experts told us that a
                        large proportion of the current agricultural labor supply is composed of
                        workers who are not authorized for employment, leaving many
                        agricultural employers vulnerable to potential labor shortfalls in the event
                        of a concentrated or targeted INS enforcement effort. Many individual
                        growers we interviewed concurred with this assessment, expressing
                        concerns about the prospect of localized shortages resulting from
                        intensified INS enforcement activities.


Limited Data Make       The limited data available make it difficult to directly measure a market
Measurement of Labor    imbalance such as a farm labor shortage.15 For example, it has been
Shortages Difficult     suggested that the analysis of job vacancy data could help identify those
                        occupations where shortages exist, but the Bureau of Labor Statistics (BLS)
                        no longer collects this information. Although Labor’s Employment Service

                        15
                          A shortage can be defined as a situation in which the number of farm job vacancies persistently
                        exceeds the number of farm labor job seekers at the current wage rate or with moderate wage
                        increases. However, the assumptions made about the operation of a particular labor market will have
                        implications for the concept of a farm labor shortage. For example, the simplest economic model of a
                        labor market specifies that in the event of a shortage (an excess of jobs over available workers)
                        market forces (rising wage rates) should work to eliminate that shortage. However, many economists
                        believe that labor markets do not behave the same way as product (for example, shirts or fish)
                        markets, and thus must be analyzed differently. (See Robert M. Solow, The Labor Market as a Social
                        Institution (Cambridge, Mass.: Basil Blackwell, 1990).) A more dynamic model of labor market
                        adjustment would acknowledge that employers may react in a variety of ways, not only possibly by
                        increasing wages but also by increasing recruitment efforts or reducing production. An analysis of
                        such dynamics can explain labor shortages if adjustment speed is slow or if there are barriers to
                        adjustment. (See Malcolm S. Cohen, Labor Shortages as America Approaches the Twenty-first Century
                        (Ann Arbor, Mich.: University of Michigan Press, 1996).)



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No Widespread Agricultural Labor Shortage
Is Anticipated




does collect information on the number of workers seeking and obtaining
employment in agriculture through referrals at individual state
employment services, an agency official estimates that such activity
accounts for less than 5 percent of all job placements in agricultural field
work nationally.16 Regardless, job vacancy data alone would be
insufficient to determine whether a labor shortage existed; they would
need to be considered in conjunction with other labor market indicators.17

Other labor market indicators are consistent with the view that a
widespread national farm labor shortage does not currently exist. For
example, experts agree that sustained high unemployment rates generally
signify that surplus labor is available and that persistently low
unemployment rates can indicate a labor shortage. Although
unemployment rates are available for states and counties, BLS does not
construct unemployment rates for the agricultural industry for counties or
all states, or for occupations such as agricultural field worker, so this
connection in agriculture cannot be verified directly. In any case,
employers could have difficulties filling positions for a particular
occupation even when a high unemployment rate exists.18

Rapidly rising hourly wages are also consistent with a labor shortage, and
some hourly and piece-rate wage data are available for agricultural field
workers from USDA and other sources. However, rising hourly wage rates
may not always signify a labor shortage if, for example, workers are paid




16
  Between June 1995 and July 1996, the U.S. Employment Service received 188,139 applications at its
state offices from workers classified as migrant and seasonal farmworkers. Of this number, 91,549
were referred to agricultural employment, and 64,847 of these workers were placed in jobs. See The
Annual Report of the U.S. Employment Service, Program Year 1995 (Washington D.C.: Department of
Labor, June 1996), p. E-3.
17
  For example, if an occupation had a high vacancy rate and a high unemployment rate it could mean
that insufficient information about the occupation (for example, wage rates, location of employment,
and skill level) was preventing workers and employers from being matched. It could mean that there
were rigidities in geographic mobility (for example, employment was located in inaccessible areas).
See Cohen, Labor Shortages as America Approaches the Twenty-first Century, p. 12.
18
 For example, if an employer had to locate and interview many workers for a particular occupation
before finding one with the appropriate skills and if workers could not easily search for this job, an
occupational labor shortage could exist even with an area with an unemployment rate significantly
above zero.


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                          Chapter 2
                          No Widespread Agricultural Labor Shortage
                          Is Anticipated




                          by piece rate, as is fairly common in the production of fruits, vegetables,
                          and horticulture.19


Ample Supplies of Farm    Most farm labor experts, government officials, and grower and labor
Labor Appear to Be        advocates we interviewed agreed with our conclusion that agricultural
Available in Most Areas   employers in most of the United States have had adequate supplies of
                          labor for many years and continue to do so. Our analysis is based on
                          (1) the large number of illegal immigrant farmworkers granted amnesty in
                          the 1980s, (2) persistently high unemployment rates in key agricultural
                          areas, (3) state and federal designations of agricultural areas as labor
                          surplus areas, (4) stagnant or declining wage rates as adjusted for
                          inflation, and (5) continued investments by growers in agricultural
                          production.

                          Farmworker amnesty provisions in IRCA resulted in the legalization of large
                          numbers of foreign farmworkers, ensuring agricultural employers
                          adequate supplies of farm labor during the mid-to late 1980s. Beginning in
                          June, 1987, the Special Agricultural Worker (SAW) provisions of IRCA
                          permitted foreign farmworkers with 90 or more days of qualifying work in
                          agriculture to apply for legal status. The SAW program received nearly
                          1.3 million applications during its first 18 months of operation, over half of
                          them in California alone, resulting in the legalization of a significant
                          portion of the U.S. agricultural labor supply.20 Available data suggest that
                          SAW workers have made up a significant, albeit declining, proportion of the
                          U.S. agricultural labor market since the late 1980s, falling from 33 percent
                          of all farmworkers in fiscal year 1989 to 19 percent in fiscal year 1995.21


                          19
                            According to traditional economic theory, if the demand for labor exceeds supply, wages will be bid
                          up by employers: thus, rapidly rising wages are consistent with a labor shortage. However, if, for
                          example, changes in production techniques or worker effort result in the individual employee
                          becoming more productive, hourly rates could rise without the presence of a labor shortage even if
                          farmworkers are paid under constant or falling piece rates. Piece-rate payment is fairly common
                          among agricultural workers. NAWS estimated that for fiscal year 1995, about 24 percent of all field
                          workers, who work primarily in fruits and vegetables, received a piece-rate form of compensation for
                          at least part of their earnings.
                          20
                            IRCA provided agricultural employers additional protection from labor shortages through its
                          Replenishment Agricultural Worker (RAW) provisions, which would have permitted employers to
                          legally bring in foreign workers if Labor and USDA had determined that a labor shortage existed. The
                          provision, in place for four fiscal years beginning in FY 1990 and expired in FY 1994, was never
                          triggered, with both departments consistently agreeing that domestic labor supplies were adequate to
                          meet agricultural employers’ demands for such workers. The Commission on Agricultural Workers at
                          the time also agreed with this assessment, reporting that “there [was] an oversupply of workers in
                          most agricultural labor markets.” Report of the Commission on Agricultural Workers (Washington
                          D.C.: Nov. 1992).
                          21
                           See A Profile of U.S. Farm Workers: Demographics, Household Composition, Income and Use of
                          Services (Washington, D.C.: U.S. Department of Labor, Apr. 1997), p. 36.



                          Page 26                                             GAO/HEHS-98-20 H-2A Guestworker Program
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Many agricultural areas have exhibited persistently high rates of
unemployment over the last few years, suggesting that existing labor
supplies were and continue to be more than adequate to meet agricultural
employers’ needs. Our analysis of recent annual and monthly
unemployment rates of 20 agricultural counties—those that contain large
amounts of fruit, tree nut, and vegetable production in dollar value—is
consistent with this view.22 Of these 20 counties, 13 maintained annual
double digit unemployment rates throughout 1994 through 1996. (For
more detailed information, see table III.1.) As of June 1997, 11 counties
exhibited monthly unemployment rates double the national average of
5.2 percent and 15 of the 20 counties displayed rates at least 2 percentage
points higher than the national rate. Only two of the counties had
unemployment rates below the June 1997 national average.23

State responses to changes mandated by the recently enacted federal
welfare reform legislation also suggest that many agricultural areas may
currently be experiencing farm labor surpluses rather than shortages.
Section 6(o) of the Food Stamp Act, as added by section 824 of the
Personal Responsibility and Work Opportunity Reconciliation Act of 1996,
provides that an individual is ineligible for the program if during the
preceding 36-month period, he or she received benefits for 3 months while
not working or participating in a work program for at least 20 hours per
week. However, in an effort not to penalize food stamp recipients who
reside in areas with limited employment opportunities, the Secretary of
Agriculture may waive these provisions for any group of individuals in a
requesting state if the Secretary determines that the area in which the
individual resides is essentially a labor surplus area—has an
unemployment rate of over 10 percent or does not have sufficient numbers
of jobs to provide employment for the individuals. As of late July 1997, 42
states had applied for and received waivers from the Secretary of
Agriculture for counties and other jurisdictions, including many
agricultural areas. All of the 20 agricultural counties we analyzed received




22
 As of 1992, the latest year for which detailed county data were available from USDA, these 20
counties accounted for over 50 percent of the dollar value of all fruit and tree nut production in the
United States, 47 percent of the dollar value of all vegetables, and about 16 percent of the total national
dollar value of nursery and greenhouse production.
23
  Agriculture is a seasonal industry, so it is possible that some areas could have low unemployment
rates during the labor-intensive part of the year, such as during harvest time, but still show high annual
rates of joblessness. However, our analysis of monthly unemployment rates during this period showed
high rates (above 7 percent) throughout the period January 1994 through June 1997 for most of the 20
counties.



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Is Anticipated




at least partial waivers from USDA, and 18 received waivers covering their
entire counties.24 (For more detailed information, see table III.2.)

Cities, counties, and other jurisdictions also can be designated annually by
Labor’s Employment Service as “labor surplus areas.” A labor surplus area
must have an average unemployment rate at least 20 percent above the
average national unemployment rate during the previous 2 calendar years
or a rate of 10 percent or more during the previous 2 calendar years. Labor
may also designate an area as surplus if it had unemployment rates of at
least 7.1 percent for each of the 3 most recent months or projected
unemployment of at least 7.1 percent for each of the next 12 months or has
documentation that this has already occurred. Such designation confers
preference in bidding on federal procurement contracts for firms that will
locate contract work in those areas. As of August 1997, Labor had
designated all of 13 and parts of 5 others of the 20 agricultural counties we
analyzed as labor surplus areas. (See table III.2.)

Some experts cite evidence that agricultural wage rates adjusted for
inflation (real wage rates) have declined in recent years, a trend that is
also more indicative of a labor surplus than a labor shortage. Our analysis
of agricultural wage data shows declining real wage rates. Since the late
1980s, annual average hourly wages for agricultural workers have been flat
or have declined in real terms (see table III.3), and real annual average
hourly wage rates for piece workers fell. (See table III.4.)25 Declining or
flat real wages also occurred as total employment in agriculture fell by
6 percent between 1986 and 1997 or, as shown in table III.5, 15.9 percent
for total peak employment between 1987 and 1997, which also suggests the
presence of farm labor surpluses rather than shortages.26


24
  California’s Santa Barbara and San Diego counties received partial waivers. Of the 20 counties, 13
received full waivers under the 10 percent unemployment rate provision while 7 received full or partial
waivers under the “insufficient jobs” provisions.
25
 It should also be noted that for the period 1989-95, USDA’s National Agricultural Statistics Service
(NASS) data on hourly farm wages showed a smaller decline in real terms than that exhibited by the
BLS average hourly wage rate for all nonagricultural workers—2.7 percent compared with 3.6 percent.
However, the NAWS data on hourly wage rates, which, unlike NASS or BLS data, are based on the
survey responses of workers rather than employers, showed an 8.5-percent decline over the same
period. Some experts argue that the decline in real farm wages detected by both NASS and NAWS
would be even greater if not for an increase in the minimum wage enacted during this period.
26
 This trend should be interpreted with caution because it does not include agricultural employment
obtained through farm labor contractors and because many agricultural labor markets experience
considerable turnover. However, available evidence suggests, at a minimum, considerable
underemployment in agriculture. NAWS data for 1995 show that, on a monthly basis, over 40 percent
of all crop workers were not employed in agriculture over the entire year, even during peak periods.
See A Profile of U.S. Farm Workers: Demographics, Household Composition, Income and Use of
Services, p. 36.



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                            No Widespread Agricultural Labor Shortage
                            Is Anticipated




                            One expert also noted that growers appear to continue to be investing in
                            new farm production that will not bring returns for a number of years,
                            suggesting a long-term confidence that agricultural labor would be
                            available. Consistent with this belief, between 1989 and 1995, the last year
                            for which data were available, acreage for fruits and tree nuts, vegetables,
                            and nurseries (the more labor-intensive agricultural commodities) has
                            increased by over 30 percent, with the dollar value of production and total
                            production tonnage also rising by 52 percent and 30 percent, respectively.
                            (See table III.5.)


Localized Labor Shortages   The lack of evidence of widespread farm labor shortages does not
May Exist in Individual     preclude the existence or potential for more localized shortages in a
Crops and for Specific      specific crop or geographic area. Both growers and labor advocates
                            described current difficulties in obtaining workers and concerns about
Geographical Areas          future difficulties in certain areas. For example, both growers and farm
                            labor advocates agreed that it was increasingly difficult to get domestic
                            labor to work in some kinds of tobacco harvesting, although they
                            disagreed on the cause of this development. Similarly, regional Labor
                            officials suggested that it was likely that the geographic inaccessibility of
                            some particularly remote agricultural areas such as in Nevada contribute
                            to a longtime difficulty that they believed growers in those areas have had
                            in obtaining domestic workers. Some growers, grower advocates, and USDA
                            officials also expressed concern that the large number of workers not
                            authorized to work left themselves or agricultural employers in their areas
                            vulnerable to INS enforcement actions that could prove financially
                            devastating to farm operations.

                            Opinions differ regarding solutions to localized labor shortages. Farm
                            labor advocates and some government officials said that the supply of
                            domestic labor is generally sufficient to meet the needs of U.S. agriculture.
                            For example, some of them suggested that the implementation of the work
                            requirements of the recent welfare reform legislation could serve as a
                            potential source of labor for agricultural employers in some areas of the
                            country. In other areas, they believed, many workers with farm labor
                            experience could be drawn back to agricultural employment with fairly
                            modest wage increases that would have little effect on consumer prices or




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                         U.S. agricultural competitiveness.27 Some employers we interviewed,
                         however, stated that it is unlikely that many former welfare recipients
                         would have the ability to be suitable farmworkers, particularly single
                         mothers with young children requiring day care. Transportation from
                         urban population centers to rural worksites was also cited as an
                         impediment. Regarding wages, some employers were convinced that they
                         could not be competitive if they raised wages.


                         Although many farmworkers are not authorized to work in this country,
INS Enforcement          INS officials do not expect their enforcement efforts to significantly reduce
Efforts Are Not Likely   the availability of agricultural labor, either nationally or regionally.
to Significantly         Law-abiding employers, in particular, are unlikely to be targeted for
                         enforcement efforts, given INS’ focus on apprehending criminal aliens and
Reduce the               identifying employers that have engaged in criminal acts. Current
Availability of          enforcement efforts in agriculture are a small proportion of INS’ total
                         enforcement operations and result in few apprehensions. Conducting
Agricultural Labor       enforcement operations in agriculture is particularly resource-intensive.
                         Enforcement officials in INS’ Office of Investigations and Border Patrol
                         around the country told us they do not plan to redirect their efforts from
                         other enforcement activities to agriculture and do not expect to have any
                         general impact on farmers’ ability to harvest crops. They agreed, however,
                         that a limited number of individual agricultural employers could be
                         affected. In addition, efforts to increase employers’ ability to identify
                         fraudulent documents are not expected to have an immediate impact.


Many Farmworkers Are     Many grower advocates, USDA officials, and experts told us that a large and
Not Authorized for       increasing proportion of the existing agricultural workforce is not
Employment               authorized to work in this country. Data from the NAWS and our analysis of
                         available data support this conclusion. The most recent NAWS found that 37
                         percent of all crop workers in 1995 were ineligible for employment—up




                         27
                           Changes in field worker wages appear to have a fairly small impact on consumer produce prices. For
                         example, one estimate found that a 1-percent increase in real farm worker wages would increase the
                         real costs of fruits and vegetables by about 0.4 percent. The study concluded that the long-term effect
                         on retail prices of fruits and vegetables of removing all illegal farmworkers would be about 3 percent,
                         with a 6-percent price increase in the short term. See Wallace Huffman and Alan McCunn, How Much
                         Is That Tomato in the Window? Retail Produce Prices Without Illegal Farmworkers (Washington, D.C.:
                         Center for Immigration Studies, Feb. 1996). However, the study also assumed that such unauthorized
                         workers accounted for only 17 percent of the agricultural workforce, while current estimates from
                         NAWS are 37 percent.



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                            from 7 percent in 1989.28 We estimate that approximately 600,000
                            farmworkers in the United States lack legal authorization to work, using
                            the NAWS estimate of 37 percent of an agricultural field labor force of
                            1.6 million.


Few INS Enforcement         INS enforcement efforts are directed at preventing the illegal entry of
Resources Are Directed at   people and identifying and apprehending illegal aliens within the United
Worksite Enforcement        States. The majority of INS enforcement resources are devoted to
                            preventing illegal entry, through the activities of the Border Patrol and the
                            Inspections program. The Investigations program, which consumes fewer
                            than one-fifth of INS enforcement resources, has the primary responsibility
                            for identifying and apprehending those who are in the United States
                            illegally. The Investigations program is also responsible for worksite
                            enforcement, which includes enforcing the IRCA requirements that
                            employers hire only U.S. citizens or authorized aliens and verifying their
                            employment eligibility. Worksite enforcement consumed less than
                            4 percent of INS enforcement activities in fiscal year 1996. As shown in
                            figure 2.1, most investigation resources are focused on identifying aliens
                            who have committed criminal acts, including violent criminal alien gang
                            and drug-related activity and detection and deterrence of fraud and
                            smuggling. In fiscal year 1996, 304 staff years were devoted to noncriminal
                            investigations, including worksite enforcement for all industries, or an
                            average of about 6 INS staff years per state.29 See app. V for the distribution
                            of enforcement actions by INS region.




