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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly



United States General Accounting Office

                                                            GAO

                                                           Testimony

                          Before the Subcommittee on Immigration and Claims, Committee on the Judiciary,

                                                   House of Representatives

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, which 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

 

The Immigration Reform and Control Act of 1986 created the program, commonly referred to as the "H-2A" program, under which employers may bring agricultural

workers into the country on a temporary, nonimmigrant basis. The program's purpose 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 that 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 INS, has approved an employer's petition for authorization to bring in workers. Justice does not approve the petition until 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 for the workers meets health and safety requirements. The Department of

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

employment."

 

                                           WIDESPREAD FARM LABOR SHORTAGE

 

                                       IS UNLIKELY IN THE NEAR FUTURE, ALTHOUGH

 

                                           LOCALIZED SHORTAGES ARE POSSIBLE

 

In our 1997 report, we concluded that a widespread farm labor shortage did not appear to exist and was unlikely in the near future. Although there was widespread

agreement that a significant portion of the farm labor force was not legally authorized to work, INS enforcement activity was unlikely to generate significant farm

labor shortages. Based on available evidence from a Congressional Research Service (CRS) report that recently examined this issue, data from the National

Agricultural Workers Survey (NAWS) released in March 2000, and recent INS policy, we believe that our earlier conclusions remain correct.

 

Ample Supplies of Farm Labor Appear

 

to Be Available in Most Areas of the Nation

 

As we noted in our 1997 report, although data limitations made the direct measurement of a labor shortage difficult, our own analysis suggested that a widespread

farm labor shortage had not occurred in recent years and did not then exist. Our conclusion was based on the combination of (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 farm labor wage rates as adjusted for inflation, and (5) continued investments by growers in

agricultural production. 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 that 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. We also noted that 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 remote geographic area.

 

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 discernable 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 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 wages 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

 

In our 1997 report, we estimated that approximately 37 percent of the agricultural labor force--about 600,000 farmworkers--in the United States lacked legal

authorization to work. Since then, the estimated number of unauthorized agricultural workers has increased. The latest NAWS has estimated that, as of fiscal year

1998, the proportion of the agricultural labor force that lacked legal authorization to work was more than 52 percent.

 

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 finalized. 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 (e.g., 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 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, over 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 RECOMMENDATIONS TARGETED AT PROBLEMS

 

IN H-2A PROGRAM OPERATIONS PARTIALLY IMPLEMENTED

 

In our 1997 report, we identified a number of concerns with the operation of the H-2A program. These concerns included (1) Labor's inability to process

applications in a timely manner, (2) multiple agency involvement in the approval of H-2A petitions that added little value to the process, (3) multiple agency

involvement in program administration and insufficient information generally, and (4) worker protection provisions that are difficult to enforce. We made

recommendations to the cognizant agencies that would address each of these concerns. Most of these recommendations are still in process or no action has yet been

taken.

 

Although Employers Obtain H-2A

 

Workers, Applications May Not be

 

Processed in a Timely Manner

 

In 1997, Labor issued certifications for most of the workers whom agricultural employers requested through the H-2A program, and agency officials reported that

they could handle a major increase in program workload with additional resources. However, Labor did not generally process applications in a timely manner and

the lack of data made it difficult to monitor timeliness and oversee the program. Labor continues to approve the overwhelming majority of applications, certifying

2,948 out of 3,130, or over 94 percent, of all applications submitted during fiscal year 1999 and accounting for 88 percent of the 47,300 worker certifications

requested.

 

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 as system and hopes to have it in place by October 2000.

 

Multiple Agency Involvement in Petition Approval

 

Added Little Value to the Process

 

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 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 check only to make sure that Labor has

issued a certification and that an employer has submitted the correct fees for the petition. To simplify the H-2A application process and reduce the burden on

agricultural employers, we recommended that the Attorney General delegate authority for approval of H-2A visa petitions from INS to the Secretary of Labor or his

or her designee and revise corresponding regulations as necessary to implement and facilitate such an agreement, including a revision of visa extension and appeals

procedures. According to an INS official, the Office of Management and Budget recently cleared and finalized the regulation, and it will be released after final

administrative details are completed.

 

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 the 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 was 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 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 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

 

As we reported in 1997, 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 included information that was 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. To address this issue, we recommended that Labor update and revise the H-2A handbook to include the procedures for all agencies

involved and key contact points, both in Labor and other agencies. Labor has not yet taken action on this recommendation, preferring to wait until other regulations

related to our recommendations have been promulgated.

 

Worker Protection Provisions

 

Are Difficult to Enforce

 

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 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.

 

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

 

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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