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 Executive Summary 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 Executive Summary 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 Page 16 GAO/HEHS-98-20 H-2A Guestworker Program 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. Page 18 GAO/HEHS-98-20 H-2A Guestworker Program Chapter 1 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. Page 19 GAO/HEHS-98-20 H-2A Guestworker Program 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. Page 20 GAO/HEHS-98-20 H-2A Guestworker Program Chapter 1 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). Page 21 GAO/HEHS-98-20 H-2A Guestworker Program 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. Page 22 GAO/HEHS-98-20 H-2A Guestworker Program 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).) Page 24 GAO/HEHS-98-20 H-2A Guestworker Program Chapter 2 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. Page 25 GAO/HEHS-98-20 H-2A Guestworker Program 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 Chapter 2 No Widespread Agricultural Labor Shortage Is Anticipated 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. Page 27 GAO/HEHS-98-20 H-2A Guestworker Program Chapter 2 No Widespread Agricultural Labor Shortage 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. Page 28 GAO/HEHS-98-20 H-2A Guestworker Program Chapter 2 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 Page 29 GAO/HEHS-98-20 H-2A Guestworker Program Chapter 2 No Widespread Agricultural Labor Shortage Is Anticipated 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. Page 30 GAO/HEHS-98-20 H-2A Guestworker Program Chapter 2 No Widespread Agricultural Labor Shortage Is Anticipated 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. Page 31 GAO/HEHS-98-20 H-2A Guestworker Program Chapter 2 No Widespread Agricultural Labor Shortage Is Anticipated 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 Page 32 GAO/HEHS-98-20 H-2A Guestworker Program Chapter 2 No Widespread Agricultural Labor Shortage Is Anticipated 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. Page 33 GAO/HEHS-98-20 H-2A Guestworker Program Chapter 2 No Widespread Agricultural Labor Shortage Is Anticipated 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 Page 34 GAO/HEHS-98-20 H-2A Guestworker Program Chapter 2 No Widespread Agricultural Labor Shortage Is Anticipated 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 Page 35 GAO/HEHS-98-20 H-2A Guestworker Program Chapter 2 No Widespread Agricultural Labor Shortage Is Anticipated 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 Page 36 GAO/HEHS-98-20 H-2A Guestworker Program Chapter 2 No Widespread Agricultural Labor Shortage Is Anticipated 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. Page 37 GAO/HEHS-98-20 H-2A Guestworker Program Chapter 3 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. Page 38 GAO/HEHS-98-20 H-2A Guestworker Program Chapter 3 H-2A Program Can Be Improved to Better Meet the Needs of Agricultural Employers and Workers Page 39 GAO/HEHS-98-20 H-2A Guestworker Program Chapter 3 H-2A Program Can Be Improved to Better Meet the Needs of Agricultural Employers and Workers Figure 3.1: H-2A Process for Obtaining Permission to Bring in Foreign Workers Page 40 GAO/HEHS-98-20 H-2A Guestworker Program Chapter 3 H-2A Program Can Be Improved to Better Meet the Needs of Agricultural Employers and Workers Page 41 GAO/HEHS-98-20 H-2A Guestworker Program Chapter 3 H-2A Program Can Be Improved to Better Meet the Needs of Agricultural Employers 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. Page 42 GAO/HEHS-98-20 H-2A Guestworker Program Chapter 3 H-2A Program Can Be Improved to Better Meet the Needs of Agricultural Employers and Workers Figure 3.2: Time Requirements for Applying for Agricultural Workers Under the H-2A Program Page 43 GAO/HEHS-98-20 H-2A Guestworker Program Chapter 3 H-2A Program Can Be Improved to Better Meet the Needs of Agricultural Employers 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. Page 44 GAO/HEHS-98-20 H-2A Guestworker Program Chapter 3 H-2A Program Can Be Improved to Better Meet the Needs of Agricultural Employers and Workers 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 Page 45 GAO/HEHS-98-20 H-2A Guestworker Program Chapter 3 H-2A Program Can Be Improved to Better Meet the Needs of Agricultural Employers and Workers 