H-2A VISA PROGRAM

Modernization and 

Improved Guidance 

Could Reduce 

Employer Application 

Burden 

Report to the Chairman, Subcommittee 

on Livestock, Dairy, Poultry, Marketing 

and Agriculture Security, Committee on 

Agriculture, Nutrition, and Forestry, 

U.S. Senate 

September 2012 

GAO-12-706 

United States Government Accountability Office

GAO 
United States Government Accountability Office

Highlights of GAO-12-706, a report to the 

Chairman, Subcommittee on Livestock, Dairy, 

Poultry, Marketing and Agriculture Security, 

Committee on Agriculture, Nutrition, and 

Forestry, U.S. Senate

September 2012

H-2A VISA PROGRAM

Modernization and Improved Guidance Could 

Reduce Employer Application Burden

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 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.

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.

Percentage of Employer Applications Requiring Changes or Additional Documentation (FY 

2006-2011) 

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.

View GAO-12-706. For more information, 

contact Revae Moran at (202) 512-7215 or 

moranr@gao.gov
Page i GAO-12-706 H-2A Application Process

Letter 1 

Background 3

Employers Cited Challenges with the Largely Paper-Based Process, 

Implementation of New Rules and Procedures, and Complexity 12

Agencies Took Steps to Improve the Process, but Delays in 

Modernization and Unclear Guidance Continue to Pose 

Challenges 27

Conclusions 33

Recommendations for Executive Action 34

Agency Comments and Our Evaluation 34

Appendix I Comments from the Department of Labor 37

Appendix II Comments from the Department of Homeland Security 41

Appendix III GAO Contact and Staff Acknowledgments 44

Tables

Table 1: Key Department of Labor H-2A Program Requirements 5

Table 2: Status of Agency Plans to Deliver Online H-2A 

Applications, Including Original and Current Planned 

Implementation Dates 27

Table 3: Examples of Labor’s Efforts to Provide Additional 

Guidance to Employers on H-2A Program Requirements, 

2010 to 2012 29

Table 4: Standards States Use to Determine Acceptable Terms and 

Conditions in H-2A Job Orders 31

Figures

Figure 1: Deadlines for Applying for Workers under the H-2A 

Program 8

Figure 2: H-2A Application Processing Times, Fiscal Year 2011 14

Figure 3: Percent of Worldwide H-2A Visa Applications Processed 

by Posts in Mexico, Fiscal Year 2011 16

Contents
Page ii GAO-12-706 H-2A Application Process

Figure 4: The Paper-based H-2A Application Process 18

Figure 5: Percentage of Employer Applications Issued Deficiency 

Notices from Labor, Fiscal Year 2006-2011 22

Figure 6: Number of Employer Appeals of Labor’s Deficiency 

Notices/Denials, Fiscal Year 2006-2011 23

Figure 7: Percentage of Employer Applications Receiving Requests 

for Evidence from DHS, Fiscal Year 2006-2011 25

Abbreviations

DHS Department of Homeland Security

INA Immigration and Nationality Act

Labor Department of Labor

State Department of State

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Page 1 GAO-12-706 H-2A Application Process

United States Government Accountability Office

Washington, DC 20548

September 12, 2012

The Honorable Kirsten Gillibrand

Chairman

Subcommittee on Livestock, Dairy, Poultry, Marketing 

 and Agriculture Security 

Committee on Agriculture, Nutrition, and Forestry

United States Senate

Dear Madam Chairman: 

The nation’s agricultural sector relies on hired farm workers to bring 

products to market. Obtaining enough workers at the right time is critical, 

especially for producers of crops with short harvest seasons. Because it 

is difficult for some agricultural employers to find enough U.S. workers, 

federal law allows these employers to apply for permission to hire foreign 

workers on a temporary or seasonal basis and arrange for their entry into 

the country under special visas, known as H-2A visas.1 About 55,000 H2A visas were issued in fiscal year 2011, according to the Department of 

State (State). To ensure protections for workers and proper vetting of 

these foreign workers before entry, state workforce agencies and three 

federal agencies are involved in administering the H-2A process—the 

Departments of Labor (Labor), Homeland Security (DHS), and State. 

Before employers can employ H-2A workers, they must apply for a 

certification from Labor that a labor shortage exists in their particular case 

and U.S. workers will not be adversely affected by hiring H-2A workers. If 

Labor determines these conditions are met, an employer can submit a 

petition to DHS to employ foreign workers. If DHS approves the petition, 

foreign workers can apply to State for a H-2A visa. In 1997, we reviewed 

the H-2A program and made recommendations to improve service to 

employers and reduce the amount of time it takes federal agencies to 

process employer applications for H-2A workers.2

 

1

8 U.S.C. §§ 1101(a)(15)(H)(ii)(a) and 1188.

Agencies have 

implemented some of our recommendations, but questions about whether 

2

GAO, GAO- H-2A Agricultural Guestworker Program: Changes Could Improve Services 

to Employers and Better Protect Workers, GAO/HEHS-98-20 (Washington, D.C.: Dec. 31, 

1997). GAO, GAO- H-2A Agricultural Guestworkers: Status of Efforts to Improve Program 

Services, GAO/T-HEHS-00-134 (Washington, D.C.: June 15, 2000). 

 
 

Page 2 GAO-12-706 H-2A Application Process

the H-2A program meets employers’ needs were raised in recent 

congressional hearings. In response to your request, to identify ways to 

expedite the application process while maintaining worker protections and 

national security, we examined (1) what aspects of the application 

process, if any, present challenges to agricultural employers, and (2) how 

federal agencies have addressed any employer challenges with the 

application process.

To identify potential challenges employers experience when applying for 

H-2A workers, we interviewed representatives from 25 employers and 12 

agricultural employer associations. We identified these employers through 

national employer associations and regional associations in the states we 

visited. We also visited three states (New York, North Carolina, and 

Washington), which we selected because they account for a sizable 

proportion of all H-2A workers (about 24 percent of H-2A positions 

certified in fiscal year 2011 according to data reported by Labor) and vary 

in geographic location. Within each state, we interviewed a combination 

of state workforce agency officials, representatives from agricultural 

employer associations, employers, and farm worker advocates. 

Information obtained from our site visits and employer interviews cannot 

be generalized to all states or agricultural employers. To review the 

timeliness of application processing, we analyzed data from Labor for 

fiscal years 2006 through 2012 and from DHS for fiscal years 2006 

through 2011. To assess the reliability of the data, we reviewed agency 

documentation, interviewed Labor and DHS officials, tested the electronic 

data, and compared our results with related information reported by the 

agencies. Based on these reviews, we determined that the data used to 

determine the timeliness of application processing were sufficiently 

reliable for the purposes of this report. We reviewed Labor’s data on the 

number of H-2A workers employers requested and the number of H-2A 

workers certified by Labor, and determined that these data were not 

sufficiently reliable for our purposes. As a result, we did not report the 

total number of H-2A workers requested and certified. We will issue a 

separate management letter to Labor detailing our findings related to this 

information. We also reviewed employer appeals of Labor’s adverse 

rulings to identify the reasons for the appeals and the extent to which 
 

Page 3 GAO-12-706 H-2A Application Process

Labor’s decisions were affirmed or reversed.3 To identify actions taken by 

the agencies to address employer challenges, we interviewed federal 

officials who process H-2A applications at Labor, DHS, and State. We 

also reviewed agency procedures, relevant federal laws and regulations, 

and some recent legislative proposals to modify or replace the H-2A 

program. We conducted this performance audit from October 2011 to 

September 2012 in accordance with generally accepted government 

auditing standards. Those standards require that we plan and perform the 

audit to obtain sufficient, appropriate evidence to provide a reasonable 

basis for our findings and conclusions based on our audit objectives. We 

believe that the evidence obtained provides a reasonable basis for our 

findings and conclusions based on our audit objectives.

