Background

		Origin of the H-2A Program

The H-2A program was preceded by several other temporary worker  programs designed to address farm labor shortages in the United States.  During World War I, the Congress authorized the issuance of rules  providing for the temporary admission of otherwise inadmissible aliens,  and this led to the establishment of a temporary farm labor program  designed to replace U.S. workers directly involved in the war effort.  Similarly, initially through an agreement with Mexico, a guest worker  program was authorized during World War II that brought in over 4 million  Mexican workers from 1942 to 1964, called “braceros” to work on farms   Although the Bracero program expanded the farm  on a seasonal basis.labor supply, the program also affected domestic farm workers through  reduced wages and employment, according to a 2009 Congressional  Research Service report. The Bracero program has been criticized by  labor groups, which identified issues such as mistreatment of workers and  lax enforcement of work contracts. While the Bracero program was still in  effect, the Immigration and Nationality Act of 1952 (INA) established the  statutory authority for a guestworker program that included workers  performing temporary services or labor, known as “H-2” after the specific  provision of the law. The Immigration Reform and Control Act of 1986  amended the INA and effectively divided the H-2 program into two  programs: the H-2A program expressly for agricultural employers and the  H-2B program expressly for nonagricultural employers.
The H-2A program was created to help agricultural employers obtain an  adequate labor supply while also protecting the jobs, wages, and working  conditions of U.S. farm workers. The H-2A law and regulations contain  several requirements to protect U.S. workers from adverse effects  associated with the hiring of temporary foreign workers and to protect  foreign workers from exploitation. Under the program, employers must  provide H-2A workers a minimum level of wages, benefits, and working  conditions. For example, employers must pay a prescribed wage rate,  provide the workers housing that meets minimum standards for health  and safety, pay for workers’ travel costs to and from their home country,  and guarantee workers will be paid for three-quarters of the work contract   (see table 1 for more information about the  even if less work is needed.conditions of employment that employers are expected to provide  workers).
In fiscal year 2011, Labor received about 4,900 employer applications  requesting permission to hire H-2A workers. State issued about 55,000  H-2A visas in fiscal year 2011 and about 94 percent of these visas were  processed by Mexican posts, according to data reported by State.  Employers requested H-2A workers to help support the production of  various commodities, such as fruit, vegetables, tobacco, and grain. While  many of these employers requested help with general farm work, others  sought workers with special skills, such as sheepherders or combine  operators. Employers in some states rely more heavily on H-2A workers  to meet their labor needs. In fiscal year 2011, Labor reported that over  half of the H-2A positions it certified were located in five southeastern  states—North Carolina, Florida, Georgia, Louisiana, and Kentucky.  Although California is the largest producer of agricultural products in the  country, the state is ranked thirteenth in its employment of H-2A workers,  according to a recent Labor report. H-2A workers are expected to work  temporarily and must leave the country once the temporary work contract  is complete, but may return in future years to meet employers’ seasonal  needs under specific circumstances. In fiscal year 2011, about 27  percent of H-2A employers requested H-2A workers for 6 months or less  and about 73 percent of employers requested workers for 7 to 12 months.
H-2A workers represent a small proportion of the approximately 1 million  hired agricultural workers that the U.S. Department of Agriculture  estimates are in the United States, many of whom are not legally  authorized to work in the country (referred to as undocumented workers).  Research suggests that about half of all U.S. agricultural workers are   An employer may inadvertently hire undocumented  undocumented.workers if the workers give the employer fraudulent documents.  Employers may also choose to violate the law and knowingly hire  undocumented workers rather than employing U.S. workers or  participating in the H-2A program and meeting its associated  requirements. However, employers knowingly hiring undocumented  workers rather than using the legal H-2A process risk penalties or  workforce disruption through DHS’s enforcement of immigration law or  from state actions that may affect the availability of undocumented  workers.