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. Page 46 GAO/HEHS-98-20 H-2A Guestworker Program Chapter 3 H-2A Program Can Be Improved to Better Meet the Needs of Agricultural Employers 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. Page 47 GAO/HEHS-98-20 H-2A Guestworker Program Chapter 3 H-2A Program Can Be Improved to Better Meet the Needs of Agricultural Employers and Workers 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 Page 48 GAO/HEHS-98-20 H-2A Guestworker Program Chapter 3 H-2A Program Can Be Improved to Better Meet the Needs of Agricultural Employers and Workers 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. Page 49 GAO/HEHS-98-20 H-2A Guestworker Program Chapter 3 H-2A Program Can Be Improved to Better Meet the Needs of Agricultural Employers and Workers 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 Page 50 GAO/HEHS-98-20 H-2A Guestworker Program Chapter 3 H-2A Program Can Be Improved to Better Meet the Needs of Agricultural Employers and Workers 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 Page 51 GAO/HEHS-98-20 H-2A Guestworker Program Chapter 3 H-2A Program Can Be Improved to Better Meet the Needs of Agricultural Employers and Workers 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. Page 52 GAO/HEHS-98-20 H-2A Guestworker Program Chapter 3 H-2A Program Can Be Improved to Better Meet the Needs of Agricultural Employers and Workers 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. Page 53 GAO/HEHS-98-20 H-2A Guestworker Program Chapter 3 H-2A Program Can Be Improved to Better Meet the Needs of Agricultural Employers and Workers 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.) Page 54 GAO/HEHS-98-20 H-2A Guestworker Program Chapter 3 H-2A Program Can Be Improved to Better Meet the Needs of Agricultural Employers and Workers 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 Page 55 GAO/HEHS-98-20 H-2A Guestworker Program Chapter 3 H-2A Program Can Be Improved to Better Meet the Needs of Agricultural Employers and Workers 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 Page 56 GAO/HEHS-98-20 H-2A Guestworker Program Chapter 3 H-2A Program Can Be Improved to Better Meet the Needs of Agricultural Employers and Workers 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 Page 57 GAO/HEHS-98-20 H-2A Guestworker Program Chapter 3 H-2A Program Can Be Improved to Better Meet the Needs of Agricultural Employers and Workers 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 Page 58 GAO/HEHS-98-20 H-2A Guestworker Program Chapter 3 H-2A Program Can Be Improved to Better Meet the Needs of Agricultural Employers and Workers 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 Page 59 GAO/HEHS-98-20 H-2A Guestworker Program Chapter 3 H-2A Program Can Be Improved to Better Meet the Needs of Agricultural Employers and Workers 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 Page 60 GAO/HEHS-98-20 H-2A Guestworker Program Chapter 3 H-2A Program Can Be Improved to Better Meet the Needs of Agricultural Employers and Workers 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 Page 61 GAO/HEHS-98-20 H-2A Guestworker Program Chapter 3 H-2A Program Can Be Improved to Better Meet the Needs of Agricultural Employers and Workers 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 Page 62 GAO/HEHS-98-20 H-2A Guestworker Program Chapter 3 H-2A Program Can Be Improved to Better Meet the Needs of Agricultural Employers and Workers 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. Page 63 GAO/HEHS-98-20 H-2A Guestworker Program Chapter 4 Conclusions and Recommendations 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 Page 64 GAO/HEHS-98-20 H-2A Guestworker Program Chapter 4 Conclusions and Recommendations 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 Page 65 GAO/HEHS-98-20 H-2A Guestworker Program Chapter 4 Conclusions and Recommendations 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. Page 66 GAO/HEHS-98-20 H-2A Guestworker Program Chapter 4 Conclusions and Recommendations 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 Page 67 GAO/HEHS-98-20 H-2A Guestworker Program Chapter 4 Conclusions and Recommendations 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. Page 68 GAO/HEHS-98-20 H-2A Guestworker Program Chapter 5 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 Page 69 GAO/HEHS-98-20 H-2A Guestworker Program Chapter 5 Agency Comments