                            28
                              During that period, many of the workers legalized under the SAW program left agriculture and were
                            replaced by workers who were not authorized to work. Of the 18 percent of all farmworkers who were
                            in their first year of farm work during fiscal year 1995, 70 percent were unauthorized foreigners. See A
                            Profile of U.S. Farmworkers: Demographics, Household Composition, Income and Use of Services.
                            29
                             Of the 304 staff years, 224 were devoted to worksite enforcement and the remaining 80 were devoted
                            primarily to investigations and to apprehending “status” violations, for example, people who enter the
                            country without going through border inspection but are not suspected of criminal behavior.



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Figure 2.1: INS Staff Years by Type of
Investigation, Fiscal Year 1996
                                                                        Status and Other
                                                                        80



                                               Smuggling
                                               218
                                                                                               Worksite Enforcement
                                                                                               224




                                         Fraud
                                         139




                                                                                        Criminal Aliens
                                                       a                                334
                                               Crime
                                               175


                                         a
                                         Consists of participation on Violent Criminal Alien Gang and Drug-Related Activity task forces.




Few INS Enforcement                      INSofficials told us that relatively few worksite enforcement resources are
Resources Are Directed                   assigned to agriculture because almost all of their investigations are
Toward Agricultural                      complaint-driven and they receive relatively few complaints from
                                         agricultural employers. Only about 5 percent of the 4,600 investigations
Employers, and Few                       completed in fiscal year 1996 involved employers in agricultural
Agricultural Workers Are                 production or services. Furthermore, fewer than 700 workers, about
Arrested                                 4 percent of all employees at those worksites, were arrested during INS’
                                         enforcement operations at these agricultural worksites. Even these
                                         numbers overstate the potential impact of INS activity on the need for H-2A
                                         workers because about 40 percent of these “agricultural” employers
                                         appear to be employed in industries that are not defined as agricultural
                                         under H-2A—landscapers, lawn maintenance firms, veterinarians, and
                                         kennels.

                                         INSofficials told us that these totals represent a reduction rather than an
                                         increase in INS enforcement efforts directed at agricultural employers.
                                         Until 1995, the Border Patrol played a significant role in worksite
                                         enforcement on farms through “farm and ranch checks.” In fiscal year
                                         1995, most of these resources were refocused on explicit border control




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                              activities. This redirection of resources sharply reduced Border Patrol
                              involvement in worksite enforcement—from approximately 30 percent of
                              the total worksite enforcement resources to less than 5 percent. Border
                              Patrol officials we talked with unanimously stated that with current
                              resources their enforcement activities could have no significant impact on
                              the agricultural workforce.


Law-Abiding Employers         Officials told us that agricultural employers who comply with the law are
Unlikely to Be Targeted for   not likely to be targeted for enforcement efforts, given the need to focus
Enforcement Efforts           on apprehending aliens and identifying employers who have engaged in
                              criminal acts.30 Law-abiding agricultural employers are not a priority target
                              for INS inspections. INS develops a National Targeting Plan annually to
                              target worksite inspections in response to complaints or leads. The fiscal
                              year 1997 plan identifies 15 industries in which large numbers of illegal
                              aliens have been employed, 2 of which hire farmworkers—“general farm
                              and field crops” and “farm labor and management.” INS focuses primarily
                              on employers in these 15 industries that are “abusive”—that is, employers
                              known to have intentionally hired illegal workers; to have been involved in
                              criminal violations like alien smuggling and harboring; to be repeat
                              offenders; or to have subjected their employees to unlawfully substandard
                              working conditions, housing, or wages. INS’ secondary focus is on abusive
                              employers in industries, other than these 15, with histories of illegal
                              immigration activity.

                              The fiscal year 1997 plan for worksite enforcement was based on leads or
                              complaints, targeting employers that are the subjects of a concrete
                              allegation or for which evidence exists of abuse or violations of IRCA.
                              Major violators are employers in industries or locations with a history of
                              reliance upon unauthorized labor who employ unauthorized foreign
                              workers and violate criminal statutes, violate other regulatory
                              requirements, or continually depend upon unauthorized labor. Officials
                              told us that this emphasis on major violations can result in some
                              investigations of specific farm operations, such as when there are
                              allegations of farmworkers selling illegal substances but that more often
                              result in more urban industries, such as manufacturing, becoming targets
                              for investigations.



                              30
                                Law-abiding employers may hire workers not legally authorized to work in the United States because
                              the law specifies that the employer is in violation of the law only to the extent that he or she knows
                              that the worker is illegal. Employers who obtain the required documentation from workers may
                              unknowingly hire illegal workers if the worker provides fraudulent documents.



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Removing Illegal Aliens    INS enforcement officials we spoke with noted that logistical impediments
From Domestic Farm         make it difficult to apprehend and remove illegal aliens in general and that
Labor Force Is Expensive   agricultural worksites present unique enforcement difficulties. These
                           difficulties include the distance many agricultural worksites are from INS
and Difficult              offices, the unusually large number of people necessary to conduct an
                           enforcement operation on a farm, the need to obtain the necessary search
                           warrants, the lack of perimeter fencing, and the considerable costs of
                           processing and transporting apprehended illegal aliens.

                           Planning and conducting a major enforcement operation requires a
                           significant number of human resources. To have enough personnel to
                           conduct an operation, INS must often secure the assistance of other law
                           enforcement agencies. For example, an enforcement operation we
                           observed at a poultry processing facility involved 26 of the INS district’s
                           special agents, or almost 75 percent of them, as well as about 40 additional
                           personnel from the state police department, the county sheriff’s
                           department, the city police force, a multiagency drug task force, and the
                           U.S. Secret Service. Most agricultural worksites are located in rural areas,
                           often at great distances from the field offices of the enforcement agencies,
                           making the logistics of agricultural enforcement more time-consuming and
                           costly than those conducted at more urban nonagricultural worksites. In
                           one district, agents said that they were discouraged by agency
                           management from pursuing worksite enforcement investigations that
                           would involve travel costs and were instead encouraged to pursue cases in
                           the local metropolitan area.

                           INS officers face a judicial requirement that can also complicate
                           enforcement efforts at agricultural workplaces. Current law requires INS
                           officers to have either the employer’s permission or a search warrant
                           before entering a farm or other outdoor agricultural operation to
                           interrogate a person about his or her right to be in the United States.
                           Enforcement agents told us that as farms become larger and more spread
                           out, workers may be moved from one field to another during the course of
                           a day and thus workers could be employed on fields in multiple counties
                           for the same employer. This situation can require the procurement of
                           multiple search warrants. In addition, according to an INS worksite
                           enforcement supervisor, an operation in an open field would require more
                           personnel to effectively secure the area and would probably involve
                           chasing the “runners,” many of whom would likely escape.

                           Once suspected illegal aliens are apprehended, they may be sent to a
                           detention center for a hearing or, if they are offered and accept voluntary



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                            departure, transported back to their home country. If an apprehended
                            worker demands a hearing, INS district offices may incur additional
                            detention costs like food and housing. Depending on where the
                            apprehension takes place, transporting the worker can be costly. An
                            assistant INS district director for investigations in the Southeast told us
                            that he uses $250 per person as a rule of thumb for estimating the cost of
                            transportation of an illegal alien to Mexico, which does not include the
                            salaries of any of the law enforcement personnel involved. Even if this
                            assistant district director could apprehend several thousand illegal
                            workers, his budget could not cover the transportation costs of voluntary
                            departures. Another assistant district director from a midwestern district
                            stated that his office’s expenses are even higher: When his office
                            apprehends illegal Mexican workers, it may have to pay for air
                            transportation for those who agree to depart voluntarily.


Individual Employers Can    Although most agricultural employers would not be targeted by INS for an
Be Affected by INS          enforcement action, a limited number of individual employers could be
Enforcement Actions Even    significantly affected in spite of their efforts to comply with legal
                            requirements. Both individual employers and INS officials told us that
If They Comply With Legal   high-quality fraudulent documents can be obtained so readily that it is
Requirements                virtually impossible for employers who are assiduously obeying the law to
                            be certain that they are not hiring illegally documented workers.
                            Agricultural employers told us that even though they suspected many of
                            their employees were illegal, the employees possessed the required
                            documents, and the employers had to hire them since they had no basis to
                            assert that the documents were fraudulent. Moreover, employers said they
                            were afraid of being sued for discrimination if they attempted to obtain
                            further verification.


Efforts to Increase         Although efforts are under way to improve employers’ ability to identify
Employers’ Ability to       fraudulent documents, these efforts are unlikely to have a significant
Identify Fraudulent         impact on the availability of unauthorized farmworkers who use such
                            documents in the near future. In 1991 President Bush issued Executive
Documents Will Have No      Order 12781 authorizing demonstration projects of different changes in the
Immediate Impact            existing document-based employment verification system. In response to
                            this directive, INS established the Employment Verification Pilot (EVP), a
                            voluntary test program that allows participating employers to verify
                            electronically the employment eligibility of newly hired noncitizen
                            workers. Currently, over 1,000 employers nationwide participate in EVP.
                            Although well received by participating employers, the limitation of EVP to



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noncitizen workers, rather than all workers, leaves open a door to fraud by
unauthorized employees who claim falsely to be U.S. citizens on the
Employment Eligibility Verification form (Form I-9). The next generation
of verification pilot programs attempts to close this door by verifying all
new hires. In August 1997, INS and the Social Security Administration (SSA)
began the Joint Employment Verification Pilot (JEVP) program among a
small group of employers in the Chicago area. JEVP involves an initial
verification inquiry to SSA regarding all newly hired employees with, if
necessary, a referral to INS for additional verification. The JEVP approach is
also being used in the Basic Pilot currently being implemented by INS and
SSA in the five states with the highest estimated population of unauthorized
aliens (California, Texas, New York, Florida, and Illinois). The Basic Pilot
is one of three verification pilots mandated by the Congress under the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996. With
limited exceptions, these verification pilot programs are voluntary for
employers.

Another effort to assist employers in screening unauthorized workers for
employment is the development of a model counterfeit-resistant Social
Security card. Such a card would permit quicker and more accurate
identification of job applicants and employees who are unauthorized to
work. The Illegal Immigration Reform and Immigrant Responsibility Act of
1996 directed the Commissioner of Social Security to develop a prototype
of a counterfeit-resistant Social Security card. SSA recently issued Report
to Congress on Options for Enhancing the Social Security Card (SSA Pub.
No. 12-002, September 1997) with accompanying prototypes for eight
options for counterfeit-resistant Social Security cards. The Congress will
consider these options and is awaiting a study by GAO. However, a
counterfeit-resistant Social Security card is unlikely to be issued in the
near future.

The degree to which these initiatives will affect the number of
unauthorized workers and the supply of agricultural workers in general is
unknown, and in any case, their effect is expected to be gradual. Both
efforts are pilot projects now; the verification pilot has been conducted
only on a limited basis. Even if both efforts prove successful, they would
have to be authorized as permanent programs before they could be used
routinely. In particular, electronic verification would have to be
legislatively mandated as a permanent, mandatory part of the employment




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verification system in order to have a major, long-term effect on the ability
of unauthorized aliens to obtain employment in the United States.31




31
  Current law requires that the employer obtain a copy of the employee’s documentation that he or she
is a U.S. citizen or otherwise authorized to work and examine it to ensure that it is not an obvious
forgery. However, the employer is not required to ensure that the information contained on the
document is accurate.



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H-2A Program Can Be Improved to Better
Meet the Needs of Agricultural Employers
and Workers
                       Labor currently certifies most of the workers that agricultural employers
                       request through the H-2A program on both a regular and an emergency
                       basis. However, while Labor does not generally track process timeliness,
                       our analysis indicates that both Labor and employers have difficulty
                       meeting deadlines for processing and filing program applications. INS’
                       petition approval procedures also add time and cost to the process
                       without adding significant value. In addition, the multiple agencies and
                       levels of government involved in the H-2A program may result in
                       redundant oversight and cause confusion for program participants.
                       Furthermore, certain program requirements do not appear to be
                       accomplishing their intended purpose. For example, the requirement that
                       agricultural employers actively recruit domestic workers before bringing
                       in guestworkers is often inadequate to protect employment opportunities
                       for U.S. workers. Also, violations of provisions to guarantee that foreign
                       guestworkers are paid for at least three-quarters of the agreed-upon
                       contract period are difficult to identify and enforce, potentially reducing
                       incentives for H-2A workers to remain with the employer for the entire
                       contract period. In addition, in spite of regulations requiring that foreign
                       and domestic workers receive the same minimum wages, benefits, and
                       working conditions, domestic workers recruited through the Interstate
                       Clearance System (ICS) have their wages guaranteed, but foreign workers
                       do not.


                       To help ensure a balance between meeting the needs of agricultural
Statutory and          employers for an adequate supply of seasonal labor and protecting the
Regulatory Deadlines   jobs, wages, and working conditions of domestic farmworkers, the H-2A
for H-2A Process       application process requires the employer to submit applications to
                       multiple agencies, as shown in figure 3.1.




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and Workers




Page 39                                    GAO/HEHS-98-20 H-2A Guestworker Program
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                                          Meet the Needs of Agricultural Employers
                                          and Workers




Figure 3.1: H-2A Process for Obtaining Permission to Bring in Foreign Workers




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Page 41                                    GAO/HEHS-98-20 H-2A Guestworker Program
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and Workers




The H-2A application process also sets very specific time requirements
that the employer, Labor, and state agencies must meet, as shown in figure
3.2.




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                                    Meet the Needs of Agricultural Employers
                                    and Workers




Figure 3.2: Time Requirements for
Applying for Agricultural Workers
Under the H-2A Program




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                          and Workers




                          To allow sufficient time to attempt to recruit domestic workers and have
                          housing for workers inspected, an employer wishing to participate in the
                          H-2A program must first submit an application to one of Labor’s
                          Employment and Training Administration’s (ETA) 10 regional offices, with
                          a copy to the local state employment service agency (SESA), at least 60 days
                          before the workers are needed. The application includes a request for
                          alien employment certification and a job offer to domestic workers, which
                          the SESA will use in a job order to try to locate domestic workers for the
                          job. Labor may waive the 60-day filing requirement in emergency
                          situations if the employer can demonstrate that “good and substantial
                          cause exists,” such as unforeseen changes in market conditions or
                          unexpected unavailability of previously identified domestic workers.

                          To allow the employer an opportunity to amend the application and
                          initiate mandatory “positive recruitment” of domestic farmworkers, ETA is
                          required by law to determine whether the application will be accepted and
                          notify the employer if it is to be rejected within 7 days of receipt. If the
                          application is rejected, the employer has 5 days to submit amendments.
                          Labor must include in the letter of acceptance specific steps the employer
                          must take to actively recruit domestic workers for the job openings before
                          the certification is issued. To provide sufficient time for the employer to
                          petition INS and the workers to obtain visas, ETA’s regional administrator
                          must grant or deny certification, in whole or in part, no later than 20
                          calendar days before the date of need, provided that the employer has
                          given Labor the documentary evidence that it met the certification criteria.
                          (See fig. 3.2.) For example, to obtain workers on time, at least 22 days
                          before the date of need, employers must provide ETA with evidence that
                          they have attempted to recruit domestic workers and that prospective
                          workers are insured for work-related injury or illness.


                          Employers are certified for most of the H-2A workers they request,
Employers Receive         regardless of the skill level required.32 Specifically, ETA issued
Labor Certification for   certifications for 99 percent of the 3,689 applications filed nationwide in
Most of the Workers       fiscal year 1996 and the first 9 months of fiscal year 1997. Although
                          3 percent of all applications were initially rejected, most of these were
They Request              accepted after employers amended their applications. In addition, ETA
                          certified all but 11 percent of the 41,549 job openings requested on these
                          applications during this period. These applications simply request a

                          32
                           The skill levels of H-2A workers vary with their occupation. Most H-2A workers are field workers
                          employed in the harvesting of crops, which has limited skill requirements. However, some H-2A
                          workers are engaged in higher-skilled occupations such as sheepherding and operating combines. The
                          vast majority of applications for these occupations were also approved.



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                                          certain number of job openings but do not identify individual job
                                          applicants. (See table IV.2 for detailed information about geographic
                                          distribution and results of applications filed in fiscal years 1994 through
                                          1997.) The number of job openings Labor certifies is higher than the
                                          number of H-2A workers who enter the country, for various reasons
                                          including that employers may not fill all of the job openings certified or
                                          H-2A workers may be transferred from one employer to another. For
                                          example, although 17,557 job openings were certified for fiscal year 1996,
                                          about 15,235 H-2A workers were actually employed.

                                          In fiscal year 1996, 68 percent of all H-2A workers came from Mexico,
                                          while 28 percent of all H-2A workers came from Jamaica. As shown in
                                          figure 3.3, this represents a significant shift over the last 10 years because
                                          the sugarcane industry, which was the predominant employer of H-2A
                                          workers until the early 1990s, has mechanized and therefore no longer
                                          needs the low-wage workers it brought in primarily from Jamaica. (See
                                          app. IV for more detailed information about the country of origin and other
                                          characteristics of H-2A workers.)



Figure 3.3: Country of Origin for H-2A Workers Has Shifted From Jamaica to Mexico, 1987-96

Percentage
100


 80


 60


 40


 20


  0
  1987        1988     1989     1990      1991          1992   1993       1994       1995    1996

                                                 Year

             Jamaica
             Mexico
             Other




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                         The date of need employers request on the H-2A application may differ
Completing               from the actual date the workers are needed. Agricultural employers, their
Certification and Visa   advocates, and agency officials told us that it was extremely difficult to
Processing by Date of    accurately estimate the date workers would be needed 60 days in advance
                         of the harvest. Employers said that agricultural work is too dependent on
Need May Not Provide     the vagaries of weather to predict 60 days in advance when workers will
Workers When             be needed. This problem is particularly acute for crops that have a very
                         short harvest time, such as cherries, for which the entire harvest season is
Needed by Employers      as brief as 3 to 5 days.


