H-2A Agricultural Guestworker Program: Changes Could Improve Services to
Employers and Better Protect Workers (Testimony, 06/24/1998,
GAO/T-HEHS-98-200).

The H-2A agricultural guestworker programs 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. During fiscal year 1996,
agricultural employers used the program to bring in about 15,000
workers--less than one percent of the U.S. agricultural field workforce.
During fiscal year 1997, the number of workers brought into the country
under the program rose to nearly 21,000--just over one percent of the
total farm labor workforce.  GAO testified that a sudden, widespread
farm labor shortage requiring the importation of large numbers of
foreign workers is unlikely to occur in the near future, although
localized labor shortages may exist for specific crops or geographic
areas. Few agricultural employers seek workers through the program, but
those that do generally are successful in obtaining foreign agricultural
workers on both a regular and an emergency basis. Although enforcement
efforts by the Immigration and Naturalization Service are unlikely to
significantly increase demand for H-2A workers, GAO recommends changes
to the program that could improve the ability of growers to obtain
workers when needed and to better protect the wages and working
conditions of both domestic and foreign workers. These changes include
reducing both the time required to process applications and the period
of time that the worker must be employed to qualify for a wage
guarantee.

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

 REPORTNUM:  T-HEHS-98-200
     TITLE:  H-2A Agricultural Guestworker Program: Changes Could
	     Improve Services to Employers and Better Protect Workers
      DATE:  06/24/1998
   SUBJECT:  Migrant or seasonal worker programs
	     Labor law
	     Agricultural production
	     Labor supply
	     Immigrants
	     Agricultural industry
	     Illegal aliens
	     Working conditions
	     Alien labor
IDENTIFIER:  DOL H-2A Program

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GAO/T-HEHS-98-200

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

Before the Subcommittee on Immigration, Committee on the Judiciary,
U.S.  Senate

For Release on Delivery
Expected at 2:00 p.m.
Wednesday, June 24, 1998

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

Statement of Carlotta C.  Joyner, Director
Education and Employment Issues
Health, Education, and Human Services Division

GAO/T-HEHS-98-200

GAO/HEHS-98-200T

(205382)

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

  INS - Immigration and Naturalization Service
  USDA - U.S.  Department of Agriculture

H-2A AGRICULTURAL GUESTWORKER
PROGRAM:  CHANGES COULD IMPROVE
SERVICES TO EMPLOYERS AND BETTER
PROTECT WORKERS
============================================================ Chapter 0

Mr.  Chairman and Members of the Subcommittee:

We are pleased to be here today to discuss the ability of the H-2A
agricultural guestworker program to meet the needs of the
agricultural industry both today and in the event of sudden and
widespread farm labor shortages.  The H-2A 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.  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.  During fiscal year 1997, the number of workers
brought into the country under the program increased to almost
21,000, just over 1 percent of the total farm labor workforce.

In congressional deliberations on the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996, concerns surfaced about whether
the act's increased constraints on the entry of foreign workers into
the country would result in a major, widespread shortage of farm
labor to meet the needs of agriculture.  As a result, the Act
required that GAO review the program.

Today, I would like to address these concerns by discussing (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.  My statement is based primarily on our December 1997 report
on this topic.\1 To obtain information for this report, we
interviewed federal and state agency officials, agricultural
employers and representatives of agricultural associations, H-2A and
non-H-2A farmworkers and farm labor advocates throughout the country.
We also collected and analyzed data from numerous sources including
the Department of Labor, Immigration and Naturalization Service
(INS), state employment services, and grower associations.  In
addition, we provided an opportunity for the Departments of Labor,
State, Justice and Agriculture to comment on the report.

In summary, 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 timeframes.  In addition, the multiple
agencies and levels of government implementing the program may result
in confusion for both employers and workers.

While INS enforcement efforts are unlikely to create a significant
increase in demand for H-2A workers, we have recommended changes in
program operations that 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.

--------------------
\1 H-2A Agricultural Guestworker Program:  Changes Could Improve
Services to Employers and Better Protect Workers (GAO/HEHS-98-20,
Dec.  31, 1997).

   BACKGROUND
---------------------------------------------------------- Chapter 0:1

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 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.  This certification is based
on, among other things, proof that the employer has actively
recruited domestic workers, that the state employment service has
certified a shortage of farm labor, and that housing meets health and
safety requirements.  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 their employment 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."

   A WIDESPREAD FARM LABOR
   SHORTAGE IS UNLIKELY IN THE
   NEAR FUTURE, ALTHOUGH LOCALIZED
   SHORTAGES ARE POSSIBLE
---------------------------------------------------------- Chapter 0:2

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 0:2.0.1

Although data limitations make the direct measurement of a labor
shortage difficult, our 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.  Our conclusion is
based on the combination of (1) the large number of illegal immigrant
farmworkers granted amnesty in the 1980's, (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 farm labor wage rates as adjusted for
inflation, and (5) continued investments by growers in agricultural
production.\2 For example, our 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.

--------------------
\2 See H-2A Agricultural Guestworker Program:  Response to Additional
Questions (GAO/HEHS-98-120R, Apr.  2, 1998), p.  4.