and Our Evaluation 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 Page 70 GAO/HEHS-98-20 H-2A Guestworker Program Chapter 5 Agency Comments and Our Evaluation 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). Page 71 GAO/HEHS-98-20 H-2A Guestworker Program Chapter 5 Agency Comments and Our Evaluation 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 Page 72 GAO/HEHS-98-20 H-2A Guestworker Program Chapter 5 Agency Comments and Our Evaluation 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. Page 73 GAO/HEHS-98-20 H-2A Guestworker Program Chapter 5 Agency Comments and Our Evaluation 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. Page 74 GAO/HEHS-98-20 H-2A Guestworker Program Chapter 5 Agency Comments and Our Evaluation 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.” Page 75 GAO/HEHS-98-20 H-2A Guestworker Program Chapter 5 Agency Comments and Our Evaluation 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 Page 76 GAO/HEHS-98-20 H-2A Guestworker Program Chapter 5 Agency Comments and Our Evaluation 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 Page 77 GAO/HEHS-98-20 H-2A Guestworker Program Chapter 5 Agency Comments and Our Evaluation 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. Page 78 GAO/HEHS-98-20 H-2A Guestworker Program 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 Page 80 GAO/HEHS-98-20 H-2A Guestworker Program 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. Page 81 GAO/HEHS-98-20 H-2A Guestworker Program Appendix II Objectives, Scope, and Methodology Figure II.1: Terms of the Work Page 82 GAO/HEHS-98-20 H-2A Guestworker Program Appendix II Objectives, Scope, and Methodology Page 83 GAO/HEHS-98-20 H-2A Guestworker Program Appendix II Objectives, Scope, and Methodology Page 84 GAO/HEHS-98-20 H-2A Guestworker Program Appendix II Objectives, Scope, and Methodology Page 85 GAO/HEHS-98-20 H-2A Guestworker Program Appendix II Objectives, Scope, and Methodology 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 Page 86 GAO/HEHS-98-20 H-2A Guestworker Program Appendix II Objectives, Scope, and Methodology 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. Page 87 GAO/HEHS-98-20 H-2A Guestworker Program Appendix II Objectives, Scope, and Methodology 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 Page 88 GAO/HEHS-98-20 H-2A Guestworker Program Appendix II 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). Page 89 GAO/HEHS-98-20 H-2A Guestworker Program Appendix II Objectives, Scope, and Methodology 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 Page 90 GAO/HEHS-98-20 H-2A Guestworker Program Appendix II Objectives, Scope, and Methodology 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. Page 91 GAO/HEHS-98-20 H-2A Guestworker Program 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. Page 92 GAO/HEHS-98-20 H-2A Guestworker Program 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. Page 93 GAO/HEHS-98-20 H-2A Guestworker Program 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) Page 94 GAO/HEHS-98-20 H-2A Guestworker Program 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. Page 95 GAO/HEHS-98-20 H-2A Guestworker Program 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. Page 96 GAO/HEHS-98-20 H-2A Guestworker Program 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. Page 97 GAO/HEHS-98-20 H-2A Guestworker Program 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. Page 98 GAO/HEHS-98-20 H-2A Guestworker Program 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. Page 99 GAO/HEHS-98-20 H-2A Guestworker Program 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 Page 100 GAO/HEHS-98-20 H-2A Guestworker Program 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 Page 101 GAO/HEHS-98-20 H-2A Guestworker Program 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. Page 102 GAO/HEHS-98-20 H-2A Guestworker Program 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. Page 103 GAO/HEHS-98-20 H-2A Guestworker Program 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) Page 104 GAO/HEHS-98-20 H-2A Guestworker Program 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.) Page 105 GAO/HEHS-98-20 H-2A Guestworker Program 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. Page 107 GAO/HEHS-98-20 H-2A Guestworker Program 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. Page 108 GAO/HEHS-98-20 H-2A Guestworker