H-2A Agricultural Guestworkers: Status of Efforts to Improve Program
Services (Testimony, 06/15/2000, GAO/T-HEHS-00-134).

Pursuant to a congressional request, GAO discussed the status of the
Department of Labor's (DOL) efforts to improve the H-2A agricultural
guestworker program services.

GAO noted that: (1) GAO believes that the principal conclusions of its
December 1997 report continue to be valid; (2) a sudden, widespread farm
labor shortage requiring the entry of large numbers of foreign workers
continues to be unlikely now or in the near future, although localized
shortages could emerge for specific crops or geographic areas; (3)
although many farmworkers are not legally authorized to work in the
United States, the Immigration and Naturalization Service's (INS)
enforcement efforts are still unlikely to significantly reduce the
aggregate number of unauthorized farm workers; (4) while comparatively
few agricultural employers seek workers through the H-2A program, those
that do continue to be generally successful in obtaining workers; (5) in
1997, GAO determined that poor information on H-2A program access and
the involvement of many agencies in the program could result in
redundant oversight and confuse employers that are considering
participation and that DOL was not always processing applications in a
timely manner; and (6) while DOL and INS have made progress in taking
the steps to improve the program's operations, key changes remain to be
implemented, particularly those that would permit DOL to assess the
timeliness of its applications processing and to improve protections for
domestic and H-2A agricultural workers.

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

 REPORTNUM:  T-HEHS-00-134
     TITLE:  H-2A Agricultural Guestworkers: Status of Efforts to
	     Improve Program Services
      DATE:  06/15/2000
   SUBJECT:  Alien labor
	     Temporary employment
	     Agricultural industry
	     Migrant or seasonal worker programs
	     Labor supply
	     Interagency relations
IDENTIFIER:  DOL H-2A Program
	     DOL National Agricultural Workers Survey

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GAO/T-HEHS-00-134

   * For Release on Delivery
     Expected at 11:00 a.m.

Thursday, June 15, 2000

GAO/T-HEHS-00-134

H-2A AGRICULTURAL GUESTWORKERS

Status of Changes to Improve Program Services

        Statement of Cynthia M. Fagnoni, Director

Education, Workforce, and Income Security Issues

Health, Education, and Human Services Division

Testimony

Before the Subcommittee on Immigration and Claims, Committee on the
Judiciary, Hosue of Representatives

United States General Accounting Office

GAO

H-2A Agricultural Guestworkers: Status of Changes to Improve Program
Services

Mr. Chairman and Members of the Subcommittee:

We are pleased to be here today to contribute to the ongoing discussion
regarding our nation's immigration policy and the role guestworker programs
should play in that policy. Immigration is a tense and controversial
subject, with the H-2A agricultural guestworker program representing some of
the most passionate as well as complex aspects of this issue. The H-2A
program provides a vehicle for U.S. agricultural employers to bring legal,
nonimmigrant foreign workers into the United States to perform temporary
seasonal agricultural work when domestic workers are unavailable. As we
reported in 1997, about 15,000 workers, or less than 1 percent of the total
agricultural workforce, were admitted under the H-2A program in 1996.
Comparable data are not yet available for fiscal year 1999. However, the
Department of Labor certified 41,827 workers in fiscal year 1999, compared
with 17,557 workers in fiscal year 1996, suggesting a significant growth in
the use of the program.

Today, I would like to review the key findings and conclusions of our
December 1997 report, in which we assessed the H-2A program's ability to
meet the needs of agricultural employers while protecting U.S. and foreign
agricultural workers, both in the present and if a significant number of
guestworkers were to be needed in the future. I will also review the steps
we recommended to reduce the burden of the H-2A program on agricultural
employers while better protecting domestic and H-2A workers and the progress
that the cognizant agencies have made in implementing those recommendations.

In summary, we believe that the principal conclusions of our 1997 report
continue to be valid. More specifically, a sudden, widespread farm labor
shortage requiring the entry of large numbers of foreign workers continues
to be unlikely now or in the near future, although localized shortages could
emerge for specific crops or geographic areas. Although many farmworkers are
not legally authorized to work in the United States, INS enforcement efforts
are still unlikely to significantly reduce the aggregate number of
unauthorized farm workers. While comparatively few agricultural employers
seek workers through the H-2A program, those that do continue to be
generally successful in obtaining workers. In 1997, we determined that poor
information on H-2A program access and the involvement of many agencies in
the program could result in redundant oversight and confuse employers that
are considering participation and that Labor was not always processing
applications in a timely manner. While Labor and INS have made progress in
taking the steps we recommended to improve the program's operations, key
changes remain to be implemented, particularly those that would permit Labor
to assess the timeliness of its applications processing and to improve
protections for domestic and H-2A agricultural workers.

Background

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 wages, benefits, and working conditions to H-2A workers that are
provided to domestic workers employed in "corresponding employment."