         INS ENFORCEMENT EFFORTS
         ARE UNLIKELY TO
         SIGNIFICANTLY REDUCE THE
         NUMBER OF UNAUTHORIZED
         FARMWORKERS
------------------------------------------------------ Chapter 0:2.0.2

We estimate 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 individual establishments.  Although INS efforts are
underway 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.

It should be noted that the high number of workers with fraudulent
documents that appear valid means that an employer may hire workers
not legally authorized to work in this country without violating the
law.  An employer who hires illegal aliens who present documentation
will be abiding by the law unless he or she knows or should know,
based on an apparent irregularity in the alien's documentation, that
the alien is 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, 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.

   AGRICULTURAL EMPLOYERS RECEIVE
   ALMOST ALL WORKERS REQUESTED
   BUT PROGRAM COULD BE IMPROVED
---------------------------------------------------------- Chapter 0:3

Labor currently certifies most of the workers that agricultural
employers request through the H-2A program, and agency officials
reported that they could handle a major increase in program workload
with additional resources.  However, Labor does not always process
applications in a timely manner and the lack of data makes it
difficult to monitor timeliness and oversee the program.  Many
employers were late filing applications for certification with Labor
partly due to the difficulty in estimating 60 days in advance when
workers will be needed.  The multiple agencies involved in the H-2A
program may cause confusion for program participants.  The INS
petition approval process also adds time and cost to the process
without adding significant value.  In addition, even though there are
regulations to protect workers, these provisions are difficult to
enforce.

         ALTHOUGH EMPLOYERS OBTAIN
         H-2A WORKERS,
         APPLICATIONS ARE NOT
         PROCESSED IN A TIMELY
         MANNER
------------------------------------------------------ Chapter 0:3.0.1

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 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.

The H-2A application process sets very specific time requirements
that the employer and Labor must meet, as shown in figure 1.

   Figure 1:  Time Requirements
   for Applying for Agricultural
   Workers Under the H-2A Program

   (See figure in printed
   edition.)

These statutory and regulatory deadlines include 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.  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.  Our 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, we 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 0:3.0.2

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, we 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 required
documentation of efforts to recruit domestic workers and of health
care coverage.

         INS INVOLVEMENT IN
         PETITION APPROVAL ADDS
         LITTLE VALUE TO PROCESS
------------------------------------------------------ Chapter 0:3.0.3

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 0:3.0.4

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.  They are
left with no income until work is available.

         INSUFFICIENT INFORMATION
         AND MULTIPLE AGENCIES
         ADMINISTERING H-2A
         PROGRAM CAN MAKE PROGRAM
         PARTICIPATION MORE
         DIFFICULT
------------------------------------------------------ Chapter 0:3.0.5

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 similar 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 us 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 0:3.0.6

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 our 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, 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.

         AGENCIES COULD HANDLE A
         MAJOR INCREASE IN PROGRAM
         WORKLOAD WITH ADDITIONAL
         RESOURCES
------------------------------------------------------ Chapter 0:3.0.7

In the unlikely event of a national farm labor shortage, Labor, INS,
and state employment service officials told us 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.

   CONCLUSIONS AND RECOMMENDATIONS
---------------------------------------------------------- Chapter 0:4

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 guestworkers, appears small.  However, the potential for
localized labor shortages for a specific crop or geographical area
remains.  In addition, individual employers that are, for any reason,
the subject of an INS enforcement action could abruptly lose a large
percentage of their workforce and need replacements quickly.  For
those employers who need the H-2A program, it is extremely important
that it meet their needs fully and efficiently.  At the same time,
the program is intended to protect the working conditions of both
H-2A workers and the domestic workforce.  Our work identified
opportunities to improve both aspects of the program.  As a result,
we recommended changes that would improve services to employers and
better protect workers.

Our recommendations were addressed to the Congress, the Attorney
General, and the Secretary of Labor.  These recommended actions would
improve service to employers by shortening the application processing
time from 60 days to 45 days.  This shorter time period could be met
by reducing the number of agencies involved from three to
two--removing INS from the petition approval process--and by Labor's
more closely monitoring its performance in meeting deadlines.  The
recommendations also addressed protecting workers in several ways.
First, the overall processing time would be reduced without
decreasing the number of days allowed for recruitment of domestic
workers prior to certification of a labor shortage.  Second, we
recommended better protecting H-2A workers by extending to them the
same guarantee of first-week wages that now applies to domestic
workers in corresponding employment.  We also recommended revising
the regulations regarding the three-quarter wage guarantee to remove
the incentive to overestimate the contract period.  Other
recommendations we made would improve service to both employers and
workers by providing them better information about the program and
consolidating enforcement responsibilities within Labor.

Although the H-2A program is currently used by a very small
percentage of all agricultural employers and brings in a very small
percentage of the total farm labor work workforce, it is important
that the program operate effectively to meet the needs of employers
and protect workers.  We believe the changes we have recommended will
help move the program toward those goals.

-------------------------------------------------------- Chapter 0:4.1

Mr.  Chairman, this concludes my prepared statement.  I would be
pleased to respond to any questions you or members of the
Subcommittee may have.

RELATED GAO PRODUCTS
=========================================================== Appendix 1

H-2A Agricultural Guestworker Program:  Response to Additional
Questions (GAO/HEHS-98-120R, April 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).
*** End of document ***