		Overview of the H-2A Application Process

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

	Employers Cited Challenges with the Largely Paper-Based Process, Implementation of New Rules and Procedures, and Complexity

		Most Applications are Approved, but Some Employers Experience Processing Delays

In fiscal year 2011, most employers’ applications for H-2A workers were  approved, but some employers experienced delays in having their  applications for H-2A workers processed. Labor approved 94 percent of  the H-2A applications for foreign agricultural workers and processed 63  percent of approved applications by the statutory deadline of at least 30  days prior to the date workers were to begin work.not process 37 percent of applications by the deadline, including 7  percent of applications approved less than 15 days before workers were  needed, leaving little time for employers to petition DHS and for workers  to obtain visas from State. According to Labor officials, employers’ failure  to provide required documentation, such as an approved housing  inspection, contributes to processing delays. DHS approved 98 percent of  the employer petitions for H-2A workers in fiscal year 2011, and about 72  percent of these petitions were processed within 7 days. However, 28  percent took longer and DHS took a month or longer to process 6 percent  of the petitions (see fig. 2). An official at DHS told us that employers have  up to 84 days plus the applicable mailing time to provide additional  documentation requested by the agency, which can significantly affect  how long it takes the agency to process a petition.

	Agencies Took Steps to Improve the Process, but Delays in Modernization and Unclear Guidance Continue to Pose Challenges

		Labor and DHS Efforts to Modernize the Application Process Have Been Delayed

To process applications more efficiently and provide better customer  service, Labor and DHS have taken steps to create new electronic  applications that will allow employers to file for H-2A workers online, but  development and implementation of both applications has been delayed  (see table 2).
Federal law and executive orders provide that federal agencies are to be  customer service-focused and executive orders provide that federal  agencies use technology to improve the customer experience.Accordingly, in fiscal year 2009, Labor implemented a web-based system  for two of its other labor certification programs that allows employers to  file applications online and for the agency to process them electronically.  Labor is currently in the process of developing an online H-2A application  to add to its existing web-based filing system, but it has been delayed.
Specifically, in October 2010, Labor began designing an online H-2A  application for employers that it planned to deploy in August 2011.
However, Labor officials told us the online application was delayed  because the agency could not award the contract to develop it while  operating under a provisional budget based on a continuing resolution.  Since then, Labor completed the design of the online H-2A application  and in June 2012 awarded the contract to develop, test, and implement it.  Labor officials told us they anticipate the online H-2A application will be  available for use by employers by the end of 2012 and, according to the  development contract, the online application should be available to  employers on November 15, 2012. According to Labor officials, the online  application will allow employers to create account profiles and check the  status of their H-2A applications. In addition, Labor officials said the  online H-2A application would also result in faster application processing,  reduced costs, better customer service, and improved data quality.
DHS also plans to implement an online petition for H-2A workers, but the  agency has experienced delays and is in the process of developing a  schedule for completing this work. The agency planned to deploy an  online H-2A petition in October 2012 as part of its Transformation  Program, which aims to replace the paper-based systems currently used  to process petitions with an electronic system. However, the  Transformation Program itself has been delayed several times since its  inception in 2005, as we have previously reported, and officials told us  they have not started work on the online H-2A petition and do not know  when it will be completed. In prior work on the Transformation Program,  we found DHS was managing the program without specific acquisition  management controls, such as reliable schedules, which contributed to  missed milestones. DHS officials said they were addressing this report’s  recommendations and are in the process of developing an integrated  master schedule for all Transformation activities, including the online H- 2A petition, in accordance with GAO best practices outlined in the report.  Once the online petition for H-2A workers is available, employers will be  able to file all required documents electronically to petition for H-2A  workers, create account profiles, and check the status of their  applications. In addition, the agency could streamline benefits processing  by eliminating redundant data entry and reducing the number of required  forms.

		Federal Agencies Updated Processes and Reached Out to Employers, but Labor’s Guidance to States Needs Improvement

