H-2A Agricultural Guestworker Program: Changes Could Improve Services to Employers and Better Protect Workers
Released: 1997-12-31T00:00:00

Letter

Introduction

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

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

Background

Throughout the 20th century, the Congress has authorized numerous programs to allow U.S. agricultural employers to use foreign temporary guestworkers in the event of a domestic labor shortage. For example, during World War I, the Congress authorized a temporary farm labor program to replace workers who were in the military; that program admitted almost 77,000 Mexicans to the United States. During a similar labor shortage created by World War II, the Congress authorized a program to bring Mexican guestworkers, called “braceros,” to the United States. The Bracero program operated under a series of legislative authorizations from 1942 to 1964, bringing in between 4 million and 5 million workers for the nation’s farms, primarily in the western United States. While the Bracero program was still in effect, the Immigration and Nationality Act of 1952 (P.L. 82-144) authorized a guestworker program that included agricultural workers, which is known as “H-2” after the section of the law. Similar in structure to the Bracero program, the H-2 program was enacted as a permanent program and was primarily used by agricultural employers in the east to contract with Caribbean workers.

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

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

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

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

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

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

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

The Immigration Act of 1990 mandated the U.S. Commission on Immigration Reform to examine and make recommendations regarding the implementation and impact of U.S. immigration policy. In 1995, the Commission on Immigration Reform found a considerable oversupply of farmworkers throughout the country, with heavy unemployment even during peak harvest periods. As of September 1997, the Commission found that the agricultural labor market had not changed significantly. The Commission concluded that any new agricultural guestworker programs, particularly “those that seek to revisit the Bracero program,” are not needed, concluding that such programs expand rural poverty, and “are incompatible with the values of democratic societies worldwide.”

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

Scope and Methodology

To address the objectives of this review, we collected documents and interviewed officials from the Departments of Labor, Justice, State, and Agriculture (USDA) and the Commission on Immigration Reform. We interviewed state health department and employment service officials in the three states that used the most H-2A workers in fiscal year 1996—North Carolina, Virginia, and New York—and in the state producing the largest dollar value in agriculture—California. We also interviewed numerous agricultural employers and agricultural employer association representatives; H-2A and non-H-2A farmworkers; and farm labor advocates, including unions. We analyzed data from INS, the Departments of Labor and State, grower associations, state employment service offices, and selected state unemployment insurance programs. We also consulted with methodological and subject area experts, such as agricultural economists, immigration and labor experts, and policy analysts, and reviewed literature on immigration and agricultural labor markets. We conducted our review from April 1997 to September 1997 in accordance with generally accepted government auditing standards. (See app. II for more detailed information on our scope and methodology.)

No Widespread Agricultural Labor Shortage Is Anticipated

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

Local Labor Shortages Are Possible, but No National Agricultural Labor Shortage Appears to Exist

Although the limitations of available data make the direct measurement of a labor shortage difficult, our analysis suggests, and many farm labor experts, government officials, grower and farm labor advocates agree, that a widespread farm labor shortage has not occurred in recent years and does not currently exist. However, the lack of evidence of a widespread farm labor shortage does not preclude the potential for, or existence of, localized shortages particular to specific crops or geographic areas. Many grower advocates, USDA officials, and farm labor experts told us that a large proportion of the current agricultural labor supply is composed of workers who are not authorized for employment, leaving many agricultural employers vulnerable to potential labor shortfalls in the event of a concentrated or targeted INS enforcement effort. Many individual growers we interviewed concurred with this assessment, expressing concerns about the prospect of localized shortages resulting from intensified INS enforcement activities.

Limited Data Make Measurement of Labor Shortages Difficult

The limited data available make it difficult to directly measure a market imbalance such as a farm labor shortage. For example, it has been suggested that the analysis of job vacancy data could help identify those occupations where shortages exist, but the Bureau of Labor Statistics (BLS) no longer collects this information. Although Labor’s Employment Service does collect information on the number of workers seeking and obtaining employment in agriculture through referrals at individual state employment services, an agency official estimates that such activity accounts for less than 5 percent of all job placements in agricultural field work nationally. Regardless, job vacancy data alone would be insufficient to determine whether a labor shortage existed; they would need to be considered in conjunction with other labor market indicators.

