for Employment Standards
/ s /
FROM: JOHN J. GETEK
Assistant Inspector General
Consolidation of Labor's Enforcement
Responsibilities for the H-2A Program
Could Better Protect U.S. Agricultural Workers
Final Audit Report No. 04-98-004-03-321
The attached subject final report is submitted for your resolution action. We request a response to this report within 60 days.
If you have any questions concerning this report, please contact Robert Wallace, Regional Inspector for Audit, in Atlanta at (404) 562-2341.
RAYMOND J. UHALDE
Acting Assistant Secretary
for Employment and Training
/ s /
FROM: JOHN J. GETEK
Assistant Inspector General
Consolidation of Labor's Enforcement
Responsibilities for the H-2A Program
Could Better Protect U.S. Agricultural Workers
Final Audit Report No. 04-98-004-03-321
The attached subject final report is submitted for your resolution action. We request a response to this report within 60 days.
If you have any questions concerning this report, please contact Robert Wallace, Regional Inspector for Audit, in Atlanta at (404) 562-2341.
EXECUTIVE SUMMARY 1
INTRODUCTION AND PRINCIPAL CRITERIA 4
CHAPTER I - H-2A CERTIFICATION REQUIREMENTS
AGENCIES' RESPONSE TO OUR DRAFT REPORT 30
OIG'S CONCLUSIONS 30
AEWR Adverse Effect Wage Rate
CFR Code of Federal Regulations
DOL U.S. Department of Labor
ESA Employment Standards Administration
ETA Employment and Training Administration
FY Fiscal Year
GAO General Accounting Office
H-2A VISA Category - Temporary Agricultural
I-9 Employment Eligibility Verification Form
INS Immigration and Naturalization Service
IRCA Immigration Reform and Control Act of 1986
MSFW Migrant Seasonal Farmworker
NAWS National Agricultural Worker Survey
OHO Order Holding Office
OIG Office of Inspector General
PY Program Year
RA Regional Administrator
RAW Replenishment Agricultural Worker
RO Regional Office - ETA
SESA State Employment Security Agency
SAW Special Agricultural Worker
SIC Standard Industry Code
SSN Social Security Number
UI Unemployment Insurance
USC United States Code
USES United States Employment Service
WHD Wage and Hour Division
Under the Immigration Reform and Control Act's (IRCA's) H-2A provisions,
the Secretary of Labor is responsible for helping ensure available U.S.
agricultural workers fill jobs before growers are allowed permission to
employ temporary foreign laborers. We have completed an audit of the H-2A
program's operations in seven states, for the period October 1, 1995 through
September 30, 1996, to determine the U.S. Department of Labor's (DOL's)
effectiveness in meeting this responsibility.
The key strategy used by DOL to determine the availability of U.S. workers
and recruit them for agricultural jobs is a certification process administered
by the Employment and Training Administration (ETA). 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. In addition, the 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.
Additional background on the H-2A program can be found in Appendix B of
We found the H-2A certification process is ineffective. It is characterized by extensive administrative requirements, paperwork and regulations that often seem dissociated with DOL's mandate of providing assurance that American workers' jobs are protected.
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 the 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.
The division of H-2A responsibilities in the Department of Labor --
with ETA handling compliance with certification requirements and WHD charged
with enforcing the terms of H-2A work contracts -- prevents cohesive enforcement
of H-2A program requirements and contributes to uncertainties over responsibilities.
Changes in ETA's certification procedures alone will not solve the systemic
problems we have identified. Rather, we believe resources now devoted to
the H-2A certification function as carried out by ETA could be better spent
on increased enforcement of H-2A recruitment, wage and working condition
We recommend 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. However, resources used by ETA in the certification process should be redirected. We recommend 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:
Response to Our Draft Report
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 (GAO) 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.
The above recommendations are unresolved. They will be resolved
upon OIG's receipt of an action plan to accomplish the recommended changes.
The Immigration Reform and Nationality Act, as amended by the Immigration and Control Act of 1986 (IRCA), Public Law 99-603, allows agricultural employers who anticipate difficulty in obtaining domestic workers to petition the U.S. Attorney General, through the Immigration and Naturalization Service (INS), for permission to bring nonimmigrant aliens into the United States for temporary or seasonal work. The program is commonly called "H-2A," after its reference in the IRCA's provisions.
The IRCA and related Federal regulations contain provisions that intend to provide employers access to foreign workers to fill temporary labor shortages, yet protect American workers' jobs and their working conditions. Before the INS will approve a petition for foreign workers, an employer must apply to DOL for certification. Labor's certification procedures attempt to ensure that (1) there are not sufficient U.S. workers who are able, willing, qualified and available at the time and place needed, to perform the labor or services involved in the petition; and (2) the employment of foreign workers will not adversely affect the wages and working conditions of U.S. workers similarly employed.
Labor requires evidence of an employer's attempts to recruit domestic
workers and a number of other assurances that include, payment of proper
wages to foreign employees, adequate housing accommodations and other working
In addition to the IRCA, Labor's responsibilities for the H-2A Program are contained in an interim final rule published in regulations at 20 CFR, Part 655. Justice has issued regulations at 8 CFR, Part 214, which clarifies the responsibilities of Justice and Labor. In January 1988, ETA published The H-2A Handbook which supplies guidance on the law and regulations.
ETA's regional offices and the SESAs have been delegated responsibility
for routine program operation. However, DOL's WHD, through statutes and
regulations governing labor standards and working conditions, are involved
in enforcing H-2A contract provisions. In addition, the U.S. Department
of Agriculture has responsibility for establishing minimum rates of pay
foreign workers must receive. Further information on the H-2A program and
its requirements are included in the "Background" section, included as
an appendix to this report.
Neither employers' nor the SESAs' efforts to recruit U.S. workers for H-2A jobs were effective.
During FY 1996, employers submitted 1,930 applications which contained requests for 17,355(2) H-2A seasonal crop workers. We selected a random sample of 318 certifications involving requests for 10,134 H-2A workers, or 58 percent of all crop workers certified. We found:
1. The Employment Service (ES) components of the SESAs are involved in H-2A activities, as is the U.S. Employment Service (USES) , which is a part the U.S. DOL's Employment and Training Administration (ETA). To ease the discussion, we have referred to activities of the states' ES components as SESAs' activities and functions performed by the USES as ETA's activities.
2. In total 19,103 H-2A workers were requested by employers, during FY 1996, of which 17,355 were agricultural crop workers. We limited our sample to agricultural crop workers in 7 states, which totaled 10,134 and represented 58 percent of the H-2A crop workers employers requested during FY 1996. See the "Objectives, Scope and Methodology" section of this report for additional information.
Of the 252 workers in our sample who were hired, only 34 found jobs as a result of employers' recruitment efforts and 218 were hired through referrals by the SESAs.(3)
Poor success contradicts data indicating a surplus of farmworkers. Poor success in recruiting U.S. agricultural workers for H-2A positions seems to contradict data that indicate a national surplus of agricultural workers exists. We did not find data that identifies the numbers of agricultural job openings and available farmworkers. However, studies produced by several governmental and private sources indicate a nationwide shortage of farmworkers has not existed for several years and does not currently exist.