Recently and over the course of our review, in addition to taking steps to  modernize the H-2A application process, federal agencies have taken a  number of other steps to improve employers’ experience with the  application process. Specifically, Labor made changes to its review  process to informally resolve issues with employers and reduce  unnecessary delays and appeals. Labor officials told us that, in 2011,  they piloted using e-mail to communicate with employers in 10 states  about their H-2A applications. In March 2012, Labor began using e-mail  to communicate with employers in all states about their applications.  Labor also changed its procedures so that it can make corrections to  minor errors on an employer’s H-2A application—such as adding a  missing phone number—after obtaining the employer’s permission via e- mail to correct the error. In February 2011, Labor instituted a policy that  gives employers up to 5 additional days to submit required documentation  on their H-2A applications rather than automatically denying them  because all of the required documentation was not submitted by the  deadline.
In addition to the changes outlined above, since implementing its new  regulations in March 2010, Labor provided employers with more guidance  about the requirements of the H-2A program in a variety of formats (see  table 3).
Labor officials said these efforts resulted in improved timeliness and  fewer appeals in recent months. Our analysis of Labor’s data showed that  the agency’s timeliness remained relatively unchanged, although the  percentage of applications for which deficiency notices were issued and  the number of appealed decisions declined substantially over that period.  For the first half of fiscal year 2012, Labor processed 61 percent of  certified applications at least 30 days prior to the employer’s date of need  and issued deficiency notices for 38 percent of employer applications.
Sixty employer appeals were filed during the first half of fiscal year 2012.
Several employers we interviewed reported that they did not understand  the H-2A program requirements because Labor’s decisions seemed  inconsistent. A number of the inconsistencies employers cited concerned  job order terms and conditions, the acceptability of which varies by state.  Labor officials told us they strive for consistency and have many checks  in place to ensure consistent decisions. Specifically, they said analysts in  Labor’s processing center follow detailed standard operating procedures  and the center has multiple quality assurance methods to ensure  consistency, including supervisory review, peer review, and a quarterly  quality assurance process. In addition, according to Labor officials,  processing center analysts are given an overview of the H-2A program,  study the regulations and standard operating procedures, and shadow a  more seasoned employee before receiving their own cases to   There are also periodic training classes that address  adjudicate. adjudication issues that have arisen during the last calendar year.
Our internal control standards state that agency managers should identify the  knowledge and skills needed for various jobs and provide necessary training, among other  things. GAO, Standards for Internal Control in the Federal Government,  GAO/AIMD-00.21.3.1 (Washington, D.C.: Nov. 1999). state workforce agencies are directed to apply a prevailing practice  standard to determine whether the frequency with which an employer  intends to pay H-2A workers is acceptable, while states can use a more  subjective normal and common practice standard to determine whether  job qualifications, such as how much experience is required, are  acceptable (see table 4).
In 1988, Labor provided states with an H-2A Program Handbook that  included guidance on how to make these decisions and encouraged  states to administer formal surveys to determine acceptable practices. If  the state workforce agency cannot use a formal survey, Labor’s guidance  suggests states make these determinations using other information  sources, such as staff knowledge and experience, informal surveys,  reviews of job orders used by non-H-2A employers, or consultation with  experts in agriculture or farm worker advocates. In 2011, Labor began  posting results from states’ prevailing practice surveys online to help  employers write job orders that are consistent with prevailing, normal, and  accepted practices.
Labor’s guidance to states for determining acceptable practices, however,  is broad and not prescriptive, leading states to apply varied methods,  some of which may be insufficient. For example, the Administrative Law  Judge who ruled on the Massachusetts apple and vegetable growers’  appeal of Labor’s initial decision to prohibit experience requirements did  not consider the Massachusetts state workforce agency’s prevailing  practice survey in his ruling because of its design flaws. Further, two  employer representatives told us they considered state prevailing practice  surveys to be unreliable and inconsistent in their coverage. In addition,  officials in the three states we visited said they did not include questions  about certain terms and conditions in formal surveys and used different  methods to determine whether a particular practice was acceptable: two  states reviewed job orders filed by non-H-2A employers; the other state  informally surveyed non-H-2A employers in-person. One employer  representative expressed frustration that neighboring states used different  methods to determine acceptable practices for the same crop and that the  results differed.
DHS also has taken several steps to improve employers’ experience with  the H-2A application process. Specifically, the agency took steps to  expedite petitions for H-2A workers and provide more guidance to  employers. In October 2007, DHS directed its employees to expedite the  handling and adjudication of H-2A petitions. According to our analysis, the  agency’s processing times have improved in recent years. From fiscal  year 2006 to fiscal year 2011, the percentage of petitions approved within  1 week increased from about 34 percent to 72 percent. At the same time,  the percentage of petitions that took 1 month or longer to approve  declined from about 11 percent to about 6 percent. In July 2010 and June  2011, DHS invited employers to participate in teleconferences to discuss  employers’ difficulties with some of its new systems and procedures. In  addition, the agency posted summaries of the teleconferences and  answers to employers’ frequently asked questions on its Web site.
State has addressed employer concerns with the H-2A visa application  process by hosting face-to-face meetings with employers and other key  stakeholders, making improvements to its worker processing procedures,  and taking steps to increase the capacity of its Monterrey consulate to  process H-2A visas. In 2012, State officials said they reached out to  Labor to discuss H-2A related issues. They also said the two agencies  are formalizing working groups in part to improve information sharing.  State also meets with employers and other stakeholders at annual  meetings that bring together representatives from Labor, DHS, and State.  Officials from Labor and DHS, and State’s contractor attended the most  recent of these meetings, held in Texas in January 2012. A representative  of an employer association who attended this meeting told us it was  helpful to have representatives from all three agencies there to answer  questions. After hearing at the January 2012 meeting that some  employers had difficulties with getting their Mexican H-2A workers  processed by their date of need, State directed employers with  approaching dates of need to request emergency appointments for their  workers to be processed at posts other than the Monterrey consulate.
State officials noted that all Mexican posts have the capacity to process  H-2A visa applications and suggested that applicants can visit other posts  if it is difficult to get appointments at the Monterrey consulate. State also  developed new procedures to better enable them to handle large groups  of workers. In addition, State is expanding its Monterrey consulate, which  currently handles most of the H-2A visas processed. Officials said the  new facility is scheduled to open in 2014, although they were uncertain  whether future staffing levels at the facility would increase.