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.4

Similarly, initially through an agreement with Mexico, a guest worker 

program was authorized during World War II that brought in over 4 million 

Mexican workers from 1942 to 1964, called “braceros” to work on farms 

on a seasonal basis.5

 

3

Such decisions include Labor’s decisions to send the employer a deficiency notice 

requesting additional documentation or corrections to an employer’s application package 

or Labor’s denial of an employer’s request for permission to hire foreign workers under the 

H-2A program. Employers may appeal Labor’s deficiency notices or denials to an 

Administrative Law judge within Labor’s Office of Administrative Law Judges. This judge 

may affirm, reverse, or modify Labor’s decision; remand the case back to Labor for further 

action; or dismiss the case.

Although the Bracero program expanded the farm 

labor supply, the program also affected domestic farm workers through 

reduced wages and employment, according to a 2009 Congressional 

4

Act of February 5, 1917, ch. 29, § 3, 39 Stat. 874, 875-78.

5

Agreement Between the United States of America and Mexico Respecting the Temporary 

Migration of Mexican Agricultural Workers, U.S.-Mex., Aug. 4, 1942, 1942 U.S.T. 209.

Background 

Origin of the H-2A 

Program
 

Page 4 GAO-12-706 H-2A Application Process

Research Service report.6 The Bracero program has been criticized by 

labor groups, which identified issues such as mistreatment of workers and 

lax enforcement of work contracts. While the Bracero program was still in 

effect, the Immigration and Nationality Act of 1952 (INA) established the 

statutory authority for a guestworker program that included workers 

performing temporary services or labor, known as “H-2” after the specific 

provision of the law.7 The Immigration Reform and Control Act of 1986 

amended the INA and effectively divided the H-2 program into two 

programs: the H-2A program expressly for agricultural employers and the 

H-2B program expressly for nonagricultural employers.8

The H-2A program was created to help agricultural employers obtain an 

adequate labor supply while also protecting the jobs, wages, and working 

conditions of U.S. farm workers.

9 The H-2A law and regulations contain 

several requirements to protect U.S. workers from adverse effects 

associated with the hiring of temporary foreign workers and to protect 

foreign workers from exploitation.10 Under the program, employers must 

provide H-2A workers a minimum level of wages, benefits, and working 

conditions. For example, employers must pay a prescribed wage rate, 

provide the workers housing that meets minimum standards for health 

and safety, pay for workers’ travel costs to and from their home country, 

and guarantee workers will be paid for three-quarters of the work contract 

even if less work is needed.11

 

6

Congressional Research Service, The Effects on U.S. Farm Workers of an Agricultural 

Guest Worker Program. Linda Levine, Specialist in Labor Economics, (Washington, D.C.: 

Dec. 28, 2009).

(see table 1 for more information about the 

conditions of employment that employers are expected to provide 

workers).

7

Pub. L. No. 82-414, § 101(a)(15)(H)(ii), 66 Stat. 163, 169 (codified as amended at 8 

U.S.C. § 1101(a)(15)(H)(ii)(A) and (B)). INA bars the admission of a foreign worker who 

seeks to enter the United States under a H-2A visa, unless the Secretary of Labor 

provides a certification to the Secretaries of State and DHS.

8

Pub. L. No. 99-603, § 301(a), 100 Stat. 3359, 3411 (codified as amended at 8 U.S.C. § 

1101(a)(15)(H)(ii)(A)). 

9

H.R. Rpt. 99-682, pt. 1, at 79 (1986).

108 U.S.C. §§ 1101(a)(15)(H)(ii)(A) and 1188, and 20 C.F.R. pt. 655, subpt. B (2012).

1120 U.S.C. § 655.122(c), (d), (h), (i) and (l) (2012).
 

Page 5 GAO-12-706 H-2A Application Process

Table 1: Key Department of Labor H-2A Program Requirements 

Issue Requirements

Recruitment of U.S. Workers • Demonstrate need for a specific number of H-2A workers by completing specific U.S. 

recruitment activities coordinated through the state workforce agency.

• Contact certain former employees and engage in positive recruitment of U.S. workers.

• Hire any qualified, eligible U.S. worker until half of the contract work period is over (known as 

50 percent rule) and only reject U.S. workers for lawful, job-related reasons.a

• Offer U.S. workers terms and working conditions not less favorable than those offered to H-2A 

workers. 

Rates of Pay Pay all covered workers (H-2A and U.S. workers in corresponding employment) at least the highest 

of various wage rates specified in regulation. Wages may be calculated on the basis of hourly or 

“piece” rates of pay.

Recordkeeping Employers must keep accurate records of hours of work offered and hours actually worked each 

day. On or before each payday (which must be at least twice monthly), each worker must be given 

an hours and earnings statement showing hours offered, hours actually worked, hourly rate and/or 

piece rate of pay, and if piece rates are used, units produced daily. The statement must also 

indicate total earnings for the pay period and all deductions from wages.

Written Disclosure of the Work 

Contract

Provide each worker a copy of the work contract—in a language understood by the worker—that 

describes the terms and conditions of employment, or in the absence of a written work contract, a 

copy of the job order submitted and approved by the department.

Guarantees to All Workers Guarantee to offer to each covered worker employment for a total number of hours equal to at least 

75% of the workdays in the contract period—called the “three-fourths guarantee.”

Housing and Meals • Provide housing, which meets all applicable safety standards, at no cost to H-2A workers and to 

workers in corresponding employment who are not reasonably able to return to their residence 

within the same day.

• Provide each covered worker with three meals per day or furnish free and convenient cooking 

and kitchen facilities where workers can prepare their own meals.

Transportation Provide daily transportation between the workers’ living quarters and the employer’s worksite at no 

cost to covered workers living in employer-provided housing. Employer-provided transportation must 

meet all applicable safety standards, be properly insured, and be operated by licensed drivers.

Inbound & Outbound Expenses If not previously advanced or otherwise provided, the employer must reimburse workers for 

reasonable costs incurred for inbound transportation and subsistence costs once the worker 

completes 50% of the work contract period and outbound transportation and subsistence costs upon 

completion of the work contract.

Prohibitions Against 

Confiscating Workers’ 

Documents and Charging 

Certain Fees

• Comply with all applicable laws and regulations, including the prohibition against holding or 

confiscating workers’ passports or other immigration documents.

• Employers must not seek or receive payment of any kind from workers for anything related to 

obtaining the H-2A labor certification, including the employer’s attorney or agent fees, 

application fees, or recruitment costs.

Notification of Worker 

Abandonment or Termination

Notify Labor in writing within 2 workdays if any worker (H-2A or U.S. worker) voluntarily abandons 

the job or is terminated for cause before the end of the certified work period. The employer also 

must notify DHS within 2 workdays if an H-2A worker abandons or is terminated from the job.

Source: Department of Labor H-2A Compliance Fact Sheets.

a

Employers applying individually (not part of a joint application) who did not use more than 500 days 

of agricultural labor in any quarter during the preceding calendar year are exempt from the 50 percent 

rule. 20 C.F.R. § 655.135(d) (2012).
 

Page 6 GAO-12-706 H-2A Application Process

In fiscal year 2011, Labor received about 4,900 employer applications 

requesting permission to hire H-2A workers.12 State issued about 55,000 

H-2A visas in fiscal year 2011 and about 94 percent of these visas were 

processed by Mexican posts, according to data reported by State. 

Employers requested H-2A workers to help support the production of 

various commodities, such as fruit, vegetables, tobacco, and grain. While 

many of these employers requested help with general farm work, others 

sought workers with special skills, such as sheepherders or combine 

operators. Employers in some states rely more heavily on H-2A workers 

to meet their labor needs. In fiscal year 2011, Labor reported that over 

half of the H-2A positions it certified were located in five southeastern 

states—North Carolina, Florida, Georgia, Louisiana, and Kentucky.13

Although California is the largest producer of agricultural products in the 

country, the state is ranked thirteenth in its employment of H-2A workers, 

according to a recent Labor report. H-2A workers are expected to work 

temporarily and must leave the country once the temporary work contract 

is complete, but may return in future years to meet employers’ seasonal 

needs under specific circumstances.14

H-2A workers represent a small proportion of the approximately 1 million 

hired agricultural workers that the U.S. Department of Agriculture 

estimates are in the United States, many of whom are not legally 

authorized to work in the country (referred to as undocumented workers). 