                         Although Labor does not generally track application process timeliness,
Labor Often Issues       our analysis showed that a large number of Labor’s certifications are
Certifications After     issued too late to ensure that employers will be able to get workers by the
the Date of Need         specified date of need. In fiscal year 1996, one-third of all Labor’s
                         certifications (591 certifications) were issued after the statutory deadline
                         of 20 days before the date of need.33 For 43 of these applications, the
                         certification was not issued until after the specified date of need. One
                         cause of late certifications is employers’ failure to file applications at least
                         60 days before the date of need, as required. For example, in fiscal year
                         1996, employers filed 1,817 applications with Labor. Of the 1,771 cases for
                         which sufficient data were available, 737, or 42 percent, were filed fewer
                         than 60 days before the date of need.34

                         But even when the employer files an application on time, Labor still often
                         misses the certification deadline. In fact, Labor missed the certification
                         deadline for 41 percent of the 1,034 applications submitted at least 60 days
                         before the date of need by agricultural employers. Reasons for missing the
                         certification deadline included that (1) Labor failed to accept or reject the
                         application in a timely manner, delaying the beginning of positive
                         recruitment, and (2) the employer failed to provide required
                         documentation in a timely manner.




                         33
                          For 46 applications, we were unable to determine the timeliness of submission because information
                         was missing about either the date of need or the certification date.
                         34
                           In two cases, there was no information as to when Labor received the application.



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                             and Workers




Labor Lacks Management       Labor does not collect or analyze information that would allow it to
Data Necessary to            determine either the extent or causes of its failure to meet regulatory and
Determine and Correct        statutory deadlines. Labor’s guidelines recommend that regional offices
                             keep a log of H-2A labor certification activity, including the dates
Problems in Complying        (1) workers are needed, (2) applications are accepted or rejected, and
With Statutory and           (3) certification is expected and actually takes place. However, Labor
Regulatory Time              cannot provide information on the extent to which either Labor or the
Requirements                 employers meet these time frames because not all regions collect and
                             maintain this information. In some regions we contacted, Labor staff
                             responsible for overseeing the H-2A program explained that their failure to
                             keep such records was caused by a breakdown of computer equipment
                             over 18 months earlier that had not been remedied. An official in one
                             region told us that although the region enters some information into an
                             automated system, the region does not have access to any reports from the
                             system and would have to go through filing cabinets in order to obtain
                             basic information on the processing of individual H-2A applications. In
                             addition, the Chief of Labor’s Office of Foreign Agricultural Labor
                             Certifications told us that his office does not keep national records on the
                             timeliness of Labor’s responses to applications, and that if Labor misses a
                             deadline, his office will hear about it from the employer. He agreed,
                             however, that an automated system identifying impending and overdue
                             certification dates is badly needed.


Failure to Provide Timely    Our analysis of data from ETA’s Atlanta regional office, one of the offices
Notification of Acceptance   we visited, showed that Labor frequently missed deadlines for notification.
Decision Could Cause         In fiscal year 1996, Labor initially accepted 95 percent of the applications it
                             received, although it responded after 7 days for 44 percent of them by an
Delays in Certification      average of almost 6 days, and by as long as 36 days. For the period
                             October 1, 1996, through June 30, 1997, the Atlanta regional office notified
                             the employer after more than 7 days for 46 percent of the 454 applications
                             filed.35

                             The timeliness of Labor’s notification of its acceptance decision is
                             important because employers and SESAs cannot begin full efforts to recruit
                             domestic workers for H-2A job openings without it. For example, the SESA
                             may not circulate the job order outside of the local area before the
                             regional administrator accepts the application. In addition, Labor’s
                             acceptance notification specifies the recruitment effort that the employer
                             must undertake, called “positive recruitment,” within specific time frames

                             35
                              These data do not include seven cases for which acceptance and rejection dates were missing. Our
                             analysis of data from all ETA regions indicates that timeliness is a problem in most regions.



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                           in order for Labor to approve the certification. Once the application is
                           certified, active recruitment efforts must continue until foreign H-2A
                           workers have left for the employer’s worksite.

                           Labor officials in numerous regions attributed the delays almost
                           exclusively to employers’ failure to provide in a timely manner the
                           required documentation of positive recruitment and health care coverage.
                           Some officials attributed the lack of timeliness as at least partially the
                           result of the time required to inspect housing. However, no region had any
                           systematic record to track the timeliness of employer documentation, so
                           we were unable to verify this information.


Labor Lacks Information    Labor has no required deadline for processing emergency applications;
on the Frequency, Cause,   instead, ETA encourages regions to complete emergency applications as
and Timeliness of          soon as possible, or within 1 week of receipt. We could determine neither
                           the frequency of emergency applications filed nor the extent to which the
Emergency Applications     1-week goal was achieved because Labor does not identify and track such
                           applications. We reviewed individual emergency applications in the three
                           regions with the largest number of H-2A job openings in 1996. All three
                           regions had waived the 60-day filing requirement for emergency
                           applications filed in this region in fiscal year 1996. Emergency applications
                           were accepted for several reasons, such as in response to an INS
                           enforcement action that resulted in the removal of undocumented workers
                           from a farm in the Northeast just before the harvest.


                           After receiving Labor’s certification, the employer and foreign
INS Petition Approval      guestworkers have 20 days in which to obtain visas before the date of
Process Can Increase       need; the first step is for INS to approve the employer’s petition to bring in
Program Processing         nonimmigrant foreign workers for the certified job openings. Employers
                           file the petition (form I-129) with one of four INS service centers: Dallas,
Time                       Texas; St. Albans, Vermont; Lincoln, Nebraska; or Laguna Niguel,
                           California. The petition includes Labor’s certification and identifies
                           desired “beneficiaries,” or employees’ names, if known.

                           INS officials in all four processing centers told us that petitions for H-2A
                           nonimmigrant agricultural workers are unique in that they are not required
                           to identify specific workers, and they rarely do. Most H-2A petitions
                           identify only the number of workers needed for a specific job. INS,
                           therefore, does not need to review individuals’ visa eligibility as it does for
                           other petitions. INS officials in both headquarters and the field offices



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described the INS role in processing H-2A visa petitions as “rubber
stamping” and suggested that it provided little or no added value while
delaying employers’ ability to get workers in a timely manner, and adding
to the costs.36

INS is not subject to statutory processing deadlines, nor does it track
processing times for the H-2A program paperwork. INS service center
officials told us that because H-2A petitions represent only a fraction of
the visa petitions the centers process (petitions for 15,000 workers out of
petitions for 26 million visas for fiscal year 1996) and are not filed
separately, a retrospective analysis of processing times would be
prohibitively time and resource consuming. INS officials’ estimates of the
time required to process the petitions across the INS service centers ranged
from 2 to 21 days.

Officials at all four service centers told us that they expedite H-2A
petitions. The adjudications officer examines the petition to ensure that
Labor’s certification is enclosed; individual workers, if identified, have not
been banned from entering the United States; and a check from the
employer to cover the filing fee of $75 per petition plus $10 for every
named beneficiary is enclosed. Adjudication officials told us that although
they do not have data on H-2A denials, they rarely, if ever, deny H-2A
petitions that include both the Labor certification and the appropriate fees.
However, federal and state labor officials told us that INS’s fee structure
sometimes causes confusion and delay in obtaining workers. For example,
in one case we were able to track, the confusion caused a 10-day delay at
INS, which meant workers were not available when they were needed. An
emergency application, which requested visa extensions for H-2A workers
already in the United States, was filed 7 days before the date of need.
Labor inspected the housing and approved the certification in 1 day.
Although INS completed review of the application in fewer than 2 days
after receipt, it took 10 days to approve the petition because the employer
did not submit the correct fee. Labor officials told us that they had been
unable to contact the INS service center by telephone to determine the
correct fee; as a result, they unintentionally misinformed the employer
about the amount of the fee. The petitioner herself told us that she had
contacted both Labor and INS to determine the correct fee but was given
two different amounts. She sent two checks to INS to cover both
possibilities, and INS approved the order 6 days after the date of need.



36
 INS officials told us that they have considered proposals to delegate the agency’s role in the approval
of H-2A petitions.



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                                   After its approval, INS must notify both the employer and the State
State Department Has               Department that the petition has been approved. The employer must now
Processed                          identify potential workers who in turn must file visa applications with
Substantially More                 accompanying fees directly to the State Department consulate in their
                                   country of origin. The worker must go to the consulate to apply for the
H-2A Visas in Recent               visa. Because H-2A visa applicants come predominantly from Mexico, the
Years                              consulates in Monterrey and Hermosillo, Mexico, together processed
                                   93 percent of all H-2A visa applications in fiscal year 1996.

                                   Although the number of workers entering the United States through the
                                   H-2A program has experienced limited fluctuation since the program’s
                                   inception in 1986, the number of workers arriving with visas has increased
                                   substantially. (See fig. 3.4.)


Figure 3.4: Number of H-2A Visas
Processed, Fiscal Years 1987-97
                                   No. of H-2A Visas Issued

                                   20,000




                                   15,000




                                   10,000




                                    5,000




                                        0
                                            '87   '88     '89    '90    '91       '92       '93   '94   '95   '96    '97
                                                                              Fiscal Year




                                   This increase is caused by a shift in the country of origin of H-2A workers
                                   over the last 10 years. Nationals of certain Caribbean islands entering the
                                   United States as H-2A workers are not required to have visas. These H-2A



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                              workers are represented by the West Indies Central Labour Organisation
                              (WICLO), which organizes their entry into, stay in, and exit from the United
                              States. To apply for H-2A Caribbean workers, an employer goes through
                              the same process with Labor and INS that he or she would for workers
                              from other countries. However, for Caribbean workers, INS keeps the form
                              I-129 petition, rather than sending it to the consulate where a visa would
                              be issued. Instead, these workers enter the United States through Miami
                              with a valid travel document provided by their home governments and are
                              not required to have a passport or H-2A visa. This travel identification
                              document is approved by INS (in addition to the already approved I-129
                              petition). INS gives the workers a form I-94, Record of Arrival/Departure,
                              stamped “H-2A.” Once the workers enter the country, they typically travel
                              to various employers along the east coast, with transportation arranged by
                              an employer or employer group. When the workers leave, they return their
                              I-94 and WICLO oversees their departure.

Most H-2A Visa Applications   Officials at both consulates reported that they require appointments for
Are Filed in Groups           applications for groups of H-2A workers. Most of the petitions are initiated
                              by a single employer or “handler” on behalf of multiple applicants; very
                              few petitions are filed for individual applicants. The employer or handler
                              (a representative of the employer who recruits and/or organizes the
                              workers) generally selects which consulate to use and schedules the
                              appointment. According to H-2A workers and advocates, handlers may
                              charge a fee to each individual worker within the group. The consulates
                              are not obliged to notify the petitioner that the approved petition has
                              arrived, but they sometimes do so. The employer or handler usually keeps
                              in touch with the consulates to find out, among other things, when the INS
                              visa approval arrives. Consulate officers also reported that H-2A handlers
                              and employers are usually repeat applicants, familiar with the process and
                              consular staff.

                              All H-2A applicants must submit a valid passport and Nonimmigrant Visa
                              Application (form OF-156), and pay a $20 processing fee. At Monterrey,
                              this fee is paid before the visit through a local bank designated by the
                              State Department. Monterrey consulate officials told us that the applicant
                              must have a receipt from the bank in order to be admitted into the
                              consulate.

                              Once the paperwork and processing fee are submitted, the consular officer
                              begins the process of adjudication, leading to either approval or denial of
                              the petition. First the consulate official checks to make sure that there is a
                              valid labor certification and INS petition approval. Consulate officials told



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                          us that the officer is also responsible for ensuring that the applicant has a
                          residence abroad and intends to return home. To do this, the officer may
                          interview the applicant and review the paperwork and record of previous
                          trips, if any, and determine the nature of ties with family and friends in the
                          homeland. At Hermosillo, consular staff interview applicants individually,
                          in a group, or on a spot-check basis. Because Monterrey gets so many
                          H-2A applicants, such interviews take place only if a problem arises. The
                          officer is required to run the name of each applicant through the Consular
                          Lookout and Support System (CLASS), a database of individuals known or
                          believed to be ineligible for visas to enter the United States, to ensure that
                          the applicant is not barred from entering the country.

                          Although applicants can be rejected if, for example, they cannot document
                          their residence, this happens infrequently. The Hermosillo consulate
                          issued 709 H-2A visas in fiscal year 1996 and rejected an estimated 5
                          petitions, or less than 1 percent. Monterrey issued 9,568 H-2A visas that
                          year and rejected 38 petitions, also less than 1 percent.

                          If the applicant clears the CLASS review and all paperwork is in order, State
                          approves the petition and the applicant pays a visa fee, which differs by
                          visa category. The consulates do not track the processing times for
                          approving petitions and issuing visas, but both consulates reported that
                          visas are usually issued the same day the applicant visits the consulate to
                          apply for it. It may take days or weeks, however, from the time the
                          consulate receives the I-129 petition until the visa is issued, if an applicant
                          delays scheduling an appointment or visiting the consulate. Officials at the
                          consulates stated that current resources allow them to process all the
                          H-2A visas they receive, although the Monterrey consulate had to turn
                          away an estimated 40,000 tourist visa applicants in fiscal year 1996
                          because of resource constraints. If one consulate did set a limit on the
                          number of visas it could process in a day, however, the applicant could
                          choose to apply for a visa at the other consulate.


INS Makes Final           Even when H-2A workers have been issued visas, they are not guaranteed
Determination at Border   entry into the United States but are subject to inspection at the port of
                          entry by immigration officials, who can deny admission. At the port of
                          entry, an INS official issues the form I-94, which notes the length of stay
                          permitted. The worker is admitted to the United States for the “validity
                          period” of the petition—that is, until the labor certification expires. H-2A
                          visa holders can be admitted to the United States 7 days before the
                          beginning of the validity period and stay 10 days after it ends.



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Data on the Number of      Officials at INS, which has the responsibility of monitoring whether visitors
Farmworkers Who            overstay their visas, told us that no reliable data exist on the number of
Overstay Their Visas Are   H-2A workers who overstay their visas. As we reported in 1995, the task of
                           estimating overstays presents a difficult challenge.37 INS procedures require
Not Available              that visitors return the I-94 when they leave the country. It has a data
                           system for tracking the dates when individual foreign visitors arrive in and
                           depart from the United States. However, the agency cannot assume that all
                           people whom the system does not record as having left have, in fact,
                           overstayed their lawful periods of entry because, according to INS officials,
                           about 70 percent of forms I-94 are not returned. This is especially true of
                           nonimmigrants who leave the United States by surface transportation such
                           as automobile or bus, which would include most H-2A workers. Because
                           no INS employees are inspecting traffic exiting the country at land border
                           crossings, there is no assurance that the forms I-94 are being submitted.38


                           Because the H-2A program involves multiple agencies at various levels of
Involvement of             government, oversight activities sometimes overlap, resulting in
Multiple Levels of         duplication and confusion among both the agencies and the employers.
Government and             Employers, advocates, and agency officials repeatedly expressed
                           frustration about the lack of information on various segments of the H-2A
Agencies May Result        process which they needed to obtain, or assist others in obtaining, foreign
in Redundant               guestworkers. As mandated by IRCA, Labor produced a handbook on the
                           H-2A Labor certification process in 1988. The 325-page handbook provides
Oversight Activities       detailed information on application requirements, including relevant
and Participant            sections of the Federal Register and Code of Federal Regulations.
Confusion                  However, some of the information provided relates to provisions that are
                           no longer applicable, the handbook is not user-friendly, and Labor officials
                           agreed that it includes little information about the process after
                           certification by Labor.


Multiple Agencies Can      Employers we interviewed were frequently confused by the multiple
Create Confusion Among     agencies and levels of government involved in the H-2A program.
Agricultural Employers     Discerning how to comply with regulations can be difficult because of
                           overlapping responsibilities for inspection and the resulting conflicting
                           administrative procedures and regulations. Complying with housing
                           requirements is a case in point. Federal regulations require that employers

                           37
                            See Illegal Immigration: INS Overstay Estimation Methods Need Improvement (GAO/PEMD-95-20,
                           Sept. 26, 1995).
                           38
                            The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 requires INS to take
                           measures to address this problem.



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in the H-2A program provide worker housing and that such housing meets
health and safety standards before and during occupancy. The housing
must be inspected and approved 30 days before the employer’s date of
need. In some of the states we reviewed, H-2A housing was also subject to
state and local housing regulations and inspected by multiple agencies.

Having numerous standards and procedures can be inefficient and create
confusion about compliance requirements. For example, although New
York, a state with heavy H-2A participation, took action to streamline its
housing inspection process, it continues to require multiple inspections.
To formalize a working relationship, federal and state agencies
responsible for enforcing “employee protection legislation to guard against
the exploitation of farmworkers” developed a memorandum of
understanding, including an agreement to exchange information on
housing inspections, and coordinate inspections and notification of
violations. (See fig. 3.5.)




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Figure 3.5: Multiple Agencies Enforce Farmworker Protections in New York




                                         Officials in the New York State Department of Labor’s Community
                                         Services Division told us that housing inspections can be conducted as
                                         many as three times: once by the federal Department of Labor, once by
                                         Community Services Division of New York’s Department of Labor, and




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once by the New York State Health Department. The Director of the
Bureau of Community Sanitation and Food Protection, which is
responsible for enforcing the State Sanitary Code relating to migrant
worker housing, told us that his department is still uncertain as to the role
of the agencies that signed the memorandum of understanding. He said
that the federal Department of Labor carries out some inspections, but
“picks and chooses” and does not keep track of the sites, so the state
Health Department does not know which sites have been inspected. As a
result, the Health Department ends up inspecting all housing facilities in
the state every year.

Virginia, another state with heavy H-2A participation, has a similar
problem with its housing inspection operations. While the Virginia Health
Department and the Virginia Employment Commission developed a
memorandum of understanding in 1986 to avoid duplication of effort, H-2A
housing in the state continues to be inspected twice, once by the
Employment Commission and once by the Health Department, in contrast
to non-H-2A housing that is inspected only by the Health Department. A
state official complained about the redundancy in H-2A inspections.

Other states have tried to address this problem of redundancy. For
example, North Carolina has developed a system to remedy its problems
with multiple agency oversight that has elicited praise from the various
stakeholders. To avoid duplication and reduce confusion, in 1993, the state
employment commission, the state health department, and the federal ETA
signed a memorandum of agreement that the state health department
would conduct all housing inspections using county health departments’
water and septic system certifications. If the state health department gets
backlogged and cannot inspect the housing before the workers arrive,
employers not using H-2A workers can notify the state employment
commission, which will allow the employers to house workers until the
housing is inspected. Federal regulation requires employers using H-2A
workers to have housing certified prior to occupancy. Health department
officials told us that they prioritize inspections for H-2A employers
because H-2A requires the inspection 30 days before the date of need.