	Conclusions

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

	Recommendations for Executive Action

To improve the timeliness of application processing, as part of creating  new online applications, we recommend that the Secretaries of Labor and  Homeland Security: develop a method of automatically collecting data on the reasons for  deficiency notices, requests for additional evidence, and denials, and  use this information to develop strategies to improve the timeliness of  H-2A application processing. Such information could help the   agencies determine whether, for example, employers may need more  guidance or staff may need more training.
To reduce the burden on agricultural employers and improve customer  service, we recommend that the Secretary of Labor: permit the use of a single application with staggered dates of need for  employers who need workers to arrive at different points of a harvest  season. Employers could still be required to submit evidence of their  recruitment efforts, but would not be required to resubmit a full  application for each set of workers needed during the season.
To promote consistency and transparency of decisions made about the  acceptability of employer applications and clarify program rules, we  recommend that the Secretary of Labor:  review and revise, as appropriate, guidance provided to state  workforce agencies on methods to determine the acceptability of  employment practices. This guidance should be made available to  employers and published on Labor’s Web site.

	Agency Comments and Our Evaluation

We provided a draft of this report to Labor, DHS, and State for review and  comment. State had no comments. Labor and DHS provided written  comments which are reproduced in appendices I and II. Labor and DHS  also provided technical comments, which we incorporated as appropriate.  DHS concurred with our recommendation that the agency develop a  method to automatically collect additional data through its forthcoming  electronic application system to improve the timeliness of application  processing. Similarly, Labor agreed with our recommendation that the  agency develop a method of automatically collecting data on the reasons  for deficiency notices and use this information to develop strategies to  improve the timeliness of H-2A application processing and noted that it  would explore the resources required to collect such information as part  of its online application system. Labor also agreed with our  recommendation that it update the guidance it provides to state workforce  agencies on methods to determine the acceptability of employment  practices.
Labor did not agree with our recommendation that it allow employers to  file a single application per season for workers arriving on different start  dates, stating that the department’s regulations define the date of need as  the first date the employer requires the services of all H-2A workers that  are the subject of the application, not an indication of the first date of  need for only some of the workers. Labor stated that having each  employer file a single application with staggered dates of need would  result in one recruitment for job opportunities that could begin many  weeks or months after the original date of need, which could nullify the  validity of the required labor market test. We are not recommending that  employers conduct a single labor market test corresponding with their  earliest date of need. Employers should still be required to submit  evidence of their recruitment efforts for every start date listed on each  application, but we believe they should not be required to resubmit a full  application package for each set of workers needed during a season.
Labor also expressed concern that our report points to the experiences of  some employers or those of a single employer to support our conclusions.  As noted earlier in this report, information obtained from our interviews  cannot be generalized to all states or all agricultural employers. In  addition, the illustrations used in this report highlight challenges  expressed by numerous employers with whom we spoke, even when we  used one employer’s experience as an example. Further, as we noted  previously, agency data are not available to document the extent of some  employer challenges, such as whether workers arrive by the date they are  needed by employers.
As agreed with your offices, unless you publicly announce the contents of  this report earlier, we plan no further distribution until 7 days from the  report date. At that time, we will send copies to the appropriate  congressional committees, the Secretaries of Homeland Security, Labor,  State, and other interested parties. In addition, this report will be available  at no charge on the GAO Web site at http://www.gao.gov.
If you or your staff members have any questions regarding this report,  please contact me at (202) 512-7215 or moranr@gao.gov. Contact points  for our Offices of Congressional Relations and Public Affairs may be  found on the last page of this report. GAO staff who made major  contributions to this report are listed in appendix III.