Research suggests that about half of all U.S. agricultural workers are 

undocumented.

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.

15

 

12Employers can request multiple H-2A workers on one application. H-2A employers 

represent a small proportion of the approximately 2.2 million U.S. farms in fiscal year 

2010, according to estimates reported by the U.S. Department of Agriculture. 

An employer may inadvertently hire undocumented 

13The top 10 states in the number of positions approved by Labor under the H-2A program 

in fiscal year 2011 were North Carolina, Florida, Georgia, Louisiana, Kentucky, Arizona, 

New York, Washington, Virginia, and South Carolina. 

1420 C.F.R. § 655.135(i) (2011). For qualifying work, workers may get extensions up to a 

maximum total stay of 3 years and then, after being out of the United States for at least 3 

months, apply for readmission in future years for additional qualifying work. 8 C.F.R. § 

214.2(h)(5)(viii)(C) (2012).

15The U.S. Department of Agriculture’s Economic Research Service analyzed Labor’s 

National Agricultural Workers Survey data and found that, on average, the proportion of 

hired crop farm workers who were not legally authorized to work in the United States from 

2007 to 2009 was around 50 percent.

Current Use of the H-2A

Program
 

Page 7 GAO-12-706 H-2A Application Process

workers if the workers give the employer fraudulent documents.

Employers may also choose to violate the law and knowingly hire 

undocumented workers rather than employing U.S. workers or 

participating in the H-2A program and meeting its associated 

requirements.16 However, employers knowingly hiring undocumented 

workers rather than using the legal H-2A process risk penalties or 

workforce disruption through DHS’s enforcement of immigration law or 

from state actions that may affect the availability of undocumented 

workers.

To request H-2A workers, employers apply consecutively to their state 

workforce agency,17 Labor, and DHS; and prospective workers apply to 

State for H-2A visas. Under the law and Labor’s H-2A regulations, state 

workforce agencies, Labor, and employers are subject to specific 

deadlines for processing H-2A applications (see fig. 1).18

 

16To limit liability should employers inadvertently hire undocumented workers, employers 

may follow statutorily prescribed procedures for verifying that an individual is legally 

authorized to work in the United States. 8 U.S.C. § 1324a(a)(3) and (b). 

DHS and State 

are not subject to processing deadlines under relevant statutes and 

regulations, according to agency officials.

17State workforce agencies oversee and provide employment and workforce development 

services. Employers who need workers in more than one state within the same 

geographic area may submit applications for H-2A workers to any one of the state 

workforce agencies covering the anticipated locations. 20 C.F.R. § 655.121(a)(1) (2012).

188 U.S.C. § 1188(c) and 20 C.F.R. §§ 121(a), 655.130 - 655.133, 655.140 - 655.143, and 

655.160. Prior to 1999, Labor had more time to review employer applications. Congress 

amended the INA in 1999 to allow employers to submit applications to Labor later and 

require Labor to make certification decisions earlier, effectively compressing the minimum 

time available for Labor to process applications from 40 days to 15. Agriculture, Rural 

Development, Food and Drug Administration, and Related Agencies Appropriations Act, 

2000, Pub. L. No. 106-78, § 748,113 Stat. 1135, 1167(codified at 8 U.S.C. § 1188(c)(3)) 

(1999). Specifically, the 1999 act changed the requirement that employers file applications 

from at least 60 days before the first date the employer needs workers to at least 45 days 

before the date of need. Labor was then required to issue certification decisions no later 

than 30 days before the employer’s date of need rather than 20 days before the date of 

need.

Overview of the H-2A 

Application Process
 

Page 8 GAO-12-706 H-2A Application Process

Figure 1: Deadlines for Applying for Workers under the H-2A Program
 

Page 9 GAO-12-706 H-2A Application Process

Employers interested in hiring H-2A workers must seek approval of the 

proposed terms and conditions of employment from their state workforce 

agencies and submit application packages to Labor.19 First, employers 

must submit job orders to their state workforce agencies describing the 

jobs they are seeking to fill and the number of workers needed. The state 

workforce agencies review the job orders for compliance with Labor’s H2A regulations and may provide employers information about the wages 

and employment practices that apply in their states.20

Following approval of their job orders by the state workforce agencies, 

employers apply for temporary employment certifications from Labor by 

submitting the job orders, applications, and appendices signed by the 

employers stating that they are in compliance with and will continue to 

comply with all applicable federal requirements.

During their review, 

state workforce agencies may ask employers to make corrections or 

provide additional documentation. Upon approval, the state workforce 

agencies begin assisting employers in trying to recruit U.S. workers. 

Employers must conduct various recruitment activities and accept 

referrals of all eligible U.S. workers that apply for the jobs until the date on 

which the H-2A workers depart for the place of work.

21

 

1920 C.F.R. pt. 655, subpt. B (2012).

If an application is 

incomplete or incorrect, Labor may send the employer a notice of 

deficiency asking for additional documentation or corrections. After the 

employer provides the additional information or makes the needed 

corrections and Labor determines the application and job order are 

complete and meet all requirements, it will send a notice of acceptance 

and direct the employer to complete specific recruitment activities and 

submit additional documentation, such as a report describing the 

employer’s efforts to recruit U.S. workers. Labor is to then grant the 

employer a temporary labor certification if the employer has established 

the need for the agricultural service or labor to be performed on a 

temporary or seasonal basis and complied with all the procedural 

requirements as well as all applicable regulatory requirements imposed to 

20States develop and carry out surveys of employers and use other data collection 

methods to determine wages and employment standards in their state.

21The regulation refers to the job order as a Form ETA-790. Applications for temporary 

employment certification may be filed by an individual employer, an agent working for the 

employer (e.g., lawyer or labor contractor), or by an employer association on behalf of 

multiple employers.
 

Page 10 GAO-12-706 H-2A Application Process

ascertain that (1) there are not sufficient U.S. workers who are qualified 

and available to perform the work, and (2) employing foreign workers will 

not adversely affect the wages and working conditions of similarly 

employed U.S. workers.22

After receiving temporary employment certifications from Labor, 

employers submit petitions to DHS requesting that a specific number of 

individuals be classified as H-2A workers for the certified job openings.23

The petition includes Labor’s certification, information about the employer, 

the positions the H-2A workers will fill, and the workers’ names, if listed by 

the employer.24

Following approval of the employer’s petition by DHS, prospective 

workers can apply with State for H-2A visas, if a visa is required.

If questions arise, DHS may send the employer a request 

for additional documentation.

25 State 

operates visa-issuing posts abroad.26

 

228 U.S.C. § 1188(a) and 20 C.F.R. § 655.161 (2012).

Employers may work with foreign 

labor contractors who help them recruit workers and help workers with the 

visa application process. State’s process for determining who will be 

issued or refused a visa contains several steps, including reviewing visa 

applications, checking databases to identify issues, such as security 

concerns, collecting potential workers’ fingerprints and photos, and 

conducting in-person interviews of workers. State may deny a visa based 

on certain criminal and related grounds, security and related grounds, or 

238 C.F.R. § 214.2(h)(5) (2012).

24Employers are required to provide the names of the workers if they are requesting to 

extend a worker’s length of stay or if the worker comes from a country that is not on DHS’s 

list of countries from which H-2A workers may be requested. Naming specific workers on 

the application to DHS is otherwise voluntary. 8 C.F.R. § 214.2(h)(2)(iiii) (2012). When 

workers’ names are identified in the applications, DHS checks these names against 

databases to identify issues, such as criminal histories, that may prevent the individuals 

from entering the United States.