For example, tabulations of unpublished data from DOL's FY 1993-1994 National Agricultural Workers Survey, (NAWS), published in April 1997, indicates that even in primary harvest months, many agricultural workers were not employed. According to NAWS, the surplus of farm workers ranged from a low of 13 percent in June and July of 1995 to a high of 28 percent during the months of January and February of 1995.
Why then do most employers find agricultural workers to fill their needs without relying on the H-2A program? The contradiction may be answered by the means and methods ETA and employers used to recruit workers.
ETA relies upon each SESA and its local offices structure to help identify, recruit and refer U.S. workers to agricultural employers that have requested H-2A workers.
However, in large measure, U.S. agricultural employers (exclusive of those who have requested H-2A workers and are required to list their openings with the SESAs), bypass the SESAs and use other means of locating workers to fill their needs. In the states we sampled, we found that few agricultural workers relied upon the SESAs to locate seasonal farm work.
Few Agricultural Jobs are Filled Through the SESAs. During PY 1995, national statistics indicate employers requested that the SESAs find seasonal crop workers to fill about 114,000
openings, or just over 7 percent of the estimated 1.6 million temporary agricultural workers in the U.S.(4)
In the 7 states selected in our review, we visited a total of 15 SESA local offices and the states' central offices to determine the extent to which either agricultural employers searching for workers or farmworkers who wanted employment used the SESAs. We also reviewed the methods which were being used to recruit farmworkers for job openings and identified any distinctions between those used to recruit workers for H-2A positions and for positions with other agricultural employers.
Local Offices Do Not Actively Recruit Agricultural Workers. In the local offices, we found effort spent in recruiting workers for H-2A job openings was often passive. We were told that farmworkers seldom present themselves at the local offices searching for work or respond to advertisements. Most local offices indicated they relied on the centralized system of job listings and attempted to match any interested applicants with intrastate job orders or agricultural job orders circulated through the Interstate Clearance System. The same processes were described for referrals of workers to agricultural employers not requesting H-2A workers. The most pronounced difference was that the SESAs less frequently contacted farm labor contractors and crew leaders to identify workers for H-2A employers than for other employers' labor needs.
SESAs Reported Better Success in Placing Workers in Non-H-2A Jobs. Although few agricultural orders are filled by the SESAs, reported data indicate the SESAs had greater overall success in placing agricultural workers with non-H-2A employers than they did with employers involved in the H-2A program. However, in some states, we found workers placed with agricultural employers had either not been actively recruited by the SESAs or the reported placement statistics were erroneous.
For the seven states included in our review, we compared the total job openings, applicants referred, and applicants placed by the SESAs during PY 1995 on agricultural job orders against the H-2A job orders in our FY 1996 sample. The combined data, presented in the table, indicate the SESAs achieved an overall placement rate of 55 percent on agricultural job
|REFERRED TO OPENINGS||PLACED TO OPENINGS|
orders. In contrast, our analysis of H-2A certifications issued during FY 1996 showed that the states filled only 2 percent of H-2A employers' job openings. The extreme differences in referral and placement rates were even more pronounced among individual states and within local areas. For example:
Individuals the SESAs reported as having been referred and placed were farmworkers, usually represented by crew leaders, who returned to the same areas year after year and often to the same employers. Because of relationships fostered between SESA personnel, employers and crew leaders, the SESAs were advised of employers' and crew leaders' recruiting and hiring activities. Consequently, recorded referrals and placements do not reflect the SESAs' active efforts to locate and employ agricultural workers to fill job openings.
We were unable to determine the extent to which these practices inflated the SESAs' reported success. However, we found it occurred with some regularity. For example, in one state we visited, two of four local job service offices claimed credit for referring and placing workers who had already been hired. At the time they were visited by Job Service personnel, the crew leaders and employers had already recruited the workers and decided who would be hired. The local offices' involvement came only after the employer contacted them, at the time work was to begin.
We also found some of the data could not be supported. In another state, the SESA local office erroneously reported H-2A workers employed by an area grower as U.S. workers the SESA had referred and placed.
In some instances, SESA personnel provided a variety of services to
the employers, such as assisting them in completing the Immigration and
Naturalization Service (INS) I-9 forms and other paperwork. However, the
activity was not SESA-initiated referrals or placements. In other instances,
the only contact SESA personnel had with workers were visits to the employer
or crew leader to determine the numbers of workers that were present so
they could be reported as placed.
It is intended that the interstate job orders assist in addressing local shortages by advertising openings in areas where a surplus of available labor exists. Through the Interstate Clearance System, SESAs submit job orders to states identified as having a surplus of agricultural workers, as part of the attempt to find available U.S. workers. However, agricultural clearance orders receive little attention and result in few referrals of U.S. workers.
Supply States Not Actively Recruiting on Clearance Orders. We also visited Florida and Texas and reviewed the processing of agricultural clearance orders received from other states through the Interstate Clearance System.(5) We chose Florida and Texas because they reported to DOL a combined total of 49,484 applicants for Migrant and Seasonal Farmworker (MSFW) jobs, of which 13,647 were placed during PY 1995. Consequently, they have more agricultural job applicants than workers to fill the jobs and were designated as "labor-supply" states.
Statistics were not available in Florida to determine the number of workers referred on agricultural clearance orders during PY 1996 but SESA staff informed us that few referrals were made.(6)
Data we reviewed in Texas indicates that during PY 1996, it received 560 agricultural clearance orders involving requests for 9,031 workers. It referred 361 workers on agricultural clearance orders, of which 327 were to a nursery in the Midwest. In total 308 workers were hired. Only 15 workers were referred to growers that had requested H-2A workers.(7)
Based on interviews with officials in both Florida and Texas, we found that little effort is spent on filling interstate clearance orders. Most orders are received and put into the statewide computer system. It is then the responsibility of local offices to recruit on the order. We were told that due to budget constraints, little outreach was being used to fill most interstate orders, and active recruitment would occur on a larger scale only when the ETA placed special emphasis on filling job orders from a specific area or location.
SESAs are Hesitant to Refer Workers on H-2A Job Orders. We also
found some staff were hesitant to refer workers to certain H-2A employers,
because it was their perception that the workers referred to certain H-2A
employers would not be hired. They believe some employers delayed the applicant
interviews or discouraged domestic workers from accepting jobs. Officials
also indicated the numbers of available workers who could be referred was
reduced because some growers would not pay the "override" (fee) crew leaders
6. We selected a sample of 30 Interstate Clearance Orders related to Florida and found the State had accepted 26 of the orders. However, there was evidence that referrals may have been on only two of the orders.
7. Generally, nursery workers are not H-2A program participants.
Officials in "Supply" States Believe Surplus of Agricultural Workers is Overstated. Officials in both Texas and Florida disagreed with the assertion that their States contain a large supply of agricultural workers who are available to fill the interstate job orders, as the reported statistics may suggest.
Officials in Texas indicated that not all applicants the SESA reported in the "Migrant and Seasonal Farm Worker" (MSFW) job classification are available farmworkers. The numbers reported as MSFWs include migrant food processing workers and non-migrant seasonal farmworkers. Hence, many of the workers are not available because they do not harvest crops or are not willing to accept a job outside of the area in which they live. They also indicated workers may be unwilling to travel because transportation advances are frequently not offered by growers and many employers lack facilities for family housing.(8)
Florida officials indicated the numbers of available workers may be inflated because workers register at the SESA for jobs during the slow harvest periods, draw unemployment benefits, and find work during the peak harvest season, when they are needed by employers in other states.
