CONSOLIDATION OF LABOR'S ENFORCEMENT RESPONSIBILITIES
FOR THE H-2A PROGRAM COULD
BETTER PROTECT U.S. AGRICULTURAL WORKERS
This report reflects the findings of the Office of Inspector General at the time that the audit report was issued. More current information may be available as a result of the resolution of this audit by the Department of Labor program agency and the auditee. For further information concerning the resolution of this report's findings, please contact the program agency.
Report Number: 04-98-004-03-321
Issue Date: March 31, 1998
The OIG conducted an audit of the effectiveness of DOL's certification procedures in satisfying the H-2A provisions of the Immigration Reform and Control Act's (IRCA) temporary agricultural guestworker program. Two Agencies within DOL have responsibilities under the H-2A program. DOL's Employment Standards Administration, Wage and Hour Division (WHD), enforces H-2A contract wage and working condition standards to ensure foreign workers who are admitted do not erode similarly employed U.S. workers' conditions and pay. The Employment and Training Administration (ETA) administers a certification process under which growers who seek foreign laborers must demonstrate that they have actively recruited U.S. workers and have cooperated with DOL-funded State Employment Security Agencies (SESAs) in further efforts to recruit U.S. workers.
We found the H-2A certification process administered by ETA to be ineffective. Many studies point to a surplus of agricultural workers. Yet, our sample of Fiscal Year (FY) 1996 H-2A certifications indicates that neither the SESAs' efforts nor recruiting efforts required of employers resulted in significant numbers of U.S. workers being placed in agricultural jobs for which foreign H-2A laborers had been requested. Only 2 percent (252 of 10,134) of our sample of agricultural job openings for which growers had requested foreign workers were filled by domestic workers.
The SESAs are ETA's partners in helping to recruit U.S. workers for agricultural jobs. However, most agricultural employers used means other than the SESAs to recruit farmworkers. Also, the SESAs' efforts to recruit workers for H-2A jobs were often passive and few domestic referrals resulted from local, intrastate or interstate activities. In addition, some SESAs were hesitant to refer workers to H-2A employers because they believed sincere efforts to employ them would not be made. Consolidation of many agricultural employers' requests for H-2A workers into fewer applications covering large geographic areas may also dampen domestic workers' interest in the jobs. Finally, information upon which ETA bases its decisions to certify workers is often incomplete and little information is collected to help manage the program or determine its effectiveness.
A more fundamental concern is whether the environment in which the H-2A program operates will allow protection of U.S. agricultural workers' jobs. In recent years, an increasing proportion of agricultural workers are in the U.S. illegally. A 1995 DOL study conservatively estimated that 37 percent of the agricultural workforce, or 600,000 workers, were illegal immigrants. In
contrast, ETA certified only about 18,000 H-2A crop workers during FY 1996. Consequently, it is from a large population of unauthorized immigrants that most employers recruit farmworkers.
Further complicating the recruitment process is agricultural workers' widespread use, as shown by our work and that of others, of fraudulent documents that are not detected by the Immigration and Naturalization Service's (INS') Form I-9 requirements. As a result, growers, DOL and the SESAs often cannot distinguish unauthorized foreign job applicants from U.S. workers. We found evidence suggesting that the SESAs had in some instances referred unauthorized workers, believing they were U.S. workers, to fill requested H-2A jobs. Consequently, attempts to fill agricultural jobs with U.S. workers are hobbled and DOL's ability to serve either agricultural employers' or U.S. workers' interests is called into question.
Moreover, enforcement responsibilities for the H-2A program's provisions are presently fragmented between ETA and ESA's WHD. We found little evidence of coordination between the two entities in matters related to H-2A investigations, and WHD staff we interviewed expressed frustration over the division of responsibilities.
Recognizing that changes in ETA's certification procedures would not solve the systemic problems identified in our audit, we recommended that emphasis be focused on increased enforcement of H-2A recruitment, wage and working condition requirements. We also recommended that ETA certification resources be redirected to the Employment Standard Administration's (ESA) Wage and Hour Division (WHD) along with the authority to apply sanctions against employers for violating program requirements.
We recommended employers be required to maintain evidence of their efforts
to recruit U.S. workers and to continue cooperation with the SESAs in local,
intrastate and interstate recruitment efforts. Wage and working condition
protections for H-2A workers should also continue to be required through
employer assurances in work contract provisions. We also recommended the
Secretary and the Assistant Secretaries for Employment and Training and
Employment Standards work with the Congress and other affected agencies
to obtain necessary changes in IRCA provisions to:
ETA and ESA provided a joint response that indicates general agreement with our findings and recommendations. However, the response notes that problems have been cited by OIG and the General Accounting Office in this and past reports of both the permanent and temporary immigration programs. The agencies suggest that changes to DOL's employment-based immigration responsibilities might be better considered in tandem with a broader set of reforms for all such programs. The response also indicates the Secretary has been a strong advocate and will continue to support development of an effective employment eligibility verification system. However, it is noted that control of illegal immigration is the principal responsibility of the Attorney General and Commissioner of the INS.
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