2522 C.F.R. pt. 41, subpt. J (2012). A visa is not required for H-2A workers coming from 

Jamaica and certain other Caribbean countries. 8 C.F.R. § 212.1(b) (2012). In these 

cases, the worker may go directly to a designated port of entry and apply for admission.

According to DHS officials, DHS and State are in the process of drafting regulations to end 

this exemption from the visa requirement, which had its origin several decades ago, and 

was never revised. Canadian citizens are also visa exempt.

26The term “post” refers to a U.S. consulate or embassy abroad. 
 

Page 11 GAO-12-706 H-2A Application Process

an applicant’s status as illegal entrant or immigration violator, among 

other reasons.27

After receiving the H-2A visa, a worker may present himself at a port of 

entry to apply for admission into the United States. Upon arrival, DHS’s 

Customs and Border Protection officers verify the worker’s eligibility for 

admission and determine the specific length of stay. Generally, DHS 

grants the H-2A worker admission for a period of time authorized on the 

temporary labor certification.

Several bills were introduced in 2011 to expand use of an electronic 

system to verify workers’ employment eligibility that, if passed, could 

reduce the availability of undocumented workers and increase the use of 

the H-2A program. Some of the federal legislative proposals would 

expand the use of an electronic employment authorization system known 

as E-Verify, which is currently operated by DHS and the Social Security 

Administration.28

Other legislative proposals introduced in 2011 would modify or replace 

the H-2A program. Congress has considered making changes to the H2A program as part a larger effort to address immigration issues. 

Specifically, a legislative proposal known as the Agricultural Job 

Opportunities, Benefits, and Security Act—or AgJOBS—is said to 

represent a compromise between major stakeholders and includes 

provisions to change the H-2A program and develop a new program to 

legalize the status of undocumented farm workers through a two-stage 

process. AgJOBS has been introduced several times and was introduced 

in the Senate as part of the Comprehensive Immigration Reform Act of 

A number of states have enacted laws mandating that 

some or all employers within their state use E-Verify for new hires. Some 

agricultural employer associations have raised concerns that requiring the 

use of E-Verify could cause agricultural employers to lose many of their 

workers. Such a labor shortage could result in more applications for

foreign workers through the H-2A program.

 

278 U.S.C. § 1182(a(2), (3) and (6) and 22 C.F.R. § 21.121 (2012).

28E-Verify is an internet-based system intended to electronically verify U.S. work eligibility. 

For more information, see GAO, Employment Verification: Federal Agencies Have Taken 

Steps to Improve E-Verify, but Significant Challenges Remain, GAO-11-146 (Washington, 

D.C.: Dec. 17, 2010).

Recent Legislative 

Proposals to Change the 

H-2A Program
 

Page 12 GAO-12-706 H-2A Application Process

2011 on June 22, 2011.29 Three other proposed bills would add a role for 

the U.S. Department of Agriculture in administering the program. Another 

proposal would, among other things, change the application filing 

deadline for employers from 45 days to 30 days prior to the date of need 

and deem any application approved if Labor fails to make a decision 

within 30 days of the employer’s filing date. Other proposals include 

provisions that would allow employers to hire H-2A workers as dairy 

workers or livestock herders without being required to show that such 

positions are of a temporary or seasonal nature.

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 

 

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

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
 

Page 13 GAO-12-706 H-2A Application Process

days prior to the date workers were to begin work.30

 

30Our analysis of Labor’s timeliness excluded emergency cases, which are applications 

filed less than 45 days prior to the employer’s date of need. We calculated the number of 

calendar days prior to the certified start date that determinations were made. Labor 

reported that 85 percent of its determinations were timely in fiscal year 2011. Labor 

changed the method it uses to calculate timeliness in fiscal year 2011 after the agency 

began allowing employers additional time (up to 5 days) to submit the documentation 

required to receive a certification. Labor’s method for calculating timeliness allows cases 

that receive deficiency notices—63 percent of cases in fiscal year 2011—an additional 5 

days to submit documentation and considers these cases timely as long as the agency 

made a determination at least 24 days prior to the date of need (5 days past the deadline). 

This 5 day extension comes at the expense of processing time available for DHS and 

State in advance of the date of need because DHS cannot initiate its process in advance 

of Labor’s certification.

However, Labor did 

not process 37 percent of applications by the deadline, including 7 

percent of applications approved less than 15 days before workers were 

needed, leaving little time for employers to petition DHS and for workers 

to obtain visas from State. According to Labor officials, employers’ failure 

to provide required documentation, such as an approved housing 

inspection, contributes to processing delays. DHS approved 98 percent of 

the employer petitions for H-2A workers in fiscal year 2011, and about 72 

percent of these petitions were processed within 7 days. However, 28 

percent took longer and DHS took a month or longer to process 6 percent 

of the petitions (see fig. 2). An official at DHS told us that employers have 

up to 84 days plus the applicable mailing time to provide additional 

documentation requested by the agency, which can significantly affect 

how long it takes the agency to process a petition.
 

Page 14 GAO-12-706 H-2A Application Process

Figure 2: H-2A Application Processing Times, Fiscal Year 2011
 

Page 15 GAO-12-706 H-2A Application Process

State does not monitor visa processing wait times specifically for H-2A 

visas, but some employers and State officials we interviewed said delays 

can occur when large groups of workers apply for visas at peak times 

during the year at the Monterrey consulate in Mexico, which processes a 

large proportion of all H-2A visas. State issued visas to 94 percent of the 

potential H-2A workers who requested them in fiscal year 2011, but it 

does not collect information on how long it takes posts to process them. 

Individual posts report estimates of typical wait times for interview 

appointments and processing of visas in general, but State does not 

collect data from posts on the amount of time it takes them to process H2A visas.

H-2A visa processing is concentrated in Mexico. According to data 

reported by State, in fiscal year 2011, 94 percent of all H-2A visas for 

workers from all countries worldwide were issued in Mexico and about 

half were processed by the consulate in Monterrey (see fig. 3). Based on 

staff estimates, State officials told us that during the peak season at its 

Monterrey consulate it may take up to 11 days from the time the workers’ 

appointments for finger printing are scheduled until their visas are 

available for pick up at the consulate.31

 

31After filling out an application, workers must complete a two-part process to obtain an H2A visa. According to agency officials, first, they visit an Applicant Service Center where 

they are photographed and fingerprinted. Next, they visit a consulate or embassy where 

they are interviewed by a Consular Officer during a second appointment on a separate 

day. 

These times can be much shorter 

at posts that are less busy or during periods that are less busy, according 

to officials with whom we spoke.
 

Page 16 GAO-12-706 H-2A Application Process

Figure 3: Percent of Worldwide H-2A Visa Applications Processed by Posts in 

Mexico, Fiscal Year 2011

Although Labor and DHS have data on their respective application 

processing times, Labor, DHS, and State lack an integrated system for 

tracking the applications from the beginning of the process through visa 

approval. Moreover, they do not collect data to determine the extent to 

which employers obtain workers by the time they are needed, and the 

agencies cannot document the total processing time required to complete 

the H-2A application process. The agencies involved in the H-2A 

application process largely perform their steps independently and 

measure their progress independently, in part because none of them has 

clear authority or responsibility to assess the performance of the process 

as a whole in achieving timely results for employers, toward which they 

each contribute. Nor are the agencies expressly required to coordinate 

their efforts to process applications for H-2A workers. When asked about 

whether a study could be conducted to determine whether H-2A workers 

arrive by the employer’s date of need, officials from DHS said they are 

unable to track this information and State officials indicated that this 
 

Page 17 GAO-12-706 H-2A Application Process

would be beyond the scope of their responsibility. They also said 

conducting such a study would be difficult because it would involve 

matching data from multiple agency data systems and could be costly. 

Each agency has its own strategic plan and performance measures, but 

none has examined the performance of the H-2A process as a whole. 