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

Rapidly rising hourly wages are also consistent with a labor shortage, and some hourly and piece-rate wage data are available for agricultural field workers from USDA and other sources. However, rising hourly wage rates may not always signify a labor shortage if, for example, workers are paid by piece rate, as is fairly common in the production of fruits, vegetables, and horticulture.

Ample Supplies of Farm Labor Appear to Be Available in Most Areas

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

Farmworker amnesty provisions in IRCA resulted in the legalization of large numbers of foreign farmworkers, ensuring agricultural employers adequate supplies of farm labor during the mid-to late 1980s. Beginning in June, 1987, the Special Agricultural Worker (SAW) provisions of IRCA permitted foreign farmworkers with 90 or more days of qualifying work in agriculture to apply for legal status. The SAW program received nearly 1.3 million applications during its first 18 months of operation, over half of them in California alone, resulting in the legalization of a significant portion of the U.S. agricultural labor supply. Available data suggest that SAW workers have made up a significant, albeit declining, proportion of the U.S. agricultural labor market since the late 1980s, falling from 33 percent of all farmworkers in fiscal year 1989 to 19 percent in fiscal year 1995.

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

State responses to changes mandated by the recently enacted federal welfare reform legislation also suggest that many agricultural areas may currently be experiencing farm labor surpluses rather than shortages. Section 6(o) of the Food Stamp Act, as added by section 824 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, provides that an individual is ineligible for the program if during the preceding 36-month period, he or she received benefits for 3 months while not working or participating in a work program for at least 20 hours per week. However, in an effort not to penalize food stamp recipients who reside in areas with limited employment opportunities, the Secretary of Agriculture may waive these provisions for any group of individuals in a requesting state if the Secretary determines that the area in which the individual resides is essentially a labor surplus area—has an unemployment rate of over 10 percent or does not have sufficient numbers of jobs to provide employment for the individuals. As of late July 1997, 42 states had applied for and received waivers from the Secretary of Agriculture for counties and other jurisdictions, including many agricultural areas. All of the 20 agricultural counties we analyzed received at least partial waivers from USDA, and 18 received waivers covering their entire counties. (For more detailed information, see table III.2.)

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

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

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

Localized Labor Shortages May Exist in Individual Crops and for Specific Geographical Areas

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

Opinions differ regarding solutions to localized labor shortages. Farm labor advocates and some government officials said that the supply of domestic labor is generally sufficient to meet the needs of U.S. agriculture. For example, some of them suggested that the implementation of the work requirements of the recent welfare reform legislation could serve as a potential source of labor for agricultural employers in some areas of the country. In other areas, they believed, many workers with farm labor experience could be drawn back to agricultural employment with fairly modest wage increases that would have little effect on consumer prices or U.S. agricultural competitiveness. Some employers we interviewed, however, stated that it is unlikely that many former welfare recipients would have the ability to be suitable farmworkers, particularly single mothers with young children requiring day care. Transportation from urban population centers to rural worksites was also cited as an impediment. Regarding wages, some employers were convinced that they could not be competitive if they raised wages.

INS Enforcement Efforts Are Not Likely to Significantly Reduce the Availability of Agricultural Labor

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

Many Farmworkers Are Not Authorized for Employment

Many grower advocates, USDA officials, and experts told us that a large and increasing proportion of the existing agricultural workforce is not authorized to work in this country. Data from the NAWS and our analysis of available data support this conclusion. The most recent NAWS found that 37 percent of all crop workers in 1995 were ineligible for employment—up from 7 percent in 1989. We estimate that approximately 600,000 farmworkers in the United States lack legal authorization to work, using the NAWS estimate of 37 percent of an agricultural field labor force of 1.6 million.

