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.) 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. 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.