Although the agencies lack data on the reasons for processing delays, 

our internal control standards suggest agencies monitor critical operating 

data to support program improvement efforts.32

While the agencies do not collect information on the extent to which 

workers arrive by the date employers state that they are needed, a few 

employers told us that their workers did not arrive on time. In addition, 

while not all employers identified delays, about 260 employers who 

participated in the program in 2010 told the National Council of 

Agricultural Employers that their H-2A workers began work after the start 

date they requested on their applications.33 Seven employers told us that, 

in the past year, their workers arrived late. For example, one apple 

grower told us that due in part to processing delays at Labor and DHS in 

2010, more than 30 workers arrived 5 days late, resulting in a loss of 15 

thousand bushels of apples. Another employer in New York told us that 

his workers arrived nearly 3 months late, resulting in a loss of about 

$200,000 worth of unpicked apples, due in part to processing delays at 

Labor and DHS. Moreover, employers frequently expect delays in the 

application process according to representatives of four employer 

associations. A representative for an employer association in North 

Carolina told us that his members have come to expect that workers will 

arrive a week late on average. However, in part due to the lack of 

integrated data, the extent to which these delays can be attributed to 

employers or specific agencies is unknown.

Several employers and agency officials told us that reliance on paper 

handling can contribute to delays. While State has an online application 

process that workers can use to apply for a visa, most of the employer’s 

portion of the H-2A application process requires paper handling. 

 

32GAO, Internal Control Management and Evaluation Tool, GAO-01-1008G (Washington, 

D.C.: August, 2001).

33See National Council of Agricultural Employers, H-2A Temporary Agricultural Employee 

Program (Vienna, V.A.: Nov., 2011).

Inadequate Use of 

Technology Contributes to 

Delays
 

Page 18 GAO-12-706 H-2A Application Process

Specifically, employers must submit paper applications and paper copies 

of supporting documentation to state workforce agencies, Labor, and 

DHS (see fig. 4). If the state workforce agency, Labor, or DHS require 

additional information from employers, they often mail their requests to 

employers rather than using e-mail. Employers then mail their responses 

back to the agencies. This system may result in a lengthy back-and-forth 

process. For example, one employer told us that responding to Labor’s 

deficiency notices—notices explaining why an application cannot be 

accepted and what corrections needed to be made—sometimes involves 

using a pen to strike whole paragraphs on the original application and 

then mailing the entire application back to Labor using overnight mail. 

Another employer told us that his workers arrived late by the time he 

responded to multiple inquiries from Labor and DHS.

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

Some employers told us that this largely paper-based system can result 

in lost documentation, delays in communicating with employers, and 

missed opportunities to quickly resolve minor issues. For example, one 
 

Page 19 GAO-12-706 H-2A Application Process

employer told us that he experienced delays in 2010 when he mailed his 

Labor-approved temporary employment certification to DHS, but the 

agency did not receive it. When the employer called Labor and asked for 

a replacement, Labor officials told him that they could not send him 

another one because they do not issue duplicate certifications to 

employers in order to prevent fraud. After some delay, the employer was 

able to have DHS request the required documentation from Labor. 

Similarly, another employer told us that he had to resubmit his paperwork 

and pay an additional fee when his temporary employment certification 

was misplaced by DHS’s processing center. Officials at DHS also told us 

that paper handling errors, such as not correctly entering employer 

responses to agency requests for additional documentation, sometimes 

result in delays in application processing and that moving to an electronic 

system could help resolve these issues.34 Relying less on paper may 

improve the customer experience for employers using this program. 

Federal requirements encourage agencies to take specific steps to be 

results-oriented and customer focused. For example, the Government 

Performance and Results Act establishes that agencies should develop 

strategic plans to measure the performance and results of their activities 

and the President has issued an executive order to improve the quality of 

service to the public and meet expectations for modern customer service 

through better use of technology.35

Representatives from all of the employer associations we spoke to told us 

that they had problems communicating with Labor. For example, some 

employers told us that they did not receive any communication from 

Labor after submitting their applications until they were mailed deficiency 

notices telling them that the application could not be accepted. Labor 

officials told us that, in the past, they would call employers to resolve 

minor problems or errors, but they now send paper copies of all 

deficiency notices to employers by mail to better document the process

 

34 We previously identified inefficiencies with DHS’s paper-based processes. DHS agreed 

with our recommendation to improve the use of technology. See GAO, Immigration 

Benefits: Additional Efforts Needed to Help Ensure Alien Files Are Located when Needed, 

GAO-07-85 (Washington, D.C.: Oct. 27, 2006); Information Technology: Near-Term Effort 

to Automate Paper-Based Immigration Files Needs Planning Improvements, GAO- 06-375

(Washington, D.C.: Mar. 31, 2006); and Immigration Benefits: Improvements Needed to 

Address Backlogs and Ensure Quality of Adjudications, GAO-06-20 (Washington, D.C.: 

Nov. 21, 2005).

355 U.S.C. § 306 and Exec. Order No. 13,571. 
 

Page 20 GAO-12-706 H-2A Application Process

and use e-mail to resolve minor deficiencies when possible.

36 In addition, 

Labor officials said that, due to limited resources, they do not have the 

capacity to dedicate staff to answering phone calls and that their analysts 

focus on processing applications rather than responding to inquires from 

employers. They also noted that they use helpdesk e-mail boxes to 

provide employers and their representatives with an opportunity to 

communicate with the agency. In addition, they said the H-2A application 

fees paid by employers to defray processing costs cannot be used for 

ongoing administration of the program.37

Communication between agencies is also primarily done through paper 

notifications. The agencies do not communicate their decisions to one 

another electronically because they lack data sharing capabilities. 

Specifically, Labor does not communicate with DHS when the agency 

approves an employer’s request for H-2A workers. By regulation, 

employers are required to provide the original temporary employment 

certification approved by Labor to DHS, rather than Labor sending it to 

DHS directly.38

In addition, employers who need workers at different times of the season 

must repeat all of the steps of the application process for each group of 

workers needed within a single season, regardless of whether the same 

Officials at DHS told us that the two agencies would need 

a memorandum of agreement to allow DHS staff to access Labor’s 

system in order to obtain information electronically about the employer’s 

labor certification. Furthermore, although DHS forwards its petition 

approvals directly to State, the agency does not e-mail the documents to 

State because, according to agency officials, the two agencies lack 

mutual encryption technology to protect personally identifiable 

information. Instead, State must scan the approved petition and 

supporting documentation in order to adjudicate and process visas for 

workers. According to State officials, it takes 2 days to scan most 

employers’ petition approval notices after receiving them from DHS.

 

36Labor is required by statute to issue a deficiency notice, when applicable, within seven 

days, ensuring that an employer or its representative receives information about an 

application within 7 days. 29 U.S.C. § 1188(c)(2).

37Revenues generated from H-2A application fees are deposited and combined with other 

revenue in the General Fund of the U.S. Treasury. The Immigration and Nationality Act 

provides no mechanism for dedicated use of these funds by the Secretary of Labor.

388 C.F.R. § 214.2(h)(5)(i)(A) (2012). 
 

Page 21 GAO-12-706 H-2A Application Process

tasks are involved. Some employers need to stagger the arrival of 

workers at different points of the harvest season, so that they have the 

greatest number of workers when the workload is heaviest. Currently, in 

order to have workers arrive at different points of the season, employers 

must repeat each step of the application process and file full, separate 

applications for each additional set of workers, even when the 

applications are substantially similar and the only difference is the date 

they indicate workers are needed. According to a representative of an 

employer association, this can be unnecessarily burdensome because it 

can be paper-intensive and costly. According to Labor officials, the 

reason employers need to submit multiple applications is that Labor 

needs to establish that there is a shortage of U.S. workers each time 

agricultural employers request foreign workers by reviewing the 

employer’s documentation of recruitment efforts. However, it is less clear 

why other parts of the application would require resubmission when 

changes are not required. Some employers we spoke to told us they 

would prefer being able to file one application and list several different 

start dates instead of having to resubmit the full application separately for 

each group of workers, especially if they need workers to arrive within a 

few weeks of each other, when labor market conditions are unlikely to 

change substantially.

