H-2A Agricultural Guestworker Program: Changes Could Improve Services to Employers and Better Protect Workers

H-2A Agricultural Guestworker Program: Changes Could Improve Services to
Employers and Better Protect Workers (Chapter Report, 12/31/97,
GAO/HEHS-98-20).

Pursuant to a legislative requirement, GAO reviewed various aspects of
the H-2A nonimmigrant guestworker program, focusing on the: (1)
likelihood of a widespread agricultural labor shortage and its impact on
the need for nonimmigrant guestworkers; and (2) H-2A program's ability
to meet the needs of agricultural workers, both at present and if a
significant number of nonimmigrant guestworkers is needed in the future.

GAO noted that: (1) a sudden widespread farm labor shortage requiring
the importation of large numbers of foreign workers is unlikely to occur
in the near future; (2) there appears to be no national agricultural
labor shortage, but localized labor shortages may exist for specific
crops or geographical areas; (3) although many farmworkers--an estimated
600,000--are not legally authorized to work in the United States, the
Immigration and Naturalization Service (INS) does not expect its
enforcement activities to significantly reduce the aggregate supply of
farmworkers; (4) INS expects limited impact from its enforcement
activities because of the prevalence of fraudulently documented
farmworkers and INS' competing enforcement priorities; (5) in fiscal
year (FY) 1996, less than 5 percent of the 4,600 INS worksite
enforcement efforts were directed at agricultural workplaces; (6) INS
conducts enforcement efforts largely in response to complaints, and it
receives few complaints about agricultural employers; (7) INS officials
in both field and headquarters positions stated unanimously that
operational impediments prevented the agency from significantly reducing
the number of unauthorized farmworkers; (8) the prevalence of
unauthorized and fraudulently documented farmworkers does, however,
leave individual growers vulnerable to sudden labor shortages if INS
does target its enforcement efforts on their establishments; (9)
although few agricultural employers seek workers through the H-2A
program, those that do are generally successful in obtaining foreign
agricultural workers on both a regular and an emergency basis; (10)
during FY 1996 and the first 9 months of FY 1997, the Department of
Labor approved 99 percent of all H-2A applications; (11) however, both
employers and Labor officials have difficulty meeting time frames
specified by law and regulation; (12) because Labor does not collect key
program management information, it is unable to determine the extent and
cause of missed time frames; (13) the multiple agencies and levels of
government implementing the program may result in redundant oversight
and confusion for both employers and workers; and (14) while INS
enforcement efforts are unlikely to create a significant increase in
demand for H-2A workers, changes in H-2A program operations could
improve the ability of growers to obtain workers when needed--whether or
not a nationwide labor shortage exists--and better protect the wages and
working conditions of both domestic and foreign workers.

--------------------------- Indexing Terms -----------------------------

REPORTNUM: HEHS-98-20
TITLE: H-2A Agricultural Guestworker Program: Changes Could
Improve Services to Employers and Better Protect Workers
DATE: 12/31/97
SUBJECT: Migrant or seasonal worker programs
Labor law
Agricultural production
Labor supply
Immigrants
Agricultural industry
Illegal aliens
Working conditions
Interagency relations
IDENTIFIER: DOL H-2A Program

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Cover
================================================================ COVER

Report to Congressional Committees

December 1997

H-2A AGRICULTURAL GUESTWORKER
PROGRAM - CHANGES COULD IMPROVE
SERVICES TO EMPLOYERS AND BETTER
PROTECT WORKERS

GAO/HEHS-98-20

H-2A Guestworker Program

(205338)

Abbreviations
=============================================================== ABBREV

AEWR - adverse effect wage rate
BLS - Bureau of Labor Statistics
CLASS - Consular Lookout and Support System
ESA - Employment Standards Administration
ETA - Employment and Training Administration
EVP - Employment Verification Pilot
ICS - Interstate Clearance System
INS - Immigration and Naturalization Service
IIRIRA - Illegal Immigration Reform and Immigration Responsibility
Act of 1996
IRCA - Immigration Reform and Control Act
JEVP - Joint Employment Verification Pilot
MSPA - Migrant and Seasonal Agricultural Worker Protection Act
NASS - National Agricultural Statistics Service
NAWS - National Agricultural Workers Survey
OIG - Office of Inspector General
OSHA - Occupational Safety and Health Administration
RAW - Replenishment Agricultural Worker
SAW - Special Agricultural Worker
SESA - state employment service agency
SSA - Social Security Administration
USDA - U.S. Department of Agriculture
WHD - Wage and Hour Division
WICLO - West Indies Central Labour Organisation

Letter
=============================================================== LETTER

B-276220

December 31, 1997

Congressional Committees

As mandated by Division C of the Omnibus Consolidated Appropriations
Act, 1997 (P.L. 104-208) and the Conference Report for the
Agricultural Rural Development, FDA Appropriation Act of 1997 (P.L.
104-726), this report presents information on (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 at present and if a significant
number of nonimmigrant guestworkers is needed in the future. We are
sending this report to you because of your committees' oversight
responsibilities for federal agencies involved in the H-2A program.
(See list of addressees on p. 2.)

We are providing copies of this report to Members of Congress who
contacted us about this mandate; the Secretary of Labor, the
Assistant Secretaries for the Employment and Training Administration,
Employment Standards Administration, and Occupational Safety and
Health Administration; the Attorney General and the Commissioner of
the Immigration and Nationalization Service; the Secretary of
Agriculture; the Secretary of State; and others who request them.

If you have any questions about this report, please contact Carlotta
C. Joyner, Director, Education and Employment Issues, at (202)
512-7014. This report was prepared under the direction of Charles
Jeszeck, Assistant Director. Other major contributors to this report
are listed in appendix XI.

Richard L. Hembra
Assistant Comptroller General

List of Addressees

The Honorable Richard G. Lugar
Chairman
The Honorable Tom Harkin
Ranking Minority Member
Committee on Agriculture, Nutrition,
and Forestry
United States Senate

The Honorable Orrin G. Hatch
Chairman
The Honorable Patrick J. Leahy
Ranking Minority Member
Committee on the Judiciary
United States Senate

The Honorable James M. Jeffords
Chairman
The Honorable Edward M. Kennedy
Ranking Minority Member
Committee on Labor and Human Resources
United States Senate

The Honorable Robert F. Smith
Chairman
The Honorable Charles W. Stenholm
Ranking Minority Member
Committee on Agriculture
House of Representatives

The Honorable William F. Goodling
Chairman
The Honorable William L. Clay
Ranking Minority Member
Committee on Education and the Workforce
House of Representatives

The Honorable Henry J. Hyde
Chairman
The Honorable John Conyers, Jr.
Ranking Minority Member
Committee on the Judiciary
House of Representatives

EXECUTIVE SUMMARY
============================================================ Chapter 0

PURPOSE
---------------------------------------------------------- Chapter 0:1

During congressional deliberations on the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996, concerns surfaced about
whether enough farmworkers would be available to meet the needs of
agriculture 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 bring nonimmigrant foreign workers into the United States to
perform seasonal agricultural work on a temporary basis when domestic
workers are unavailable.\1 During fiscal year 1996, agricultural
employers used the H-2A program to bring in about 15,000 workers,
less than 1 percent of the U.S. agricultural field workforce.

The Congress asked whether the H-2A guestworker program could provide
a sufficient supply of agricultural workers in the event of a
significant farm labor shortage. As a result, the 1996 law, included
in the Omnibus Consolidated Appropriations Act, 1997, directed GAO to
review various aspects of the H-2A program.\2 This review addresses a
number of issues, including (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 at present and if a significant
number of nonimmigrant guestworkers is needed in the future.

--------------------
\1 See 8 U.S.C. 1101(a)(15)(H)(ii)(a).

\2 Division C of the Omnibus Consolidated Appropriations Act, 1997
(P.L. 104-208). The Conference Report for the Agricultural Rural
Development, FDA Appropriation Act of 1997 (P.L. 104-726) also
mandated that GAO study the H-2A program.

BACKGROUND
---------------------------------------------------------- Chapter 0:2

The Immigration Reform and Control Act of 1986 created the current
program, commonly referred to as the "H-2A" program, under which
employers may bring workers into the country on a temporary,
nonimmigrant basis. 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 State issues nonimmigrant visas
for H-2A workers only after the Department of Justice, through its
Immigration and Naturalization Service (INS), has approved the
employer's petition for authorization to bring in workers. Justice
does not approve the petition until the Department of Labor has
approved the employer's application for certification that a labor
shortage exists and that the wages and working conditions of U.S.
workers similarly employed will not be adversely affected by bringing
in guestworkers. The Department of Agriculture (USDA) acts in an
advisory role that includes conducting wage surveys for 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 is
designed to mitigate any negative effect employment of these workers
may have on domestic workers similarly employed.

Labor is also responsible for ensuring that agricultural employers
comply with their contractual obligations to H-2A workers and for
enforcing labor laws covering domestic workers, including the wage,
housing, and transportation provisions of the Migrant and Seasonal
Agricultural Worker Protection Act. For example, workers who
complete 50 percent of the contract period are due reimbursement for
transportation from the place of recruitment, while those who
complete the entire contract are guaranteed work or wages for a
minimum of three-quarters of the contract period and reimbursement
for transportation home. Agricultural employers must provide the
same minimum wages, benefits, and working conditions to H-2A workers
that are provided to domestic workers employed in "corresponding
employment."

RESULTS IN BRIEF
---------------------------------------------------------- Chapter 0:3

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, but localized labor shortages may exist for specific crops or
geographical areas. Although many farmworkers--an estimated
600,000--are not legally authorized to work in the United States, INS
does not expect its enforcement activities to significantly reduce
the aggregate supply of farmworkers. INS expects limited impact from
its enforcement activities because of the prevalence of fraudulently
documented farmworkers and INS' competing enforcement priorities. In
fiscal year 1996, less than 5 percent of the 4,600 INS worksite
enforcement efforts were directed at agricultural workplaces. INS
conducts enforcement efforts largely in response to complaints, and
it receives few complaints about agricultural employers. INS
officials in both field and headquarters positions stated unanimously
that operational impediments prevented the agency from significantly
reducing the number of unauthorized farmworkers. The prevalence of
unauthorized and fraudulently documented farmworkers does, however,
leave individual growers vulnerable to sudden labor shortages if INS
does target its enforcement efforts on their establishments.

Although few agricultural employers seek workers through the H-2A
program, those that do are generally successful in obtaining foreign
agricultural workers on both a regular and an emergency basis.
During fiscal year 1996 and the first 9 months of fiscal year 1997,
Labor approved 99 percent of all H-2A applications. However, both
employers and Labor officials have difficulty meeting time frames
specified by law and regulation. And because Labor does not collect
key program management information, it is unable to determine the
extent and cause of missed time frames. In addition, the multiple
agencies and levels of government implementing the program may result
in redundant oversight and confusion for both employers and workers.

While INS enforcement efforts are unlikely to create a significant
increase in demand for H-2A workers, changes in program operations
could improve the ability of growers to obtain workers when
needed--whether or not a nationwide labor shortage exists--and better
protect the wages and working conditions of both domestic and foreign
workers. These include reducing both the time required to process
applications and the period of time the worker must be employed to
qualify for a wage guarantee.