Confusing and redundant housing inspections may result in
misinterpretations or misunderstandings of the regulations by program
participants. Employers, particularly those in California, told us that the
difficulty of providing and maintaining housing that complies with
regulations would prevent them from participating in the H-2A program in
the event of a labor shortage. However, some of the housing standards



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                          employers described as preventing them from providing housing were not
                          required for participation in H-2A. For example, in California, employers
                          and advocates for employers and labor told us that using tents for
                          farmworker housing was effectively prohibited because employers are
                          required to provide heating and air-conditioning, which are difficult to
                          provide in a tent. However, California state housing officials told us that
                          tents have been certified in the past and are still acceptable, as long as
                          they meet certain specifications, and that federal housing regulations also
                          permit such arrangements. They also said that air-conditioning is not
                          required because there are no maximum temperature requirements for
                          temporary housing to be used for fewer than 180 days. Moreover, federal
                          migrant farmworker housing regulations have no maximum temperature
                          requirements, and both federal and state regulations establish minimum
                          standards for heating only if the outside temperature falls below 60
                          degrees. Furthermore, in California, local housing standards, including
                          those for heating and cooling, are preempted by state standards.


Using Temporary           Correcting misunderstandings about H-2A program housing requirements
Structures May Address    may also address agricultural employers’ concerns about community
Community Opposition to   opposition and local zoning laws that some have encountered when they
                          attempted to build more permanent farmworker housing. Federal and
Permanent Farm Labor      state labor officials agreed that employers have reason to be concerned
Housing                   about “not in my backyard” community opposition to farmworker housing
                          and restrictive zoning laws because they limit the availability of
                          low-income housing generally and make it difficult for farm employers to
                          build housing. A representative of a California company that grows apples
                          and cherries told us that the company had tried to build housing at an
                          estimated cost of $1.5 million for 240 temporary farmworkers in a sparsely
                          populated community. The planned housing project would have been used
                          about 10 months a year and would have included recreation rooms,
                          security guards, and parking. Community residents strenuously objected,
                          fearing the project would bring crime and other problems into the area.
                          The company official told us that they ended up abandoning efforts to
                          construct permanent farmworker housing and withdrawing the company’s
                          H-2A petition.

                          Officials in New York described a similar problem on the eastern end of
                          Long Island, where residential development has overtaken farm land and
                          where community opposition has grown to employers’ attempts to build
                          housing for farmworkers. It is difficult, said one state housing official, for
                          agricultural employers to build housing “unless the grower has a lot of



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                        land and the neighbors cooperate.” Another official in New York observed
                        that zoning boards have not approved any new housing: Some growers
                        who wanted to put substantial investments into new farmworker housing
                        ($100,000, in one case) were barred from doing so by the local zoning
                        board.


                        It is difficult to determine the effectiveness of worker protections in the
Worker Protection       H-2A program. H-2A guestworkers may be less aware of U.S. laws and
Provisions Under        protections than domestic workers and are less likely to file a complaint.
H-2A Program Hard to    In addition, Labor’s Wage and Hour Division (WHD) faces inherent
                        obstacles in enforcing existing protections when the worker is legally in
Enforce                 the country only at the behest of the employer and must leave the country
                        soon after separating from employment. Our analysis of state and federal
                        enforcement data and data from a major H-2A employer do, however, raise
                        concerns about the effectiveness of several of the H-2A program’s worker
                        protection provisions, in particular, positive recruitment and wage
                        guarantees, including guaranteed wages for three-quarters of the contract
                        and the first week of the contract.


Positive Recruitment    H-2A provisions require that before Labor will certify a labor shortage, an
Requirement Providing   employer must actively try to recruit (“positive recruitment”) domestic
Few Jobs for Domestic   workers for H-2A job openings, including using newspaper and radio
                        advertising in geographic areas where such workers may reside. The
Workers                 purpose of this requirement is to protect the employment opportunities of
                        domestic workers by giving them first choice of accepting this work to
                        bring in. Filling job vacancies with domestic workers would reduce the
                        number of H-2A workers to bring in.

                        The positive recruitment requirement appears to result in few domestic
                        workers being placed in these jobs. An employer is required to hire all
                        qualified workers referred by state job services. However, we found that
                        state job services may refer only a few workers for H-2A job openings,
                        even when they make many referrals and placements in agriculture as a
                        whole. The North Carolina Employment Security Commission record of
                        referrals of agricultural workers for 1996 shows 27,461 potential workers
                        referred and 15,886 workers placed with non-H-2A employers. In contrast,
                        even though North Carolina employers asked for more than 5,000 workers,
                        about one-fourth of all H-2A workers requested nationwide, the
                        Commission referred only 13 potential workers to H-2A employers. Our
                        analysis of ETA data shows the same limited SESA referrals in most other



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states. SESA officials in other states told us that they rarely refer
agricultural workers for H-2A job orders because of concerns about H-2A
employers’ willingness to hire the workers. H-2A employers we spoke with
told us that they offer domestic workers jobs but that the workers either
do not report for work or they quit before the harvest ends. While several
H-2A employers told us that positive recruitment was a waste of time and
money because no domestic workers were willing to accept the work,
non-H-2A employers joined others in asking why one agricultural employer
would be unable to find a single domestic worker, while a neighboring
employer could find all he or she needed.

Federal and state Labor officials expressed concern that the increasing
role of agricultural employer associations in accessing the H-2A program
for individual employers may pose problems for positive recruitment. The
number of workers requested by associations has grown from 4,800 in
1994 to 12,300 in 1997, over 55 percent of the 21,701 workers requested,
and the number of associations that filed applications has grown from 7 to
9. In filing an H-2A application, an association may file in one of three
ways: as an agent, a sole employer, or a joint employer. In a joint employer
relationship, ETA grants the certification to both the association and its
specified employer members, and the association assumes the liabilities
and obligations of an employer. Associations make it easier for smaller
employers to access the H-2A program in that they normally prepare and
file the appropriate Labor and INS forms covering individual employers,
advertise for domestic workers, and, in some cases, recruit the foreign
H-2A workers. Such a relationship also increases flexibility in that
associations are allowed to transfer workers among individual growers as
the workload dictates. However, officials in both federal and state
agencies told us that when associations represent employers from a large
geographic area (for example, an entire state), domestic workers may be
less likely to accept job offers for H-2A openings and, if hired, exhibit high
turnover.

Several explanations have been suggested for the failure of those who are
referred to the association to accept or stay at work. One possible reason
is that the job description may not accurately reflect the actual work
involved, and the worker is unable or unwilling to perform the work
required. Another reason may be that, unlike most individual agricultural
employers, a joint employer association may offer jobs at a worksite far
from the worker’s home, and the worker may be unable to accept the job
because of the need for transportation and housing. Although current law
requires that employers provide transportation and housing for workers



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                            recruited through the Interstate Clearance System, the law does not
                            require that these be provided for locally recruited workers unless they are
                            not reasonably able to return to their residence within the same day. Labor
                            generally considers a reasonable commute to be as much as 60 miles,
                            which may be difficult for those domestic farmworkers who do not own
                            cars. Employers using workers recruited by associations can cover a large
                            geographic area, such as an entire state. Labor’s Office of Inspector
                            General has undertaken a review of H-2A positive recruitment provisions
                            and expects to issue a report in the spring of 1998.

                            Although explanations for the lack of success of positive recruitment with
                            associations are largely anecdotal rather than empirical, our analysis did
                            confirm that a significant number of domestic workers refused work. Of
                            the 220 domestic workers who applied to one major H-2A employer in
                            1996, almost 70 percent refused employment or did not show up for work.
                            This employer was an association that filed “master job orders” with ETA,
                            allowing it to place workers all over a large state. SESA officials in one state
                            told us that they had recently obtained commitments from associations to
                            place domestically recruited workers at worksites close to their homes.
                            However, it is unclear how such commitments will be monitored and
                            enforced.


Multiple Factors Make the   Under the H-2A program’s three-quarter wage guarantee, an employer
Three-Quarter Guarantee     must offer each worker employment for at least three-fourths of the
Hard to Enforce             workdays in the work contract period, including any extensions. If the
                            employer provides less employment, the employer must pay the amount
                            the worker would have earned had the worker been employed the
                            guaranteed number of days. This provision is intended to ensure that
                            domestic and foreign farmworkers who are recruited and often travel from
                            distant locations to work in the United States do not actually end up
                            earning substantially less than they were led to believe they would earn
                            through the initial job offer, and to encourage H-2A employers to
                            accurately estimate both their labor force needs and the duration of
                            employment they can offer so as to limit their potential wage liabilities.
                            Hence, employers will make honest assessments of both the number of
                            workers needed and the amount of time that they will be employed, and
                            prospective workers will have some guarantee about the total wages and
                            duration of employment to expect.

                            It is difficult to determine the extent to which the three-quarter guarantee
                            is being complied with or violated. Agency officials and worker advocates



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report that H-2A workers are unlikely to complain about worker
protection violations, including the three-quarter guarantee, because they
fear that they will lose their jobs or will not be accepted by the employer
or association for future employment. H-2A workers we spoke with raised
this concern. For example, in 1997, ranchers employing sheepherders
failed to pay them the proper wages under the three-quarter guarantee, but
no complaint had been filed with WHD. WHD only became aware of the
situation when one of the sheepherders was assaulted and a local
newspaper publicized the attack. The employers admitted that they failed
to pay the appropriate wages to their sheepherder employees. In another
example, Employment Standards Administration (ESA) officials told us
they were aware that some employers may have brought in Jamaican H-2A
workers without paying them wages in compliance with the three-quarter
guarantee, but said they were too understaffed to investigate the matter.
According to an ESA official, in fiscal year 1996, the agency received no
complaints from workers employed by H-2A employers. ESA data from that
year showed that most investigations—93 percent—were targeted by ESA
or triggered by complaints from SESAs; only 7 percent were triggered by
complaints from third parties, such as Legal Services.

The three-quarter guarantee is particularly difficult to enforce because the
provision is only applicable at the end of the contract period. Because
H-2A workers must leave the country within 10 days of the end of the
contract, there is only a small window of opportunity to interview the
workers in the United States. Regional and district WHD officials said they
could not monitor the application of the three-quarter guarantee
effectively because they cannot interview workers after they return to
Mexico to confirm their work hours and earnings. Similarly, it is hard to
prove retaliation against workers who complain about such violations
because there is no way to obtain and corroborate information.

These enforcement difficulties also create an incentive for less scrupulous
employers to request contract periods longer than necessary: if workers
leave the worksite before the contract period ends, the employer is not
obligated to pay the three-quarter guarantee or their transportation home.
If this occurs, however, it is almost impossible to determine if these
workers have left the country or are taking jobs from domestic workers.
Data from a major employer showed that almost 40 percent of their H-2A
workers (1,763 workers) left prior to the end of the contract, losing their
right to both the three-quarters guarantee and transportation home. This
development raises concerns about whether the employer accurately
estimated the ending date of need. Discussions with H-2A program



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                        officials suggest that, at least with associations, contract periods have
                        been lengthening in duration in recent years. More importantly, the
                        three-quarter guarantee does not provide incentives for the employer to
                        ensure that the workers stay through the end of the contract period.


                        Migrant and seasonal farmworker regulations provide a guarantee of
H-2A Workers Do Not     first-week wages for domestic workers recruited through the Interstate
Receive Same            Clearance System. If an employer fails to provide adequate notification in
Guarantee for Wages     amending an incorrect date of need, the employer must pay workers
                        referred by the job service in the first week when they are present and
Provided to Domestic    available for work and no work is provided. The H-2A program’s
Workers                 equivalent treatment provision, sometimes referred to as “disparate”
                        treatment, requires that the employer provide the same minimum wages,
                        benefits, and working conditions to H-2A workers that are provided to
                        domestic workers employed in “corresponding employment.” However,
                        officials at the state and federal levels do not apply this provision to
                        foreign workers, even though they joined worker advocates in expressing
                        concern about the community impact when foreign workers arrived in
                        their areas without work or money to support themselves. In one state, an
                        association of churches reported having to raise money to house and feed
                        foreign H-2A workers hired by local employers who had incorrectly
                        estimated the date of need such that when the H-2A workers arrived at the
                        worksite there was no work or wages for several weeks.


                        ETA  has the authority to sanction employers, by denying their
Questions About         certifications, if they have committed substantial violations of the terms or
Location of             conditions of a temporary foreign agricultural labor certification. ETA must
Enforcement             notify an employer that has committed a substantial violation that
                        certification will not be granted for a certain period of time, depending on
Responsibility Within   the number and kind of violations. However, ETA is not responsible for
Labor                   enforcing H-2A work contract provisions or other labor violations; WHD has
                        this responsibility. WHD has authority and responsibility for conducting
                        investigations and inspections regarding matters such as the payment of
                        required wages, transportation, and housing; reporting violations to ETA;
                        and invoking penalties, such as recovery of unpaid wages, assessment of
                        civil monetary penalties, and seeking injunctive relief against the
                        employer. ETA officials told us that they try to coordinate with WHD but that
                        they have never denied certification for labor law violations, although they
                        typically use the authority as leverage in obtaining voluntary compliance.
                        However, because WHD is the agency that enforces the labor laws, it is the



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                        agency that most needs this leverage. WHD field officials expressed concern
                        about the difficulties of ensuring that abusive employers do not participate
                        in the H-2A program, where they believe the potential for abuse is much
                        greater.


                        Although a national farm labor shortage currently appears unlikely, Labor,
Sustained Increase in   INS, State, and state employment service officials who implement the H-2A
Demand for              program said that they could handle unanticipated, moderate short-term
Guestworkers Would      program workload increases by shifting staff resources, or, as is the case
                        at the State Department, prioritizing the types of visas to be processed.
Require Additional      However, officials from the federal agencies all agreed that any massive
Agency Resources        (for example, a 10-fold increase to 150,000 per year), sustained national
                        increase in the demand for agricultural guestworkers could not be
                        effectively processed without additional resources. Labor and State
                        officials also emphasized that the additional staff necessary to process
                        large, sustained workload increases would have to be added over the
                        course of a year, given the need to train and relocate personnel. In
                        contrast, SESA officials stated that, in general, additional resources would
                        not be required because the steps that they take to recruit workers are not
                        significantly more resource intensive to meet the demands from a few
                        employers as for many.

                        Discussions with officials at State, Labor, and USDA noted that the
                        administration is aware of the potential problems facing agricultural
                        employers and the processing agencies if the H-2A program was faced
                        with a major, sustained workload increase. Officials from Labor, INS, USDA,
                        and State have met in the administration’s Domestic Policy Council to
                        discuss the potential for significant increases in the demand for H-2A
                        guestworkers to occur and to develop an appropriate response, if
                        necessary. Officials at Labor and USDA told us that several proposed
                        options have been discussed but that these options are not yet available
                        for review.39




                        39
                         We were unable to obtain employers’ and labor advocates’ perspectives on the feasibility of
                        implementing plans that were not yet available for discussion.



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              Given the condition of the agricultural labor market and INS’ current
Conclusions   enforcement resources and priorities, the likelihood of significant labor
              shortages, and the resulting massive increases in the demand for H-2A
              guestworkers, appears small. Although a large percentage of farmworkers
              are not legally authorized to work in the United States, INS’ current
              enforcement efforts are unlikely to cause a major disruption in U.S.
              agricultural production or generate a major increase in the demand for
              H-2A workers. The H-2A program currently provides guestworkers for the
              small percentage of agricultural employers who request them on either a
              regular or emergency basis. Labor and INS deny or disapprove applications
              from few agricultural employers, State denies visas to few prospective
              guestworkers, and INS detains few of these workers at the border.
              However, the potential for localized labor shortages for a specific crop or
              on a geographic basis remains.

              Although it successfully provides workers to employers who request them,
              the H-2A program requires employers to interact with multiple agencies at
              different levels of government, a process that can seem very confusing and
              difficult to navigate. No centralized source of information exists that
              clearly explains the entire H-2A application and labor procurement
              process. Labor’s handbook gives information about provisions that are no
              longer applicable, is not user-friendly, and includes little information about
              the processes at INS and State.

              This perspective also extends to Labor’s oversight of the program. Labor
              currently collects limited data to facilitate oversight of the program’s
              day-to-day operations. Labor was generally unable to determine the extent
              to which its regional offices were in compliance with statutory and
              regulatory deadlines governing the H-2A program. Our review, however,
              found significant noncompliance with these mandated deadlines.

              Our work suggests that some procedural changes could improve the
              program’s ability to meet the needs of agricultural employers. Processing
              times under the current program are unnecessarily extended as a result of
              the requirement that INS approve all non-Caribbean Labor certifications
              before transmitting the request for workers to the State Department.
              Because H-2A visa petitions are unlike those in any other category in that
              they rarely identify individual workers, INS is in the position of merely
              “rubber stamping” the work of others, burdening the employer with
              unnecessary paperwork and fees and adding as much as 2 to 3 weeks to
              the entire H-2A application process. Delegating INS’ role of authorizing
              approval of H-2A visa petitions to Labor could reduce the bureaucratic



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maze of rules and paperwork that agricultural employers now face. This
transfer would need to be accompanied by revisions in regulations, such
as accommodating visa extensions where no new Labor certification is
required and ensuring that appeals procedures are changed to ensure
employers’ right to due process.

Such a transfer could also significantly reduce total application processing
time. Many agricultural employers have reported that the current
requirement of filing an application at least 60 days before the date of need
is difficult given the uncertainties inherent in agricultural production. A
shorter period could eliminate some of this uncertainty. Delegating INS’
approval role in the H-2A program could reduce total application
processing times by 2 weeks. This would permit Labor to modify to 45
days the existing administrative requirement that applications be
submitted at least 60 days before the date of need. However, to ensure that
agricultural employers have sufficient time to positively recruit for
domestic workers, obtain inspections of farmworker housing, and show
proof of workers’ compensation coverage, it will also be necessary for the
Congress to modify to 7 days the statutory requirement that applications
be approved 20 days before the date of need. Without modifying this
requirement, employers will not have sufficient time to meet their duties
as required by the program and domestic workers will not have ample
opportunity to compete for agricultural employment.