Employers also reported encountering delays due to increased scrutiny 

from DHS and Labor after the agencies implemented new rules and 

procedures in 2008 and 2010, respectively, intended to increase program 

integrity and worker protection. Labor’s H-2A regulations remained largely 

unchanged from 1987 until 2008, when Labor issued new regulations 

allowing employers to attest that they met the regulatory requirements of 

the program, such as providing workers adequate housing, rather than 

requiring them to submit documentation to demonstrate compliance.39

Labor later determined that the 2008 regulations did not sufficiently 

protect workers and issued new regulations in 2010 that reinstated many 

of the 1987 regulations, including requiring employers to submit 

documents with their applications to demonstrate compliance.40

 

3952 Fed. Reg. 20,496 (June 1, 1987) and 73 Fed. Reg. 77,110 (Dec. 18, 2008). 

Labor 

officials told us that the recent regulatory changes resulted in an 

increased number of deficiency notices while employers adjusted to the 

4075 Fed. Reg. 6,884 (Feb. 12, 2010).

Implementation of New 

Rules and Procedures 

Lengthen Agencies’ 

Processing Times
 

Page 22 GAO-12-706 H-2A Application Process

changes. For example, the percentage of employer applications for which 

Labor issued deficiency notices increased from 7 percent in fiscal year 

2006 to 63 percent in fiscal year 2011 (see fig. 5). Labor officials told us 

their case management system does not currently have the ability to 

aggregate the reasons for deficiency notices, but that they can identify the 

reasons on a case-by-case basis. Labor officials also told us that many of 

these notices were issued because employers used the wrong forms or 

failed to provide the required documentation in a timely manner.

Figure 5: Percentage of Employer Applications Issued Deficiency Notices from 

Labor, Fiscal Year 2006-2011

Many employers said Labor’s implementation of these new regulations 

has made the application process more difficult, resulting in delays and 

costly appeals. In 2011, Labor issued denials or deficiency letters to 

employers for various reasons, such as failing to establish a seasonal or 

temporary need for workers, job requirements that were not consistent 

with “normal and accepted” practices, and failing to provide a written 

recruitment report. In addition, employer appeals increased from 15 to 

441 from fiscal year 2006 to fiscal year 2011(see fig. 6). Judges 

dismissed or sent most appeals back to Labor for further processing. 

Based on Labor’s characterization of the 2011 rulings, we counted 72 

appeals that resulted in substantive rulings in fiscal year 2011, roughly 

equally divided between cases that affirmed Labor’s decision (38 cases) 

and others that reversed or partially affirmed it. For example, 19 (26 
 

Page 23 GAO-12-706 H-2A Application Process

percent) reversed Labor on the basis that the employer submitted the 

appropriate evidence, the employer was not given enough time to submit 

evidence, or the certifying officer misinterpreted Labor’s regulations, 

among other reasons.41

Figure 6: Number of Employer Appeals of Labor’s Deficiency Notices/Denials, 

Fiscal Year 2006-2011

Appealing denials may be costly and time 

consuming because employers may need to hire a specialized lawyer to 

represent them at an administrative hearing according to representatives 

of two employer associations with whom we spoke. According to Labor 

officials, most of these appeals resulted from employers not providing 

required documentation along with their H-2A applications. At the same 

time, Labor officials said they initially applied a “plain and strict” 

interpretation of the rules, denying applications for which employers did 

not provide the required documentation within the statutory deadline for 

agency processing. The officials added that most applications were 

approved within a few days of the appeal because employers submitted 

the required information, but they agreed that the resulting increased rate 

of denials contributed to an increase in the number of appeals, creating 

additional burden and delays.

 

41The rest of the appealed cases that resulted in rulings were mixed rulings and were 

partially affirmed and partially reversed (15 cases).
 

Page 24 GAO-12-706 H-2A Application Process

Some employers experienced delays in obtaining H-2A workers caused 

by application of new procedures. For example, DHS began using a 

database that did not have records on some employers who had 

previously used the H-2A program. Some of these employers 

experienced delays when DHS began issuing requests for evidence 

asking for more information, such as tax records, when the employers 

were not found in the database.42 Some employers also told us they 

experienced delays in obtaining H-2A workers from Jamaica because 

DHS issued requests to employers for evidence about a longstanding 

practice in which, on behalf of a Jamaican governmental organization, 

amounts were deducted from the workers’ paychecks to fund a health 

care plan and personal savings accounts.43

 

42To enhance the integrity of the program, DHS began using a web-based database 

called Validation Instrument for Business Enterprises (VIBE) in 2010 to validate 

information provided on employers’ petitions for H-2A workers.

Data from DHS show that 

although relatively few applications received requests for further 

evidence, this number has fluctuated in recent years (see fig.7). However, 

DHS’s case management system does not track the reasons for these 

requests for evidence.

43Employers were asked to provide documentation, such as workers’ recent pay stubs, to 

show that fees are not being deducted from workers’ paychecks. DHS and Labor 

regulations prohibit the collection of fees from workers’ paychecks as a condition of H-2A 

employment. 8 U.S.C. § 214.2(h)(5)(xi) and 20 C.F.R. § 655.20(o) and (p)(2012). The 

basis for these requests for evidence was to ensure that the practices of the Jamaican 

governmental organization did not violate the regulatory bans on payment of prohibited 

fees by workers, which is an essential worker protection against abuse and unfair 

treatment, according to DHS officials. DHS has posted guidance on prohibited fees on its 

H-2 web page and conducted national outreach to employers on this topic in June 2011. 

According to agency officials, specific guidance pertaining to the Jamaican governmental 

organization has not been issued and these cases are handled the same as other cases 

involving deductions from workers’ paychecks. According to DHS officials, no petitions 

have been denied recently due to prohibited fees and the number of requests for evidence 

on this issue has decreased. Labor is currently investigating some employers who use 

Jamaican workers and officials told us the agency will be publishing general guidance 

clarifying the permissibility of workers voluntarily requesting deductions from wages under 

the H-2A program.
 

Page 25 GAO-12-706 H-2A Application Process

Figure 7: Percentage of Employer Applications Receiving Requests for Evidence 

from DHS, Fiscal Year 2006-2011

Several employers also found some of the program rules and paperwork 

requirements to be complicated and were confused about the 

requirements of the H-2A program because some of Labor’s decisions 

seemed inconsistent. Six of the employer representatives we interviewed 

cited program complexity as a challenge. The H-2A program involves 

multiple agencies and numerous detailed program rules that sometimes 

conflict with other laws. For example, because of confusion regarding the 

H-2A regulations, one employer expressed uncertainty about the 

appropriate time to reimburse workers for their in-bound travel costs, 

payment of which must be included in the job offer. The H-2A regulations 

specify that workers must be reimbursed upon the completion of 50 

percent of their work contract but also that H-2A employers may be 

subject to the Fair Labor Standards Act,44 under which employers are to 

make such reimbursements during the first week of employment.45

 

4420 C.F.R. §§ 655.122(h)(1) and 655.135(e) (2012). Also see Michael Prasad, We Need 

Your Help! But It’s Gonna Cost You: Arriaga, Castellanos-Contreras, and Why Point of

Hire Fees Should be Paid by the Employer, 33 W. New Eng. L. Rev. 817 (2011).

45Employment Standards Administration, Field Assistance Bulletin No. 2009-2 (Aug. 21, 

2009).