Few INS Enforcement Resources Are Directed at Worksite Enforcement

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

Few INS Enforcement Resources Are Directed Toward Agricultural Employers, and Few Agricultural Workers Are Arrested

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

INS officials told us that these totals represent a reduction rather than an increase in INS enforcement efforts directed at agricultural employers. Until 1995, the Border Patrol played a significant role in worksite enforcement on farms through “farm and ranch checks.” In fiscal year 1995, most of these resources were refocused on explicit border control activities. This redirection of resources sharply reduced Border Patrol involvement in worksite enforcement—from approximately 30 percent of the total worksite enforcement resources to less than 5 percent. Border Patrol officials we talked with unanimously stated that with current resources their enforcement activities could have no significant impact on the agricultural workforce.

Law-Abiding Employers Unlikely to Be Targeted for Enforcement Efforts

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

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

Removing Illegal Aliens From Domestic Farm Labor Force Is Expensive and Difficult

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

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

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

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

Individual Employers Can Be Affected by INS Enforcement Actions Even If They Comply With Legal Requirements

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

Efforts to Increase Employers’ Ability to Identify Fraudulent Documents Will Have No Immediate Impact

Although efforts are under way to improve employers’ ability to identify fraudulent documents, these efforts are unlikely to have a significant impact on the availability of unauthorized farmworkers who use such documents in the near future. In 1991 President Bush issued Executive Order 12781 authorizing demonstration projects of different changes in the existing document-based employment verification system. In response to this directive, INS established the Employment Verification Pilot (EVP), a voluntary test program that allows participating employers to verify electronically the employment eligibility of newly hired noncitizen workers. Currently, over 1,000 employers nationwide participate in EVP. Although well received by participating employers, the limitation of EVP to noncitizen workers, rather than all workers, leaves open a door to fraud by unauthorized employees who claim falsely to be U.S. citizens on the Employment Eligibility Verification form (Form I-9). The next generation of verification pilot programs attempts to close this door by verifying all new hires. In August 1997, INS and the Social Security Administration (SSA) began the Joint Employment Verification Pilot (JEVP) program among a small group of employers in the Chicago area. JEVP involves an initial verification inquiry to SSA regarding all newly hired employees with, if necessary, a referral to INS for additional verification. The JEVP approach is also being used in the Basic Pilot currently being implemented by INS and SSA in the five states with the highest estimated population of unauthorized aliens (California, Texas, New York, Florida, and Illinois). The Basic Pilot is one of three verification pilots mandated by the Congress under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. With limited exceptions, these verification pilot programs are voluntary for employers.

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

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

H-2A Program Can Be Improved to Better Meet the Needs of Agricultural Employers and Workers

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

Statutory and Regulatory Deadlines for H-2A Process

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

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

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

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

Employers Receive Labor Certification for Most of the Workers They Request

Employers are certified for most of the H-2A workers they request, regardless of the skill level required. Specifically, ETA issued certifications for 99 percent of the 3,689 applications filed nationwide in fiscal year 1996 and the first 9 months of fiscal year 1997. Although 3 percent of all applications were initially rejected, most of these were accepted after employers amended their applications. In addition, ETA certified all but 11 percent of the 41,549 job openings requested on these applications during this period. These applications simply request a certain number of job openings but do not identify individual job applicants. (See table IV.2 for detailed information about geographic distribution and results of applications filed in fiscal years 1994 through 1997.) The number of job openings Labor certifies is higher than the number of H-2A workers who enter the country, for various reasons including that employers may not fill all of the job openings certified or H-2A workers may be transferred from one employer to another. For example, although 17,557 job openings were certified for fiscal year 1996, about 15,235 H-2A workers were actually employed.

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

Completing Certification and Visa Processing by Date of Need May Not Provide Workers When Needed by Employers

The date of need employers request on the H-2A application may differ from the actual date the workers are needed. Agricultural employers, their advocates, and agency officials told us that it was extremely difficult to accurately estimate the date workers would be needed 60 days in advance of the harvest. Employers said that agricultural work is too dependent on the vagaries of weather to predict 60 days in advance when workers will be needed. This problem is particularly acute for crops that have a very short harvest time, such as cherries, for which the entire harvest season is as brief as 3 to 5 days.