As part of the H-2A application process, employers are required to submit a plan indicating steps that will be taken to "positively recruit" U.S. workers. Prior to certification of H-2A workers, ETA requires that employers provide evidence the plan was implemented and issue a recruitment report to ETA indicating the results of the effort. The plan is in addition to filing the local job order and agricultural clearance order through the Interstate Clearance System. Any U.S. workers hired, or suitable U.S. workers who have been identified but not hired by the employer, reduce the numbers of H-2A workers ETA will certify.
As previously discussed, only 520 domestic workers were referred and 252 hired by employers in our sample of 10,134. These recruitment efforts generally involved placing advertisements for the job opportunities in newspapers of general circulation and on the radio; contacting prior workers; contacting farm bureaus and agricultural extension services and advising them of the
While there is agreement that "positive recruitment" efforts result in few hires, there is much disagreement as to the cause. Most employers that use H-2A workers and SESA staff at some of the local offices we visited told us that "positive recruitment requirements" were not effective because U.S workers were not available or were unwilling to harvest crops. Employers told us many U.S. workers refuse the jobs or are offered jobs but do not show up for work. Employers also indicate those that do present themselves for work often find the job disagreeable and leave before the harvest is completed.
Some SESA staff, H-2A program administrators and farmworker advocacy groups indicate growers prefer H-2A workers because they are more malleable and less likely to voice complaints about wages and working conditions. Hence, some SESA staff indicate they are reluctant to refer U.S. workers to H-2A employers because they will not hire them.
"Spot" Labor Shortages May Exist. The most plausible reason that neither H-2A employers nor the SESAs have success in recruiting U.S. workers is that such workers are not available. Although available evidence does not indicate a nationwide labor shortage, one may exist for certain crops or geographic areas.
Many growers whose comments we obtained emphasized that they use H-2A workers only because they are unable to find local agricultural workers. It is likely that spot labor shortages exist. For example, according to some SESA personnel and growers, it is difficult to find U.S. workers willing to harvest tobacco. We also received indications from the Virginia and New York SESAs' staff and growers that the apple harvest in certain areas of those States has been completed by Jamaican H-2A workers for many years, because adequate supplies of U.S. workers willing to do "ladder work" were not available.
Involvement of Growers Associations May Present Special Concerns for Local Recruitment. Several H-2A program administrators and interest groups expressed their belief that agricultural employers' increasing reliance on growers' associations discourages local workers' interest in available agricultural jobs.
Associations often provide "turn-key" access to H-2A workers by completing
many of the INS and ETA administrative requirements necessary to receive
certification for H-2A workers, including "positive recruitment" of U.S.
workers. They may also recruit H-2A workers, ensure they receive their
visas, arrange transportation and complete other activities related to
the workers' arrival, employment and departure.
DOL's H-2A program regulations allow joint employer(9) associations to transfer workers among its members to perform work for which the H-2A certification was granted (20 CFR 655.106(c)(2)(I)). During a growing season, associations may file a series of orders which consolidate the applications of many employers over a period that encompasses the harvest season of all its members listed on the certification. In some instances, associations file "master orders," which include wide geographic areas and may involve the harvest of dozens of crops at widely varying piece rates. Much of the concern voiced to us by SESAs and farmworker advocacy groups was directed at the "master order" concept.
We identified instances involving master orders in which we do not believe positive recruiting efforts were sufficient for ETA to have issued a certification. In one state, ETA certified 8
H-2A master applications, involving 467 agricultural employers and 3,873 job openings, or 38 percent of all H-2A crop openings in our FY 1996 sample. The job openings that related to the master orders were in many locations throughout the state and involved a joint employer.
As part of its mandatory "positive recruitment" efforts, the association advertised the jobs in a newspaper and on a radio station in a large metropolitan area of the state. ETA accepted copies of these advertisements as proof of the employers' positive recruitment efforts. While the advertisements may have satisfied the H-2A program requirement that advertisements be made in a "newspaper of general circulation" and on radio, we do not believe the effort was sufficient to have reached any interested local applicants.(10)
SESA staff also indicated that wide geographical areas where associations ask U.S. applicants to work may also reduce local interest in the jobs. Decisions related to the movement of workers rest with the joint association. The jobs offered workers could be with any of an association's member employers within the state. In addition, the workers are subject to
10. Some sources suggest formal advertising
is not the most effective means of recruiting workers. The Report of the
Commission on Agricultural Workers, November 1992, points out that many
studies indicate the importance of informal networks in recruiting farmworkers.
According to the report, most farmworkers find work through networks of
friends and relatives, not more formal processes.
We were also told by some SESAs' staff and interested organizations that groups of migrant and seasonal farmworkers who otherwise may be available do not have an interest in the jobs because there is no assurance they will remain together. Many are interested in working specific crops, or during specific periods as part of an established migrant stream that moves northward. Also, some associations will not pay overrides (fees) to crew leaders who represent groups of farmworkers, because it had not been established as a prevailing practice in the area.(11)
Interested groups also believe the employers' obligations to positively
recruit U.S. workers are prematurely shortened by the extended harvest
season included in the master orders. For example, during our audit period,
ETA accepted one association's request for 1,408 workers for the period
March 29, 1996 through November 1, 1996. The order included numerous crops
and their anticipated harvest seasons, which varied throughout the period
for which workers were requested.(12) The
employers' obligations to continue positive recruitment efforts and active
recruitment on interstate orders expire when the workers depart for the
employers' place of work. Consequently, master orders may allow employers
who have crops that mature late in the period to end their positive recruitment
efforts many months in advance of the harvest.
ETA's decision to certify an employer's request for foreign workers culminates a lengthy, paperwork-intensive process that should provide assurance suitable U.S. workers were not available to fill the jobs for which foreign workers have been admitted. The certification process should also provide evidence that the wages paid foreign workers and the conditions under which foreign workers will be engaged will not erode those of similarly employed U.S. workers. Consequently, in making the decision, ETA must consider all evidence of the recruiting efforts and assurances that wage and working condition protections are in place.
12. The request identifies the need as primarily
for tobacco workers, but enumerates numerous vegetable crops and their
anticipated harvest seasons as "minor crops" which workers may be asked
Information Necessary for ETA to Have Made Determinations Was Often Absent. ETA's guidance on the certification process (the H-2A Program Handbook) stresses the importance of providing ETA's Regional Administrators (RAs) with accurate documentation of both the employers' and SESAs' recruitment efforts, so a determination of U.S. workers' availability can be made. According to ETA Handbook No. 398 (H-2A Program Handbook):
We selected a random sample of 318 H-2A certifications made during FY 1996. The certifications we examined involved employers' requests for 10,134 H-2A workers. The documentation was maintained by four ETA regional offices that service the seven states included in our audit. Information available in the files varied widely among regional offices. Overall we found:
Applications for H-2A Workers Were Not Processed Within Statutory Time Frames.
We found ETA frequently missed deadlines for processing employers' H-2A applications and certifications.