A Widespread Farm Labor Shortage Is Unlikely in the Near Future, Although
Localized Shortages Are Possible

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

Since our report, the national economy has continued to prosper. National
unemployment declined from 4.9 percent in 1997 to 4.2 percent in 1999.
Nevertheless, recent CRS work on this issue suggests that our earlier
assessment accurately captures the current conditions of the national
agricultural labor market. CRS based its conclusion on a variety of economic
data that are inconsistent with an agricultural labor shortage scenario. (1)
Employment of hired farmworkers, including contract workers, fluctuated
erratically during the 1990s and actually declined in 1998 by 1.2 to 1.4
percent, in contrast to the growth in total U.S. employment. (2) The
national unemployment rate for hired farmworkers has remained above 10
percent since 1994, has increased since 1997, and at 11.8 in 1998, has
remained well above the national average. (3) There was no discernible
variation in the average number of weekly hours that hired farmworkers were
employed in crop or livestock production throughout the 1990s. (4) The
underemployment of farmworkers remains substantial, with the number of days
crop workers employed on farms diminishing from an average of 186 days per
worker in fiscal years 1993-95 to 174 days per worker in fiscal years
1996-98. And (5) while farmworkers' average hourly wages increased at a
slightly faster rate than those of workers in the nonfarm private sector
between 1990 and 1998, farmworkers continue to earn little more than $0.50
for every dollar earned by other private sector workers. The CRS study
concluded that "indicators of supply-demand conditions generally are
inconsistent with the existence of a nationwide shortage of domestically
available farmworkers at the present time . . . . " Again consistent with
our conclusions, the CRS report did not preclude the potential for localized
farmworker shortages during various times of the year.

Data from the latest NAWS survey are also consistent with the conclusions of
our 1997 report. If a labor shortage existed, one might expect larger than
average increases in hourly agricultural wage rates. Although real wage
rates for crop workers increased between 1997 and 1998, the latest years for
comparison, they remain 10 percent lower than the average agricultural wage
rates in 1989.

INS Enforcement Efforts Are Unlikely to Significantly Reduce the Number of
Unauthorized Farmworkers

The prevalence of such a large number of unauthorized and fraudulently
documented farmworkers would leave individual employers vulnerable to sudden
labor shortages if INS were to target enforcement efforts at their
individual establishments. At the time of our 1997 report, fears of such
targeting appeared to be unfounded. INS officials around the country were
unanimous in their statements that they did not expect their enforcement
efforts to have any general effect on the supply of farm labor, either
nationally or regionally, given the large number of fraudulently documented
farmworkers and competing enforcement priorities. At that time, most of INS'
investigation resources were 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.
Few investigations involved agricultural employers, and INS officials did
not expect a significant increase in enforcement efforts directed at
agriculture in the near future. We also acknowledged that although INS
efforts were under way to improve employers' ability to identify fraudulent
documents, these efforts were still in the early stages and were not likely
to have any significant effect 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 was unknown.

We believe this conclusion remains accurate for several reasons. Since our
report, the percentage of INS' investigations dedicated to worksite
enforcement programs has not changed significantly. As we reported in 1997,
about 5 percent of the 4,600 investigations completed in fiscal year 1996
involved employers in agricultural production or services, with 40 percent
of these involving employers in industries not associated with H-2A,
landscapers, lawn maintenance firms, and veterinarians. In fiscal year 1999,
INS completed about 3,900 investigations of employers, with about 7 percent
directed at agricultural workplaces.

INS is also in the process of changing its approach to worksite enforcement.
It has developed a new interior enforcement strategy with two worksite
enforcement priorities-one calling for INS to pursue the criminal
investigation of employers that are flagrant or grave violators and the
other aimed at blocking and removing employers' access to unauthorized
workers. With respect to this second priority, INS acknowledged the
limitations of worksite investigations-"raids"-and is focusing on the
crucial employer role in creating an effective deterrent to illegal
immigration. It will now work to educate and foster employer cooperation to
deny employment to unauthorized workers. INS has not specified how many
resources it intends to devote to such employer compliance efforts. Since
INS plans to implement its strategy over the next 5 years, it is too soon to
know how the proposed changes will be implemented or to assess their effect
on the employment of unauthorized workers in agriculture.

In addition, as we reported in 1999, despite several ongoing INS
initiatives, the employment verification process still remains susceptible
to fraud. INS continues to test three pilot programs in which employers
electronically verify employees' eligibility to work. However, employer
participation in the pilot programs under way has been significantly less
than INS anticipated-only 1,658 employers in all industries as of June 2000
are participating, and only 425 of these are employers in agricultural
production or services.

Finally, INS has made little progress toward its goal of reducing the number
of documents that employers can accept for determining employment
eligibility. In February 1998, INS issued proposed regulations to reduce the
number of documents that can be used from 27 to 14. However, INS received
numerous comments on the proposed regulations, and INS officials do not know
when these regulations will be made final. INS has also begun issuing new
documents with increased security features, which it hopes will make it
easier for employers to verify the documents' authenticity. However, aliens
are statutorily permitted to show employers various documents other than the
INS documents that authorize them to work, and other widely used documents
(for example, Social Security cards and birth certificates) do not have the
security features of the INS documents.