Labor Often Issues Certifications After the Date of Need

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

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

Labor Lacks Management Data Necessary to Determine and Correct Problems in Complying With Statutory and Regulatory Time Requirements

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

Failure to Provide Timely Notification of Acceptance Decision Could Cause Delays in Certification

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

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

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

Labor Lacks Information on the Frequency, Cause, and Timeliness of Emergency Applications

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

INS Petition Approval Process Can Increase Program Processing Time

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

INS officials in all four processing centers told us that petitions for H-2A nonimmigrant agricultural workers are unique in that they are not required to identify specific workers, and they rarely do. Most H-2A petitions identify only the number of workers needed for a specific job. INS, therefore, does not need to review individuals’ visa eligibility as it does for other petitions. INS officials in both headquarters and the field offices described the INS role in processing H-2A visa petitions as “rubber stamping” and suggested that it provided little or no added value while delaying employers’ ability to get workers in a timely manner, and adding to the costs.

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

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

State Department Has Processed Substantially More H-2A Visas in Recent Years

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

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

This increase is caused by a shift in the country of origin of H-2A workers over the last 10 years. Nationals of certain Caribbean islands entering the United States as H-2A workers are not required to have visas. These H-2A workers are represented by the West Indies Central Labour Organisation (WICLO), which organizes their entry into, stay in, and exit from the United States. To apply for H-2A Caribbean workers, an employer goes through the same process with Labor and INS that he or she would for workers from other countries. However, for Caribbean workers, INS keeps the form I-129 petition, rather than sending it to the consulate where a visa would be issued. Instead, these workers enter the United States through Miami with a valid travel document provided by their home governments and are not required to have a passport or H-2A visa. This travel identification document is approved by INS (in addition to the already approved I-129 petition). INS gives the workers a form I-94, Record of Arrival/Departure, stamped “H-2A.” Once the workers enter the country, they typically travel to various employers along the east coast, with transportation arranged by an employer or employer group. When the workers leave, they return their I-94 and WICLO oversees their departure.

INS Makes Final Determination at Border

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

Data on the Number of Farmworkers Who Overstay Their Visas Are Not Available

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

Involvement of Multiple Levels of Government and Agencies May Result in Redundant Oversight Activities and Participant Confusion

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

Multiple Agencies Can Create Confusion Among Agricultural Employers

Employers we interviewed were frequently confused by the multiple agencies and levels of government involved in the H-2A program. Discerning how to comply with regulations can be difficult because of overlapping responsibilities for inspection and the resulting conflicting administrative procedures and regulations. Complying with housing requirements is a case in point. Federal regulations require that employers in the H-2A program provide worker housing and that such housing meets health and safety standards before and during occupancy. The housing must be inspected and approved 30 days before the employer’s date of need. In some of the states we reviewed, H-2A housing was also subject to state and local housing regulations and inspected by multiple agencies.

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

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

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

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

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

Using Temporary Structures May Address Community Opposition to Permanent Farm Labor Housing

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

Officials in New York described a similar problem on the eastern end of Long Island, where residential development has overtaken farm land and where community opposition has grown to employers’ attempts to build housing for farmworkers. It is difficult, said one state housing official, for agricultural employers to build housing “unless the grower has a lot of land and the neighbors cooperate.” Another official in New York observed that zoning boards have not approved any new housing: Some growers who wanted to put substantial investments into new farmworker housing ($100,000, in one case) were barred from doing so by the local zoning board.

Worker Protection Provisions Under H-2A Program Hard to Enforce

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

Positive Recruitment Requirement Providing Few Jobs for Domestic Workers

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

The positive recruitment requirement appears to result in few domestic workers being placed in these jobs. An employer is required to hire all qualified workers referred by state job services. However, we found that state job services may refer only a few workers for H-2A job openings, even when they make many referrals and placements in agriculture as a whole. The North Carolina Employment Security Commission record of referrals of agricultural workers for 1996 shows 27,461 potential workers referred and 15,886 workers placed with non-H-2A employers. In contrast, even though North Carolina employers asked for more than 5,000 workers, about one-fourth of all H-2A workers requested nationwide, the Commission referred only 13 potential workers to H-2A employers. Our analysis of ETA data shows the same limited SESA referrals in most other states. SESA officials in other states told us that they rarely refer agricultural workers for H-2A job orders because of concerns about H-2A employers’ willingness to hire the workers. H-2A employers we spoke with told us that they offer domestic workers jobs but that the workers either do not report for work or they quit before the harvest ends. While several H-2A employers told us that positive recruitment was a waste of time and money because no domestic workers were willing to accept the work, non-H-2A employers joined others in asking why one agricultural employer would be unable to find a single domestic worker, while a neighboring employer could find all he or she needed.