Complexity of the H-2A 

Program Poses Challenges 

for Some Employers
 

Page 26 GAO-12-706 H-2A Application Process

Another representative of an employer association told us that employers 

have difficulty knowing how much to pay workers.46

Employers also frequently reported that they did not understand the H-2A 

program requirements because Labor’s decisions seemed to be 

inconsistent. Representatives of seven employer associations told us 

Labor’s decisions on the acceptability of the terms and conditions of 

employment appear inconsistent from year to year or from employer to 

employer. For example, a contractor told us that an application she 

submitted on behalf of a farmer in New York was approved for 10 workers 

to pick apples at a piece rate of 85 cents in March 2011. However, her 

next order for 45 workers on the same farm the following month was not 

approved and she was instructed to pay $1 per bushel instead. One 

Washington employer was allowed to include minimum requirements for 

how much fruit to pick per day in a 2010 job order but was not allowed to 

do so in 2011. Another grower in Washington reported being allowed to 

include a termination clause in a job order while a fellow grower in the 

same state doing the same type of work was not allowed to include this 

information, even though the two growers applied for H-2A workers in the 

same year. In Massachusetts, apple growers were allowed to include 

experience requirements on their applications after appealing Labor’s 

initial decision prohibiting them from doing so, but vegetable growers 

were not.

An employer 

representative in New York told us that his association advises employers 

to use a contracting service or an attorney if they are considering using 

the H-2A program because the program is so complex and difficult to 

navigate. He noted that some small farmers don’t have the resources to 

hire an attorney or contractor to help them fill out the paperwork.

47

 

46Labor’s H-2A regulations at 20 CFR 655.120(l) provide that employers must pay their H2A workers and workers at least the highest of: (i) the Adverse Effect Wage Rate—the 

minimum wage rate Labor has determined must be offered and paid by employers to H-2A 

workers so that the wages of similarly employed U.S. workers will not be adversely 

affected; (ii) the prevailing wage; (iii) the prevailing piece rate; (iv) the agreed-upon 

collective bargaining wage, if applicable; or (v) the Federal or State minimum wage, in 

effect at the time the work is performed.

47In addition to rulings from previous appeals, the judge found corroborating evidence that 

apple farming was a difficult and skilled job that required training and knowledge of safety 

issues. He did not find similar support for vegetable and tobacco farmers. See Westward 

Orchards, 2011-TLC-00411, and Volante Farms, 2011-TLC-00412
 

Page 27 GAO-12-706 H-2A Application Process

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).

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

Dates

Agency

Originally planned 

implementation date

Design 

complete?

Schedule in place for development

and implementation?

Current planned 

implementation date

Labor August 2011 Yes Yes By the end of 2012 

DHS October 2012 No No Agency is in the process 

of developing a schedule

Source: GAO analysis of documents received from Labor and DHS.

Federal law and executive orders provide that federal agencies are to be 

customer service-focused and executive orders provide that federal 

agencies use technology to improve the customer experience.48

Specifically, in October 2010, Labor began designing an online H-2A 

application for employers that it planned to deploy in August 2011. 

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.

 

48GPRA Modernization Act of 2010, Pub. L. No. 111–352; Exec. Order No. 12,862 (Sept. 

11, 1993); Exec. Order No. 13,571 (Apr. 27, 2011).

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
 

Page 28 GAO-12-706 H-2A Application Process

However, Labor officials told us the online application was delayed 

because the agency could not award the contract to develop it while 

operating under a provisional budget based on a continuing resolution. 

Since then, Labor completed the design of the online H-2A application 

and in June 2012 awarded the contract to develop, test, and implement it. 

Labor officials told us they anticipate the online H-2A application will be 

available for use by employers by the end of 2012 and, according to the 

development contract, the online application should be available to 

employers on November 15, 2012. According to Labor officials, the online 

application will allow employers to create account profiles and check the 

status of their H-2A applications. In addition, Labor officials said the 

online H-2A application would also result in faster application processing, 

reduced costs, better customer service, and improved data quality.

DHS also plans to implement an online petition for H-2A workers, but the 

agency has experienced delays and is in the process of developing a 

schedule for completing this work. The agency planned to deploy an 

online H-2A petition in October 2012 as part of its Transformation 

Program, which aims to replace the paper-based systems currently used 

to process petitions with an electronic system. However, the 

Transformation Program itself has been delayed several times since its 

inception in 2005, as we have previously reported, and officials told us 

they have not started work on the online H-2A petition and do not know 

when it will be completed. In prior work on the Transformation Program, 

we found DHS was managing the program without specific acquisition 

management controls, such as reliable schedules, which contributed to 

missed milestones.49

 

49GAO, Immigration Benefits: Consistent Adherence to DHS’s Acquisition Policy Could 

Help Improve Transformation Program Outcomes, 

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 H2A 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.

GAO-12-66 (Washington, D.C.: Nov. 

22, 2011).
 

Page 29 GAO-12-706 H-2A Application Process

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 email to correct the error. In February 2011, Labor instituted a policy that 

gives employers up to 5 additional days to submit required documentation 

on their H-2A applications rather than automatically denying them 

because all of the required documentation was not submitted by the 

deadline.50

In addition to the changes outlined above, since implementing its new 

regulations in March 2010, Labor provided employers with more guidance 

about the requirements of the H-2A program in a variety of formats (see 

table 3).

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

2012

Date released Description

March 2010 to February 2012 Issued six rounds of answers to frequently asked questions

September 2011 and May 2012 Posted a document with tips on filing an H-2A application on its Web site

October 2011 Developed a new Web site dedicated to the H-2A program, with program updates and materials

December 2011 Published an H-2A Employer guide on its Web site

December 2011 and January 2012 Held webinars about the new March 2010 H-2A rules and interpretations

February 2012 Labor officials attended and presented at conferences attended by H-2A employers

March 2012 Created an H-2A Ombudsman Program office to help employers resolve issues 

Source: GAO analysis of Labor documents.

 

5020 C.F.R. § 655.130(b) (2012). By statute, Labor is not permitted to require employers to 

submit their applications more than 45 days before the first date the labor or services of 

the H-2A worker is required. 8 U.S.C. § 1188(c)(1).

Federal Agencies Updated 

Processes and Reached 

Out to Employers, but 

Labor’s Guidance to States 

Needs Improvement
 

Page 30 GAO-12-706 H-2A Application Process

Labor officials said these efforts resulted in improved timeliness and 

fewer appeals in recent months. Our analysis of Labor’s data showed that 

the agency’s timeliness remained relatively unchanged, although the 

percentage of applications for which deficiency notices were issued and 

the number of appealed decisions declined substantially over that period. 

For the first half of fiscal year 2012, Labor processed 61 percent of 

certified applications at least 30 days prior to the employer’s date of need 

and issued deficiency notices for 38 percent of employer applications. 51

Several employers we interviewed reported that they did not understand 

the H-2A program requirements because Labor’s decisions seemed 

inconsistent. A number of the inconsistencies employers cited concerned 

job order terms and conditions, the acceptability of which varies by state. 

Labor officials told us they strive for consistency and have many checks 

in place to ensure consistent decisions. Specifically, they said analysts in 

Labor’s processing center follow detailed standard operating procedures 

and the center has multiple quality assurance methods to ensure 

consistency, including supervisory review, peer review, and a quarterly 

quality assurance process. In addition, according to Labor officials, 

processing center analysts are given an overview of the H-2A program, 

study the regulations and standard operating procedures, and shadow a 

more seasoned employee before receiving their own cases to 

adjudicate.

Sixty employer appeals were filed during the first half of fiscal year 2012.

52

Labor regulations require H-2A employers to include only terms and 

conditions that meet or exceed prevailing, normal, or accepted practices, 

as determined by the state workforce agency. Labor’s regulations and its 

guidance to states allow states to apply different standards to determine 

whether various terms and conditions are acceptable.

There are also periodic training classes that address 

adjudication issues that have arisen during the last calendar year.

53

 

51The first half of fiscal year 2012 refers to the period October 1, 2011 to March 31, 2012.

Results for the entire year may differ.

For example, 

52Our 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).

53The most recent comprehensive guidance to states about the H-2A program is Labor’s 

1988 H-2A Program Handbook. U.S. Department of Labor, Employment and Training 

Administration, H-2A Program Handbook, Handbook No. 398 (Washington, D.C.: January 

1988).
 

Page 31 GAO-12-706 H-2A Application Process

state workforce agencies are directed to apply a prevailing practice 

standard to determine whether the frequency with which an employer 

intends to pay H-2A workers is acceptable, while states can use a more 

subjective normal and common practice standard to determine whether 

job qualifications, such as how much experience is required, are 

acceptable (see table 4).