Appendix I: Comments from the Department of Labor

Appendix II: Comments from the Department of Homeland Security

Appendix III: GAO Contact and Staff Acknowledgments

	GAO Contact

	Staff Acknowledgments

In addition to the individual named above, Betty Ward-Zukerman,  Assistant Director; Hedieh Rahmanou Fusfield, Jeffrey G. Miller, and  Cathy Roark made key contributions to this report. Also contributing were  Hiwotte Amare, James Bennett, Kathy Leslie, Jonathan McMurray, Jean  McSween, Kathleen van Gelder, and Craig Winslow.

Summary:
Why GAO Did This Study

The H-2A visa program allows U.S. employers anticipating a shortage of domestic agricultural workers to hire foreign workers on a temporary basis. State workforce agencies and three federal agenciesthe Departments of Labor, Homeland Security, and State review applications for such workers. GAO was asked to examine (1) any aspects of the application process that present challenges to agricultural employers, and (2) how federal agencies have addressed any employer challenges with the application process. GAO analyzed Labor and DHS data; interviewed agency officials and employer representatives; and conducted site visits in New York, North Carolina, and Washington.

What GAO Found

Over 90 percent of employer applications for H-2A workers were approved in fiscal year (FY) 2011, but some employers experienced processing delays. For example, the Department of Labor (Labor) processed 63 percent of applications in a timely manner in FY 2011, but 37 percent were processed after the deadline, including 7 percent that were approved less than 15 days before workers were needed. This left some employers little time for the second phase of the application process, which is managed by the Department of Homeland Security (DHS), and for workers to obtain visas from the Department of State (State). Although workers can apply for visas online, most of the H-2A process involves paper handling, which contributes to processing delays. In addition, employers who need workers at different times of the season must repeat the entire process for each group of workers. Although the agencies lack data on the reasons for processing delays, employers reported delays due to increased scrutiny by Labor and DHS when these agencies implemented new rules and procedures intended to improve program integrity and protect workers. For example, in FY 2011, Labor notified 63 percent of employers that their applications required changes or additional documentation to comply with its new rules, up sharply from previous years.
Federal agencies are taking steps to improve the H-2A application process. Labor and DHS are developing new electronic application systems, but both agencies systems have been delayed. Labor also recently began using e-mail to resolve issues with employers, and all three agencies provided more information to employers to clarify program requirements. Even with these efforts, some employers view Labors decisions as inconsistent. For example, some employers received different decisions about issues such as whether they can require workers to have experience in farm work and questioned the methods states used to decide whether the job qualifications in their applications were acceptable. We found states used different methods to determine acceptable qualifications, which is allowed under Labors guidance.

What GAO Recommends

GAO recommends that (1) Labor and DHS use their new electronic application systems to collect data on reasons applications are delayed and use this information to improve the timeliness of application processing; (2) Labor allow employers to submit one application for groups of similar workers needed in a single season; and (3) Labor review and revise, as appropriate, its guidance to states regarding methods for determining the acceptability of employment practices in employers applications. DHS and Labor agreed with the recommendation to collect additional data and Labor agreed with the recommendation to update its guidance. Labor disagreed with the recommendation it allow employers to apply once per season. GAO believes the recommendation is still valid and that a single application does not preclude timely testing of the labor market as workers are needed.