PRINCIPAL FINDINGS
---------------------------------------------------------- Chapter 0:4

A WIDESPREAD FARM LABOR
SHORTAGE IS UNLIKELY IN THE
NEAR FUTURE, ALTHOUGH
LOCALIZED SHORTAGES ARE
POSSIBLE
-------------------------------------------------------- Chapter 0:4.1

A widespread farm labor shortage does not appear to exist now and is
unlikely in the near future. Although there is widespread agreement
that a significant portion of the farm labor force is not legally
authorized to work, INS enforcement activity is unlikely to generate
significant farm labor shortages.

AMPLE SUPPLIES OF FARM
LABOR APPEAR TO BE
AVAILABLE IN MOST AREAS
------------------------------------------------------ Chapter 0:4.1.1

Although data limitations make the direct measurement of a labor
shortage difficult, GAO's own analysis suggests, and many farm labor
experts, government officials, and grower and farm labor advocates
agree, that a widespread farm labor shortage has not occurred in
recent years and does not now appear to exist. For example, GAO's
analysis of the monthly and annual unemployment rates of 20 large
agricultural counties--those that contain large amounts of fruit,
tree nut, and vegetable production in dollar value--found that 13
counties maintained annual double-digit unemployment rates, and 19
had rates above the national average during 1994 through 1996. As of
June 1997, 11 counties still exhibited monthly unemployment rates
double the national average of 5.2 percent, and 15 of the 20 counties
had 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. These high unemployment rates generally existed
over the entire year, even during peak agricultural periods. The
lack of evidence of widespread farm labor shortages, however, does
not preclude the existence or potential for more localized shortages
in a specific crop or remote geographic area.

INS ENFORCEMENT EFFORTS
ARE UNLIKELY TO
SIGNIFICANTLY REDUCE THE
NUMBER OF UNAUTHORIZED
FARMWORKERS
------------------------------------------------------ Chapter 0:4.1.2

GAO estimates that approximately 600,000 farmworkers in the United
States lack legal authorization to work. However, INS officials
around the country were unanimous in their statements that they do
not expect their enforcement efforts to have any general impact on
the supply of farm labor either nationally or regionally, given the
large number of fraudulently documented farmworkers and competing
enforcement priorities. Most of INS' investigation resources are
focused on identifying aliens who have committed criminal acts,
including violent criminal alien gang and drug-related activity, and
on detecting and deterring fraud and smuggling. In fiscal year 1996,
304 INS staff years were devoted to noncriminal investigations,
including worksite enforcement for all industries--an average of
about 6 INS staff years per state. Fewer than 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 worksites. INS
officials do not expect a significant increase in enforcement efforts
directed at agriculture in the near future.

The prevalence of such a large number of unauthorized and
fraudulently documented farmworkers leaves individual employers
vulnerable to sudden labor shortages if INS targeted enforcement
efforts at their establishments. Although INS efforts are under way
to improve employers' ability to identify fraudulent documents, these
efforts are still in the early stages and are not likely to have any
significant impact on the availability of illegally documented
farmworkers in the near future. The degree to which these
initiatives, if fully implemented, would affect the number of
unauthorized workers and the supply of agricultural workers is
unknown; full implementation would require legislative action.

ALTHOUGH EMPLOYERS OBTAIN
H-2A WORKERS, APPLICATIONS
ARE NOT PROCESSED IN A
TIMELY MANNER
-------------------------------------------------------- Chapter 0:4.2

Agricultural employers receive certification from Labor for most of
the workers they request through the H-2A program on both a regular
and an emergency basis, regardless of the skill level required.
Labor's Employment and Training Administration (ETA) issued
certifications for 99 percent of the 3,689 applications filed
nationwide from October 1, 1995, through June 30, 1997, and certified
all but 11 percent of the 41,549 job openings requested on these
applications. However, Labor does not always process applications on
time, which makes it difficult to ensure that employers will be able
to get workers when they need them. The H-2A program has statutory
and regulatory deadlines, such as a requirement that employers file
an application for workers at least 60 days before they are needed
and that Labor issue a decision on certification of a labor shortage
at least 20 days before the date of need. GAO's analysis showed that
in fiscal year 1996, at least one-third of Labor's certifications
missed the statutory 20-day deadline, limiting the time available to
process visas through INS and the State Department. Although no data
were available on how many employers failed to obtain the required
workers by the date of need, GAO identified some applications that
were not even certified by Labor until after the date of need.

LACK OF DATA MAKES IT
DIFFICULT TO MONITOR
TIMELINESS AND OVERSEE
PROGRAM
-------------------------------------------------------- Chapter 0:4.3

Labor does not collect data necessary to determine the extent and
cause of its failure to meet regulatory and statutory deadlines for
both regular and emergency applications. A program official told us
that while the agency does not maintain data on timeliness, he will
hear from agricultural employers about any missed deadlines. Without
adequate data, GAO could not corroborate Labor's explanation that the
delay in meeting the certification deadline was due to reasons
outside the control of the office responsible for certifications,
such as the time required to inspect farmworker housing and
employers' failure to provide in a timely manner the required
documentation of efforts to recruit domestic workers and of health
care coverage.

INS INVOLVEMENT IN PETITION
APPROVAL ADDS LITTLE VALUE
TO PROCESS
-------------------------------------------------------- Chapter 0:4.4

After receiving Labor's certification, INS must approve an employer's
petition for H-2A visas before workers can apply to the State
Department for visas, a procedure that can add up to 3 weeks to
processing time. INS officials agreed, however, that the INS
petition approval process adds little value to the process because
petitions for H-2A visas, unlike other visa petitions, do not
generally identify individual workers. Therefore, INS examiners only
check to make sure that Labor has issued a certification and that the
employer has submitted the correct fees for the petition. Moreover,
this verification that Labor has issued a certification is done again
by the State Department, according to officials at the two
consulates--Monterrey and Hermosillo, Mexico--that process almost all
H-2A visas.

REQUIREMENT TO REQUEST
WORKERS 60 DAYS IN ADVANCE
IS PROBLEMATIC
-------------------------------------------------------- Chapter 0:4.5

Even if all processing deadlines are met, agricultural employers,
their advocates, and state employment officials told us that the
workers may not be available when needed. This is because the
weather and other factors make it hard to estimate 60 days in advance
when workers will be needed. This is especially true for crops with
short harvest periods. This difficulty may help explain why many
employers were late filing applications for certification with Labor:
42 percent of all applications in fiscal year 1996 were filed late.
The 60-day deadline may also encourage employers to estimate the
earliest possible date, which can have negative consequences for
workers who arrive before the employer has work for them: These
workers are then left with no income until work is available.

INSUFFICIENT INFORMATION AND
MULTIPLE AGENCIES
ADMINISTERING H-2A PROGRAM
CAN MAKE PROGRAM
PARTICIPATION MORE DIFFICULT
-------------------------------------------------------- Chapter 0:4.6

Employers, advocates, and agency officials expressed frustration
about the poor information on H-2A procedures. Labor's handbook on
the H-2A Labor certification process includes information that is
outdated, hard to understand, and incomplete. Program participants
can also be confused by the multiple agencies and levels of
government involved in the H-2A program, which fosters redundant
agency oversight and the inability to determine compliance with
program requirements. In some states, for example, employer-provided
farmworker housing is subject to federal, state, and local housing
regulations and must be inspected by multiple agencies. Some
redundancy may also result in employers misunderstanding program
requirements. Employers and employer and labor advocates in
California, for example, told GAO that tents for farmworkers were
effectively prohibited because they had to be heated and cooled.
However, both federal and state housing officials said that tents are
permitted and that air-conditioning is not required.

WORKER PROTECTION PROVISIONS
ARE DIFFICULT TO ENFORCE
-------------------------------------------------------- Chapter 0:4.7

Violations of H-2A worker protection provisions, including the
requirement that foreign guestworkers be guaranteed wages equivalent
to at least three-quarters of the amount specified for the entire
contract period, are difficult to identify and enforce. H-2A
guestworkers may be less aware of U.S. laws and protections than
domestic workers, and they are unlikely to complain about worker
protection violations, such as the three-quarter guarantee, fearing
they will lose their jobs or will not be hired in the future. Labor,
for example, received no complaints from workers employed by H-2A
employers in fiscal year 1996, even though GAO's analysis suggests it
is likely that some workers did not receive their guaranteed wages.
In general, Labor officials reported that it is hard to ensure that
abusive employers do not participate in the H-2A program.

Labor officials also noted operational impediments in enforcing these
protections. For example, the three-quarter guarantee is only
applicable at the end of the contract period, and H-2A workers must
leave the country soon after the contract ends. Labor officials said
that monitoring the three-quarter guarantee is difficult because they
cannot interview workers after they return to Mexico to confirm their
work hours and earnings. These enforcement difficulties 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 honor the
three-quarter guarantee or pay for the workers' transportation home.
And if a worker abandons the contract, it can be very difficult to
determine whether he or she has left the country or is instead
remaining and taking jobs from domestic workers.

The H-2A program requires that agricultural employers provide H-2A
workers the same minimum wages, benefits, and working conditions as
those provided to domestic workers employed in "corresponding
employment." 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 the Employment
Service,\3 unless the employer informs the state employment service
of a delay in the date of need at least 10 days in advance. However,
no provisions are made to provide the same guarantee to H-2A workers,
resulting in a disparity of treatment and the potential for personal
hardship for foreign workers.

--------------------
\3 The U.S. Employment Service, part of Labor's ETA, is a national
system of public employment service offices, supported by federal
funds and operated by the states, which provide employment services
to individuals seeking employment and to employers seeking workers.

AGENCIES COULD HANDLE A
MAJOR INCREASE IN PROGRAM
WORKLOAD WITH ADDITIONAL
RESOURCES
-------------------------------------------------------- Chapter 0:4.8

In the unlikely event of a national farm labor shortage, Labor, INS,
and state employment service officials told GAO they could handle an
unanticipated, major, short-term increase in program workload. In
the event of a significant, sustained national increase in the demand
for agricultural guestworkers, however, Labor and INS officials
agreed that they would need additional resources to effectively
process the increased number of applications. Although the
administration's Domestic Policy Council has met with officials from
Labor, INS, USDA, and State to address this issue, no proposals are
currently available for review.

RECOMMENDATIONS
---------------------------------------------------------- Chapter 0:5

To improve the H-2A program's ability to meet the needs of
agricultural employers while protecting the wages and working
conditions of farmworkers, GAO is making recommendations to the
Congress, the Attorney General, and the Secretary of Labor. These
recommended actions would improve service to employers by allowing
them to request workers 45 days in advance of need rather than
requiring 60-day notice. This shorter time period could be met by
(1) removing INS from the petition approval process and (2) having
Labor more closely monitor its performance in meeting deadlines. The
recommendations also maintain protection for domestic workers by
keeping the same number of days allowed for recruitment of domestic
workers prior to certification of a labor shortage, and better
protect H-2A workers by extending to them the same guarantee of
first-week wages that now applies to domestic workers in
corresponding employment and by revising the regulations regarding
the three-quarter wage guarantee. Other recommendations would
improve service to both employers and workers by providing them
better information about the program and consolidating enforcement
responsibilities within Labor.