IRCA's provisions establish time frames in which ETA is required to process applications and certifications for H-2A workers and inform employers of their decisions. The purpose of these provisions is to provide employers with prompt notification of ETA's actions, allow time to recruit U.S. workers and complete housing inspections and other H-2A program requirements. The requirements also provide employers time to obtain visas and INS approval for H-2A workers who have been certified, so they are available when needed.
IRCA requires that the employer must be notified, in writing, within 7 days of filing an application for H-2A workers, whether ETA's review of the application indicates it has met standards and been accepted or has not met the standards and been denied. If the application has been denied, the employer is to be given a prompt opportunity to modify and resubmit the application or appeal the decision.
We found employers were not notified of ETA's actions within 7 days for 60 percent (193 of 318) of the certifications in our sample. ETA missed the 7-day requirement by an average of 15 days.(13)
Once an application is accepted,(14) the employer is required to complete "positive" recruitment efforts. The SESA, within the state where the workers are to be employed, use a copy of the employer's job order to recruit U.S. workers within the state and file an interstate agricultural job order to obtain workers from other states. Also, following ETA's acceptance of the employer's application, housing inspections and other H-2A program requirements are to be completed. Within 23 days of the anticipated date of need, the employer must provide ETA with evidence that the requirements have been met. ETA must provide the employer with its decision to certify the numbers of H-2A workers requested (all or in part), no later than 20 days before the first date of need.
14. Employers must submit an application to
the ETA Regional Offices for H-2A workers, at least 60 days before it is
anticipated they will be needed. Other time frames also apply for various
H-2A program requirements which are discussed in the "Background" section
of this report.
Data Necessary to Evaluate H-2A Program Activities Is Not Maintained. ETA does not maintain nationwide data on its certification activities. Instead, each regional office is expected to maintain a log of activities. However, both the means used to collect data and the data that was being collected were inconsistent among the regional offices we visited. Regional data collection procedures ranged from manual tabulation to entry and storage of the data in a variety of data processing formats. The data available among offices was also inconsistent, as the statistics collected depended upon the data elements each office felt was useful.
We found ETA's National Office obtains program information either through
telephone calls to the regional offices or through the exchange of manually
prepared documents. As needed, they obtain statistics from each region
for the following: number of applications certified, number of job openings,
and amount of certification fees collected. Data needed to help evaluate
the effectiveness of the program, such as applicant referrals and placements,
were not being maintained and analyzed.
Presently, enforcement responsibilities for the H-2A program's provisions are divided between ETA and ESA's WHD. We believe consolidation of the responsibilities would eliminate any confusion regarding the agencies' enforcement responsibilities and improve protections afforded both U.S. and foreign workers.
Generally, ETA's responsibilities include matters concerning approval or denial of certification requirements and obligations of employers related to the certification process, such as employers' compliance with positive recruitment requirements. ETA may reduce the number of H-2A workers they will certify or deny an employer certification for up to 3 years, depending upon the nature, severity and number of violations identified. ETA has a period of 2 years after the date of certification to notify the employer of the action. The employer may request an administrative review or hearing. We did not identify any instances in which ETA had sanctioned employers.
WHD enforces provisions of workers' contract terms, such as wages, transportation, meals and housing. They conduct investigations and inspections pertaining to the payment of required wages, transportation, meals, and housing provided during the period of employment. WHD's jurisdiction is limited to actual events transpiring when there is an employer-employee relationship.
Penalties available to WHD include the recovery of unpaid wages, the assessment of civil monetary penalties and the right to petition in court for specific performance of contractual obligations. Though these penalties are required to be reported to ETA for consideration, they are treated separately for the purpose of sanctioning an employer for H-2A violations. WHD may only recommend to ETA the denial of a future labor certification. We noted several cases involving H-2A and other agricultural employers in which WHD had taken action to recover wages and assess penalties.
Our review of guidance provided WHD's investigators indicates that if they encounter a situation outside the scope of their jurisdiction, such as a U.S. worker who may have been improperly denied employment by an H-2A employer, a referral would be made to ETA but WHD would not complete a fact determination process.
Although the H-2A Handbook calls for coordination between ETA and WHD in such matters related to H-2A investigations, we found little evidence of interface between the two entities. WHD, as a general rule, does not receive copies of H-2A applications or other documentation that would allow them to target or focus on H-2A activities. We were told cases involving
H-2A workers or U.S. workers employed in combination with H-2A workers are the result of complaints. We identified an instance in which confusion over responsibilities may have prevented action from being pursued against an employer abuse. WHD staff we interviewed also expressed frustration over the division of responsibilities.
The authority to apply sanctions would be more effective if combined
with the authority to investigate wage and working condition violations
and invoke penalties. It would allow one agency to have more complete knowledge
and more effectively address the activities of unscrupulous employers.
identified additional H-2A program issues that need to be addressed. They
include incomplete program guidance, and troublesome H-2A program provisions
H-2A Program Regulations Have Not Been Finalized. Regulations implementing DOL's role and responsibilities in the H-2A program have not been finalized. On June 1, 1987, ETA published an interim final rule and request for comments with the intention of issuing the final rules and regulations. While more than 10 years have passed, the H-2A regulations have not been issued in final form. The formal process of requesting and evaluating comments from those involved in the program would, we believe, surface issues which could strengthen the program.
Fifty-Percent Rule May Burden Employers and Workers. H-2A interim regulations require that from the time foreign workers depart for the employer's place of employment, the employer shall provide employment to any qualified, eligible U.S. worker who applies until 50 percent of the H-2A work contract has elapsed. While the intent of this requirement is to ensure that domestic workers continue to be afforded job opportunities, it could burden employers and result in H-2A workers being dismissed without the means to return home.
Agricultural employers we interviewed believe the requirement should be changed because it could result in having H-2A workers replaced after the employer had borne the expenses of transporting, training, and housing foreign workers. Thus, an agricultural employer could be required to choose between paying more workers than needed or displacing trained workers with new workers. Further, it could result in unjust injury to displaced foreign workers.
During our H-2A case file reviews, we identified one instance in which an employer received certification and hired 75 H-2A workers. However, 36 domestic applicants were subsequently referred by the SESA through the Interstate Clearance System. The employer was required to hire the domestic applicants. In this instance, the employer chose to retain the H-2A workers. However, had the employer been unable to pay the wages of both groups or meet other assurances, such as housing, the H-2A workers would have been dismissed.
Interstate Recruitment Could Benefit from Consolidation of Job Orders. Our analysis of 318 of the 1,930 H-2A applications filed by employers during FY 1996 indicates agricultural employers located near one another often requested workers for similar crops during the same periods of time. For example, of the 73 applications filed by employers in the State of Kentucky, 70 requested tobacco workers, primarily from July to December 1996. Of the 68 applications filed by New York employers, 59 requested workers to harvest apples during the period June through October 1996.
Current interim H-2A regulations require that each of the H-2A job orders
be forwarded to designated "supply states" for purposes of recruitment.
Reviews in the four regional offices
We believe that DOL should explore alternative approaches to the interstate
recruitment procedures currently used. For example, labor needs of employers
requesting workers in similar geographic areas, for the same crops during
similar periods of need, could be consolidated into single agricultural
interstate job order and forwarded to "supply states." Each of the employers
and other pertinent information could be identified within the consolidated
orders. This method would significantly reduce the number of interstate
job orders and associated administrative burden and could improve response
to the orders.