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

Several explanations have been suggested for the failure of those who are referred to the association to accept or stay at work. One possible reason is that the job description may not accurately reflect the actual work involved, and the worker is unable or unwilling to perform the work required. Another reason may be that, unlike most individual agricultural employers, a joint employer association may offer jobs at a worksite far from the worker’s home, and the worker may be unable to accept the job because of the need for transportation and housing. Although current law requires that employers provide transportation and housing for workers recruited through the Interstate Clearance System, the law does not require that these be provided for locally recruited workers unless they are not reasonably able to return to their residence within the same day. Labor generally considers a reasonable commute to be as much as 60 miles, which may be difficult for those domestic farmworkers who do not own cars. Employers using workers recruited by associations can cover a large geographic area, such as an entire state. Labor’s Office of Inspector General has undertaken a review of H-2A positive recruitment provisions and expects to issue a report in the spring of 1998.

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

Multiple Factors Make the Three-Quarter Guarantee Hard to Enforce

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

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

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

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

H-2A Workers Do Not Receive Same Guarantee for Wages Provided to Domestic Workers

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

Questions About Location of Enforcement Responsibility Within Labor

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

Sustained Increase in Demand for Guestworkers Would Require Additional Agency Resources

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

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

Conclusions and Recommendations

Conclusions

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

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

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

Our work suggests that some procedural changes could improve the program’s ability to meet the needs of agricultural employers. Processing times under the current program are unnecessarily extended as a result of the requirement that INS approve all non-Caribbean Labor certifications before transmitting the request for workers to the State Department. Because H-2A visa petitions are unlike those in any other category in that they rarely identify individual workers, INS is in the position of merely “rubber stamping” the work of others, burdening the employer with unnecessary paperwork and fees and adding as much as 2 to 3 weeks to the entire H-2A application process. Delegating INS’ role of authorizing approval of H-2A visa petitions to Labor could reduce the bureaucratic maze of rules and paperwork that agricultural employers now face. This transfer would need to be accompanied by revisions in regulations, such as accommodating visa extensions where no new Labor certification is required and ensuring that appeals procedures are changed to ensure employers’ right to due process.

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

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

We also identified several weaknesses regarding the protections afforded to both domestic and foreign workers. In general, Labor’s WHD is the primary agency for the enforcement of existing H-2A contracts and other labor standard provisions, while ETA administers the H-2A program, working with state job services and agricultural employers to facilitate the application process. However, under current law, ETA exercises Labor’s authority to suspend an employer’s participation in the H-2A program if this employer has committed a serious labor standard or contract violation and WHD, when conducting an enforcement action, must request that ETA consider using this authority. Given the overall separation of program functions between WHD and ETA, the fact that suspension authority resides with ETA seems incongruent. We believe, and Labor officials agreed, that consolidating this suspension authority in WHD would permit ETA to concentrate more effectively on the H-2A program’s crucial administrative duties and possibly increase the effectiveness of WHD enforcement.

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

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

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

Recommendations

To simplify the H-2A application process and reduce the cost and burden on agricultural employers, we recommend that the Attorney General delegate authority for approval of H-2A visa petitions from INS to the Secretary of Labor or designee and revise corresponding regulations as necessary to implement and facilitate such an agreement, including revising visa extension and appeals procedures.

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

After the Attorney General has delegated INS’ role in petition approval to Labor, to reduce total application processing time and facilitate better accuracy in estimating the date workers will be needed, we recommend that the Secretary of Labor amend the regulations to allow H-2A applications to be submitted up to 45, rather than 60, days before the date of need so long as INS does not have a role in the petition approval process.