Obtaining workers through the current H-2A program requires agricultural
employers to interact with multiple agencies at different levels of
government. Given the often time-critical needs of agricultural employers,
the multiplicity of agencies can seem confusing and seem difficult to
access. Current written information that Labor provides to prospective
employers is incomplete, hard to understand, and in some instances,
outdated. These weaknesses contribute to a general perception that the
program is too complex to be accessed by employers who may require its
services.

We also identified several weaknesses regarding the protections afforded
to both domestic and foreign workers. In general, Labor’s WHD is the
primary agency for the enforcement of existing H-2A contracts and other
labor standard provisions, while ETA administers the H-2A program,
working with state job services and agricultural employers to facilitate the
application process. However, under current law, ETA exercises Labor’s
authority to suspend an employer’s participation in the H-2A program if
this employer has committed a serious labor standard or contract violation



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and WHD, when conducting an enforcement action, must request that ETA
consider using this authority. Given the overall separation of program
functions between WHD and ETA, the fact that suspension authority resides
with ETA seems incongruent. We believe, and Labor officials agreed, that
consolidating this suspension authority in WHD would permit ETA to
concentrate more effectively on the H-2A program’s crucial administrative
duties and possibly increase the effectiveness of WHD enforcement.

We found another weakness in the equivalent treatment provision of the
H-2A program, commonly referred to as the “disparate” treatment
provision. This provision generally requires that the employer provide
equal treatment to domestic and foreign workers in terms of opportunities,
wages, benefits, and working conditions. For example, if an employer
hires H-2A workers at a particular wage, that wage is the minimum that
must be paid to any domestic workers performing the same work for that
employer. However, we found that while current Labor regulations
guarantee wages for the first week of work to domestic workers who are
referred to agricultural employers through the Interstate Clearance System
of Labor’s Employment Service, even if they are unable to work during
that period, comparable wage protection is not afforded to foreign
workers. This disparity appears inconsistent with Labor’s general
application of the H-2A equivalent treatment provision and could cause
needless personal hardship for some foreign workers.

Our review also raised concerns about other existing protections afforded
to workers under the H-2A program. Current program provisions requiring
that H-2A workers receive wages at least equal to three-quarters of the
contract period were implemented to protect foreign workers from
exploitation and provide some certainty to both workers and employers so
that workers will know how much work to expect, and employers can
limit their potential wage liabilities. On one hand, the few complaints
registered about this provision suggest compliance. But some H-2A
workers may be unaware of their rights or how to exercise them in the
United States. Furthermore, our findings concerning the increasing length
in the average contract period for H-2A workers and indications that a
significant number of H-2A workers may be separating from employment
before the end of the contract period, invalidating the guarantee, also
suggests that this protection may not always work as intended and that
some employers could “game” the system to avoid paying wages and
transportation they owe to H-2A workers.




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                      One solution to this vulnerability is to apply the three-quarter guarantee
                      incrementally to shorter periods of time throughout the duration of the
                      contract. For example, requiring that workers receive either three-quarters
                      of the full-time wage rate or the wages for the actual hours worked,
                      whichever is larger, payable at the end of every 2 or 3 weeks, could
                      provide additional protection for H-2A workers. However, the length of the
                      pay increment should consider that the contract period does not always
                      correspond with the period of time the H-2A worker spends at one
                      worksite. Some large associations move workers from one worksite to
                      another during the same contract, and the workers receive wages from
                      different employers. It is important that any modification of the
                      three-quarter guarantee be implemented in a manner that protects workers
                      but also avoids increasing the administrative complexity of the program.


                      To simplify the H-2A application process and reduce the cost and burden
Recommendations       on agricultural employers, we recommend that the Attorney General

                  •   delegate authority for approval of H-2A visa petitions from INS to the
                      Secretary of Labor or designee and revise corresponding regulations as
                      necessary to implement and facilitate such an agreement, including
                      revising visa extension and appeals procedures.

                      If the Attorney General delegates this authority, we recommend that a
                      combination of two other actions be taken.

                      After the Attorney General has delegated INS’ role in petition approval to
                      Labor, to reduce total application processing time and facilitate better
                      accuracy in estimating the date workers will be needed, we recommend
                      that the Secretary of Labor

                  •   amend the regulations to allow H-2A applications to be submitted up to 45,
                      rather than 60, days before the date of need so long as INS does not have a
                      role in the petition approval process.

                      To protect work opportunities for domestic workers by ensuring that
                      sufficient time is available for agricultural employers to positively recruit
                      them while reducing the total processing time, we recommend that the
                      Congress

                  •   amend the Immigration and Nationality Act so that, as long as the
                      authority for approval of H-2A visa petitions remains with Labor, Labor is



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    required to complete all applications at least 7 days before the date of
    need, rather than 20 days.

    To better protect both domestic and H-2A workers, we recommend that
    the Secretary of Labor take the following actions:

•   Extend the authority to suspend employers with serious labor standard or
    H-2A contract violations to WHD,
•   Revise its regulations to require agricultural employers to guarantee H-2A
    workers’ wages for the first week after the date of need and to pay
    workers those wages no later than 7 days after the date of need, and
•   Revise regulations regarding the three-quarter guarantee to remove
    incentives to overestimate the contract period. Revisions Labor considers
    should include applying the guarantee incrementally during the duration of
    the H-2A contract in a manner that would improve the protection afforded
    to H-2A workers but also minimize any additional administrative burden
    on agricultural employers.

    To improve service to both employers and workers, we also recommend
    that the Secretary of Labor

•   regularly collect data on its performance in meeting H-2A regulatory and
    statutory deadlines for processing H-2A applications, and use these data to
    monitor and improve its performance; and
•   update and revise the H-2A handbook to include the procedures for all
    agencies involved and key contact points, both at Labor and at other
    agencies.




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Agency Comments and Our Evaluation


                     Labor, the State Department, and USDA all commented on a draft of this
                     report. Labor and State, agencies responsible for implementing our
                     recommendations, generally concurred with our findings and most of our
                     recommendations. For example, Labor concurred with our
                     recommendation that the Attorney General delegate authority for approval
                     of H-2A visa petitions from INS to the Secretary of Labor. In contrast, USDA,
                     which serves in an advisory capacity and has no responsibility for H-2A
                     program administration, while agreeing with some of our findings and
                     recommendations, submitted detailed comments on statements,
                     conclusions, and recommendations presented in the draft report that it
                     believed were either inaccurate or required clarification. (The full text of
                     Labor’s comments is in app. VIII, State’s is in app. IX, and USDA’s is in app.
                     X.)

                     We requested comments from the Department of Justice as well. Justice’s
                     INS staff provided technical comments on the draft report, which we
                     incorporated as appropriate. Justice did not, however, within the time
                     available, provide official comments on the overall findings and
                     conclusions of the report or on the recommendations.


                     Labor generally agreed with the report’s findings, conclusions, and
Labor Stressed       recommendations. Labor, did, however, suggest two revisions to our
Existence of         recommendations, which we made, and numerous technical changes,
Agricultural Labor   which we incorporated as appropriate.

Surplus              While Labor specifically agreed with our finding that “a farm labor
                     shortage does not now exist and is unlikely in the foreseeable future,” it
                     also contended that there is evidence of a farm labor surplus. The
                     Department cited the many economic indicators we presented in our
                     analysis, such as high unemployment rates in agricultural areas, the
                     persistent heavy underemployment of farmworkers, and declining real
                     farm wages, both in hourly and piece rates, as evidence of a labor surplus.
                     The Department agreed with our assessment that INS enforcement is
                     unlikely to significantly reduce the availability of agricultural labor, either
                     regionally or nationally.

                     Labor also noted the potential of the implementation of the work
                     requirements of the recent welfare reform legislation to provide
                     agricultural labor. Labor disagreed with the assertions of some of those we
                     interviewed that welfare recipients were unlikely to provide a source of
                     farm labor. In particular, the Department stated that the problems, such as



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                       child care, that employers and former welfare recipients will confront as
                       they seek employment in farm occupations are little different from the
                       challenges facing employers and recipients in other industries and
                       occupations. Furthermore, Labor rejected the notion that few recipients
                       are located in or near many rural areas, contending that at least some rural
                       areas have very large welfare populations that could serve as potentially
                       significant sources of labor in close proximity to many agricultural
                       establishments.

                       Although Labor believes that the three-quarter guarantee generally serves
                       its intended purpose, Labor agreed that the structure of the three-quarter
                       guarantee could result in employers’ overestimating the contract period in
                       the expectation that less work and lower earnings toward the end of the
                       contract period will encourage workers to “abandon” employment and
                       thereby relieve the employer of the obligations of the three-quarter
                       guarantee and return transportation reimbursement. Labor agreed to
                       evaluate possible solutions to this problem but believed that, given
                       fluctuations in the amount of work required during a growing season,
                       applying the guarantee on an incremental basis may not be the most
                       appropriate solution. In response to Labor’s comments, we amended the
                       recommendation to say that regulations should be revised to apply the
                       three-quarter guarantee to remove incentives to overestimate the contract
                       period. Revisions Labor considers should, however, include applying the
                       guarantee incrementally during the duration of the H-2A contract in a
                       manner that would improve the protection afforded to H-2A workers but
                       also minimize any additional administrative burden on agricultural
                       employers.

                       Labor also suggested that we revise our recommendation regarding
                       authority to suspend employers with serious labor standard or H-2A
                       contract violations. The Department suggested that we extend authority to
                       the Wage and Hour Division of ESA rather than transferring it from ETA; we
                       revised the recommendation accordingly.


                       Although USDA agreed with some of our findings, conclusions, and
USDA Had Multiple      recommendations, it submitted detailed comments on aspects of the draft
Concerns With Report   report that it believed either were inaccurate or required clarification.
Findings,              These comments can be grouped into several broad areas concerning
                       (1) our analysis of conditions in agricultural labor markets; (2) the
Conclusions, and       magnitude and consequences of INS enforcement operations; (3) our
Recommendations        assessment of H-2A program operations, specifically late filing of



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                             applications; and (4) the effectiveness of protections covering both
                             domestic and H-2A workers, specifically the three-quarter guarantee and
                             the application processing deadlines.


USDA Suggested That          Although USDA did not explicitly disagree with our finding that widespread
Many Agricultural            labor shortages do not now exist, it contended that the central issue is
Employers Have Difficulty    whether an adequate supply of qualified U.S. workers is currently available
                             to agricultural employers. USDA stated further that U.S. agriculture’s
Attracting Qualified Labor   dependence on illegal aliens is poor policy and that programs like H-2A
                             that permit “the employment of legal [nonimmigrant foreign] workers
                             under controlled conditions” are preferable. Consistent with the notion
                             that qualified domestic farmworkers may not now be available, USDA
                             questioned our use of county unemployment rates as an indicator of labor
                             market conditions and noted that our data on the unemployment rates of
                             farmworkers failed to account for regional mismatches in farm labor
                             supply and demand. USDA also provided information that it believes
                             suggests that sufficient numbers of qualified workers are not available for
                             agricultural employers, including 1987 data on characteristics of the
                             national farm labor supply, and excerpts from a 1988 GAO report that
                             analyzed labor market conditions for tobacco growers in selected counties
                             in Virginia and North Carolina.40

                             Information provided by USDA does not alter our assessment that the
                             overwhelming weight of the evidence indicates that widespread farm labor
                             shortages do not exist now and are unlikely to occur in the near future.
                             USDA’s rejection of consideration of annual and monthly unemployment
                             rates as an indicator of labor market conditions contradicts the position of
                             the Department during our review, when it concurred with our use of such
                             data. Moreover, USDA relies on such data in determining whether various
                             jurisdictions, including agricultural areas, are essentially labor-surplus
                             areas and thus should receive waivers of the work requirement for food
                             stamp eligibility.

                             Furthermore, our analysis of national and county unemployment rates was
                             only one piece of evidence we analyzed to assess the condition of
                             agricultural labor markets throughout the nation. We also reviewed
                             changes in real wage rates, investment patterns by agricultural employers,
                             and federal and state agency assessments of labor market conditions in
                             agricultural areas. In addition, we made a serious effort to present the


                             40
                               See The H-2A Program: Protections for U.S. Farmworkers (GAO/PEMD-89-3, Oct. 21, 1988).



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analytical difficulties of the concept of a labor market shortage and
weaknesses associated with the evidence presented.

We also note that, although in this report we included only the annual
unemployment rate for 20 major agricultural counties, we also reviewed
monthly unemployment rates from January 1994 through June 1997 for
these counties. As we reported, 15 of these counties had unemployment
rates above 7 percent for every month during this entire period, even
during peak periods of agricultural activity. Many of these counties, for
example, Yuma, Arizona, and Yakima, Washington, had rates far in excess
of 7 percent for every month during the period. On the basis of this
analysis, we believe that it is plausible to conclude that such agricultural
areas, which have high unemployment even during peak periods of
agricultural activity, do not have labor shortages. This conclusion is also
consistent with the anecdotal information we received from our interviews
with agricultural employers around the country, who, while expressing
concern about the availability of labor in the future, had not yet
experienced a labor shortage.

USDA also presented data from 1987 suggesting that a considerable
proportion of the agricultural labor force is casual, for example,
housewives and students, who presumably do not have a strong
attachment to the labor force. Although these may be the latest data
available, they are over 10 years old, before the legalization of over
1.3 million SAW workers and the full implementation of the H-2A program
as specified in IRCA. It is unclear what percentage of the current
agricultural labor force is composed of such groups. Furthermore, casual
workers like students and housewives would not contribute to the
seasonal fluctuation in the unemployment rates of agricultural areas, since
presumably many return to school or other activities in the off-season and
thus do not actively seek work at that time.

These data are also relevant to the issue that USDA raises concerning the
number of qualified workers in the agricultural labor force. Although it is
clear that a substantial portion of the agricultural labor force is not legally
authorized to work in this country, we were unable to determine the
distribution of such workers throughout the country. We were also unable
to assess the distribution of other sources of domestic workers, such as
welfare recipients and unemployed or underemployed farmworkers who
may have the skills for agricultural employment. USDA’s identification of
students and housewives represents another pool of potentially qualified
labor that could be tapped by agricultural employers. Given the limited



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effect of INS enforcement operations, it is most likely that the number of
workers not legally authorized to work in this country will change slowly
in many parts of the country. The pace of change will potentially permit
agricultural employers and federal and state authorities to substitute other
domestic labor where available, if they pursue this option, or, where
necessary, to use the H-2A program.

As additional evidence concerning the ability of agricultural employers to
recruit qualified domestic farmworkers, USDA also cited our 1988 report,
which included an analysis of the agricultural labor market supply in the
production of tobacco in selected counties in Virginia and North Carolina.
The qualitative information from the targeted case study analysis of
selected tobacco-growing counties in two states complements the
extensive quantitative data in this report. In this report, we discuss the
potential for localized labor shortages in specific crops under current
labor market conditions and, consistent with our earlier work, cite
difficulties agricultural employers may have now in obtaining domestic
tobacco workers in North Carolina. We also note that tobacco producers
in Virginia and North Carolina, the crop and geographic area we focused
on in our 1988 report, are now significant participants in the H-2A
program. Our finding that certain H-2A program requirements, including
the positive recruitment requirement, do not appear to be accomplishing
their intended purpose echoes our 1988 study, in which we concluded that
“there were shortcomings in the protections of U.S. workers in the
recruitment process.”41 That report also made recommendations to the
Labor Department on how to enhance the effectiveness of this
requirement.

We believe that it is inappropriate to use our 1988 limited case study
analysis to generalize about the current availability of sufficient supplies of
qualified farm labor on a national level. Major events that can influence the
availability of farm labor, including the full integration of 1.3 million SAW
workers, welfare reform, and the mechanization of the Florida sugarcane
industry, have transpired since that time. In this respect, we suggest that
our current quantitative analysis of key market indicators, coupled with
our numerous in-depth interviews with agricultural employers,
associations, and other interested parties, provides a more reliable
assessment of current farm labor market conditions.




41
  GAO/PEMD-89-3, Oct. 21, 1988, p. 75.



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USDA Raised Concerns      USDA raised several concerns related to INS enforcement operations, which
About the Impact of INS   we considered. Our analysis, however, indicated no need to revise the
Enforcement Operations    draft report in response.

                          USDA agreed with our finding that INS enforcement efforts are not likely to
                          significantly reduce the availability of agricultural labor. However, USDA
                          points to the impact INS efforts can have on individual agricultural
                          employers, a point we also make in the report. While we agree that INS
                          enforcement efforts may have an impact on individual agricultural
                          employers, there is no evidence that it will cause a widespread farm labor
                          shortage. USDA discusses INS enforcement activity directed at employers
                          and at “conducting roadblocks, sweeps of shopping centers . . . and other
                          places they [INS] expect aliens to be found,” but this activity is not new and
                          is limited in scope. As discussed in chapter 2, such INS enforcement
                          activity is included in the responsibilities of the 304 staff years devoted to
                          noncriminal investigations, or an average of about 6 INS staff years per
                          state.

                          While USDA cites the efforts of INS’ Border Patrol to “seal the border,” the
                          extent to which these efforts have reduced the availability of illegally
                          authorized workers is unclear. As we recently reported, INS intelligence
                          reports and other available data do not indicate whether the increased
                          difficulty of entry in the areas of highest known illegal activity on the
                          southwest border of the United States has deterred the flow of illegal
                          workers into the country. Apprehension statistics are INS’ primary
                          quantitative indicator of the results of INS’ strategy to deter illegal entry
                          along the southwest border. Apprehension data, standing alone, however,
                          have limited value for determining how many aliens have crossed the
                          border illegally. Data were unavailable, for example, on whether there has
                          been a decrease in attempted reentries by those who have previously been
                          apprehended. For a more detailed description on the difficulties in
                          accurately measuring the total number of illegal aliens in the United States
                          and in estimating how many illegal aliens come into this country each
                          year, see Illegal Immigration: Southwest Border Strategy Results
                          Inconclusive; More Evaluation Needed (GAO/GGD-98-21, Dec. 11, 1997). USDA
                          also cites Labor’s enforcement activities as potentially reducing the Labor
                          supply. INS, and not Labor, has responsibility for identifying workers not
                          legally authorized to work. Labor’s enforcement responsibility is limited to
                          ensuring that employers have collected documents relating to
                          authorization to work; Labor does not verify the authenticity of the
                          documents collected.