The H-2A Program has not been widely used by agricultural employers as a means of obtaining workers. Instead, most agricultural employers have found sufficient workers to fill their needs. However, the agricultural labor pool on which most growers depend is comprised of an increasing number of unauthorized foreign workers who are difficult to distinguish from U.S. workers. It is from this pool of workers that the SESAs recruit "domestic" workers to fill positions for which agricultural employers have requested foreign laborers.
The H-2A program is the only legal avenue available for U.S. growers to obtain foreign farmworkers. However, the program has remained a small provider of the nation's agriculture workers. Since IRCA's passage in 1986, the annual numbers of H-2A workers admitted has remained below 30,000, or less than 2 percent of the Nation's estimated 1.6 million crop workforce.
As previously discussed, many sources indicate that a surplus of agricultural workers exists that most growers tap for their labor needs. Some lack of program demand, since the passage of IRCA, is explained by the large numbers of foreign farmworkers who were "legalized" under the IRCA's "Special Agricultural Workers and General Amnesty" (SAW) provisions. When IRCA's provisions were being debated, there were concerns that shortages of agricultural workers would result from provisions that intended to tighten border enforcement and impose stiff penalties on employers who knowingly hired unauthorized foreign workers. These concerns led to IRCA's "safety net" provisions that created a means of legalizing undocumented farmworkers with experience in perishable crops. A glut of farmworkers was created through legalization of about 1.3 million undocumented workers - the majority in California - under IRCA's SAW provisions.
However, studies indicate those legalized under the SAW provisions have
steadily deserted farm labor for other occupations. One such source is
DOL's most recent National Agricultural Worker Survey (NAWS), which contains
data provided by a sample of approximately 2,500 randomly selected agricultural
workers across the Nation. According to the most recently published survey
(April 1997), IRCA-legalized workers represented about one-third of the
farmworkers in FY 1989. In FY 1994-95, their proportion had dropped to
Data also indicate the gap between declining numbers of legalized SAW workers and the need for agricultural workers has been filled by unauthorized immigrants.
NAWS estimates that 37 percent of farmworkers employed in U.S. agriculture are unauthorized immigrants.(16) As the chart indicates, the proportion of unauthorized agricultural workers has substantially increased since 1989 and continues to rise. The report concludes:
". . . the tendency for new entrants to enter agriculture every year from abroad showed absolutely no sign of slowing despite the legalization program."
The study also found a rapid influx in new unauthorized foreign workers employed in U.S. agriculture. According to the study's authors,
In 1994-95, 18 percent of all farm workers were in their first year in U.S. farm work. Of these newcomers, 70 percent were unauthorized foreigners.
The high proportion of unauthorized foreign workers in U.S. agriculture is also borne out by analysis we have completed using techniques employed in a related audit.(17) We determined that Unemployment Insurance (UI) claimants' use
17. OIG report no. 04-98-001-03-315, "Verification
of Social Security Numbers Could Prevent Unemployment Insurance Payments
to Illegal Aliens."
IRCA's documentation requirements are ineffective. IRCA requires that employers review documents that establish new employees' identities and their eligibility to work in the U.S. There are several forms of "approved" documentation. An INS Form I-9 must be completed to evidence the employer's review of documents. One acceptable document is a Social Security card.
Employers are supposed to review the documentation and make a judgment as to whether it appears genuine. However, IRCA prohibits employers from discriminating against individuals on the basis of national origin or citizenship, requiring more or different documents than are prescribed from a particular individual if the documents appear genuine. Our discussions with INS indicate that good quality forgeries of acceptable documents are prevalent and easily obtained. Unauthorized immigrants identified in our related audit told us they obtained counterfeit Social Security cards and other documents for as little as $25.
Analysis indicates many illegal immigrants work in both agricultural labor "supply" and "demand" states. We obtained UI wage data employers reported to the SESAs in the States of Florida, Georgia, North Carolina and Texas. Florida and Texas are designated labor "supply" States. These States are designated as having a surplus of agricultural workers, to whom other states look for referrals. Georgia and North Carolina are labor "demand" States, which historically have not had enough agricultural workers to fill job openings.
The data identified employers and their related employees' names, SSNs and quarterly earnings. We isolated agricultural employers by selecting those with related Standard Industrial Classification (SIC) codes.
To ensure we identified the most significant instances, we identified each agricultural employer who met both of the following conditions: (1) the employer had reported at least five workers
Across the 4 states, we identified over 2,100 agricultural employers that met the criteria. Instances in which the percentage of workers using unissued numbers exceeded 25 percent were common.(19)
Our work indicates the existence of a large illegal foreign workforce in the U.S. agricultural industry, as other studies have reported. However, the high proportion of unauthorized foreign workers also has implications for the H-2A program's ability to protect U.S. workers jobs.
analysis of the SESAs' data suggests significant numbers of "domestic"
workers whom some states referred to agricultural jobs were unauthorized
SESAs' Referrals to Employers Probably Included Unauthorized Immigrants. In six of the seven states included in our review, we obtained the SSNs of applicants referred and placed in agricultural jobs, as reported by the SESAs. Using the process previously described, we determined the numbers of applicants using unissued SSNs. As shown in the table below, the referrals of applicants using unissued SSNs varied widely among states, but averaged 10 percent and exceeded 18 percent in one of the six states we reviewed.
The analysis further showed that about 85 percent of those referred by the SESAs who were using unissued SSNs were hired by employers.
19. The data provide indications of significant
problems; however, it is not designed to produce definitive estimates of
unauthorized workers in U.S. agriculture. The period covered by our examination
varied among the states because of the availability of data. Consequently,
the percentage of unissued SSNs we identified represent the proportion
to the total reported by employers. Therefore, if an individual worked
for more than one employer under an unissued SSN during the period, the
number would be counted more than once as an exception. However, this is
offset by individuals who worked under a valid number for more than one
employer, which would be included in the base used to calculate the proportion.
We believe the proportions discussed understate the true percentage of
workers using invalid numbers. Our review did not include those using a
number issued to another individual either living or dead. In testing our
programs, we shared some of our work with the SSA's Inspector General which
completed a name and SSN match on the data. Although we were not privy
to the information because of restrictions on disclosure, SSA indicated
the exception rate was more than twice what we found by identifying unissued
|SESA APPLICANT REFERRALS (AGRICULTURAL)|
|July 1, 1995 through June 30, 1996|
|APPLICANTS WITH UNISSUED SSNs|
|STATE||NO. REFERRED||PERCENTAGE||NO. PLACED|
Unauthorized Immigrants May Have Also Been Referred to H-2A Jobs. We were unable to conduct our SSN match against all H-2A job referrals, because the data was only sporadically available. However, we did identify instances which suggest unauthorized foreign workers were referred to H-2A jobs as a part of the SESAs' efforts to recruit domestic workers. As a result, incongruous situations occurred in which SESAs recruited and referred what may have been unauthorized immigrants to growers as replacements for legally admitted H-2A workers.