Program 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) Page 111 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 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. Page 113 GAO/HEHS-98-20 H-2A Guestworker Program Appendix VIII Comments From the Department of Labor Now on p. 25. Page 114 GAO/HEHS-98-20 H-2A Guestworker Program Appendix VIII Comments From the Department of Labor Now on p. 25. Now on p. 28. Now footnote 19. Now on pp. 29 and 30. Page 115 GAO/HEHS-98-20 H-2A Guestworker Program Appendix VIII Comments From the Department of Labor Now on p. 30. Now on p. 32. Now footnote 16. Page 116 GAO/HEHS-98-20 H-2A Guestworker Program Appendix VIII Comments From the Department of Labor Page 117 GAO/HEHS-98-20 H-2A Guestworker Program Appendix VIII Comments From the Department of Labor Page 118 GAO/HEHS-98-20 H-2A Guestworker Program Appendix VIII Comments From the Department of Labor Now on p. 61. Page 119 GAO/HEHS-98-20 H-2A Guestworker Program Appendix VIII Comments From the Department of Labor Page 120 GAO/HEHS-98-20 H-2A Guestworker Program Appendix IX Comments From the Department of State Page 121 GAO/HEHS-98-20 H-2A Guestworker Program Appendix X Comments From the U.S. Department of Agriculture Page 122 GAO/HEHS-98-20 H-2A Guestworker Program Appendix X Comments From the U.S. Department of Agriculture Page 123 GAO/HEHS-98-20 H-2A Guestworker Program Appendix X Comments From the U.S. Department of Agriculture Page 124 GAO/HEHS-98-20 H-2A Guestworker Program Appendix X Comments From the U.S. Department of Agriculture Page 125 GAO/HEHS-98-20 H-2A Guestworker Program Appendix X Comments From the U.S. Department of Agriculture Page 126 GAO/HEHS-98-20 H-2A Guestworker Program Appendix X Comments From the U.S. Department of Agriculture Page 127 GAO/HEHS-98-20 H-2A Guestworker Program Appendix X Comments From the U.S. Department of Agriculture Page 128 GAO/HEHS-98-20 H-2A Guestworker Program Appendix X Comments From the U.S. Department of Agriculture Page 129 GAO/HEHS-98-20 H-2A Guestworker Program Appendix X Comments From the U.S. Department of Agriculture Page 130 GAO/HEHS-98-20 H-2A Guestworker Program Appendix X Comments From the U.S. Department of Agriculture Page 131 GAO/HEHS-98-20 H-2A Guestworker Program Appendix X Comments From the U.S. Department of Agriculture Page 132 GAO/HEHS-98-20 H-2A Guestworker Program Appendix X Comments From the U.S. Department of Agriculture Page 133 GAO/HEHS-98-20 H-2A Guestworker Program Appendix X Comments From the U.S. Department of Agriculture Page 134 GAO/HEHS-98-20 H-2A Guestworker Program Appendix X Comments From the U.S. Department of Agriculture Page 135 GAO/HEHS-98-20 H-2A Guestworker Program Appendix X Comments From the U.S. Department of Agriculture Page 136 GAO/HEHS-98-20 H-2A Guestworker Program Appendix X Comments From the U.S. Department of Agriculture Page 137 GAO/HEHS-98-20 H-2A Guestworker Program Appendix X Comments From the U.S. Department of Agriculture Page 138 GAO/HEHS-98-20 H-2A Guestworker Program Appendix X Comments From the U.S. Department of Agriculture Page 139 GAO/HEHS-98-20 H-2A Guestworker Program Appendix X Comments From the U.S. Department of Agriculture Page 140 GAO/HEHS-98-20 H-2A Guestworker Program Appendix X Comments From the U.S. Department of Agriculture Page 141 GAO/HEHS-98-20 H-2A Guestworker Program Appendix X Comments From the U.S. Department of Agriculture Page 142 GAO/HEHS-98-20 H-2A Guestworker Program Appendix X Comments From the U.S. Department of Agriculture Page 143 GAO/HEHS-98-20 H-2A Guestworker Program 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. Page 144 GAO/HEHS-98-20 H-2A Guestworker Program Appendix XI GAO Contacts and Staff Acknowledgments Page 145 GAO/HEHS-98-20 H-2A Guestworker Program Appendix XI GAO Contacts and Staff Acknowledgments Page 146 GAO/HEHS-98-20 H-2A Guestworker Program Appendix XI GAO Contacts and Staff Acknowledgments 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, May 9, 1996). Border Patrol: Staffing and Enforcement Activities (GAO/GGD-96-65, Mar. 11, 1996). 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, July 25, 1995). Illegal Aliens: Assessing Estimates of Financial Burden on California (GAO/HEHS-95-22, Nov. 28, 1994). 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). 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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)