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                            USDA stated that “INS often determines, through procedures not available to
                            employers, that 75 percent or more of an employer’s work force submitted
                            fraudulent documents.” We agree that while it is possible that INS has
                            determined that 75 percent or more of an employer’s workforce submitted
                            fraudulent documents, INS cannot provide information on the frequency
                            with which this occurs. INS does not collect data on the percentage of an
                            employer’s workforce in all industries or in specific industries, such as
                            agriculture, found to have fraudulent documents. INS officials stated that
                            the percentage of such workers varies greatly from one employer to
                            another. For example, information INS provided in response to our
                            requests for information about specific individual enforcement efforts
                            showed one employer with only 1 percent of workers with fraudulent
                            documentation and another with 50 percent.

                            USDA   also stated that

                            “Workers who claim to be U.S. citizens and possess fraudulent documents are liable to be
                            detected by the Social Security Administration (SSA). SSA requires employers to verify
                            through its Enumeration Verification System the names and social security numbers that
                            do not agree with SSA records (if the Wage and Tax statements filed by the employer has an
                            error rate that exceeds ten percent.)”


                            Instead, SSA officials stated that while employers are encouraged to use the
                            Enumeration Verification System, they are not required to do so. When the
                            name and Social Security number do not agree, SSA places the record in
                            the Earnings Suspense File. It sends a letter to the employee at the address
                            that is on the W-2 form and asks the employee for a correction. SSA only
                            contacts the employer if the address is incomplete or missing. SSA has a
                            task force examining ways to better use the Suspense File, including the
                            possibility of requiring employer use of the Enumeration Verification
                            System.


USDA Questioned INS Visa    USDA  questioned our finding that Justice authorizes the State Department
Petition Approval Only      to issue nonimmigrant visas for H-2A workers only after the Department of
After Labor Certification   Labor issues a labor certification, with reference to the statutory
                            requirement that the certification be applied for, but not specifically
                            obtained, before INS petition approval. In response to this concern, INS
                            stated that “the INS will NEVER approve a new H-2A petition unless the
                            petition is accompanied by a labor certification issued by the U.S.
                            Department of Labor. The fact that a prospective employer has filed for a
                            cert with the Department of Labor is insufficient.”




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USDA Questioned              USDA  questioned how many of the 42 percent of applications employers
Significance of Employers’   filed fewer than 60 days before the date of need were actually late, rather
Filing Applications Fewer    than emergency, applications. USDA said that “[t]he Department of Labor
                             rejects late-filed applications.” We agree with USDA that it would be
Than 60 Days Before Date     inappropriate to characterize emergency applications filed fewer than 60
of Need                      days prior to date of need as “late.” However, our review of H-2A
                             applications in one regional office that processes a large number of H-2A
                             applications confirmed Labor officials’ statements that emergency
                             applications represent only a small fraction of all applications. In fact, data
                             for the period October 1, 1996, through June 30, 1997, the only period for
                             which these data were collected in this region, identified fewer than
                             15 percent of the applications filed within the 60-day period as
                             “emergency.”

                             Furthermore, Labor does not reject nonemergency applications because
                             they were filed with fewer than 60 days remaining. Our analysis showed
                             that for the period October 1, 1995, through June 30, 1997, Labor approved
                             99 percent of all such applications, the same percentage approved for
                             applications filed within the statutory deadline. In addition, despite having
                             fewer than 60 days, Labor issued certifications for 76 percent of these
                             applications at, or before, the date of need.

                             We agreed with USDA that an agricultural employer who experiences an
                             unexpected labor shortage as a result of INS enforcement activity would be
                             eligible for an emergency certification. Both our draft and final report
                             refer to a specific labor certification issued for just this reason in the
                             Northeast.


USDA Disagreed With          Unlike Labor, USDA disagreed with our conclusion that the three-quarter
Findings on the              guarantee does not provide incentives to ensure that the employer makes
Three-Quarter Guarantee      the worker stay through the end of the contract period, and that it may
                             provide disincentives to accurately estimate the end date of the contract
                             period. USDA asserted that “there is significant incentive for the employee
                             to stay and collect 3/4 wages without working, receive the return
                             transportation, and maintain eligibility to return to the job the following
                             season.” However, USDA also quoted the manager of a major H-2A
                             association as saying that 1,598 of 4,573 (more than one-third) of the
                             association’s H-2A workers chose not to complete the contract period. In
                             addition, USDA uses the case of a sheepherder who “had not received
                             regular wages when due” to refute our assessment of the difficulty in
                             enforcing the three-quarter guarantee provision. However, in citing this



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                         case, USDA stated that “[the sheepherder] subsequently worked for a series
                         of H-2A employers and it may be that his total employment did not meet
                         the 3/4 guarantee. The unresolved dispute is which of the series of
                         employers owe a 3/4 guarantee and how is the liability to be apportioned
                         between them.” The situation USDA describes is one of the difficulties
                         inherent in enforcing the three-quarter guarantee, raising concerns about
                         the application of the provision to H-2A workers who are brought into the
                         country through associations that may move the worker from one
                         employer to another during the course of the contract.

                         In response to anecdotal information USDA included in its response to our
                         draft report, we conducted limited follow-up interviews, including
                         interviewing the employer, employer’s agent, and Labor officials involved
                         in an H-2A application from Arkansas. While the individuals interviewed
                         disagreed on some of the facts of the case, the interviews served to
                         confirm our concern about the extent to which H-2A contract periods
                         were accurately estimated. Specifically, the grower told us that the
                         workers were only needed through the middle of August while the job
                         order and H-2A application identified the expected period of employment
                         to last until December 31. Furthermore, our discussions with the ETA
                         certification official raised concerns about requirements for positive
                         recruitment under emergency applications.


USDA Commented on        USDA  officials agreed that the 60-day time requirement for filing H-2A labor
Recommendations          certification applications is problematic in that it is difficult for employers
Regarding Changing       to precisely estimate their date of need 60 days in advance and that it may
                         limit the success of recruiting domestic workers who are currently
Application Processing   employed. USDA also agreed with our conclusion that INS’ role in the
Deadlines                petition process is unnecessarily burdensome and supported our
                         recommendation that the H-2A application process be reduced from 60 to
                         45 days. However, USDA objected to our recommendation to amend the
                         Immigration and Nationality Act so that, as long as the authority for
                         approval of H-2A visa petitions remains with Labor, Labor would be
                         required to complete all applications at least 7 days before the date of
                         need, rather than 20 days. We recommend that the total H-2A application
                         process be reduced to 45 days in combination with reducing the
                         certification requirement to 7 days to maintain the period of time Labor
                         has to certify the labor shortage. This maintains the existing period of time
                         available for recruitment of domestic workers. We disagree with USDA’s
                         statement that “the certification date has no bearing on the opportunities
                         for domestic workers because positive recruitment is required both before



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and after certification.” Under current regulations, employers must
provide evidence that they have complied with the positive recruitment
requirements set forth in Labor’s acceptance of the H-2A application.
Labor reduces the number of H-2A openings certified on the basis of
information the employer provides on the results of positive recruitment
efforts, adjusted for estimates of the number of workers who will not
report for work. Positive recruitment efforts after the certification have no
bearing on the number of H-2A openings approved.

USDA  expressed concern that the remaining 7 days do not allow enough
time for H-2A workers to obtain visas and travel to the worksite. Our
recommendation does not reduce the time allowed for this step in the
process. Under current law, workers cannot obtain visas until employers
have processed visa petitions through INS within the 20 days allowed. As
we reported, estimates of the time required to process petitions through
INS can reduce the remaining time to fewer than 7 days.




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Page 79   GAO/HEHS-98-20 H-2A Guestworker Program
Appendix I

Primary Congressional Contacts in Addition
to Report Addressees

United States Senate       The Honorable Susan M. Collins
                           The Honorable Larry E. Craig
                           The Honorable Lauch Faircloth
                           The Honorable Slade Gorton
                           The Honorable Jon Kyl
                           The Honorable Frank R. Lautenberg
                           The Honorable Jack Reed
                           The Honorable John D. Rockefeller IV
                           The Honorable Ron Wyden


House of Representatives   The Honorable Howard L. Berman
                           The Honorable Elton Gallegly
                           The Honorable Bob Goodlatte
                           The Honorable Steven C. LaTourette
                           The Honorable Richard W. Pombo
                           The Honorable Lamar Smith




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Appendix II

Objectives, Scope, and Methodology


              The Illegal Immigration Reform and Immigrant Responsibility Act of 1996
              (IIRIRA) and the Omnibus Consolidated Appropriations Act, 1997, mandated
              that GAO review various aspects of the H-2A nonimmigrant guestworker
              program. In discussions with congressional staff, we agreed to combine
              the two mandates and restate the questions. The restated questions, which
              were distributed to the relevant committees and key congressional
              contacts on the terms of work, are reprinted here. The terms of work
              include codes in brackets after each question—for example, [M1] and
              [M2]—to provide a link from the questions to the specific requests in the
              IIRIRA mandate.


              For reporting purposes, we combined these questions into two broader
              questions: evaluate (1) the likelihood of an agricultural labor shortage and
              its impact on the need for nonimmigrant foreign guestworkers and (2) the
              H-2A program’s ability to meet the needs of agricultural employers while
              protecting domestic and foreign agricultural workers, both now and if a
              significant number of foreign guestworkers is needed in the future.




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Figure II.1: Terms of the Work




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              To address these questions, we (1) interviewed federal and state officials
Methodology   and nongovernmental persons such as representatives of agricultural
              associations, labor advocates, and academic experts; (2) collected
              documents from federal and state agencies as well as private sources;
              (3) analyzed qualitative and quantitative data from federal and state



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             agencies and private employers; (4) reviewed published studies; and
             (5) conducted a legal review of the statutory and regulatory requirements
             of the H-2A program.


Interviews   To obtain information about each of the assignment’s objectives, we
             interviewed pertinent Labor officials, including those within ETA’s
             Employment Service and those responsible for overseeing the H-2A
             program; officials at OSHA; WHD; the Office of the Solicitor; and the
             Directorate of Policy. We also held discussions with regional Labor
             officials, including program monitor advocates and WHD staff.42
             Throughout the assignment, we coordinated our efforts with staff from
             Labor’s Office of Inspector General (OIG), who are currently conducting a
             review of the U.S. Employment Service role in facilitating the H-2A
             guestworker program.43 We also held discussions with state program
             monitor advocates and officials who conduct the H-2A program housing
             inspections. In addition, we interviewed state job service and health
             department officials in the three states that used the most H-2A workers in
             1996—North Carolina, New York, and Virginia—and the state producing
             the largest dollar value in agriculture—California.

             We conducted discussions with officials at USDA and the State Department
             including officials at several consulate offices located in Mexico and
             officials from INS’ investigations offices and the Border Patrol. To assess
             the potential of serious labor shortages occurring from enhanced INS and
             border patrol enforcement efforts at agricultural worksites, we
             interviewed INS officials at their Office of Statistics and Office of
             Enforcement, regional offices, and INS processing centers; and with Border
             Patrol officials at headquarters and in the regions to identify their official
             enforcement targeting priorities and the current level of enforcement
             resources directed to agriculture. We also observed a typical INS
             enforcement operation at a worksite in Woodstock, Virginia.



             42
                In response to a 1974 district court decision (NAACP v. Labor), Labor’s Employment Service was
             required to create a group of monitor advocates—individuals charged with monitoring the treatment of
             farmworkers by state job services to ensure equitable treatment as well as to advocate for the
             improvement in the employment and working conditions of farmworkers. These monitor advocates
             were assigned to each of Labor’s 10 regions throughout the country, and each state job service was to
             provide for a network of such advocates throughout the agency.
             43
               Among other issues, the OIG is reviewing Labor’s adherence to agency procedures regarding the
             H-2A program’s statutory and regulatory affirmative recruitment requirements. The OIG expects to
             complete its work by April 1998. We coordinated our efforts with the OIG’s office to minimize
             duplication in our data collection efforts and to reduce any administrative burden caused by our
             reviews on federal and state agencies and private employers.



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                  We met with a wide variety of agricultural employers, workers, and
                  advocates. We interviewed 12 H-2A growers distributed across six states
                  and 35 non-H-2A growers distributed regionally across nine states. These
                  growers represented a wide array of agricultural activities, including fruit,
                  tree nut, vegetable, tobacco, and tree nursery production, and sheep
                  ranching. We also interviewed officials from 28 agricultural employer
                  associations throughout the country, including the National Council of
                  Agricultural Employers, the national office and selected state chapters of
                  the American Farm Bureau Federation, and regional organizations like the
                  Florida Fruit and Vegetable Association and the Nisei League. We also met
                  with agricultural associations that file H-2A applications as joint
                  employers, including the North Carolina Growers Association, the Virginia
                  Agricultural Growers Association, the New England Apple Council, and
                  others. We interviewed over 30 farmworkers, both H-2A and non-H-2A, and
                  visited numerous agricultural worksites. We held discussions with 18 farm
                  labor advocates from 15 states throughout the country, including
                  representatives of the Farmworker Justice Fund, unions such as the
                  United Farm Workers, church groups, and community organizations.

                  We conferred with a number of experts on farm labor and immigration
                  issues, including economists, legal experts, research methodologists from
                  academia, and researchers and officials associated with the 1992
                  Commission on Agricultural Workers and the U.S. Commission on
                  Immigration Reform. We consulted with several of these experts
                  throughout the assignment to facilitate our understanding of the H-2A
                  program’s operation and other key issues.


Document Review   We collected and reviewed documents on the H-2A program’s procedures,
                  including its application forms and requirements, implementing
                  regulations, and procedures for filing appeals of adverse rulings. We
                  obtained documents from ETA specifying those counties and other
                  jurisdictions of the country that had been designated as “labor surplus”
                  areas and the criteria used for such designations. We collected documents
                  from INS on its enforcement priorities and its procedures for approving
                  H-2A applications. We obtained resource data from Labor on the H-2A
                  program and from INS on its enforcement efforts and H-2A-related
                  activities. We also obtained information on areas of the country that had
                  received waivers from the Secretary of Agriculture from the modifications




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                    Objectives, Scope, and Methodology




                    in food stamp eligibility as specified in the Personal Responsibility and
                    Work Opportunity Reconciliation Act of 1996.44


Data Analysis       We collected and analyzed data from a number of different sources, as
                    follows:

                •   Labor’s National Agricultural Workers Survey (NAWS). Since 1988, NAWS has
                    collected detailed information on the basic demographics, legal status,
                    education, family size and household composition, wages, and working
                    conditions of seasonal agricultural services workers, including their
                    participation in the nonagricultural U.S. labor force.45 NAWS also collects
                    information on hourly and piece-rate wage rates, farm labor housing,
                    health care, and many other aspects of field labor working conditions.
                •   USDA’s National Agricultural Statistics Service (NASS). We collected and
                    analyzed data on hourly and piece-rate wage rates, and total employment
                    for field and all hired agricultural workers from the late 1980s to July 1997,
                    the most recent period available. We also analyzed data on various
                    agricultural characteristics of U.S. counties, including the total number of
                    farms, their distribution by the amount of annual sales and acreage, and
                    time series data on total acreage, and value of production and tonnage for
                    fruit, tree nut, vegetable, and floracultural production. We also analyzed
                    data on the total value of production in fruits, tree nuts, vegetable
                    nurseries, and greenhouse production for the 100 counties with the largest
                    dollar value of production in each of these areas.
                •   Labor’s Bureau of Labor Statistics (BLS). We analyzed BLS data on monthly
                    and annual unemployment rates for 20 counties with high fruit, tree nut,
                    and vegetable production as measured in dollars, for states and the nation,
                    for 1994 through June 1997. We also collected and reviewed annual and

                    44
                      Section 6(o) of the Food Stamp Act, as amended by section 824 of the Personal Responsibility and
                    Work Opportunity Act, provides that, among other criteria, an individual is ineligible for the program if
                    he or she previously received benefits but did not work an average of 20 hours per week for at least a
                    3-month period. However, the provision also says that, on the request of a state agency, the Secretary
                    of Agriculture may waive these provisions for any group of individuals in the state if the Secretary
                    determines that the area in which the individuals reside has an unemployment rate of over 10 percent
                    or does not have sufficient numbers of jobs to employ the individuals.
                    45
                      Three times annually, NAWS surveys a random sample of about 2,500 of the nation’s crop
                    farmworkers. To ensure regional coverage, NAWS uses site area sampling to obtain a nationally
                    representative cross section of field workers. To incorporate seasonal sensitivities, three 6- to 8-week
                    survey cycles are conducted, in January, May, and September of each year. Site selection and interview
                    allocations are proportional to seasonal payroll size. NAWS obtains employer names from various
                    government sources and generates a random sample of agricultural employers for each of the selected
                    sites. NAWS representatives contact selected employers to obtain access to the worksite. Interviewers
                    visit the worksite and ask a random sample of workers to participate. Interviews occur at workers’
                    homes or at worker-selected locations. See Department of Labor, Office of the Assistant Secretary for
                    Policy, A Profile of U.S. Farmworkers: Demographics, Household Composition, Income and Use of
                    Services (Washington, D.C.: Department of Labor, Apr. 1997).



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                        monthly unemployment rates for agricultural wage and salary workers
                        from January 1948 through September 1997.
                    •   Justice’s INS enforcement action data. We analyzed data on all INS
                        enforcement actions conducted since 1994 to determine the number of
                        actions targeted to agricultural worksites and how that number has
                        changed over time. We also analyzed INS data regarding the number of
                        H-2A program participants who overstayed their contract period for 1994
                        through 1996.
                    •   Labor’s H-2A program certification processing data. We analyzed data on
                        all H-2A applications processed by each of Labor’s regional offices,
                        including the number of workers requested, the date of application and
                        certification, the number of the petitioning grower associations and the
                        individual growers they represent, and other information. We analyzed
                        these data to determine the percentage of all certifications that did not
                        meet all statutory and regulatory time requirements. For those
                        applications determined to be late, we contacted the individual regional
                        office to identify and analyze the reasons for the delay. We also obtained
                        data from H-2A program officials at headquarters on the number of
                        applications and employers by crop, by state, and by number of workers
                        requested.
                    •   States’ visa data. We analyzed data on the number of H-2A visas issued by
                        country of origin for fiscal years 1987 through 1997.
                    •   Association data. We analyzed detailed data obtained from Labor’s OIG on
                        the operations of a large provider of H-2A workers. These data include
                        details on the employers who obtain workers from the association, and on
                        both domestic and H-2A workers for the 1996 season.