To protect work opportunities for domestic workers by ensuring that sufficient time is available for agricultural employers to positively recruit them while reducing the total processing time, we recommend that the Congress amend the Immigration and Nationality Act so that, as long as the authority for approval of H-2A visa petitions remains with Labor, Labor is required to complete all applications at least 7 days before the date of need, rather than 20 days.

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

Extend the authority to suspend employers with serious labor standard or H-2A contract violations to WHD,

Revise its regulations to require agricultural employers to guarantee H-2A workers’ wages for the first week after the date of need and to pay workers those wages no later than 7 days after the date of need, and

Revise regulations regarding the three-quarter guarantee to remove incentives to overestimate the contract period. Revisions Labor considers should include applying the guarantee incrementally during the duration of the H-2A contract in a manner that would improve the protection afforded to H-2A workers but also minimize any additional administrative burden on agricultural employers.

To improve service to both employers and workers, we also recommend that the Secretary of Labor regularly collect data on its performance in meeting H-2A regulatory and statutory deadlines for processing H-2A applications, and use these data to monitor and improve its performance; and update and revise the H-2A handbook to include the procedures for all agencies involved and key contact points, both at Labor and at other agencies.

Agency Comments and Our Evaluation

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

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

Labor Stressed Existence of Agricultural Labor Surplus

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

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

Labor also noted the potential of the implementation of the work requirements of the recent welfare reform legislation to provide agricultural labor. Labor disagreed with the assertions of some of those we interviewed that welfare recipients were unlikely to provide a source of farm labor. In particular, the Department stated that the problems, such as child care, that employers and former welfare recipients will confront as they seek employment in farm occupations are little different from the challenges facing employers and recipients in other industries and occupations. Furthermore, Labor rejected the notion that few recipients are located in or near many rural areas, contending that at least some rural areas have very large welfare populations that could serve as potentially significant sources of labor in close proximity to many agricultural establishments.

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

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

USDA Had Multiple Concerns With Report Findings, Conclusions, and Recommendations

Although USDA agreed with some of our findings, conclusions, and recommendations, it submitted detailed comments on aspects of the draft report that it believed either were inaccurate or required clarification. These comments can be grouped into several broad areas concerning (1) our analysis of conditions in agricultural labor markets; (2) the magnitude and consequences of INS enforcement operations; (3) our assessment of H-2A program operations, specifically late filing of applications; and (4) the effectiveness of protections covering both domestic and H-2A workers, specifically the three-quarter guarantee and the application processing deadlines.

USDA Suggested That Many Agricultural Employers Have Difficulty Attracting Qualified Labor

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

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

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

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

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

These data are also relevant to the issue that USDA raises concerning the number of qualified workers in the agricultural labor force. Although it is clear that a substantial portion of the agricultural labor force is not legally authorized to work in this country, we were unable to determine the distribution of such workers throughout the country. We were also unable to assess the distribution of other sources of domestic workers, such as welfare recipients and unemployed or underemployed farmworkers who may have the skills for agricultural employment. USDA’s identification of students and housewives represents another pool of potentially qualified labor that could be tapped by agricultural employers. Given the limited effect of INS enforcement operations, it is most likely that the number of workers not legally authorized to work in this country will change slowly in many parts of the country. The pace of change will potentially permit agricultural employers and federal and state authorities to substitute other domestic labor where available, if they pursue this option, or, where necessary, to use the H-2A program.

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

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

USDA Raised Concerns About the Impact of INS Enforcement Operations

USDA raised several concerns related to INS enforcement operations, which we considered. Our analysis, however, indicated no need to revise the draft report in response.