AGENCY COMMENTS AND GAO'S
EVALUATION
---------------------------------------------------------- Chapter 0:6

Labor, the State Department, and USDA all commented on a draft of
this report. Labor and State, agencies responsible for implementing
GAO's recommendations, generally agreed with the report's findings
and most of its recommendations. For example, Labor concurred with
GAO's 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, while
agreeing with some of GAO's 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. (See apps. VIII, IX, and X for Labor's,
State's, and USDA's comments, respectively.)

Labor specifically agreed with GAO's finding that "a farm labor
shortage does not now exist and is unlikely in the foreseeable
future." However, it also contended that there is evidence of a farm
labor surplus, and also noted the potential for implementation of
work requirements of the recent welfare reform legislation to provide
agricultural labor.

Labor suggested two revisions to GAO's recommendations. 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 three-quarter guarantee and return transportation
reimbursement obligations. While Labor agreed to evaluate possible
solutions to this problem, it said 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. Labor also suggested a revision to the recommendation
regarding authority to suspend employers with serious labor standard
or H-2A contract violations: The agency suggested that the authority
should be extended to the Wage and Hour Division of the Employment
Standards Administration rather than transferring it from ETA. GAO
revised both recommendations accordingly.

Although USDA agreed with some of the draft report's findings,
conclusions, and recommendations, it submitted detailed comments on
aspects of the draft report that it believed were either inaccurate
or require clarification. These comments can be grouped into several
broad areas concerning GAO's analysis of (1) conditions in
agricultural labor markets; (2) the magnitude and consequences of INS
enforcement operations; (3) H-2A program operations, specifically
late filings 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.
For example, although USDA did not explicitly disagree with the
finding that widespread labor shortages do not currently exist, it
contended that the central issue is whether an adequate supply of
qualified labor is currently available to agricultural employers.
Information provided by USDA does not alter GAO's assessment that the
overwhelming weight of the evidence indicates that widespread farm
labor shortages do not currently exist and are unlikely to occur in
the near future. While USDA takes issue with individual components
of GAO's analysis, the current quantitative analysis of key market
indicators, coupled with the numerous in-depth interviews with
agricultural employers, associations, and other interested parties,
provides a reliable assessment of current farm labor market
conditions.

Justice's INS, Labor, and USDA provided technical comments, which
were included where appropriate. The Department of State had no
substantive or technical comments.

INTRODUCTION
============================================================ Chapter 1

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.\4 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.\5

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.)

--------------------
\4 See 8 U.S.C. 1101(a)(15)(H)(ii)(a).

\5 Estimates of the size of the agricultural workforce differ. As of
July 1997, the Department of Agriculture (USDA) reported about 1.4
million workers employed on farms. This includes both field and
livestock workers hired directly and from contractors. The
Commission on Agricultural Workers noted in November 1992 that a
reasonable estimate would be 2.5 million workers in the United States
performing farmwork at some time during the course of a year. Using
its own and USDA data, the National Agricultural Workers Survey
estimated that there are about 1.6 million field workers. See A
Profile of U.S. Farmworkers: Demographics, Household Composition,
Income and Use of Services (Washington, D.C.: U.S. Department of
Labor, Apr. 1997), p. 31.

BACKGROUND
---------------------------------------------------------- Chapter 1:1

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.\6 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.\7 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.\8 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.\9 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.\10 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.\11

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.\12 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\13 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."\14

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.

--------------------
\6 The H-2B program allowed employers to import foreign workers to
perform nonagricultural temporary or seasonal service or labor.

\7 The procedures of the H-2A program are very similar to the
operations of the agricultural provisions of the former H-2 program.

\8 Foreign farmworkers employed under the H-2A program are not
covered by MSPA.

\9 The Occupational Safety and Health Act of 1970 allows states to
operate their own safety and health programs as long as they are
determined by OSHA to be at least as effective as the federal OSHA
program. Currently, 25 states operate their own programs to enforce
at least some OSHA standards. However, after February 1997, only 14
states and territories retained enforcement responsibility for field
sanitation standards.

\10 Before IRCA was enacted, MSPA, which was enacted in 1983,
prohibited migrant farmworker contractors from recruiting or
employing illegal aliens.

\11 "Perishable crops" is defined as "fruit, vegetable, and
horticultural specialty production," a classification that includes
the production of most labor-intensive crops. Fruit includes
berries, grapes, citrus fruits, deciduous tree fruits, avocados,
bananas, coffee, dates, figs, olives, pineapples, tropical fruit, and
tree nuts. Vegetable includes all vegetables and melons grown in the
open. Horticultural specialties includes bedding plants, bulbs,
florists' greens, flower and vegetable seeds, flowers, foliage, fruit
stocks, nursery stock, ornamental plants, shrubberies, sod,
mushrooms, and vegetables grown under cover.

\12 Report of the Commission on Agricultural Workers, Commission on
Agricultural Workers (Washington, D.C.: Nov. 1992).

\13 See P.L. 101-649, sec. 141.

\14 U.S. Commission on Immigration Reform, Legal Immigration:
Setting Priorities (Washington, D.C.: U.S. Commission on
Immigration Reform, 1995), p. 173.

SCOPE AND METHODOLOGY
---------------------------------------------------------- Chapter 1:2

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
============================================================ Chapter 2

LOCAL LABOR SHORTAGES ARE
POSSIBLE, BUT NO NATIONAL
AGRICULTURAL LABOR SHORTAGE
APPEARS TO EXIST
---------------------------------------------------------- Chapter 2:1

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
-------------------------------------------------------- Chapter 2:1.1

The limited data available make it difficult to directly measure a
market imbalance such as a farm labor shortage.\15 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.\16 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.\17

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.\18

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.\19

--------------------
\15 A shortage can be defined as a situation in which the number of
farm job vacancies persistently exceeds the number of farm labor job
seekers at the current wage rate or with moderate wage increases.
However, the assumptions made about the operation of a particular
labor market will have implications for the concept of a farm labor
shortage. For example, the simplest economic model of a labor market
specifies that in the event of a shortage (an excess of jobs over
available workers) market forces (rising wage rates) should work to
eliminate that shortage. However, many economists believe that labor
markets do not behave the same way as product (for example, shirts or
fish) markets, and thus must be analyzed differently. (See Robert M.
Solow, The Labor Market as a Social Institution (Cambridge, Mass.:
Basil Blackwell, 1990).) A more dynamic model of labor market
adjustment would acknowledge that employers may react in a variety of
ways, not only possibly by increasing wages but also by increasing
recruitment efforts or reducing production. An analysis of such
dynamics can explain labor shortages if adjustment speed is slow or
if there are barriers to adjustment. (See Malcolm S. Cohen, Labor
Shortages as America Approaches the Twenty-first Century (Ann Arbor,
Mich.: University of Michigan Press, 1996).)

\16 Between June 1995 and July 1996, the U.S. Employment Service
received 188,139 applications at its state offices from workers
classified as migrant and seasonal farmworkers. Of this number,
91,549 were referred to agricultural employment, and 64,847 of these
workers were placed in jobs. See The Annual Report of the U.S.
Employment Service, Program Year 1995 (Washington D.C.: Department
of Labor, June 1996), p. E-3.

\17 For example, if an occupation had a high vacancy rate and a high
unemployment rate it could mean that insufficient information about
the occupation (for example, wage rates, location of employment, and
skill level) was preventing workers and employers from being matched.
It could mean that there were rigidities in geographic mobility (for
example, employment was located in inaccessible areas). See Cohen,
Labor Shortages as America Approaches the Twenty-first Century, p.
12.

\18 For example, if an employer had to locate and interview many
workers for a particular occupation before finding one with the
appropriate skills and if workers could not easily search for this
job, an occupational labor shortage could exist even with an area
with an unemployment rate significantly above zero.

\19 According to traditional economic theory, if the demand for labor
exceeds supply, wages will be bid up by employers: thus, rapidly
rising wages are consistent with a labor shortage. However, if, for
example, changes in production techniques or worker effort result in
the individual employee becoming more productive, hourly rates could
rise without the presence of a labor shortage even if farmworkers are
paid under constant or falling piece rates. Piece-rate payment is
fairly common among agricultural workers. NAWS estimated that for
fiscal year 1995, about 24 percent of all field workers, who work
primarily in fruits and vegetables, received a piece-rate form of
compensation for at least part of their earnings.

AMPLE SUPPLIES OF FARM LABOR
APPEAR TO BE AVAILABLE IN
MOST AREAS
-------------------------------------------------------- Chapter 2:1.2

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.\20 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.\21

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.\22

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.\23

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.\24 (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.)\25 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.\26

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.)

--------------------
\20 IRCA provided agricultural employers additional protection from
labor shortages through its Replenishment Agricultural Worker (RAW)
provisions, which would have permitted employers to legally bring in
foreign workers if Labor and USDA had determined that a labor
shortage existed. The provision, in place for four fiscal years
beginning in FY 1990 and expired in FY 1994, was never triggered,
with both departments consistently agreeing that domestic labor
supplies were adequate to meet agricultural employers' demands for
such workers. The Commission on Agricultural Workers at the time
also agreed with this assessment, reporting that "there [was] an
oversupply of workers in most agricultural labor markets." Report of
the Commission on Agricultural Workers (Washington D.C.: Nov.
1992).

\21 See A Profile of U.S. Farm Workers: Demographics, Household
Composition, Income and Use of Services (Washington, D.C.: U.S.
Department of Labor, Apr. 1997), p. 36.

\22 As of 1992, the latest year for which detailed county data were
available from USDA, these 20 counties accounted for over 50 percent
of the dollar value of all fruit and tree nut production in the
United States, 47 percent of the dollar value of all vegetables, and
about 16 percent of the total national dollar value of nursery and
greenhouse production.

\23 Agriculture is a seasonal industry, so it is possible that some
areas could have low unemployment rates during the labor-intensive
part of the year, such as during harvest time, but still show high
annual rates of joblessness. However, our analysis of monthly
unemployment rates during this period showed high rates (above 7
percent) throughout the period January 1994 through June 1997 for
most of the 20 counties.

\24 California's Santa Barbara and San Diego counties received
partial waivers. Of the 20 counties, 13 received full waivers under
the 10 percent unemployment rate provision while 7 received full or
partial waivers under the "insufficient jobs" provisions.

\25 It should also be noted that for the period 1989-95, USDA's
National Agricultural Statistics Service (NASS) data on hourly farm
wages showed a smaller decline in real terms than that exhibited by
the BLS average hourly wage rate for all nonagricultural workers--2.7
percent compared with 3.6 percent. However, the NAWS data on hourly
wage rates, which, unlike NASS or BLS data, are based on the survey
responses of workers rather than employers, showed an 8.5-percent
decline over the same period. Some experts argue that the decline in
real farm wages detected by both NASS and NAWS would be even greater
if not for an increase in the minimum wage enacted during this
period.