It should be noted that the high percentage of fraudulently documented
workers means that an employer may hire workers not legally authorized to
work in this country without violating the law. An employer that hires
illegal aliens who present documentation will be abiding by the law unless
the employer knows or should know, based on an apparent irregularity in the
alien's documentation, that the aliens are in this country illegally. The
Immigration and Nationality Act allows an employer to rely on documentation
that reasonably appears on its face to be genuine. Thus, more than 600,000
illegal aliens could be working in agriculture without any agricultural
employers violating the law with respect to their responsibilities under
federal immigration law.

GAO's Recommendations Targeted at Problems in H-2A Program Operations Have
Been Partially Implemented

Although Employers Obtain H-2A Workers, Applications May Not Be Processed in
a Timely Manner

The H-2A application process sets very specific time requirements that
employers and Labor must meet. At the time of our report, these statutory
and regulatory deadlines included a requirement that employers file an
application for workers at least 60 days before they are needed and that
Labor issue a decision on the certification of a labor shortage at least 20
days before the date of need. In 1997, we determined that Labor did not
always process applications on time, making it difficult to ensure that
employers were able to get workers when they needed them. Although no data
were available on how many employers failed to obtain the required workers
by the date of need, we identified some applications that were not certified
by Labor until after the date of need. Because Labor did not have data on
program operations, we could not assess the explanations Labor provided us
for its inability to process applications in a timely fashion. In response,
we recommended that Labor regularly collect data on its performance in
meeting H-2A regulatory and statutory deadlines for processing H-2A
applications and that it use these data to monitor and improve its
performance. Labor is currently developing such a system and hopes to have
it in place by October 2000.

Multiple Agency Involvement in Petition Approval Added Little Value to the
Process

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. The 60-day deadline
may also encourage employers to estimate the earliest possible date, which
can have negative consequences for workers who arrive before an employer has
work for them: They are left with no income until work is available. To
address this problem, we recommended 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, if INS' role in the petition approval
process were eliminated as we recommended. Labor implemented our
recommendation, and employers now need to apply only 45 days before the date
of need.

Finally, to protect work opportunities for domestic workers by ensuring that
sufficient time is available for agricultural employers to positively
recruit domestic workers while reducing the total processing time, we
recommended that the Congress amend the Immigration and Nationality Act so
that, as long as the authority for approving H-2A visa petitions remained
with Labor, Labor would be required to complete all applications at least 7
days before the date of need, rather than 20 days. However, rather than
requiring Labor to complete all applications at least 7 days before the date
of need, the Congress changed the requirement that Labor complete all
applications from 20 days to no later than 30 days before the date of need
(P.L. 106-78).

Insufficient Information and Multiple Agencies Administering the H-2A
Program Can Make Program Participation More Difficult

Worker Protection Provisions Are Difficult to Enforce

Labor officials noted operational impediments in enforcing these
protections. For example, the three-quarter guarantee applies only to 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. Such
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 that might otherwise go to domestic workers.

In general, Labor's Wage and Hour Division (WHD) of the Employment Standards
Administration is the primary agency for enforcing existing H-2A contracts
and other labor standard provisions, while the Employment and Training
Administration (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 in the event that the 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, placing this suspension authority in ETA seems incongruent.
Consolidating this suspension authority in WHD would permit ETA to
concentrate more effectively on the H-2A program's crucial duties and
possibly increase the effectiveness of WHD enforcement.

The H-2A program also 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, 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.

To address these issues, we recommended that Labor transfer the authority to
suspend employers with serious labor standard or H-2A contract violations
from ETA to WHD, revise its regulations to require agricultural employers to
guarantee H-2A workers wages for the first week after the date of need, pay
workers those wages no later than 7 days after the date of need, and revise
regulations to apply the three-quarter 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
burdens on agricultural employers. At this time, Labor has not determined
how best to take action in each of these areas.

GAO Contacts and Acknowledgments

Related GAO Products

Illegal Aliens: Significant Obstacles to Reducing Unauthorized Alien
Employment Exist (GAO/GGD-99-33, Apr. 2, 1999).

H-2A Agricultural Guestworker Program: Experiences of Individual Vidalia
Onion Growers (GAO/HEHS-98-236R, Sept. 10, 1998).

H-2A Agricultural Guestworker Program: Changes Could Improve Services to
Employers and Better Protect Workers (GAO/T-HEHS-98-200, June 24, 1998).

H-2A Agricultural Guestworker Program: Response to Additional Questions
(GAO/HEHS-98-120R, Apr. 2, 1998).

H-2A Agricultural Guestworker Program: Changes Could Improve Services to
Employers and Better Protect Workers (GAO/HEHS-98-20, Dec. 31, 1997).

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).

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

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

(205516)

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