H-2A Visa Program: Modernization and Improved Guidance Could Reduce Employer Application Burden
Released: 2012-10-15T00:00:00

Letter

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.