\26 This trend should be interpreted with caution because it does not
include agricultural employment obtained through farm labor
contractors and because many agricultural labor markets experience
considerable turnover. However, available evidence suggests, at a
minimum, considerable underemployment in agriculture. NAWS data for
1995 show that, on a monthly basis, over 40 percent of all crop
workers were not employed in agriculture over the entire year, even
during peak periods. See A Profile of U.S. Farm Workers:
Demographics, Household Composition, Income and Use of Services, p.
36.

LOCALIZED LABOR SHORTAGES
MAY EXIST IN INDIVIDUAL
CROPS AND FOR SPECIFIC
GEOGRAPHICAL AREAS
-------------------------------------------------------- Chapter 2:1.3

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.\27 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.

--------------------
\27 Changes in field worker wages appear to have a fairly small
impact on consumer produce prices. For example, one estimate found
that a 1-percent increase in real farm worker wages would increase
the real costs of fruits and vegetables by about 0.4 percent. The
study concluded that the long-term effect on retail prices of fruits
and vegetables of removing all illegal farmworkers would be about 3
percent, with a 6-percent price increase in the short term. See
Wallace Huffman and Alan McCunn, How Much Is That Tomato in the
Window? Retail Produce Prices Without Illegal Farmworkers
(Washington, D.C.: Center for Immigration Studies, Feb. 1996).
However, the study also assumed that such unauthorized workers
accounted for only 17 percent of the agricultural workforce, while
current estimates from NAWS are 37 percent.

INS ENFORCEMENT EFFORTS ARE NOT
LIKELY TO SIGNIFICANTLY REDUCE
THE AVAILABILITY OF
AGRICULTURAL LABOR
---------------------------------------------------------- Chapter 2:2

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
-------------------------------------------------------- Chapter 2:2.1

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.\28 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.

--------------------
\28 During that period, many of the workers legalized under the SAW
program left agriculture and were replaced by workers who were not
authorized to work. Of the 18 percent of all farmworkers who were in
their first year of farm work during fiscal year 1995, 70 percent
were unauthorized foreigners. See A Profile of U.S. Farmworkers:
Demographics, Household Composition, Income and Use of Services.

FEW INS ENFORCEMENT
RESOURCES ARE DIRECTED AT
WORKSITE ENFORCEMENT
-------------------------------------------------------- Chapter 2:2.2

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.\29
See app. V for the distribution of enforcement actions by INS
region.

Figure 2.1: INS Staff Years by
Type of Investigation, Fiscal
Year 1996

(See figure in printed
edition.)

\a Consists of participation on Violent Criminal Alien Gang and
Drug-Related Activity task forces.

--------------------
\29 Of the 304 staff years, 224 were devoted to worksite enforcement
and the remaining 80 were devoted primarily to investigations and to
apprehending "status" violations, for example, people who enter the
country without going through border inspection but are not suspected
of criminal behavior.

FEW INS ENFORCEMENT
RESOURCES ARE DIRECTED
TOWARD AGRICULTURAL
EMPLOYERS, AND FEW
AGRICULTURAL WORKERS ARE
ARRESTED
-------------------------------------------------------- Chapter 2:2.3

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
-------------------------------------------------------- Chapter 2:2.4

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.\30 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.

--------------------
\30 Law-abiding employers may hire workers not legally authorized to
work in the United States because the law specifies that the employer
is in violation of the law only to the extent that he or she knows
that the worker is illegal. Employers who obtain the required
documentation from workers may unknowingly hire illegal workers if
the worker provides fraudulent documents.

REMOVING ILLEGAL ALIENS FROM
DOMESTIC FARM LABOR FORCE IS
EXPENSIVE AND DIFFICULT
-------------------------------------------------------- Chapter 2:2.5

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
-------------------------------------------------------- Chapter 2:2.6

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
-------------------------------------------------------- Chapter 2:2.7

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.\31

--------------------
\31 Current law requires that the employer obtain a copy of the
employee's documentation that he or she is a U.S. citizen or
otherwise authorized to work and examine it to ensure that it is not
an obvious forgery. However, the employer is not required to ensure
that the information contained on the document is accurate.

H-2A PROGRAM CAN BE IMPROVED TO
BETTER MEET THE NEEDS OF
AGRICULTURAL EMPLOYERS AND WORKERS
============================================================ Chapter 3

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
---------------------------------------------------------- Chapter 3:1

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.

Figure 3.1: H-2A Process for
Obtaining Permission to Bring
in Foreign Workers

(See figure in printed
edition.)

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.

Figure 3.2: Time Requirements
for Applying for Agricultural
Workers Under the H-2A Program

(See figure in printed
edition.)

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
---------------------------------------------------------- Chapter 3:2

Employers are certified for most of the H-2A workers they request,
regardless of the skill level required.\32 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.)

Figure 3.3: Country of Origin
for H-2A Workers Has Shifted
From Jamaica to Mexico, 1987-96

(See figure in printed
edition.)

--------------------
\32 The skill levels of H-2A workers vary with their occupation.
Most H-2A workers are field workers employed in the harvesting of
crops, which has limited skill requirements. However, some H-2A
workers are engaged in higher-skilled occupations such as
sheepherding and operating combines. The vast majority of
applications for these occupations were also approved.

COMPLETING CERTIFICATION AND
VISA PROCESSING BY DATE OF NEED
MAY NOT PROVIDE WORKERS WHEN
NEEDED BY EMPLOYERS
---------------------------------------------------------- Chapter 3:3

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
---------------------------------------------------------- Chapter 3:4

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.\33 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.\34

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.

--------------------
\33 For 46 applications, we were unable to determine the timeliness
of submission because information was missing about either the date
of need or the certification date.

\34 In two cases, there was no information as to when Labor received
the application.

LABOR LACKS MANAGEMENT DATA
NECESSARY TO DETERMINE AND
CORRECT PROBLEMS IN
COMPLYING WITH STATUTORY AND
REGULATORY TIME REQUIREMENTS
-------------------------------------------------------- Chapter 3:4.1

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
-------------------------------------------------------- Chapter 3:4.2

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.\35

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.

--------------------
\35 These data do not include seven cases for which acceptance and
rejection dates were missing. Our analysis of data from all ETA
regions indicates that timeliness is a problem in most regions.

LABOR LACKS INFORMATION ON
THE FREQUENCY, CAUSE, AND
TIMELINESS OF EMERGENCY
APPLICATIONS
-------------------------------------------------------- Chapter 3:4.3

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
---------------------------------------------------------- Chapter 3:5

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.\36

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.

--------------------
\36 INS officials told us that they have considered proposals to
delegate the agency's role in the approval of H-2A petitions.

STATE DEPARTMENT HAS PROCESSED
SUBSTANTIALLY MORE H-2A VISAS
IN RECENT YEARS
---------------------------------------------------------- Chapter 3:6

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.)

Figure 3.4: Number of H-2A
Visas Processed, Fiscal Years
1987-97

(See figure in printed
edition.)

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.

MOST H-2A VISA
APPLICATIONS ARE FILED IN
GROUPS
------------------------------------------------------ Chapter 3:6.0.1

Officials at both consulates reported that they require appointments
for applications for groups of H-2A workers. Most of the petitions
are initiated by a single employer or "handler" on behalf of multiple
applicants; very few petitions are filed for individual applicants.
The employer or handler (a representative of the employer who
recruits and/or organizes the workers) generally selects which
consulate to use and schedules the appointment. According to H-2A
workers and advocates, handlers may charge a fee to each individual
worker within the group. The consulates are not obliged to notify
the petitioner that the approved petition has arrived, but they
sometimes do so. The employer or handler usually keeps in touch with
the consulates to find out, among other things, when the INS visa
approval arrives. Consulate officers also reported that H-2A
handlers and employers are usually repeat applicants, familiar with
the process and consular staff.

All H-2A applicants must submit a valid passport and Nonimmigrant
Visa Application (form OF-156), and pay a $20 processing fee. At
Monterrey, this fee is paid before the visit through a local bank
designated by the State Department. Monterrey consulate officials
told us that the applicant must have a receipt from the bank in order
to be admitted into the consulate.

Once the paperwork and processing fee are submitted, the consular
officer begins the process of adjudication, leading to either
approval or denial of the petition. First the consulate official
checks to make sure that there is a valid labor certification and INS
petition approval. Consulate officials told us that the officer is
also responsible for ensuring that the applicant has a residence
abroad and intends to return home. To do this, the officer may
interview the applicant and review the paperwork and record of
previous trips, if any, and determine the nature of ties with family
and friends in the homeland. At Hermosillo, consular staff interview
applicants individually, in a group, or on a spot-check basis.
Because Monterrey gets so many H-2A applicants, such interviews take
place only if a problem arises. The officer is required to run the
name of each applicant through the Consular Lookout and Support
System (CLASS), a database of individuals known or believed to be
ineligible for visas to enter the United States, to ensure that the
applicant is not barred from entering the country.

Although applicants can be rejected if, for example, they cannot
document their residence, this happens infrequently. The Hermosillo
consulate issued 709 H-2A visas in fiscal year 1996 and rejected an
estimated 5 petitions, or less than 1 percent. Monterrey issued
9,568 H-2A visas that year and rejected 38 petitions, also less than
1 percent.

If the applicant clears the CLASS review and all paperwork is in
order, State approves the petition and the applicant pays a visa fee,
which differs by visa category. The consulates do not track the
processing times for approving petitions and issuing visas, but both
consulates reported that visas are usually issued the same day the
applicant visits the consulate to apply for it. It may take days or
weeks, however, from the time the consulate receives the I-129
petition until the visa is issued, if an applicant delays scheduling
an appointment or visiting the consulate. Officials at the
consulates stated that current resources allow them to process all
the H-2A visas they receive, although the Monterrey consulate had to
turn away an estimated 40,000 tourist visa applicants in fiscal year
1996 because of resource constraints. If one consulate did set a
limit on the number of visas it could process in a day, however, the
applicant could choose to apply for a visa at the other consulate.

INS MAKES FINAL
DETERMINATION AT BORDER
-------------------------------------------------------- Chapter 3:6.1

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
-------------------------------------------------------- Chapter 3:6.2

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.\37 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.\38

--------------------
\37 See Illegal Immigration: INS Overstay Estimation Methods Need
Improvement (GAO/PEMD-95-20, Sept. 26, 1995).

\38 The Illegal Immigration Reform and Immigrant Responsibility Act
of 1996 requires INS to take measures to address this problem.

INVOLVEMENT OF MULTIPLE LEVELS
OF GOVERNMENT AND AGENCIES MAY
RESULT IN REDUNDANT OVERSIGHT
ACTIVITIES AND PARTICIPANT
CONFUSION
---------------------------------------------------------- Chapter 3:7

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
-------------------------------------------------------- Chapter 3:7.1

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.)

Figure 3.5: Multiple Agencies
Enforce Farmworker Protections
in New York

(See figure in printed
edition.)