Literature Review       To address issues concerning the status of the national agricultural labor
                        market and the potential for a national labor shortage, we reviewed
                        pertinent literature on the definition and measurement of labor shortages
                        generally; consulted with economists familiar with local and national
                        agricultural labor markets; and conducted interviews with officials from
                        Labor and USDA, farm labor advocates, agricultural employer associations,
                        and individual growers. We also reviewed the literature on the history and
                        role of guestworkers in American agriculture and the implications of such
                        programs for national immigration policy.


Legal Analysis          We reviewed existing statutory and regulatory requirements to identify any
                        potential impediments that could constrain the H-2A program from
                        expanding or operating quickly in an emergency situation. We also



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conducted a legal review of the program’s general certification process, its
appeals procedure, and the rights and remedies available to H-2A and
non-H-2A workers.




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Appendix III

Economic Data on U.S. Farmworkers and
Agricultural Production

               This appendix contains data on various economic characteristics of U.S.
               farmworkers and agricultural production, including total employment
               rates, average hourly and piece-rate wages, annual and monthly
               unemployment rates for the nation and selected states and counties, total
               acreage, and the value of certain types of agricultural production. We also
               present information on selected areas of the country that received waivers
               from USDA as a result of recently enacted legislative changes in food stamp
               eligibility.




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                                         Appendix III
                                         Economic Data on U.S. Farmworkers and
                                         Agricultural Production




Table III.1: Annual and Monthly
Unemployment Rates for 20 Counties       Numbers in percent
With Significant Production in Fruits,                                                                                             Monthly
Tree Nuts, and Vegetables, 1994-96                                                                                              unemployment
and June 1997                                 Geographic area                Average annual unemployment rate                       rate
                                                                                    1994              1995             1996           June 1997
                                         Countya
                                         Fresno County, Calif.                       13.8             14.1                13                 12.4
                                         Imperial County, Calif.                     26.2             29.3              29.4                 24.6
                                         Kern County, Calif.                         14.7             13.9              12.7                 11.4
                                         Madera County, Calif.                       14.8                15             14.1                 13.4
                                         Merced County, Calif.                       15.5             17.1              16.2                 14.1
                                         Monterey County, Calif.                     12.1             12.4                11                     7.2
                                         Riverside County, Calif.                    10.5               9.5               8.2                    7.2
                                         San Diego County, Calif.                       7               6.4               5.3                    4.4
                                         San Joaquin County, Calif.                  12.6             12.3              11.2                 10.8
                                         Santa Barbara County,
                                         Calif.                                       7.2               6.7               5.7                    4.1
                                         Stanislaus County, Calif.                   15.7             15.5                14                 13.5
                                         Tulare County, Calif.                         16             16.8              15.9                 13.9
                                         Ventura County, Calif.                       7.8               7.5               7.1                    5.9
                                         Collier County, Fla.                         8.2                 7               5.8                    5.9
                                         Dade County, Fla,                            8.4               7.4               7.3                    7.8
                                         Hendry County, Fla.                         16.7             15.1              13.9                 19.5
                                         Palm Beach County, Fla.                      8.8               7.2               6.7                    6.9
                                         St. Lucie County, Fla.                      14.3             12.4              12.2                 11.6
                                         Yuma County, Ariz.                          32.1                29               31                 32.7
                                         Yakima County, Wash.                        11.7             12.6              13.4                     8.1
                                         State
                                         California                                   8.6               7.8               7.2                    6.3
                                         Florida                                      6.6               5.5               5.1                    5.2
                                         Arizona                                      6.4               7.8               5.5                    4.9
                                         Washington                                   6.4               6.4               6.5                    4.7
                                         Country
                                         United States                                6.1               5.6               5.4                    5.2
                                         a
                                          As of 1992, the latest year for which data were available from USDA, these 20 counties
                                         accounted for over 50 percent of the dollar value of all fruit and tree nut production in the United
                                         States, 47 percent of the dollar value of all vegetables, and 16 percent of the total national dollar
                                         value of nursery and greenhouse production.




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                                       Appendix III
                                       Economic Data on U.S. Farmworkers and
                                       Agricultural Production




Table III.2: Food Stamp Waiver and
Labor Surplus Area Designations for                                                                        Scope of labor
20 Counties With Significant                                       Scope of food                           surplus area
Production in Fruits, Tree Nuts, and                               stamp eligibility      Reason for       designation,d
Vegetables, 1997                       Countya                     waiverb                USDA waiverc     fiscal year 1997
                                       Fresno County, Calif.       Entire county          Over 10 percent Entire county
                                                                                          unemployment
                                                                                          rate
                                       Imperial, County, Calif.    Entire county          Over 10 percent Entire county
                                                                                          unemployment
                                                                                          rate
                                       Kern, Calif.                Entire county          Over 10 percent Entire county
                                                                                          unemployment
                                                                                          rate
                                       Madera County, Calif.       Entire county          Over 10 percent Entire county
                                                                                          unemployment
                                                                                          rate
                                       Merced County, Calif.       Entire county          Over 10 percent Entire county
                                                                                          unemployment
                                                                                          rate
                                       Monterey County, Calif.     Entire county          Over 10 percent Excludes cities of
                                                                                          unemployment Monterey and Salinas
                                                                                          rate
                                       Riverside County, Calif.    Entire county          Insufficient jobs Excludes city of Palm
                                                                                                            Desert
                                       San Diego County, Calif.    Cities of Chula        Insufficient jobs Not designated as
                                                                   Vista, El Cajon,                         labor surplus area
                                                                   Imperial Beach,
                                                                   Lemon Grove,
                                                                   National City,
                                                                   Oceanside, and
                                                                   Vista
                                       San Joaquin County, Calif. Entire county           Over 10 percent Entire county
                                                                                          unemployment
                                                                                          rate
                                       Santa Barbara County,       Lompoc City,           Insufficient jobs Not designated as
                                       Calif.                      Santa Maria                              labor surplus area
                                       Stanislaus County, Calif.   Entire county          Over 10 percent Entire county
                                                                                          unemployment
                                                                                          rate
                                       Tulare County, Calif.       Entire county          Over 10 percent Entire county
                                                                                          unemployment
                                                                                          rate
                                       Ventura County, Calif.      Entire county          Insufficient jobs Excludes cities of
                                                                                                            Camarillo, Moorpark,
                                                                                                            Simi Valley, Thousand
                                                                                                            Oaks, and Ventura
                                       Collier County, Fla.        Entire county          Insufficient jobs Entire county
                                                                                                                      (continued)




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Appendix III
Economic Data on U.S. Farmworkers and
Agricultural Production




                                                                              Scope of labor
                                 Scope of food                                surplus area
                                 stamp eligibility       Reason for           designation,d
Countya                          waiverb                 USDA waiverc         fiscal year 1997
Dade County, Fla.                Entire county           Insufficient jobs Excludes entire
                                                                           county except for
                                                                           cities of North Miami,
                                                                           Hialeah, Homestead,
                                                                           Miami Beach, and
                                                                           Miami
Hendry County, Fla.              Entire county           Over 10 percent Entire county
                                                         unemployment
                                                         rate
Palm Beach County, Fla.          Entire county           Insufficient jobs Excludes cities of
                                                                           Boca Raton, Jupiter,
                                                                           and Palm Beach
                                                                           Gardens
St. Lucie County, Fla.           Entire county           Over 10 percent Entire county
                                                         unemployment
                                                         rate
Yuma County, Ariz.               Entire county           Over 10 percent Entire county
                                                         unemployment
                                                         rate
Yakima County, Wash.             Entire county           Over 10 percent Entire county
                                                         unemployment
                                                         rate

a
 These 20 counties accounted for about half of the total national value of production in fruits, tree
nuts, and vegetables in 1992, the latest year for which data were available.
b
 Section 6(o) of the Food Stamp Act, as amended by section 824 of the Personal Responsibility
and Work Opportunity Reconciliation Act of 1996, provides that, among other criteria, a person is
ineligible for the program if he or she previously received benefits but did not work at least 20
hours per week for at least a 3-month period. However, the provisions also say that, on the
request of a state agency, the Secretary of Agriculture may waive these provisions for specified
persons in the state. USDA issued most of the waivers to the designated counties during early
1997.
c
 The Secretary of Agriculture may waive current food stamp eligibility provisions if he determines
that the area in which the persons reside has an unemployment rate of over 10 percent or has an
insufficient number of jobs to provide employment for program participants. Among other
evidence, designation of an area by Labor as a labor surplus area can be considered by the
Secretary that an insufficient number of jobs are available.
d
 Labor classifies a civil jurisdiction as a labor surplus area when that jurisdiction’s average
unemployment rate is at least 20 percent above the average national unemployment rates during
the previous 2 calendar years. During periods of high unemployment, an area can be classified
as a labor surplus area if it has unemployment rates of 10 percent or more during the previous 2
calendar years. Labor may also designate areas if an area had unemployment rates of at least
7.1 percent for each of the 3 most recent months or projected unemployment of at least
7.1 percent for each of the next 12 months or has documentation that this has already occurred.
Labor designates labor surplus areas on a fiscal-year basis. Designated labor surplus areas are
eligible for preference in bidding on federal procurement contracts.

Sources: USDA and Department of Labor.




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                                       Appendix III
                                       Economic Data on U.S. Farmworkers and
                                       Agricultural Production




Table III.3: Average Hourly Wages of
Agricultural Workers, 1989-96                                                   NASS average                     NAWS average
                                                                                 hourly wage                       hourly farm
                                                             NASS average             for field NAWS average wage, all crop
                                                             annual hourly        workers, in annual hourly        workers, in
                                                              wage rate for     constant 1996     farm rate, all constant 1996
                                       Year                  field workersa           dollarsb crop workersc           dollars
                                       1989                            $5.12               $6.48              $5.24               $6.63
                                       1990                              5.23               6.28                5.23               6.28
                                       1991                              5.49               6.32                5.56               6.41
                                       1992                              5.69               6.36                5.33               5.96
                                       1993                              5.90               6.41                5.45               5.92
                                       1994                              6.02               6.37                5.54               5.87
                                       1995                              6.13               6.31                5.89               6.06
                                       1996                              6.34               6.34      Not available       Not available
                                       Percentage
                                       change, 1989-95                 19.73                –2.7              12.40               –8.54
                                       a
                                       USDA, NASS.
                                       b
                                        Wages in constant 1996 dollars were calculated using the Consumer Product Index for all urban
                                       consumers (1982-84=100), modified to 1996 as the base year. See Economic Report of the
                                       President, table B-58 (Washington, D.C.: U.S. Government Printing Office, Feb. 1997). p. 365.
                                       NASS defines a field worker as an employee engaged in planting, tending, and harvesting crops,
                                       including operation of farm machinery on a crop farm. The NAWS definition of crop worker is
                                       comparable to NASS’ definition of field worker.
                                       c
                                       Data are from the Department of Labor, NAWS, 1989-95.




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                                         Appendix III
                                         Economic Data on U.S. Farmworkers and
                                         Agricultural Production




Table III.4: Average Hourly Piece-Rate
Wages of Agricultural Workers,                                                                                           NAWS average
1989-95                                                                                                                    hourly wage
                                                                                                                             rates, crop
                                                                                                      NAWS average              workers
                                                                                    NASS average       hourly wages,           receiving
                                                                 NASS average         annual piece      crop workers          piece-rate
                                                                  annual hourly     rate wages, all         receiving    compensation
                                                                      piece-rate    hired workers,         piece-rate            only, in
                                                                      wages, all       in constant    compensation        constant 1996
                                         Year                    hired workersa       1996 dollars              onlyb            dollars
                                         1989                              $6.65              $8.41              $6.86                  $8.68
                                         1990                                6.55              7.86               6.82                   8.19
                                         1991                                6.43              7.41               7.52                   8.66
                                         1992                                6.43              7.19               6.19                   6.92
                                         1993                                6.42              6.97               6.81                   7.39
                                         1994                                7.02              7.43               6.55                   6.93
                                         1995                                7.03              7.24               7.01                   7.22
                                         Percentage
                                         change, 1989-95                     5.71            –13.99               2.19             –16.86
                                         a
                                          NASS defines all hired workers as anyone other than an agricultural service worker who is paid
                                         for at least 1 hour of agricultural work on a farm or ranch. NASS defines a field worker as an
                                         employee engaged in planting, tending, and harvesting crops, including operation of farm
                                         machinery on a crop farm. Average annual hourly piece rates are those wages paid to employees
                                         in a piece-rate form of compensation. NAWS’ definition of crop worker is similar to NASS’
                                         definition of field worker.
                                         b
                                             Unpublished data from the Department of Labor, NAWS, Oct. 1997.
                                         c
                                          Wages in constant 1996 dollars were calculated using the Consumer Price Index for all urban
                                         consumers (1982-84=100), modified to 1996 as the base year.




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                                       Appendix III
                                       Economic Data on U.S. Farmworkers and
                                       Agricultural Production




Table III.5: Total Annual Acreage,
Tonnage and Dollar Value of National                                                       Total                             Total peak
Fruit and Vegetable Production, and                                                  production       Total value of       employment,
Numbers of Workers Employed,                                  Total acreage       (short tons in      production (in        direct hired
1986-97                                Year                  (in thousands)         thousands)             millions)           workersa
                                       1986                             5,752              46,712              $9,983               1,233
                                       1987                             5,905              51,268              10,905               1,270
                                       1988                             5,953              51,465              12,330               1,200
                                       1989                             6,096              55,996              13,240               1,197
                                       1990                             6,139              53,971              12,649               1,106
                                       1991                             6,097              54,711              13,576               1,113
                                       1992                             6,071              55,808              13,890               1,032
                                       1993                             6,044              57,815              13,921               1,062
                                       1994                             6,282              61,846              14,025               1,047
                                       1995                             6,307              60,805              15,141               1,066
                                                                              b                   b                   b
                                       1996                                                                                         1,015
                                                                              b                   b                   b
                                       1997                                                                                         1,068
                                       Percentage change
                                                                                                                                           b
                                       1986-95                           9.64               30.17               51.67
                                                                              b                   b                   b
                                       1987-97                                                                                    –15.90
                                       a
                                        Number of workers hired directly by agricultural employers as of July of each year. This column
                                       does not include agricultural service workers—workers hired through labor contractors. Including
                                       data on the peak employment levels of agricultural service workers results in a decline in total
                                       peak agricultural employment of about 6 percent to about 1.4 million between July 1986 and
                                       July 1997.
                                       b
                                           Not available.




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Appendix IV

Characteristics of H-2A Participants


               Table IV.1 provides information on the number of H-2A workers entering
               the United States by country of origin from 1987 to 1996. In 1987, the
               majority of workers came from Jamaica. By 1996, the majority of workers
               came from Mexico.




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                                        Appendix IV
                                        Characteristics of H-2A Participants




Table IV.1: H-2A Workers Entering the
United States, by Country of Origin,
Fiscal Year 1987-96                     Country                                 1987           1988          1989         1990
                                        Total, Africa                                                                        1
                                        Total, Asia                                                8           14           19
                                        Great Britain and Northern
                                        Ireland                                    2              39           12           16
                                        Poland                                                                 16           15
                                        Other                                                     62           72           38
                                        Total, Europe                              2             101          100           69
                                        Barbados                                 416             321          263
                                        Dominica                                 100             100          110
                                        Dominican Republic                                                     16           16
                                        Jamaica                                11,414         12,609       12,051       13,881
                                        Mexico                                                 2,499        3,683         4,993
                                        St. Lucia                                562             565          580
                                        St. Vincent                              552             550          620
                                        Other                                     67              29           38
                                        Total, North America                   13,111         16,673       17,361       18,890
                                        Australia                                                              15           18
                                        New Zealand                                                             7            8
                                        Total, Oceania                                                         22           26
                                        Chile                                                                               53
                                        Peru                                                                  116          140
                                        Other                                                                   1            1
                                        Total, South America                                                  117          194
                                        Total                                  13,113         16,782       17,614       19,199




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                           Appendix IV
                           Characteristics of H-2A Participants




                                                                                 Rate in percent
 1991     1992     1993               1994            1995            1996              for 1996         Total by country
             2        4                 14                3               2                    .01                        26
  140       15       27                  7                5               3                    .01                        238

   23       10        7                  8              12                5                    .03                        134
   37       53       10                 11              18               31                     .2                        191
   23       12        9                 10              19               19                     .1                        264
   83       75       26                 29              49               55                     .4                        589
   60                                                                                                                 1,060
   23                                                                                                                     333
   19       22       27                 17              21               19                     .1                        157
10,815    8,355    6,099              5,697          4,483           4,231                    27.8                   89,635
 6,216    5,829    6,655              7,156          7,744          10,353                    67.9                   55,128
  209                                                                                                                 1,916
  290                                                                                                                 2,012
   81       23       16                 34                9              14                    .09                        311
17,707   14,220   12,794           12,897           12,257          14,617                    95.9                  150,527
   20       23       32                 22              38               31                     .2                        199
   68      103       74                 98              97               74                     .5                        529
   88      126      106                120             135             105                      .7                        728
   53       81       73                 57              72               70                     .5                        459
  198      277      308                294             341             383                     2.5                    2,057
    4        2        4                                                                                                   12
  255      360      385                351             413             453                     3.0                    2,528
18,273   14,798   13,342           13,418           12,862          15,235                                          154,636
                           Note: These data include both H-2A workers receiving a visa from the Department of State and
                           Caribbean H-2A workers organized by WICLO entering without a visa.



                           No data are available on the geographic distribution of H-2A employers or
                           H-2A workers employed. However, we analyzed data on the distribution of
                           H-2A applications and workers requested across the country to obtain a
                           general picture of where employers are located and where workers are
                           going. (See table IV.2.) Applications are often filed for groups of employers
                           but must be filed with the ETA region where the worker is to be employed.
                           Workers certified does not equal the number of H-2A workers employed
                           because employers may not fill all approved positions, may fill positions
                           with H-2A workers transferred from other employers, reduce the number
                           of workers requested because of a lack of housing, or withdraw




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Appendix IV
Characteristics of H-2A Participants




emergency applications. For example, in 1996 ETA certified 17,537 H-2A job
openings, while 15,235 H-2A workers, or 87 percent of those workers,
entered the United States. Figure IV.1 shows the geographic distribution of
applications and workers certified in fiscal year 1996. Table IV.2 shows
applications and workers requested and certified, by region, fiscal years
1994 through 1997.