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

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

USDA stated that “INS often determines, through procedures not available to employers, that 75 percent or more of an employer’s work force submitted fraudulent documents.” We agree that while it is possible that INS has determined that 75 percent or more of an employer’s workforce submitted fraudulent documents, INS cannot provide information on the frequency with which this occurs. INS does not collect data on the percentage of an employer’s workforce in all industries or in specific industries, such as agriculture, found to have fraudulent documents. INS officials stated that the percentage of such workers varies greatly from one employer to another. For example, information INS provided in response to our requests for information about specific individual enforcement efforts showed one employer with only 1 percent of workers with fraudulent documentation and another with 50 percent. “Workers who claim to be U.S. citizens and possess fraudulent documents are liable to be detected by the Social Security Administration (SSA). SSA requires employers to verify through its Enumeration Verification System the names and social security numbers that do not agree with SSA records (if the Wage and Tax statements filed by the employer has an error rate that exceeds ten percent.)”

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

USDA Questioned INS Visa Petition Approval Only After Labor Certification

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

USDA Questioned Significance of Employers’ Filing Applications Fewer Than 60 Days Before Date of Need

USDA questioned how many of the 42 percent of applications employers filed fewer than 60 days before the date of need were actually late, rather than emergency, applications. USDA said that “he Department of Labor rejects late-filed applications.” We agree with USDA that it would be inappropriate to characterize emergency applications filed fewer than 60 days prior to date of need as “late.” However, our review of H-2A applications in one regional office that processes a large number of H-2A applications confirmed Labor officials’ statements that emergency applications represent only a small fraction of all applications. In fact, data for the period October 1, 1996, through June 30, 1997, the only period for which these data were collected in this region, identified fewer than 15 percent of the applications filed within the 60-day period as “emergency.”

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

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

USDA Disagreed With Findings on the Three-Quarter Guarantee

Unlike Labor, USDA disagreed with our conclusion that the three-quarter guarantee does not provide incentives to ensure that the employer makes the worker stay through the end of the contract period, and that it may provide disincentives to accurately estimate the end date of the contract period. USDA asserted that “there is significant incentive for the employee to stay and collect 3/4 wages without working, receive the return transportation, and maintain eligibility to return to the job the following season.” However, USDA also quoted the manager of a major H-2A association as saying that 1,598 of 4,573 (more than one-third) of the association’s H-2A workers chose not to complete the contract period. In addition, USDA uses the case of a sheepherder who “had not received regular wages when due” to refute our assessment of the difficulty in enforcing the three-quarter guarantee provision. However, in citing this case, USDA stated that “ subsequently worked for a series of H-2A employers and it may be that his total employment did not meet the 3/4 guarantee. The unresolved dispute is which of the series of employers owe a 3/4 guarantee and how is the liability to be apportioned between them.” The situation USDA describes is one of the difficulties inherent in enforcing the three-quarter guarantee, raising concerns about the application of the provision to H-2A workers who are brought into the country through associations that may move the worker from one employer to another during the course of the contract.

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

USDA Commented on Recommendations Regarding Changing Application Processing Deadlines

USDA officials agreed that the 60-day time requirement for filing H-2A labor certification applications is problematic in that it is difficult for employers to precisely estimate their date of need 60 days in advance and that it may limit the success of recruiting domestic workers who are currently employed. USDA also agreed with our conclusion that INS’ role in the petition process is unnecessarily burdensome and supported our recommendation that the H-2A application process be reduced from 60 to 45 days. However, USDA objected to our recommendation to amend the Immigration and Nationality Act so that, as long as the authority for approval of H-2A visa petitions remains with Labor, Labor would be required to complete all applications at least 7 days before the date of need, rather than 20 days. We recommend that the total H-2A application process be reduced to 45 days in combination with reducing the certification requirement to 7 days to maintain the period of time Labor has to certify the labor shortage. This maintains the existing period of time available for recruitment of domestic workers. We disagree with USDA’s statement that “the certification date has no bearing on the opportunities for domestic workers because positive recruitment is required both before and after certification.” Under current regulations, employers must provide evidence that they have complied with the positive recruitment requirements set forth in Labor’s acceptance of the H-2A application. Labor reduces the number of H-2A openings certified on the basis of information the employer provides on the results of positive recruitment efforts, adjusted for estimates of the number of workers who will not report for work. Positive recruitment efforts after the certification have no bearing on the number of H-2A openings approved.

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