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

Applicable standard for approving terms or conditions 

of employment

Examples of terms and conditions employers address in H-2A job 

orders to which the standard applies

Prevailing practice: the practice used by half or more of 

agricultural employers employing a half or more of the 

workers in the occupation in the area.

• Provision of housing for workers’ families

• Advancement of required payment for inbound and outbound 

transportation costs

• Frequency of payment 

Normal or common practice:

Although the terms “normal” and “common” are difficult to 

quantify, the practice may be less than prevailing, but not 

unusual or rare.

Consistent with what is normally required by non-H-2A 

employers in the same or comparable occupations and 

crops in the area.

• Productivity standards (e.g., minimum level of fruit that must be 

picked to retain employment)

• Job qualifications, such as requiring specific experience 

Source: U.S. Department of Labor, Employment and Training Administration, H-2A Program Handbook, Handbook No. 398 

(Washington, D.C.: January 1988).

In 1988, Labor provided states with an H-2A Program Handbook that 

included guidance on how to make these decisions and encouraged 

states to administer formal surveys to determine acceptable practices. If 

the state workforce agency cannot use a formal survey, Labor’s guidance 

suggests states make these determinations using other information 

sources, such as staff knowledge and experience, informal surveys, 

reviews of job orders used by non-H-2A employers, or consultation with 

experts in agriculture or farm worker advocates. In 2011, Labor began 

posting results from states’ prevailing practice surveys online to help 

employers write job orders that are consistent with prevailing, normal, and 

accepted practices.

Labor’s guidance to states for determining acceptable practices, however, 

is broad and not prescriptive, leading states to apply varied methods, 

some of which may be insufficient. For example, the Administrative Law 

Judge who ruled on the Massachusetts apple and vegetable growers’ 

appeal of Labor’s initial decision to prohibit experience requirements did 

not consider the Massachusetts state workforce agency’s prevailing 

practice survey in his ruling because of its design flaws. Further, two 

employer representatives told us they considered state prevailing practice 
 

Page 32 GAO-12-706 H-2A Application Process

surveys to be unreliable and inconsistent in their coverage. In addition, 

officials in the three states we visited said they did not include questions 

about certain terms and conditions in formal surveys and used different 

methods to determine whether a particular practice was acceptable: two 

states reviewed job orders filed by non-H-2A employers; the other state 

informally surveyed non-H-2A employers in-person. One employer 

representative expressed frustration that neighboring states used different 

methods to determine acceptable practices for the same crop and that the 

results differed.

DHS also has taken several steps to improve employers’ experience with 

the H-2A application process. Specifically, the agency took steps to 

expedite petitions for H-2A workers and provide more guidance to 

employers. In October 2007, DHS directed its employees to expedite the 

handling and adjudication of H-2A petitions. According to our analysis, the 

agency’s processing times have improved in recent years. From fiscal 

year 2006 to fiscal year 2011, the percentage of petitions approved within 

1 week increased from about 34 percent to 72 percent. At the same time, 

the percentage of petitions that took 1 month or longer to approve 

declined from about 11 percent to about 6 percent. In July 2010 and June 

2011, DHS invited employers to participate in teleconferences to discuss 

employers’ difficulties with some of its new systems and procedures. In 

addition, the agency posted summaries of the teleconferences and 

answers to employers’ frequently asked questions on its Web site.

State has addressed employer concerns with the H-2A visa application 

process by hosting face-to-face meetings with employers and other key 

stakeholders, making improvements to its worker processing procedures, 

and taking steps to increase the capacity of its Monterrey consulate to 

process H-2A visas. In 2012, State officials said they reached out to 

Labor to discuss H-2A related issues. They also said the two agencies 

are formalizing working groups in part to improve information sharing. 

State also meets with employers and other stakeholders at annual 

meetings that bring together representatives from Labor, DHS, and State. 

Officials from Labor and DHS, and State’s contractor attended the most 

recent of these meetings, held in Texas in January 2012. A representative 

of an employer association who attended this meeting told us it was 

helpful to have representatives from all three agencies there to answer 

questions. After hearing at the January 2012 meeting that some 

employers had difficulties with getting their Mexican H-2A workers 

processed by their date of need, State directed employers with 

approaching dates of need to request emergency appointments for their 

workers to be processed at posts other than the Monterrey consulate. 
 

Page 33 GAO-12-706 H-2A Application Process

State officials noted that all Mexican posts have the capacity to process 

H-2A visa applications and suggested that applicants can visit other posts 

if it is difficult to get appointments at the Monterrey consulate. State also 

developed new procedures to better enable them to handle large groups 

of workers. In addition, State is expanding its Monterrey consulate, which 

currently handles most of the H-2A visas processed. Officials said the 

new facility is scheduled to open in 2014, although they were uncertain 

whether future staffing levels at the facility would increase.

The H-2A program is a means through which agricultural employers can 

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.

Conclusions 
 

Page 34 GAO-12-706 H-2A Application Process

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.

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 

Recommendations for 

Executive Action

Agency Comments 

and Our Evaluation
 

Page 35 GAO-12-706 H-2A Application Process

agencies on methods to determine the acceptability of employment 

practices.

Labor did not agree with our recommendation that it allow employers to 

file a single application per season for workers arriving on different start 

dates, stating that the department’s regulations define the date of need as 

the first date the employer requires the services of all H-2A workers that 

are the subject of the application, not an indication of the first date of 

need for only some of the workers. Labor stated that having each 

employer file a single application with staggered dates of need would 

result in one recruitment for job opportunities that could begin many 

weeks or months after the original date of need, which could nullify the 

validity of the required labor market test. We are not recommending that 

employers conduct a single labor market test corresponding with their 

earliest date of need. Employers should still be required to submit 

evidence of their recruitment efforts for every start date listed on each

application, but we believe they should not be required to resubmit a full 

application package for each set of workers needed during a season.

Labor also expressed concern that our report points to the experiences of 

some employers or those of a single employer to support our conclusions. 

As noted earlier in this report, information obtained from our interviews 

cannot be generalized to all states or all agricultural employers. In 

addition, the illustrations used in this report highlight challenges 

expressed by numerous employers with whom we spoke, even when we 

used one employer’s experience as an example. Further, as we noted 

previously, agency data are not available to document the extent of some 

employer challenges, such as whether workers arrive by the date they are 

needed by employers.

As agreed with your offices, unless you publicly announce the contents of 

this report earlier, we plan no further distribution until 7 days from the 

report date. At that time, we will send copies to the appropriate 

congressional committees, the Secretaries of Homeland Security, Labor, 

State, and other interested parties. In addition, this report will be available 

at no charge on the GAO Web site at http://www.gao.gov. 
 

Page 36 GAO-12-706 H-2A Application Process

If you or your staff members have any questions regarding this report, 

please contact me at (202) 512-7215 or moranr@gao.gov. Contact points 

for our Offices of Congressional Relations and Public Affairs may be 

found on the last page of this report. GAO staff who made major 

contributions to this report are listed in appendix III. 

Sincerely yours, 

Revae Moran, Director

Education, Workforce

 and Income Security Issues
Appendix I: Comments from the Department of 

Labor

Page 37 GAO-12-706 H-2A Application Process

Appendix I: Comments from the Department 

of Labor 
Appendix I: Comments from the Department of 

Labor

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

Labor

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

Labor

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

of Homeland Security

Page 41 GAO-12-706 H-2A Application Process

Appendix II: Comments from the Department 

of Homeland Security
Appendix II: Comments from the Department 

of Homeland Security

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

of Homeland Security

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

Acknowledgments

Page 44 GAO-12-706 H-2A Application Process

Revae Moran, Director, (202) 512-7215 or moranr@gao.gov

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. 

Appendix III: GAO Contact and Staff 

Acknowledgments 

GAO Contact

Staff 

Acknowledgments 

(131132)
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