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
-------------------------------------------------------- Chapter 3:7.2

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
---------------------------------------------------------- Chapter 3:8

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
-------------------------------------------------------- Chapter 3:8.1

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
-------------------------------------------------------- Chapter 3:8.2

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
---------------------------------------------------------- Chapter 3:9

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
--------------------------------------------------------- Chapter 3:10

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
--------------------------------------------------------- Chapter 3:11

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.\39

--------------------
\39 We were unable to obtain employers' and labor advocates'
perspectives on the feasibility of implementing plans that were not
yet available for discussion.

CONCLUSIONS AND RECOMMENDATIONS
============================================================ Chapter 4

CONCLUSIONS
---------------------------------------------------------- Chapter 4:1

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
---------------------------------------------------------- Chapter 4:2

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
============================================================ Chapter 5

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
---------------------------------------------------------- Chapter 5:1

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
---------------------------------------------------------- Chapter 5:2

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
-------------------------------------------------------- Chapter 5:2.1

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 [nonimmigrant foreign] 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.\40

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."\41 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.

--------------------
\40 See The H-2A Program: Protections for U.S. Farmworkers
(GAO/PEMD-89-3, Oct. 21, 1988).

\41 GAO/PEMD-89-3, Oct. 21, 1988, p. 75.

USDA RAISED CONCERNS ABOUT
THE IMPACT OF INS
ENFORCEMENT OPERATIONS
-------------------------------------------------------- Chapter 5:2.2

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.

USDA also stated that

"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
-------------------------------------------------------- Chapter 5:2.3

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
-------------------------------------------------------- Chapter 5:2.4

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 "[t]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
-------------------------------------------------------- Chapter 5:2.5

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 "[the sheepherder] 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
-------------------------------------------------------- Chapter 5:2.6

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.

PRIMARY CONGRESSIONAL CONTACTS IN
ADDITION TO REPORT ADDRESSEES
=========================================================== Appendix I

UNITED STATES SENATE
------------------------------------------------------- Appendix I:0.1

The Honorable Susan M. Collins
The Honorable Larry E. Craig
The Honorable Lauch Faircloth
The Honorable Slade Gorton
The Honorable Jon Kyl
The Honorable Frank R. Lautenberg
The Honorable Jack Reed
The Honorable John D. Rockefeller IV
The Honorable Ron Wyden

HOUSE OF REPRESENTATIVES
------------------------------------------------------- Appendix I:0.2

The Honorable Howard L. Berman
The Honorable Elton Gallegly
The Honorable Bob Goodlatte
The Honorable Steven C. LaTourette
The Honorable Richard W. Pombo
The Honorable Lamar Smith

OBJECTIVES, SCOPE, AND METHODOLOGY
========================================================== Appendix II

The Illegal Immigration Reform and Immigrant Responsibility Act of
1996 (IIRIRA) and the Omnibus Consolidated Appropriations Act, 1997,
mandated that GAO review various aspects of the H-2A nonimmigrant
guestworker program. In discussions with congressional staff, we
agreed to combine the two mandates and restate the questions. The
restated questions, which were distributed to the relevant committees
and key congressional contacts on the terms of work, are reprinted
here. The terms of work include codes in brackets after each
question--for example, [M1] and [M2]--to provide a link from the
questions to the specific requests in the IIRIRA mandate.

For reporting purposes, we combined these questions into two broader
questions: evaluate (1) the likelihood of an agricultural labor
shortage and its impact on the need for nonimmigrant foreign
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 foreign
guestworkers is needed in the future.

Figure II.1: Terms of the Work

(See figure in printed
edition.)

METHODOLOGY
-------------------------------------------------------- Appendix II:1

To address these questions, we (1) interviewed federal and state
officials and nongovernmental persons such as representatives of
agricultural associations, labor advocates, and academic experts; (2)
collected documents from federal and state agencies as well as
private sources; (3) analyzed qualitative and quantitative data from
federal and state agencies and private employers; (4) reviewed
published studies; and (5) conducted a legal review of the statutory
and regulatory requirements of the H-2A program.

INTERVIEWS
------------------------------------------------------ Appendix II:1.1

To obtain information about each of the assignment's objectives, we
interviewed pertinent Labor officials, including those within ETA's
Employment Service and those responsible for overseeing the H-2A
program; officials at OSHA; WHD; the Office of the Solicitor; and the
Directorate of Policy. We also held discussions with regional Labor
officials, including program monitor advocates and WHD staff.\42
Throughout the assignment, we coordinated our efforts with staff from
Labor's Office of Inspector General (OIG), who are currently
conducting a review of the U.S. Employment Service role in
facilitating the H-2A guestworker program.\43 We also held
discussions with state program monitor advocates and officials who
conduct the H-2A program housing inspections. In addition, we
interviewed state job service and health department officials in the
three states that used the most H-2A workers in 1996--North Carolina,
New York, and Virginia--and the state producing the largest dollar
value in agriculture--California.

We conducted discussions with officials at USDA and the State
Department including officials at several consulate offices located
in Mexico and officials from INS' investigations offices and the
Border Patrol. To assess the potential of serious labor shortages
occurring from enhanced INS and border patrol enforcement efforts at
agricultural worksites, we interviewed INS officials at their Office
of Statistics and Office of Enforcement, regional offices, and INS
processing centers; and with Border Patrol officials at headquarters
and in the regions to identify their official enforcement targeting
priorities and the current level of enforcement resources directed to
agriculture. We also observed a typical INS enforcement operation at
a worksite in Woodstock, Virginia.

We met with a wide variety of agricultural employers, workers, and
advocates. We interviewed 12 H-2A growers distributed across six
states and 35 non-H-2A growers distributed regionally across nine
states. These growers represented a wide array of agricultural
activities, including fruit, tree nut, vegetable, tobacco, and tree
nursery production, and sheep ranching. We also interviewed
officials from 28 agricultural employer associations throughout the
country, including the National Council of Agricultural Employers,
the national office and selected state chapters of the American Farm
Bureau Federation, and regional organizations like the Florida Fruit
and Vegetable Association and the Nisei League. We also met with
agricultural associations that file H-2A applications as joint
employers, including the North Carolina Growers Association, the
Virginia Agricultural Growers Association, the New England Apple
Council, and others. We interviewed over 30 farmworkers, both H-2A
and non-H-2A, and visited numerous agricultural worksites. We held
discussions with 18 farm labor advocates from 15 states throughout
the country, including representatives of the Farmworker Justice
Fund, unions such as the United Farm Workers, church groups, and
community organizations.

We conferred with a number of experts on farm labor and immigration
issues, including economists, legal experts, research methodologists
from academia, and researchers and officials associated with the 1992
Commission on Agricultural Workers and the U.S. Commission on
Immigration Reform. We consulted with several of these experts
throughout the assignment to facilitate our understanding of the H-2A
program's operation and other key issues.

--------------------
\42 In response to a 1974 district court decision (NAACP v. Labor),
Labor's Employment Service was required to create a group of monitor
advocates--individuals charged with monitoring the treatment of
farmworkers by state job services to ensure equitable treatment as
well as to advocate for the improvement in the employment and working
conditions of farmworkers. These monitor advocates were assigned to
each of Labor's 10 regions throughout the country, and each state job
service was to provide for a network of such advocates throughout the
agency.

\43 Among other issues, the OIG is reviewing Labor's adherence to
agency procedures regarding the H-2A program's statutory and
regulatory affirmative recruitment requirements. The OIG expects to
complete its work by April 1998. We coordinated our efforts with the
OIG's office to minimize duplication in our data collection efforts
and to reduce any administrative burden caused by our reviews on
federal and state agencies and private employers.

DOCUMENT REVIEW
------------------------------------------------------ Appendix II:1.2

We collected and reviewed documents on the H-2A program's procedures,
including its application forms and requirements, implementing
regulations, and procedures for filing appeals of adverse rulings.
We obtained documents from ETA specifying those counties and other
jurisdictions of the country that had been designated as "labor
surplus" areas and the criteria used for such designations. We
collected documents from INS on its enforcement priorities and its
procedures for approving H-2A applications. We obtained resource
data from Labor on the H-2A program and from INS on its enforcement
efforts and H-2A-related activities. We also obtained information on
areas of the country that had received waivers from the Secretary of
Agriculture from the modifications in food stamp eligibility as
specified in the Personal Responsibility and Work Opportunity
Reconciliation Act of 1996.\44

--------------------
\44 Section 6(o) of the Food Stamp Act, as amended by section 824 of
the Personal Responsibility and Work Opportunity Act, provides that,
among other criteria, an individual is ineligible for the program if
he or she previously received benefits but did not work an average of
20 hours per week for at least a 3-month period. However, the
provision also says that, on the request of a state agency, the
Secretary of Agriculture may waive these provisions for any group of
individuals in the state if the Secretary determines that the area in
which the individuals reside has an unemployment rate of over 10
percent or does not have sufficient numbers of jobs to employ the
individuals.

DATA ANALYSIS
------------------------------------------------------ Appendix II:1.3

We collected and analyzed data from a number of different sources, as
follows:

-- Labor's National Agricultural Workers Survey (NAWS). Since
1988, NAWS has collected detailed information on the basic
demographics, legal status, education, family size and household
composition, wages, and working conditions of seasonal
agricultural services workers, including their participation in
the nonagricultural U.S. labor force.\45 NAWS also collects
information on hourly and piece-rate wage rates, farm labor
housing, health care, and many other aspects of field labor
working conditions.

-- USDA's National Agricultural Statistics Service (NASS). We
collected and analyzed data on hourly and piece-rate wage rates,
and total employment for field and all hired agricultural
workers from the late 1980s to July 1997, the most recent period
available. We also analyzed data on various agricultural
characteristics of U.S. counties, including the total number of
farms, their distribution by the amount of annual sales and
acreage, and time series data on total acreage, and value of
production and tonnage for fruit, tree nut, vegetable, and
floracultural production. We also analyzed data on the total
value of production in fruits, tree nuts, vegetable nurseries,
and greenhouse production for the 100 counties with the largest
dollar value of production in each of these areas.

-- Labor's Bureau of Labor Statistics (BLS). We analyzed BLS data
on monthly and annual unemployment rates for 20 counties with
high fruit, tree nut, and vegetable production as measured in
dollars, for states and the nation, for 1994 through June 1997.
We also collected and reviewed annual and monthly unemployment
rates for agricultural wage and salary workers from January 1948
through September 1997.

-- Justice's INS enforcement action data. We analyzed data on all
INS enforcement actions conducted since 1994 to determine the
number of actions targeted to agricultural worksites and how
that number has changed over time. We also analyzed INS data
regarding the number of H-2A program participants who overstayed
their contract period for 1994 through 1996.

-- Labor's H-2A program certification processing data. We analyzed
data on all H-2A applications processed by each of Labor's
regional offices, including the number of workers requested, the
date of application and certification, the number of the
petitioning grower associations and the individual growers they
represent, and other information. We analyzed these data to
determine the percentage of all certifications that did not meet
all statutory and regulatory time requirements. For those
applications determined to be late, we contacted the individual
regional office to identify and analyze the reasons for the
delay. We also obtained data from H-2A program officials at
headquarters on the number of applications and employers by
crop, by state, and by number of workers requested.