For example, in one instance, an agricultural employer received certification for 75 H-2A workers. After they began working, 36 "domestic" applicants were referred to the employer by the SESA. The "domestic" workers were recruited through the interstate job order system and were from other states. The employer was required to hire all qualified and available "domestic" workers who applied until 50 percent of the contracted period of work had expired. (See the discussion of the "50 percent rule" in the Background" section of this report.) We examined the SSNs of the "domestic" workers who had been referred and found eight workers (22 percent) had supplied unissued SSNs and may have been unauthorized workers.
In another instance during our audit period, an employer placed 2 job
orders with the local job service office requesting referrals to fill 170
agricultural openings. He also submitted an application to import H-2A
workers if sufficient numbers of U.S. workers were not available. The job
service referred a total of 66 applicants to the employer. While job service
The certification process is characterized by extensive administrative requirements, paperwork and regulations that often seem dissociated with DOL's mandate of providing assurance that American workers' jobs are protected. Information on which ETA makes its decisions to certify workers is often incomplete and little information is collected to help manage the program or determine the effectiveness of its activities.
The SESAs are ETA's partners in helping to recruit U.S. workers and preventing the necessity of jobs being filled by foreign workers. However, most agricultural employers used other means of recruiting farmworkers and the SESAs' efforts to recruit workers for H-2A jobs were often lethargic. Few domestic referrals resulted from local, intrastate or interstate activities and some SESAs were hesitant to refer workers to H-2A employers because they believed sincere efforts to employ them would not be made.
H-2A employers' efforts to recruit U.S. workers were also unproductive, probably because some localized shortages of workers existed, and perhaps because of organizations that consolidated many employers' recruiting efforts, diminishing local workers' interest in the jobs.
The divided responsibilities of ETA for compliance with certain certification requirements and WHD for enforcing the terms of H-2A work contracts prevent cohesive enforcement of H-2A program requirements and contribute to uncertainties over responsibilities. Consolidating enforcement responsibilities would allow better oversight.
Eclipsing concerns with certification procedures is the large number of unauthorized immigrants in the agricultural workforce. Passage of the H-2A program presumed the need for a legal source of foreign agricultural labor to meet shortages anticipated as a result of immigration controls imposed by IRCA. However, over a decade after IRCA's passage, illegal immigration continues to provide an increasing supply of unauthorized workers to meet agricultural employers' needs.
As the economic and labor conditions that IRCA was expected to produce
by controlling the borders have not materialized, the H-2A program is operating
out of the context for which it was designed. As a result, DOL's H-2A certification
program cannot and does not protect U.S. agricultural workers' jobs from
the effects of imported labor, contrary to its mandate under IRCA.
The widespread availability of false documentation and ineffectiveness
of the I-9 process mask unauthorized immigrants as U.S. workers. We found
that neither employers nor the SESAs could distinguish between legal and
unauthorized workers. Even where the SESAs placed domestic workers in jobs
for which H-2A certifications had been requested, we found indications
that some of those workers may have been unauthorized.
As discussed in Chapter I, DOL's role in certification is ineffective. We believe the U.S. worker would be better protected if staff devoted to DOL's certification activities were redirected to increased enforcement, including enforcement of employment assurances.
Therefore, we recommend employers who seek H-2A workers continue to be required to maintain evidence of their efforts to recruit U.S. workers, in accordance with prevailing standards and practices. This should include continued cooperation with the SESAs in efforts to recruit U.S. workers, both within a state and among states. Employers should also be required to continue providing assurances regarding pay and working conditions afforded H-2A workers. However, resources used in the certification process should be redirected. We recommend the Secretary and the Assistant Secretaries for Employment and Training and Employment Standards work with the Congress and other affected agencies to introduce legislation that will:
Finally, control of illegal immigration, through an effective means
of denying unauthorized workers U.S. jobs, is essential for a viable guest
worker program. Therefore, we encourage the Secretary to work with the
Congress and other affected agencies in developing a reliable means of
verifying individual's citizenship status as they are hired. We note that
several such "pilot" systems are now being tested.
ETA and ESA concurred with our recommendation that enforcement authority for the H-2A program be consolidated within WHD. (See Appendix C.) However, the response indicates that the OIG and GAO have reported problems in related programs and reforms may be better considered in the broader context of all employer-based immigration programs.
The response indicates agreement to publish for notice and comment changes to the H-2A program that will revisit provisions that require rulemaking and finalize the H-2A program regulations.
The response also indicates that while primary responsibility for immigration rests with the Attorney General and the INS, the Secretary is a strong advocate of an effective employment-verification system.
However, the Agencies disagreed with statements in our report which they indicate may suggest that a shortage of agricultural workers exists. The response emphasizes that a surplus of farmworkers is available, although a good portion of them are unauthorized to work in the U.S. Consequently, most growers who want farmworkers find them and do not depend upon the
With respect to the use of master orders, the Agencies' response points
out that ETA is currently instructing its regions to carefully examine
the scope of growers' associations applications to ensure, with certain
exceptions, that the master order only requests workers for one time period
and one primary crop.
We concur with the response and acknowledge that a number of alternatives
are available and should be considered for consolidating enforcement authority
within WHD. We also agree that significant problems exist in the H-2A and
other immigration programs for which DOL has program responsibilities.
Hence, changes should encompass larger reforms necessary in all of the
employment-based immigration programs.
The above recommendations are unresolved. They will be resolved
upon OIG's receipt of an action plan to accomplish the recommended changes.
The audit's objective was to determine the effectiveness of DOL's certification procedures in satisfying the H-2A provisions of IRCA's Temporary Agricultural Guestworker Program. In particular, we focused upon DOL's responsibilities for ensuring there are not sufficient U.S. workers available to perform services for which foreign workers have been requested and that the hiring of foreign workers will not adversely affect the wages or working conditions of U.S. workers similarly employed.
We evaluated the adequacy of certification procedures that intend to
identify and recruit U.S. workers, including "positive recruitment" responsibilities
of employers, the SESAs' roles in supporting recruitment efforts, and other
factors that affect the availability and recruitment of U.S. workers.
The audit period was October 1, 1995 through September 30, 1996 (FY 1996). Since the SESAs' ES operations are reported on a program year basis, we used the period July 1, 1995 through June 30, 1996 (PY 1995) for reviewing SESAs' agricultural job order information. We conducted a limited scope audit and designed our case review sample to examine certifications issued within four ETA regions which accounted for 80 percent of the FY 1996 H-2A certifications. Our audit was conducted in accordance with Government Auditing Standards.
Our audit fieldwork was conducted at four levels: ETA's National Office; ETA Regional Offices (Regions I, II, III, and IV); 7 SESA state administrative offices, and 15 SESA local offices. Sites visited are identified in the table on the following page. In addition to the 7 states identified, we also conducted limited work in the States of Florida and Texas for the purpose of reviewing the Interstate Clearance System, and the processing of agricultural clearance orders. We also held discussions with joint employer associations representing H-2A employers, various H-2A and non-H-2A agricultural employers and interested farmworker organizations.