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                                           Appendix IV
                                           Characteristics of H-2A Participants




Figure IV.1: Distribution of Applications and Workers Certified, by Region, Fiscal Year 1996




                                           Note: Region I (Boston) includes Connecticut, Maine, Massachusetts, New Hampshire, Rhode
                                           Island, and Vermont. Region II (New York) includes New Jersey, New York, Puerto Rico, and the
                                           Virgin Islands. Region III (Philadelphia) includes Delaware, the District of Columbia, Maryland,
                                           Pennsylvania, Virginia, and West Virginia. Region IV (Atlanta) includes Alabama, Florida, Georgia,
                                           Kentucky, Mississippi, North Carolina, South Carolina, and Tennessee. Region V (Chicago)
                                           includes Illinois, Indiana, Michigan, Minnesota, Ohio, and Wisconsin. Region VI (Dallas) includes
                                           Arkansas, Louisiana, New Mexico, Oklahoma, and Texas. Region VII (Kansas City) includes Iowa,
                                           Kansas, Missouri, and Nebraska. Region VIII (Denver) includes Colorado, Montana, North Dakota,
                                           South Dakota, Utah, and Wyoming. Region IX (San Francisco) includes Arizona, California,
                                           Hawaii, Nevada, and Guam. Region X (Seattle) includes Alaska, Idaho, Oregon, and Washington.




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                                           Appendix IV
                                           Characteristics of H-2A Participants




Table IV.2: Number and Result of
Applications for H-2A Certifications, by                                          1994         1995         1996           1997a
Region, Fiscal Year 1994-97                Region I (Boston)
                                             Applications                          363          361          389             245
                                             Workers requested                    2,556       3,364         3,446           3,115
                                             Workers certified                    2,518       2,963         3,129           2,970
                                           Region II (New York)
                                             Applications                          143            0          162             101
                                             Workers requested                    2,324           0         2,438            888
                                             Workers certified                    2,318           0         2,415            888
                                           Region III (Philadelphia)
                                             Applications                           24           25           23              14
                                             Workers requested                    1,721       2,999         3,150           3,101
                                             Workers certified                    1,690       2,994         3,134           3,069
                                           Region IV (Atlanta)
                                             Applications                          118          158          275             454
                                             Workers requested                    4,507       4,728         7,200         10,383
                                             Workers certified                    2,352       4,531         5,362           8,585
                                           Region V (Chicago)
                                             Applications                            1            0            4               7
                                             Workers requested                     200            0          368             400
                                             Workers certified                     200            0          368             334
                                           Region VI (Dallas)
                                             Applications                           73           73           98             103
                                             Workers requested                     523          490          828             889
                                             Workers certified                     523          486          827             889
                                           Region VII (Kansas City)
                                             Applications                           10           21           14              18
                                             Workers requested                      51          157          128             182
                                             Workers certified                      51          157          128             138
                                           Region VIII (Denver)
                                             Applications                          383          373          201             300
                                             Workers requested                     928          902          769            1,212
                                             Workers certified                     905          898          752            1,208
                                           Region IX (San Francisco)
                                             Applications                          485          471          397             339
                                             Workers requested                    1,058       1,184          936             827
                                             Workers certified                     998        1,142          934             819
                                           Region X (Seattle)
                                             Applications                          167          291          254             291
                                                                                                                      (continued)


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Appendix IV
Characteristics of H-2A Participants




                                          1994             1995             1996                  1997a
  Workers requested                        713              631              589                   700
  Workers certified                        618              538              508                   600
Total
  Applications                           1,767            1,773            1,817                  1,872
  Workers requested                     14,581           14,455           19,852              21,697
  Workers certified                     12,173           13,709           17,557              19,500

Note: The number of orders (applications) does not equal the number of employers and the
number of workers requested does not equal the exact number of H-2A workers employed.
However, the data provide a general picture of where employers are located and where workers
are going.
a
 Applications for fiscal year 1997 include only those filed through June 30, 1997 (the first 9
months of the fiscal year), with the exception of region X, which includes applications through
August 27, 1997.



Although national data are not available on the gender and age of H-2A
workers, agency officials and employers report that there are few, if any,
female H-2A workers. Also, H-2A workers are unaccompanied because the
State Department consulates usually do not issue visas to family members
because of concern that the worker will have less incentive to return
home. This differs from the characteristics of domestic workers, where
one in every five is female, according to NAWS estimates and nearly half of
all domestic farmworkers live in living situations that include family
members. Moreover, it is illegal to refuse to hire a domestic farmworker
because he or she has a family, and H-2A requires that H-2A employers
provide housing for families of domestic farmworkers when it is the
prevailing practice in the area.

Data on the ages of H-2A workers are unavailable. However, an analysis of
data from a major employer of H-2A workers shows that a majority of its
4,500 H-2A workers in fiscal year 1996 were younger than 33 years. This is
similar to the age distribution of domestic farmworkers, as estimated by
NAWS. (See fig. IV.2.)




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                                        Appendix IV
                                        Characteristics of H-2A Participants




Figure IV.2: Comparison of Age
Distribution of Domestic Workers With   Percentage of Workers
H-2A Workers at a Major H-2A            6
Employer, Fiscal Year 1996

                                        5


                                        4



                                        3


                                        2



                                        1



                                        0
                                            16 18 20 22 24 26 28 30 32 34 36 38 40 42 44 46 48 50 52 54 56 58 60 62 64
                                                                            Age
                                               Domestic Farmworkers
                                               H-2A Farmworkers




                                        Page 106                                 GAO/HEHS-98-20 H-2A Guestworker Program
Appendix V

INS Worksite Enforcement Activities, Fiscal
Year 1996

               Figure V.1 shows the distribution of worksite enforcement cases involving
               agriculture-related employers identified as closed in INS’ database of
               employer sanctions (worksite enforcement) cases, by region and by
               district. These are based on the report generated on every completed
               employer sanctions case, including both lead-driven investigations and
               randomly selected compliance inspections.




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                                          Appendix V
                                          INS Worksite Enforcement Activities, Fiscal
                                          Year 1996




Figure V.1: INS Worksite Enforcement Activities Completed at Agriculture-Related Employers, October 1996-July 1997




                                          Notes: Agriculture-related employers in this figure are those whose Standard Industrial Code
                                          begins with 01 (Agricultural Production), 02 (Agricultural Production—Livestock), or 07
                                          (Agricultural Services).

                                          Figure does not include all cases completed during this time period. According to INS, there is a
                                          2- to 3-month lag between when cases are completed and the reports are submitted and keyed
                                          into the Investigations database. This includes all cases in the database as of July 17, 1997.
                                          Figure also does not include the 39 cases closed by Border Patrol personnel.




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Appendix V
INS Worksite Enforcement Activities, Fiscal
Year 1996




The Office of Field Operations oversees three regional offices that direct
the activities of 33 districts and 21 Border Patrol sectors throughout the
United States. The district offices are listed in table V.1.




Page 109                                      GAO/HEHS-98-20 H-2A Guestworker Program
                                      Appendix V
                                      INS Worksite Enforcement Activities, Fiscal
                                      Year 1996




Table V.1: INS District Offices, by
Region                                                                                                           Number of
                                      Office                                                                  closed cases
                                      Western Region: Laguna Niguel, Calif.
                                      Anchorage, Alaska                                                                  1
                                      Honolulu, Hawaii                                                                   2
                                      Los Angeles, Calif.                                                               18
                                      Phoenix, Ariz.                                                                    57
                                      Portland, Oreg.                                                                    9
                                      San Diego, Calif.                                                                  8
                                      San Francisco, Calif.                                                             26
                                      Seattle, Wash.                                                                     5
                                      Central Region: Dallas, Tex.
                                      Bloomington, Minn.                                                                 9
                                      Chicago, Ill.                                                                     15
                                      Dallas, Tex.                                                                       5
                                      Denver, Colo.                                                                      2
                                      El Paso, Tex.                                                                     23
                                      Harlingen, Tex.                                                                    3
                                      Helena, Mont.                                                                     14
                                      Houston, Tex.                                                                     15
                                      Kansas City, Mo.                                                                  13
                                      Omaha, Neb.                                                                        1
                                      San Antonio, Tex.                                                                 12
                                      Eastern Region: South Burlington, Vt.
                                      Arlington, Va.                                                                     1
                                      Atlanta, Ga.                                                                       5
                                      Baltimore, Md.                                                                     7
                                      Boston, Mass.                                                                      1
                                      Buffalo, N.Y.                                                                      8
                                      Cleveland, Oh.                                                                    35
                                      Detroit, Mich.                                                                     6
                                      Miami, Fla.                                                                        2
                                      Newark, N.J.                                                                       0
                                      New Orleans, La.                                                                  13
                                      New York, N.Y.                                                                    29
                                      Philadelphia, Pa.                                                                 10
                                      Portland, Me.                                                                      3
                                      San Juan, P.R.                                                                     2




                                      Page 110                                      GAO/HEHS-98-20 H-2A Guestworker Program
Appendix VI

Stakeholder Perspectives on Worker
Protection Requirements Under H-2A
Program

Issue                 Requirement                    Stakeholder perspectives                    GAO comments
50-percent rule       Employers must hire any        Protects domestic workers from job          SESAs reported that they did not
                      qualified domestic worker      displacement by foreign workers.            send workers to H-2A employers
                      who applies for a job until                                                after the beginning of the contract
                      50 percent of the contract     Some stated that it is overly burdensome    period. State and federal Labor
                      period has elapsed.            to hire domestic workers after H-2A         officials stated that even when
                                                     certification is approved and the date of   domestic workers are hired, enough
                                                     need has been reached.                      work is available such that few, if
                                                                                                 any, H-2A workers are returned
                                                                                                 home as a result of the provision.
Adverse effect wage   An employer must pay the       The AEWR may help to protect the wages We did not assess the AEWR to
rate (AEWR)           same minimum wage or           and employment opportunities of domestic determine its effectiveness in
                      rate of pay to U.S. workers    farmworkers.                              protecting the wages and
                      and H-2A workers. The                                                    employment of domestic
                      rate, set by Labor, must       Some say that the AEWR rate calculations farmworkers.
                      also be at least as high as    inappropriately result in wage rates that
                      the applicable AEWR, the       are too high. Others charge that the      H-2A employers continue to
                      minimum wage, or the           resulting wage rates are too low to       participate—and most have done so
                      prevailing wage rate,          sufficiently protect domestic workers and for many years—despite paying
                      whichever is highest.          that AEWR acts as a “glass ceiling” for   AEWR rates to foreign or domestic
                                                     agricultural wages.                       workers.

                                                                                                 H-2A employers are not required to
                                                                                                 pay Social Security taxes or
                                                                                                 Unemployment Insurance taxes for
                                                                                                 foreign workers, somewhat
                                                                                                 mitigating the potentially higher
                                                                                                 AEWR rate.
Housing               Employers must provide         Ensures workers a safe and healthy          See ch. 3.
                      housing that is certified as   workplace and reduces burden on
                      meeting minimum health         community.                                   Redundant oversight can needlessly
                      and safety standards, free                                                  create a regulatory burden on
                      of charge to all H-2A          Some employers expressed concerns            employers. Providing temporary
                      workers .                      about the difficulty in obtaining permission housing could reduce the cost and
                                                     to construct permanent housing and about regulatory burden of this provision
                                                     overly restrictive housing standards.        on employers.
                                                     Multiple levels of government involvement
                                                     result in conflicting and redundant housing
                                                     inspections.

                                                     Some workers expressed concerns about
                                                     inadequacy of standards, such as
                                                     absence of a requirement to provide door
                                                     locks on the building.
                                                                                                                          (continued)




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                                             Appendix VI
                                             Stakeholder Perspectives on Worker
                                             Protection Requirements Under H-2A
                                             Program




Issue                  Requirement                    Stakeholder perspectives                    GAO comments
Transportation         Employers must (1)             Provides incentives for the worker to       As discussed in chap. 3, compliance
                       reimburse workers for the      remain with the employer. It can also       with this requirement is difficult to
                       cost of transportation and     provide incentives and opportunity for      monitor and enforce. In addition,
                       subsistence from the           monitoring worker’s return to country of    reimbursement for transportation
                       place of recruitment to the    origin.                                     home requires the worker to
                       place of work after                                                        complete the contract. This may be
                       workers have completed         Worker advocates expressed concern          affected by the availability of work
                       50 percent of the work         about workers not being adequately          toward the end of the contract period.
                       contract period, (2)           reimbursed as a result of disagreements
                       provide free transportation    over the appropriate point of departure
                       between any required           and destination and the mode of
                       housing site and the           transportation.
                       worksite, and (3) pay for
                       workers’ transportation
                       home or to the next job
                       site upon completion of
                       the work contract.
Positive recruitment   Employers must actively        See ch. 3.                                  Labor OIG report on this matter is to
                       try to recruit U.S. workers,                                               be issued in spring 1998.
                       including advertising in
                       newspapers and on the                                                      See ch. 3.
                       radio, in areas of
                       expected labor supply.
                       Efforts must be equivalent
                       to efforts of non-H-2A
                       employers.
Three-quarter          Employers must offer each See ch. 3.                                       See ch. 3.
guarantee              worker employment for at
                       least three-fourths of the
                       workdays in the work
                       contract period, including
                       any extensions.
Appeals                See app. VII.                  Because almost all certifications, visa     Because almost all certifications,
                                                      petitions, and visas are approved, the      visa petitions, and visas are
                                                      appeal procedures are largely unused.       approved, the appeal procedures
                                                                                                  are largely unused.




                                             Page 112                                        GAO/HEHS-98-20 H-2A Guestworker Program
Appendix VII

Appeal Rights During the H-2A Process



               Point of appeal                Appeal rights
               ETA rejects H-2A application   An employer can send a request, along with a copy to
               for second time.               ETA, for an expedited administrative review to the Chief
                                              Administrative Law Judge within 7 days of ETA’s rejection
                                              notice. ETA must then send a copy of the case file to the
                                              judge. The judge must act on the employer’s request
                                              within 5 days of receiving the case file.
               ETA denies labor certification An employer has the same rights as when an application
               at least 20 days before date is rejected.
               of need.
               INS denies petition            Only the employer has appeal rights; no such rights exist
               requesting workers.            for H-2A workers.
               Department of State consular An alien may appeal a visa denial under limited
               officer denies worker’s      circumstances. Appeals are made to the chief consular
               request for visa.            officer who may reverse, uphold, or refer the decision to
                                            the Department for an advisory opinion, which is binding
                                            only to the extent it involves a legal interpretation.
               INS denies worker entry into   After an alien is initially refused permission to enter the
               the United States at the       United States, the case is referred to an immigration
               border.                        judge for a hearing. If dissatisfied with the judge’s
                                              decision, the alien can appeal to the Board of Immigration
                                              Appeals. If unsatisfied with the Board’s ruling, the alien
                                              can ask the Board to reopen or reconsider the case, but
                                              such a decision is within the sole discretion of the Board.




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Comments From the Department of Labor




Now on p. 25.




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Now on p. 25.




Now on p. 28.




Now footnote 19.




Now on pp. 29 and 30.




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                   Comments From the Department of Labor




Now on p. 30.




Now on p. 32.




Now footnote 16.




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Now on p. 61.




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Comments From the Department of State




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Comments From the U.S. Department of
Agriculture




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Agriculture




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Appendix XI

GAO Contacts and Staff Acknowledgments


                  Charles A. Jeszeck, Assistant Director, (202) 512-7036
GAO Contacts      Lise L. Levie, Evaluator-in-Charge, (202) 512-7030


                  The following team members also made important contributions: Carolyn
Staff             S. Blocker, Evaluator; Anu K. Mittal, Assistant Director; Robert D.
Acknowledgments   Sampson, Senior Evaluator; Ronni Schwartz, Senior Evaluator; and
                  Edward H. Tuchman, Evaluator.

                  Other significant contributors to this report included Elizabeth T.
                  Morrison and Nancy L. Crothers, Communications Analysts, who assisted
                  with writing and editing; Robert G. Crystal, Assistant General Counsel,
                  who provided legal research; Robert DeRoy, Assistant Director, who
                  provided statistical analyses; Ann P. McDermott, Publishing Adviser, who
                  developed the graphics; Linda W. Stokes, Senior Evaluator, who oversaw
                  the start of this assignment; Joan K. Vogel, Evaluator, who provided
                  computer analyses; and Paul C. Wright, who acted as interpreter with
                  agricultural workers.




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Page 147                                 GAO/HEHS-98-20 H-2A Guestworker Program
Related GAO Products


              Illegal Immigration: Southwest Border Strategy Results Inconclusive; More
              Evaluation Needed (GAO/GGD-98-21, Dec. 11, 1997).

              Passports and Visas: Status of Efforts to Reduce Fraud (GAO/NSIAD-96-99,
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              Border Patrol: Staffing and Enforcement Activities (GAO/GGD-96-65, Mar. 11,
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              Illegal Immigration: INS Overstay Estimation Methods Need Improvement
              (GAO/PEMD-95-20, Sept. 26, 1995).

              Illegal Aliens: National Net Cost Estimates Vary Widely (GAO/HEHS-95-133,
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              Illegal Aliens: Assessing Estimates of Financial Burden on California
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              Benefits for Illegal Aliens: Some Program Costs Increasing, but Total Costs
              Unknown (GAO/T-HRD-93-33, Sept. 29, 1993).

              Illegal Aliens: Despite Data Limitations, Current Methods Provide Better
              Population Estimates (GAO/PEMD-93-25, Aug. 5, 1993).

              Sugar Program: Changing Domestic and International Conditions Require
              Program Changes (GAO/RCED-93-84, Apr. 16, 1993).

              Foreign Farm Workers in U.S.: Department of Labor Action Needed to
              Protect Florida Sugar Cane Workers (GAO/HRD-92-95, June 30, 1992).

              Immigration and the Labor Market: Nonimmigrant Alien Workers in the
              United States (GAO/PEMD-92-17, Apr. 28, 1992).

              Immigration Reform: Employer Sanctions and the Question of
              Discrimination (GAO/GGD-90-62, Mar. 29, 1990).

              Immigration Reform: Potential Impact on West Coast Farm Labor
              (GAO/HRD-89-89, Aug. 17, 1989).

              The H-2A Program: Protections for U.S. Farmworkers (GAO/PEMD-89-3,
              Oct. 21, 1988).




(205338)      Page 148                               GAO/HEHS-98-20 H-2A Guestworker Program
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