-- States' visa data. We analyzed data on the number of H-2A visas
issued by country of origin for fiscal years 1987 through 1997.

-- Association data. We analyzed detailed data obtained from
Labor's OIG on the operations of a large provider of H-2A
workers. These data include details on the employers who obtain
workers from the association, and on both domestic and H-2A
workers for the 1996 season.

--------------------
\45 Three times annually, NAWS surveys a random sample of about 2,500
of the nation's crop farmworkers. To ensure regional coverage, NAWS
uses site area sampling to obtain a nationally representative cross
section of field workers. To incorporate seasonal sensitivities,
three 6- to 8-week survey cycles are conducted, in January, May, and
September of each year. Site selection and interview allocations are
proportional to seasonal payroll size. NAWS obtains employer names
from various government sources and generates a random sample of
agricultural employers for each of the selected sites. NAWS
representatives contact selected employers to obtain access to the
worksite. Interviewers visit the worksite and ask a random sample of
workers to participate. Interviews occur at workers' homes or at
worker-selected locations. See Department of Labor, Office of the
Assistant Secretary for Policy, A Profile of U.S. Farmworkers:
Demographics, Household Composition, Income and Use of Services
(Washington, D.C.: Department of Labor, Apr. 1997).

LITERATURE REVIEW
------------------------------------------------------ Appendix II:1.4

To address issues concerning the status of the national agricultural
labor market and the potential for a national labor shortage, we
reviewed pertinent literature on the definition and measurement of
labor shortages generally; consulted with economists familiar with
local and national agricultural labor markets; and conducted
interviews with officials from Labor and USDA, farm labor advocates,
agricultural employer associations, and individual growers. We also
reviewed the literature on the history and role of guestworkers in
American agriculture and the implications of such programs for
national immigration policy.

LEGAL ANALYSIS
------------------------------------------------------ Appendix II:1.5

We reviewed existing statutory and regulatory requirements to
identify any potential impediments that could constrain the H-2A
program from expanding or operating quickly in an emergency
situation. We also conducted a legal review of the program's general
certification process, its appeals procedure, and the rights and
remedies available to H-2A and non-H-2A workers.

ECONOMIC DATA ON U.S. FARMWORKERS
AND AGRICULTURAL PRODUCTION
========================================================= Appendix III

This appendix contains data on various economic characteristics of
U.S. farmworkers and agricultural production, including total
employment rates, average hourly and piece-rate wages, annual and
monthly unemployment rates for the nation and selected states and
counties, total acreage, and the value of certain types of
agricultural production. We also present information on selected
areas of the country that received waivers from USDA as a result of
recently enacted legislative changes in food stamp eligibility.

Table III.1

Annual and Monthly Unemployment Rates
for 20 Counties With Significant
Production in Fruits, Tree Nuts, and
Vegetables, 1994-96 and June 1997

(Numbers in percent)

Monthly
Average annual unemployment unemployme
Geographic area rate nt rate
---------------- ---------------------------- ----------
1994 1995 1996 June 1997
---------------- -------- -------- -------- ----------
County\a
----------------------------------------------------------
Fresno County, 13.8 14.1 13 12.4
Calif.
Imperial County, 26.2 29.3 29.4 24.6
Calif.
Kern County, 14.7 13.9 12.7 11.4
Calif.
Madera County, 14.8 15 14.1 13.4
Calif.
Merced County, 15.5 17.1 16.2 14.1
Calif.
Monterey County, 12.1 12.4 11 7.2
Calif.
Riverside 10.5 9.5 8.2 7.2
County, Calif.
San Diego 7 6.4 5.3 4.4
County, Calif.
San Joaquin 12.6 12.3 11.2 10.8
County, Calif.
Santa Barbara 7.2 6.7 5.7 4.1
County, Calif.
Stanislaus 15.7 15.5 14 13.5
County, Calif.
Tulare County, 16 16.8 15.9 13.9
Calif.
Ventura County, 7.8 7.5 7.1 5.9
Calif.
Collier County, 8.2 7 5.8 5.9
Fla.
Dade County, 8.4 7.4 7.3 7.8
Fla,
Hendry County, 16.7 15.1 13.9 19.5
Fla.
Palm Beach 8.8 7.2 6.7 6.9
County, Fla.
St. Lucie 14.3 12.4 12.2 11.6
County, Fla.
Yuma County, 32.1 29 31 32.7
Ariz.
Yakima County, 11.7 12.6 13.4 8.1
Wash.

State
----------------------------------------------------------
California 8.6 7.8 7.2 6.3
Florida 6.6 5.5 5.1 5.2
Arizona 6.4 7.8 5.5 4.9
Washington 6.4 6.4 6.5 4.7

Country
----------------------------------------------------------
United States 6.1 5.6 5.4 5.2
----------------------------------------------------------
\a As of 1992, the latest year for which data were available from
USDA, these 20 counties accounted for over 50 percent of the dollar
value of all fruit and tree nut production in the United States, 47
percent of the dollar value of all vegetables, and 16 percent of the
total national dollar value of nursery and greenhouse production.

Table III.2

Food Stamp Waiver and Labor Surplus Area
Designations for 20 Counties With
Significant Production in Fruits, Tree
Nuts, and Vegetables, 1997

Scope of labor
Scope of surplus area
food stamp Reason for designation,\d
eligibility USDA fiscal year
County\a waiver\b waiver\c 1997
---------------- ------------ ---------- --------------
Fresno County, Entire Over 10 Entire county
Calif. county percent
unemployme
nt rate

Imperial, Entire Over 10 Entire county
County, Calif. county percent
unemployme
nt rate

Kern, Calif. Entire Over 10 Entire county
county percent
unemployme
nt rate

Madera County, Entire Over 10 Entire county
Calif. county percent
unemployme
nt rate

Merced County, Entire Over 10 Entire county
Calif. county percent
unemployme
nt rate

Monterey County, Entire Over 10 Excludes
Calif. county percent cities of
unemployme Monterey and
nt rate Salinas

Riverside Entire Insufficie Excludes city
County, Calif. county nt jobs of Palm Desert

San Diego Cities of Insufficie Not designated
County, Calif. Chula Vista, nt jobs as labor
El Cajon, surplus area
Imperial
Beach, Lemon
Grove,
National
City,
Oceanside,
and Vista

San Joaquin Entire Over 10 Entire county
County, Calif. county percent
unemployme
nt rate

Santa Barbara Lompoc City, Insufficie Not designated
County, Calif. Santa Maria nt jobs as labor
surplus area

Stanislaus Entire Over 10 Entire county
County, Calif. county percent
unemployme
nt rate

Tulare County, Entire Over 10 Entire county
Calif. county percent
unemployme
nt rate

Ventura County, Entire Insufficie Excludes
Calif. county nt jobs cities of
Camarillo,
Moorpark, Simi
Valley,
Thousand Oaks,
and Ventura

Collier County, Entire Insufficie Entire county
Fla. county nt jobs

Dade County, Entire Insufficie Excludes
Fla. county nt jobs entire county
except for
cities of
North Miami,
Hialeah,
Homestead,
Miami Beach,
and Miami

Hendry County, Entire Over 10 Entire county
Fla. county percent
unemployme
nt rate

Palm Beach Entire Insufficie Excludes
County, Fla. county nt jobs cities of Boca
Raton,
Jupiter, and
Palm Beach
Gardens

St. Lucie Entire Over 10 Entire county
County, Fla. county percent
unemployme
nt rate

Yuma County, Entire Over 10 Entire county
Ariz. county percent
unemployme
nt rate

Yakima County, Entire Over 10 Entire county
Wash. county percent
unemployme
nt rate
----------------------------------------------------------
\a These 20 counties accounted for about half of the total national
value of production in fruits, tree nuts, and vegetables in 1992, the
latest year for which data were available.

\b Section 6(o) of the Food Stamp Act, as amended by section 824 of
the Personal Responsibility and Work Opportunity Reconciliation Act
of 1996, provides that, among other criteria, a person is ineligible
for the program if he or she previously received benefits but did not
work at least 20 hours per week for at least a 3-month period.
However, the provisions also say that, on the request of a state
agency, the Secretary of Agriculture may waive these provisions for
specified persons in the state. USDA issued most of the waivers to
the designated counties during early 1997.

\c The Secretary of Agriculture may waive current food stamp
eligibility provisions if he determines that the area in which the
persons reside has an unemployment rate of over 10 percent or has an
insufficient number of jobs to provide employment for program
participants. Among other evidence, designation of an area by Labor
as a labor surplus area can be considered by the Secretary that an
insufficient number of jobs are available.

\d Labor classifies a civil jurisdiction as a labor surplus area when
that jurisdiction's average unemployment rate is at least 20 percent
above the average national unemployment rates during the previous 2
calendar years. During periods of high unemployment, an area can be
classified as a labor surplus area if it has unemployment rates of 10
percent or more during the previous 2 calendar years. Labor may also
designate areas if an area 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. Labor
designates labor surplus areas on a fiscal-year basis. Designated
labor surplus areas are eligible for preference in bidding on federal
procurement contracts.

Sources: USDA and Department of Labor.

Table III.3

Average Hourly Wages of Agricultural
Workers, 1989-96

NASS NAWS
average average
hourly hourly
NASS wage for NAWS farm wage,
average field average all crop
annual workers, annual workers,
hourly in hourly in
wage rate constant farm rate, constant
for field 1996 all crop 1996
Year workers\a dollars\b workers\c dollars
---------- ---------- ---------- ---------- ----------
1989 $5.12 $6.48 $5.24 $6.63
1990 5.23 6.28 5.23 6.28
1991 5.49 6.32 5.56 6.41
1992 5.69 6.36 5.33 5.96
1993 5.90 6.41 5.45 5.92
1994 6.02 6.37 5.54 5.87
1995 6.13 6.31 5.89 6.06
1996 6.34 6.34 Not Not
available available
Percentage 19.73 -2.7 12.40 -8.54
change,
1989-95
----------------------------------------------------------
\a USDA, NASS.

\b Wages in constant 1996 dollars were calculated using the Consumer
Product Index for all urban consumers (1982-84=100), modified to 1996
as the base year. See Economic Report of the President, table B-58
(Washington, D.C.: U.S. Government Printing Office, Feb. 1997).
p. 365. NASS defines a field worker as an employee engaged in
planting, tending, and harvesting crops, including operation of farm
machinery on a crop farm. The NAWS definition of crop worker is
comparable to NASS' definition of field worker.

\c Data are from the Department of Labor, NAWS, 1989-95.