The Department's Employment Standards Administration, Wage and Hour Division, is charged with enforcing wage and working condition provisions of H-2A contracts. We did not include this enforcement mandate within the scope of our audit, except as it related to coordination of enforcement efforts among agencies within DOL, and whether required wage and working condition assurances were included in contracts prior to certification by ETA.
|H-2A WORK SITES|
|ETA REGIONAL OFFICE||SESA||LOCAL OFFICE|
|I - Boston||Connecticut||Hartford|
|II - New York||New York||Kingston
|III - Philadelphia||Virginia||Exmore
|IV - Atlanta||Georgia||Tifton|
ETA National Office. At ETA's National Office, we identified and evaluated procedures used to administer H-2A and migrant seasonal farmworker programs. We identified the populations of H-2A certifications and other agricultural job orders for our audit period. We also determined H-2A program costs.
ETA Regional Offices. We selected four ETA Regional Offices (Regions I through IV) for review. The regions selected certified 83 percent of the FY 1996 H-2A job openings (15,840 of 19,103). We identified and evaluated procedures for H-2A applications and job orders.
We selected a random sample of 318 H-2A certifications and evaluated the associated case files. In FY 1996, ETA certified 1,930 H-2A applications containing 19,103 job openings. We eliminated from this universe 857 applications and 1,748 jobs involving shepherding and related
occupations. From the remaining 1,073 applications containing 17,355
seasonal crop worker job openings, we selected as our universe those applications
filed in four regional offices which represent 15,840 of the job openings.
We selected for review a statistical sample of 318 applications containing
10,134 job openings located in the following four DOL regions, of which
ETA certified 9,951 (98 percent).(20)
State Employment Security Agencies. At each SESA, we documented the H-2A application and certification process through interviews and flowcharts. We evaluated and compared non-H-2A agricultural recruitment and placement activities with the SESAs' performance in referring and placing domestic workers with employers requesting H-2A certification. We also identified populations of non-H-2A agricultural employers (non-H-2A) and sent questionnaires to selected employers.
Local Job Service Offices. Again, we identified and evaluated local office procedures for
H-2A applications and job orders. We examined local office methods for recruiting agricultural labor. In selected local offices, we examined placements claimed on agricultural orders.
Joint Employer Associations. We obtained various forms of H-2A documentation from employer associations operating in two of the states we audited. We also conducted interviews concerning the joint employer associations' role in the H-2A program.
Agricultural Employers. We selected a sample of employers that had received H-2A certifications during FY 1996 and employers that had recruited workers referred by SESAs. We contacted a sample of employers to determine the methods they used to recruit workers. We asked them to comment on why they did or did not use the H-2A program, their views on the effectiveness of the H-2A program, and various aspects of their attempts to recruit workers.
We also conducted limited reviews in the States of Florida and Texas to determine the procedures used in processing interstate agricultural job orders, the numbers of interstate orders filed through the Interstate Clearance System, and those that involved H-2A job openings. We also interviewed the staff to determine how decisions regarding referrals of workers on the interstate orders were made and obtained the staffs' views on the H-2A program.
Unissued SSNs. Using information supplied by the Social Security Administration, we developed a computer program and applied it to wage history files in the States of Florida, Georgia, North Carolina and Texas. The program enabled us to identify agricultural employers and related employees that were reported as having earned wages under SSNs that were not issued at the time the wages were reported.
The period covered by our review varied by state and depended upon the availability of wage history data. Generally, the files included the most current 8 quarters of wage history data available at the time of our visit, which included quarters through September 30, 1996.
Using the same technique, we identified workers referred in six of the
seven states to agricultural employers who were using unissued SSNs. Where
data was available, we also identified individuals referred to H-2A employers
as domestic workers using unissued SSNs.
Braceros program, one of the most widely used guestworker programs, began
in 1942 and lasted until 1964.(21) During
its 22 year existence, it is estimated that between 4 and 5 million Mexican
agricultural workers were admitted into the U.S. as temporary workers.
U.S. agricultural employers were prohibited from recruiting workers directly
from Mexico and contracts were written so that the Farm Security Administration
was the primary employer that contracted with individual agricultural employers
and braceros. A total of 445,000 Mexican workers was admitted into the
U.S. at the program's peak, in 1956. Many worked on California vegetable
farms. Support for the program waned when studies indicated wages of similarly
employed domestic workers were stagnate or declined in areas where braceros
were used and because of pressure from organized labor, religious and community
The H-2 Program began with passage of the Immigration and Nationality Act of 1952. The H-2 Program was in effect and operated concurrently with the Braceros Program. However, unlike the Braceros or British West Indies Programs, the H-2 Program was the first to be enacted as a permanent part of the law, rather than a means of addressing a specific labor shortage.
The H-2 Program allowed employers to bring in foreign workers for temporary jobs provided DOL found that their presence would not displace U.S. workers or adversely affect their wages or working conditions.
Employers were required to recruit domestic workers for up to 80 days before work was to begin, offer a contract that paid workers at least a minimum established wage rate, provide housing, and offer meals at minimal cost. Generally, the terms and conditions of their employment could not be less than the "local prevailing practice." Also, the employer had to
guarantee employment for three-fourths of the contract period and compensate workers for on-the-job injuries.
If domestic workers were not found, an employer could bring in foreign workers. However, the employer had to provide foreign workers the same terms and working conditions. If qualified domestic workers applied within the first half of the contract period, they had to be hired, regardless of whether foreign workers were employed.
When the Braceros Program ended in 1964, the H-2 program became the
only legal means to contract with nonimmigrant workers for agriculture.
However, the H-2 program was also the subject of much debate, criticism
and litigation. Worker advocates believed the protections intended by the
law were not effective in preventing exploitation of foreign workers. Growers,
primarily in the West, believed the program was inflexible and did not
allow them to address the unpredictable nature of their perishable crops
and needs for workers.
Congress was concerned about the flow of illegal immigration into the U.S. and debated the issue throughout much of the 1970s. In 1981, a bipartisan commission recommended that the numbers of illegal immigrants could be reduced by (1) stricter control of the U.S. borders, (2) denial of employment to undocumented workers, and (3) legalization of long-term undocumented aliens.
Illegal aliens were to be prevented from gaining employment by requiring employers to hire only individuals who could establish their right to work in the U.S. and by imposing fines and/or prosecuting employers who did not comply. The recommendation to legalize certain aliens then in the Country was intended to avoid: (1) punishing those undocumented immigrants who had spent many years in the U.S. and (2) risking disruption of the economy by deporting them. The "legalization" provisions of IRCA also appealed to agricultural growers that wanted assurance a domestic supply of labor would be available to work in the industry. The Commission's recommendations became the basis of provisions in IRCA.
The SAW provisions of IRCA provided aliens the opportunity to gain permanent resident status if they could prove they had performed 90 "man-days" of seasonal agricultural services during the 1-year period that ended May 1, 1986. "Seasonal agricultural services" were defined as the production of " . . . fruits and vegetables of every kind and other perishable commodities." The definition of "perishable commodities" was expanded to include a variety of crops which are not edible, such as cotton and Christmas trees.
The SAW provisions were more generous than the IRCA's general legalization program. Under the general program, aliens were required to prove they resided in the U.S. continually from January 1, 1982, and demonstrate knowledge or study of English and U.S. history. SAW applicants had 18 months to apply for legal status, where general legalization applicants had 12 months. Standards for deportation of illegal aliens apprehended by INS were also more liberal for those individuals who indicated they were potential SAW applicants than for those who hoped to stay their deportation under the general legalization program.