Table III.4

Average Hourly Piece-Rate Wages of
Agricultural Workers, 1989-95

NAWS
average
hourly
wage
rates,
NASS NAWS crop
average average workers
NASS annual hourly receiving
average piece rate wages, piece-
annual wages, all crop rate
hourly hired workers compensati
piece- workers, receiving on only,
rate in piece- in
wages, all constant rate constant
hired 1996 compensati 1996
Year workers\a dollars on only\b dollars
---------- ---------- ---------- ---------- ----------
1989 $6.65 $8.41 $6.86 $8.68
1990 6.55 7.86 6.82 8.19
1991 6.43 7.41 7.52 8.66
1992 6.43 7.19 6.19 6.92
1993 6.42 6.97 6.81 7.39
1994 7.02 7.43 6.55 6.93
1995 7.03 7.24 7.01 7.22
Percentage 5.71 -13.99 2.19 -16.86
change,
1989-95
----------------------------------------------------------
\a NASS defines all hired workers as anyone other than an
agricultural service worker who is paid for at least 1 hour of
agricultural work on a farm or ranch. NASS defines a field worker as
an employee engaged in planting, tending, and harvesting crops,
including operation of farm machinery on a crop farm. Average annual
hourly piece rates are those wages paid to employees in a piece-rate
form of compensation. NAWS' definition of crop worker is similar to
NASS' definition of field worker.

\b Unpublished data from the Department of Labor, NAWS, Oct. 1997.

\c Wages in constant 1996 dollars were calculated using the Consumer
Price Index for all urban consumers (1982-84=100), modified to 1996
as the base year.

Table III.5

Total Annual Acreage, Tonnage and Dollar
Value of National Fruit and Vegetable
Production, and Numbers of Workers
Employed, 1986-97

Total Total Total peak
Total production value of employment
acreage (short production , direct
(in tons in (in hired
Year thousands) thousands) millions) workers\a
---------- ---------- ---------- ---------- ----------
1986 5,752 46,712 $9,983 1,233
1987 5,905 51,268 10,905 1,270
1988 5,953 51,465 12,330 1,200
1989 6,096 55,996 13,240 1,197
1990 6,139 53,971 12,649 1,106
1991 6,097 54,711 13,576 1,113
1992 6,071 55,808 13,890 1,032
1993 6,044 57,815 13,921 1,062
1994 6,282 61,846 14,025 1,047
1995 6,307 60,805 15,141 1,066
1996 \b \b \b 1,015
1997 \b \b \b 1,068

Percentage change
----------------------------------------------------------
1986-95 9.64 30.17 51.67 \b
1987-97 \b \b \b -15.90
----------------------------------------------------------
\a Number of workers hired directly by agricultural employers as of
July of each year. This column does not include agricultural service
workers--workers hired through labor contractors. Including data on
the peak employment levels of agricultural service workers results in
a decline in total peak agricultural employment of about 6 percent to
about 1.4 million between July 1986 and July 1997.

\b Not available.

CHARACTERISTICS OF H-2A
PARTICIPANTS
========================================================== Appendix IV

Table IV.1 provides information on the number of H-2A workers
entering the United States by country of origin from 1987 to 1996.
In 1987, the majority of workers came from Jamaica. By 1996, the
majority of workers came from Mexico.

Table IV.1

H-2A Workers Entering the United States,
by Country of Origin, Fiscal Year 1987-
96

Rate in
percent for Total by
Country 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1996 country
------------------ -------- -------- -------- -------- --------- -------- -------- -------- -------- -------- ------------ --------------
=====================================================================================================================================================
Total, Africa 1 2 4 14 3 2 .01 26
=====================================================================================================================================================
Total, Asia 8 14 19 1 40 1 5 2 7 7 5 3 . 01 238
Great Britain and 2 39 12 16 23 10 7 8 12 5 .03 134
Northern Ireland
Poland 16 15 37 53 10 11 18 31 .2 191
Other 62 72 38 23 12 9 10 19 19 .1 264
=====================================================================================================================================================
Total, Europe 2 101 100 69 83 75 26 29 49 55 .4 589
Barbados 416 321 263 60 1,060
Dominica 100 100 110 23 333
Dominican Republic 16 16 19 22 27 17 21 19 .1 157
Jamaica 11,414 12,609 12,051 13,881 10,815 8,355 6,099 5,697 4,483 4,231 27.8 89,635
Mexico 2,499 3,683 4,993 6,216 5,829 6,655 7,156 7,744 10,353 67.9 55,128
St. Lucia 562 565 580 209 1,916
St. Vincent 552 550 620 290 2,012
Other 67 29 38 81 23 16 34 9 14 .09 311
=====================================================================================================================================================
Total, North 13,111 16,673 17,361 18,890 17,707 14,220 12,794 12,897 12,257 14,617 95.9 150,527
America
Australia 15 18 20 23 32 22 38 31 .2 199
New Zealand 7 8 68 103 74 98 97 74 .5 529
=====================================================================================================================================================
Total, Oceania 22 26 88 126 106 120 135 105 .7 728
Chile 53 53 81 73 57 72 70 .5 459
Peru 116 140 198 277 308 294 341 383 2.5 2,057
Other 1 1 4 2 4 12
=====================================================================================================================================================
Total, South 117 194 255 360 385 351 413 453 3.0 2,528
America
=====================================================================================================================================================
Total 13,113 16,782 17,614 19,199 18,273 14,798 13,342 13,418 12,862 15,235 154,636
-----------------------------------------------------------------------------------------------------------------------------------------------------
Note: These data include both H-2A workers receiving a visa from the
Department of State and Caribbean H-2A workers organized by WICLO
entering without a visa.

No data are available on the geographic distribution of H-2A
employers or H-2A workers employed. However, we analyzed data on the
distribution of H-2A applications and workers requested across the
country to obtain a general picture of where employers are located
and where workers are going. (See table IV.2.) Applications are
often filed for groups of employers but must be filed with the ETA
region where the worker is to be employed. Workers certified does
not equal the number of H-2A workers employed because employers may
not fill all approved positions, may fill positions with H-2A workers
transferred from other employers, reduce the number of workers
requested because of a lack of housing, or withdraw emergency
applications. For example, in 1996 ETA certified 17,537 H-2A job
openings, while 15,235 H-2A workers, or 87 percent of those workers,
entered the United States. Figure IV.1 shows the geographic
distribution of applications and workers certified in fiscal year
1996. Table IV.2 shows applications and workers requested and
certified, by region, fiscal years 1994 through 1997.

Figure IV.1: Distribution of
Applications and Workers
Certified, by Region, Fiscal
Year 1996

(See figure in printed
edition.)

Note: Region I (Boston) includes Connecticut, Maine, Massachusetts,
New Hampshire, Rhode Island, and Vermont. Region II (New York)
includes New Jersey, New York, Puerto Rico, and the Virgin Islands.
Region III (Philadelphia) includes Delaware, the District of
Columbia, Maryland, Pennsylvania, Virginia, and West Virginia.
Region IV (Atlanta) includes Alabama, Florida, Georgia, Kentucky,
Mississippi, North Carolina, South Carolina, and Tennessee. Region V
(Chicago) includes Illinois, Indiana, Michigan, Minnesota, Ohio, and
Wisconsin. Region VI (Dallas) includes Arkansas, Louisiana, New
Mexico, Oklahoma, and Texas. Region VII (Kansas City) includes Iowa,
Kansas, Missouri, and Nebraska. Region VIII (Denver) includes
Colorado, Montana, North Dakota, South Dakota, Utah, and Wyoming.
Region IX (San Francisco) includes Arizona, California, Hawaii,
Nevada, and Guam. Region X (Seattle) includes Alaska, Idaho, Oregon,
and Washington.

Table IV.2

Number and Result of Applications for H-
2A Certifications, by Region, Fiscal
Year 1994-97

1994 1995 1996 1997\a
---------------- -------- -------- -------- ----------
Region I (Boston)
----------------------------------------------------------
Applications 363 361 389 245
Workers 2,556 3,364 3,446 3,115
requested
Workers 2,518 2,963 3,129 2,970
certified

Region II (New York)
----------------------------------------------------------
Applications 143 0 162 101
Workers 2,324 0 2,438 888
requested
Workers 2,318 0 2,415 888
certified

Region III (Philadelphia)
----------------------------------------------------------
Applications 24 25 23 14
Workers 1,721 2,999 3,150 3,101
requested
Workers 1,690 2,994 3,134 3,069
certified

Region IV (Atlanta)
----------------------------------------------------------
Applications 118 158 275 454
Workers 4,507 4,728 7,200 10,383
requested
Workers 2,352 4,531 5,362 8,585
certified

Region V (Chicago)
----------------------------------------------------------
Applications 1 0 4 7
Workers 200 0 368 400
requested
Workers 200 0 368 334
certified

Region VI (Dallas)
----------------------------------------------------------
Applications 73 73 98 103
Workers 523 490 828 889
requested
Workers 523 486 827 889
certified

Region VII (Kansas City)
----------------------------------------------------------
Applications 10 21 14 18
Workers 51 157 128 182
requested
Workers 51 157 128 138
certified

Region VIII (Denver)
----------------------------------------------------------
Applications 383 373 201 300
Workers 928 902 769 1,212
requested
Workers 905 898 752 1,208
certified

Region IX (San Francisco)
----------------------------------------------------------
Applications 485 471 397 339
Workers 1,058 1,184 936 827
requested
Workers 998 1,142 934 819
certified

Region X (Seattle)
----------------------------------------------------------
Applications 167 291 254 291
Workers 713 631 589 700
requested
Workers 618 538 508 600
certified

Total
----------------------------------------------------------
Applications 1,767 1,773 1,817 1,872
Workers 14,581 14,455 19,852 21,697
requested
Workers 12,173 13,709 17,557 19,500
certified
----------------------------------------------------------
Note: The number of orders (applications) does not equal the number
of employers and the number of workers requested does not equal the
exact number of H-2A workers employed. However, the data provide a
general picture of where employers are located and where workers are
going.

\a Applications for fiscal year 1997 include only those filed through
June 30, 1997 (the first 9 months of the fiscal year), with the
exception of region X, which includes applications through August 27,
1997.

Although national data are not available on the gender and age of
H-2A workers, agency officials and employers report that there are
few, if any, female H-2A workers. Also, H-2A workers are
unaccompanied because the State Department consulates usually do not
issue visas to family members because of concern that the worker will
have less incentive to return home. This differs from the
characteristics of domestic workers, where one in every five is
female, according to NAWS estimates and nearly half of all domestic
farmworkers live in living situations that include family members.
Moreover, it is illegal to refuse to hire a domestic farmworker
because he or she has a family, and H-2A requires that H-2A employers
provide housing for families of domestic farmworkers when it is the
prevailing practice in the area.

Data on the ages of H-2A workers are unavailable. However, an
analysis of data from a major employer of H-2A workers shows that a
majority of its 4,500 H-2A workers in fiscal year 1996 were younger
than 33 years. This is similar to the age distribution of domestic
farmworkers, as estimated by NAWS. (See fig. IV.2.)

Figure IV.2: Comparison of Age
Distribution of Domestic
Workers With H-2A Workers at a
Major H-2A Employer, Fiscal
Year 1996

(See figure in printed
edition.)

INS WORKSITE ENFORCEMENT
ACTIVITIES, FISCAL YEAR 1996
=========================================================== Appendix V

Figure V.1 shows the distribution of worksite enforcement cases
involving agriculture- related employers identified as closed in INS'
database of employer sanctions (worksite enforcement) cases, by
region and by district. These are based on the report generated on
every completed employer sanctions case, including both lead-driven
investigations and randomly selected compliance inspections.

Figure V.1: INS Worksite
Enforcement Activities
Completed at
Agriculture-Related Employers,
October 1996-July 1997

(See figure in printed
edition.)

Notes: Agriculture-related employers in this figure are those whose
Standard Industrial Code begins with 01 (Agricultural Production), 02
(Agricultural Production--Livestock), or 07 (Agricultural Services).

Figure does not include all cases completed during this time period.
According to INS, there is a 2- to 3-month lag between when cases are
completed and the reports are submitted and keyed into the
Investigations database. This includes all cases in the database as
of July 17, 1997. Figure also does not include the 39 cases closed
by Border Patrol personnel.

The Office of Field Operations oversees three regional offices that
direct the activities of 33 districts and 21 Border Patrol sectors
throughout the United States. The district offices are listed in
table V.1.

Table V.1

INS District Offices, by Region

Number of
closed
Office cases
----------------------------------------------------------- ---------
Western Region: Laguna Niguel, Calif.<
----------------------------------------------------------------------
Anchorage, Alaska 1
Honolulu, Hawaii 2
Los Angeles, Calif. 18
Phoenix, Ariz. 57
Portland, Oreg. 9
San Diego, Calif. 8
San Francisco, Calif. 26
Seattle, Wash. 5

Central Region: Dallas, Tex.
----------------------------------------------------------------------
Bloomington, Minn. 9
Chicago, Ill. 15
Dallas, Tex. 5
Denver, Colo. 2
El Paso, Tex. 23
Harlingen, Tex. 3
Helena, Mont. 14
Houston, Tex. 15
Kansas City, Mo. 13
Omaha, Neb. 1
San Antonio, Tex. 12

Eastern Region: South Burlington, Vt.<
----------------------------------------------------------------------
Arlington, Va. 1
Atlanta, Ga. 5
Baltimore, Md. 7
Boston, Mass. 1
Buffalo, N.Y. 8
Cleveland, Oh. 35
Detroit, Mich. 6
Miami, Fla. 2
Newark, N.J. 0
New Orleans, La. 13
New York, N.Y. 29
Philadelphia, Pa. 10
Portland, Me. 3
San Juan, P.R. 2
----------------------------------------------------------------------

STAKEHOLDER PERSPECTIVES ON WORKER
PROTECTION REQUIREMENTS UNDER H-2A
PROGRAM
========================================================== Appendix VI

Issue Requirement Stakeholder perspectives GAO comments
-------------- ----------------- ---------------------------- ------------------------
50-percent Employers must Protects domestic workers SESAs reported that they
rule hire any from job displacement by did not send workers to
qualified foreign workers. H-2A employers after the
domestic worker beginning of the
who applies for a Some stated that it is contract period. State
job until 50 overly burdensome to hire and federal Labor
percent of the domestic workers after H-2A officials stated that
contract period certification is approved even when domestic
has elapsed. and the date of need has workers are hired,
been reached. enough work is available
such that few, if any,
H-2A workers are
returned home as a
result of the provision.

Adverse effect An employer must The AEWR may help to protect We did not assess the
wage rate pay the same the wages and employment AEWR to determine its
(AEWR) minimum wage or opportunities of domestic effectiveness in
rate of pay to farmworkers. protecting the wages and
U.S. workers and employment of domestic
H-2A workers. The Some say that the AEWR rate farmworkers.
rate, set by calculations inappropriately
Labor, must also result in wage rates that H-2A employers continue
be at least as are too high. Others charge to participate--and most
high as the that the resulting wage have done so for many
applicable AEWR, rates are too low to years--despite paying
the minimum wage, sufficiently protect AEWR rates to foreign or
or the prevailing domestic workers and that domestic workers.
wage rate, AEWR acts as a "glass
whichever is ceiling" for agricultural H-2A employers are not
highest. wages. required to pay Social
Security taxes or
Unemployment Insurance
taxes for foreign
workers, somewhat
mitigating the
potentially higher AEWR
rate.

Housing Employers must Ensures workers a safe and See ch. 3.
provide housing healthy workplace and
that is certified reduces burden on community. Redundant oversight can
as meeting needlessly create a
minimum health Some employers expressed regulatory burden on
and safety concerns about the employers. Providing
standards, free difficulty in obtaining temporary housing could
of charge to all permission to construct reduce the cost and
H-2A workers . permanent housing and about regulatory burden of
overly restrictive housing this provision on
standards. Multiple levels employers.
of government involvement
result in conflicting and
redundant housing
inspections.

Some workers expressed
concerns about inadequacy of
standards, such as absence
of a requirement to provide
door locks on the building.

Transportation Employers must Provides incentives for the As discussed in chap. 3,
(1) reimburse worker to remain with the compliance with this
workers for the employer. It can also requirement is difficult
cost of provide incentives and to monitor and enforce.
transportation opportunity for monitoring In addition,
and subsistence worker's return to country reimbursement for
from the place of of origin. transportation home
recruitment to requires the worker to
the place of work Worker advocates expressed complete the contract.
after workers concern about workers not This may be affected by
have completed 50 being adequately reimbursed the availability of work
percent of the as a result of disagreements toward the end of the
work contract over the appropriate point contract period.
period, (2) of departure and destination
provide free and the mode of
transportation transportation.
between any
required housing
site and the
worksite, and (3)
pay for workers'
transportation
home or to the
next job site
upon completion
of the work
contract.

Positive Employers must See ch. 3. Labor OIG report on this
recruitment actively try to matter is to be issued
recruit U.S. in spring 1998.
workers,
including See ch. 3.
advertising in
newspapers and on
the radio, in
areas of expected
labor supply.
Efforts must be
equivalent to
efforts of non-
H-2A employers.

Three-quarter Employers must See ch. 3. See ch. 3.
guarantee offer each worker
employment for at
least three-
fourths of the
workdays in the
work contract
period, including
any extensions.

Appeals See app. VII. Because almost all Because almost all
certifications, visa certifications, visa
petitions, and visas are petitions, and visas are
approved, the appeal approved, the appeal
procedures are largely procedures are largely
unused. unused.
-----------------------------------------------------------------------------------------

APPEAL RIGHTS DURING THE H-2A
PROCESS
========================================================= Appendix VII

Point of appeal Appeal rights
------------------ --------------------------------------------------
ETA rejects H-2A An employer can send a request, along with a copy
application for to ETA, for an expedited administrative review to
second time. the Chief Administrative Law Judge within 7 days
of ETA's rejection notice. ETA must then send a
copy of the case file to the judge. The judge must
act on the employer's request within 5 days of
receiving the case file.

ETA denies labor An employer has the same rights as when an
certification at application is rejected.
least 20 days
before date of
need.

INS denies Only the employer has appeal rights; no such
petition rights exist for H-2A workers.
requesting
workers.

Department of An alien may appeal a visa denial under limited
State consular circumstances. Appeals are made to the chief
officer denies consular officer who may reverse, uphold, or refer
worker's request the decision to the Department for an advisory
for visa. opinion, which is binding only to the extent it
involves a legal interpretation.

INS denies worker After an alien is initially refused permission to
entry into the enter the United States, the case is referred to
United States at an immigration judge for a hearing. If
the border. dissatisfied with the judge's decision, the alien
can appeal to the Board of Immigration Appeals. If
unsatisfied with the Board's ruling, the alien can
ask the Board to reopen or reconsider the case,
but such a decision is within the sole discretion
of the Board.
----------------------------------------------------------------------

(See figure in printed edition.)Appendix VIII
COMMENTS FROM THE DEPARTMENT OF
LABOR
========================================================= Appendix VII

(See figure in printed edition.)

Now on p. 61.

(See figure in printed edition.)

(See figure in printed edition.)Appendix IX
COMMENTS FROM THE DEPARTMENT OF
STATE
========================================================= Appendix VII

(See figure in printed edition.)Appendix X
COMMENTS FROM THE U.S. DEPARTMENT
OF AGRICULTURE
========================================================= Appendix VII

(See figure in printed edition.)

Appendix XI GAO CONTACTS AND STAFF ACKNOWLEDGMENTS

GAO CONTACTS
------------------------------------------------------- Appendix VII:1

Charles A. Jeszeck, Assistant Director, (202) 512-7036
Lise L. Levie, Evaluator-in-Charge, (202) 512-7030

STAFF ACKNOWLEDGMENTS
------------------------------------------------------- Appendix VII:2

The following team members also made important contributions:
Carolyn S. Blocker, Evaluator; Anu K. Mittal, Assistant Director;
Robert D. Sampson, Senior Evaluator; Ronni Schwartz, Senior
Evaluator; and Edward H. Tuchman, Evaluator.

Other significant contributors to this report included Elizabeth T.
Morrison and Nancy L. Crothers, Communications Analysts, who
assisted with writing and editing; Robert G. Crystal, Assistant
General Counsel, who provided legal research; Robert DeRoy, Assistant
Director, who provided statistical analyses; Ann P. McDermott,
Publishing Adviser, who developed the graphics; Linda W. Stokes,
Senior Evaluator, who oversaw the start of this assignment; Joan K.
Vogel, Evaluator, who provided computer analyses; and Paul C.
Wright, who acted as interpreter with agricultural workers.

RELATED GAO PRODUCTS
============================================================ Chapter 1

Illegal Immigration: Southwest Border Strategy Results Inconclusive;
More Evaluation Needed (GAO/GGD-98-21, Dec. 11, 1997).

Passports and Visas: Status of Efforts to Reduce Fraud
(GAO/NSIAD-96-99, May 9, 1996).

Border Patrol: Staffing and Enforcement Activities (GAO/GGD-96-65,
Mar. 11, 1996).

Illegal Immigration: INS Overstay Estimation Methods Need
Improvement (GAO/PEMD-95-20, Sept. 26, 1995).

Illegal Aliens: National Net Cost Estimates Vary Widely
(GAO/HEHS-95-133, July 25, 1995).

Illegal Aliens: Assessing Estimates of Financial Burden on
California (GAO/HEHS-95-22, Nov. 28, 1994).

Benefits for Illegal Aliens: Some Program Costs Increasing, but
Total Costs Unknown (GAO/T-HRD-93-33, Sept. 29, 1993).

Illegal Aliens: Despite Data Limitations, Current Methods Provide
Better Population Estimates (GAO/PEMD-93-25, Aug. 5, 1993).

Sugar Program: Changing Domestic and International Conditions
Require Program Changes (GAO/RCED-93-84, Apr. 16, 1993).

Foreign Farm Workers in U.S.: Department of Labor Action Needed to
Protect Florida Sugar Cane Workers (GAO/HRD-92-95, June 30, 1992).

Immigration and the Labor Market: Nonimmigrant Alien Workers in the
United States (GAO/PEMD-92-17, Apr. 28, 1992).

Immigration Reform: Employer Sanctions and the Question of
Discrimination (GAO/GGD-90-62, Mar. 29, 1990).

Immigration Reform: Potential Impact on West Coast Farm Labor
(GAO/HRD-89-89, Aug. 17, 1989).

The H-2A Program: Protections for U.S. Farmworkers (GAO/PEMD-89-3,
Oct. 21, 1988).

*** End of document. ***