Nearly 1.3 million SAW applications were filed with the INS during the 18-month application period. California accounted for about 52 percent of the SAW applicants filed, followed by 11 percent in Texas and 8 percent in Florida. Some sources indicate there was a significant amount of fraud in the application process that resulted from the larger than expected numbers of applicants and poor implementation of the program.
The Replenishment Agricultural Worker Program (RAW) was also included in the IRCA's provisions. RAW allowed the admission of foreign farmworkers into the U.S., in the event that an agricultural labor shortage was determined to exist. The RAW's provisions were the result of growers' concerns that those legalized under SAW's provisions would quit agricultural work and the supply of workers they had historically hired would diminish.
The number to be admitted was based upon a "shortage number" established by the DOL and the USDA with assistance of the Census Bureau. The RAW program was authorized from 1990 to 1994. The RAW's requirements were complex; however, no shortages were determined to exist during the period. Consequently, no RAW workers were admitted.
Many of the H-2A Program's provisions are similar to the H-2 Program that it replaced. The most distinguishing difference is the effort the H-2A Program requires of employers to recruit and hire U.S. workers before foreign workers can be employed. Employers may petition the Attorney General, through the INS, to import temporary foreign agricultural workers. However, they must first apply to the DOL for certification that (1) there are not sufficient domestic workers available to perform the services, and (2) that hiring foreign workers will not adversely affect the wages or working conditions of U.S. workers similarly employed.
The Application and Certification Mechanism. DOL's certification procedures, which are found in Federal Regulations at 20 CFR Part 655, identify the methodology used to determine if
An employer or agent of the employer must file an application with one of ETA's RAs who has jurisdiction over the state in which the foreign laborers are requested. Accompanying the application must be a job offer for U.S. workers, which must also be provided the SESA local office serving the area of employment.
The application must be received by ETA's regional office no less than 60 days prior to the employers first estimated dates of need. Several workers can be requested on each application, provided the same types of services are to be performed in the same occupation and area of employment. Separate applications are required for each date of need unless the regional office believes the dates of need are so close that separate applications would impose a filing burden on the employer.
Generally, applications must be received by ETA's regional offices a minimum of 60 days before the employer's date of need for the workers. ETA must notify the applicant within 7 days of any deficiencies in the application and the applicant has 5 days to submit corrections or amendments. The RA must make a certification determination no later than 20 days before the date of need, if the employer has complied with the requirements for certification. In special emergency situations, the RA has the authority to waive the 60-day requirement.
When the employer's application is received by the local office, the local office uses the "job offer" portion of the application to prepare a local job order and complete the agricultural clearance order. Local recruitment should begin immediately.(22) After the employer and the SESA are notified by the RA that the application has been accepted and the clearance order is approved, the SESA distributes the employer's clearance order into the intrastate and interstate clearance system.
In the RA's acceptance letter, the employer is directed to carry out a "positive recruitment plan" (discussed in a later section of this narrative), cooperate with the SESA in recruiting U.S. workers and document all referrals, and the reasons those referred were not hired. The employer is also directed to contact past domestic workers to determine their availability. The acceptance letter also includes instruction on minimum recruitment efforts expected of the employer and the terms and conditions of employment that must be included in job
Upon receipt of the employer's report, the RA makes a determination to accept or deny all or part of the certification. The letter identifies the number of H-2A workers the employer may recruit, the period covered by the certification, and other information pertinent to the employer's request. The number of H-2A workers certified will depend upon the number of U.S. workers available and recruited for the jobs and whether the employer has complied with the terms of the application.
Appeal of a RA's Decision. If an application is rejected, the RA must provide the employer notification by next-day delivery, state the reason(s) for the denial and offer the applicant the opportunity to amend the application and resubmit it within 5 calendar days. The applicant is also offered the opportunity to receive an expedited administrative review or de novo hearing before an administrative law judge. Identical appeal procedures for denial of a certification are available to employers.
Employers seeking H-2A certification must have free housing available for non-local workers. The SESA is responsible for ensuring a preoccupancy housing inspection is completed and that the employer's housing, at a minimum, meets applicable OSHA or ETA standards. The SESA itself may not complete the housing inspections. Rather, it may have written cooperative agreements with other governmental agencies to complete the inspections. Housing need not be owned by the employer. The employer may lease or rent facilities for the workers. An employer whose housing is not in compliance may be granted conditional access to the interstate clearance system with the assurance that the housing will pass inspection at least 30 days prior to the anticipated date of need. If the housing does not pass inspection, the employer's job order is removed from clearance.
"Positive Recruitment" Efforts Required of Employers. The H-2A Program's "positive recruitment" requirement is one of the most significant changes IRCA made to provisions that existed under the H-2 temporary labor agricultural program. The employer is responsible for positive recruitment efforts to attract U.S. workers that are " . . . no less than that of non-H-2A agricultural employers of comparable or smaller size in the area of employment." The positive recruitment requirement is in addition to circulation of the clearance order through the ES system. The employer is also responsible for attempting to secure U.S. workers through farm labor contractors (crew chiefs or crew leaders), where it is the prevailing practice of non-H-2A
The 50 Percent Rule. The employer's obligation to conduct positive recruitment ends on the date foreign workers depart for the employer's place of employment. However, the employer must keep the order active with the SESA until 50 percent of the contract period has expired. Except for very "small" requests, the employer is required to hire any qualified and eligible U.S. worker who applies for a job until 50 percent of the period of work contract has expired. Thus, under the "50 percent rule," an H-2A worker can be displaced by a U.S. job seeker.
Agricultural Recruitment System (ARS). The ARS was established to help agricultural employers recruit workers on a temporary or seasonal basis and to provide workers who are seeking temporary agricultural employment with opportunities for employment. The vehicle established to satisfy this role is the intra and interstate recruitment system. This system is designed to offer an employer, in an area with a shortage of agricultural labor, the opportunity to recruit workers within the same state or from other states that traditionally experience a surplus of workers. An employer's clearance order (ETA 790) must meet certain requirements (outlined previously) before the order can be placed in the intra or interstate system. This determination is made by the ETA RA or his/her designee. Once the order has been approved by the RA, the Order Holding Office (OHO) clears the order to local offices within the state and to designated supply states around the country.
Three-fourths guarantee. The employer must guarantee the worker an opportunity to work at least three-fourths of the number of hours in the work days during the period of the contract, beginning with the first workday after the arrival of the worker at the place of employment and ending on the expiration date specified in the work contract. If the employer affords the worker during the total work contract period less employment than that required under this guarantee, the employer must pay such worker the amount which the worker would have earned had the worker worked for the guaranteed number of days. This guarantee does not apply to any H-2A worker who is displaced by a U.S. worker due to the 50 percent rule.
Adverse Effect Wage Rate (AEWR). Employers apply for certification under the H-2A provisions must offer at least the AEWR to foreign workers certified under H-2A and any qualified domestic workers interested in the job offer. The AEWR is the hourly wage rate that is determined by the U.S. Department of Agriculture (USDA) through survey findings that use the weighted average hourly wage rate for field and livestock workers (combined) for each state. The AEWRs are published in the Federal Register, usually in March or April, and become effective immediately upon publication.
Prevailing Practice Surveys. SESAs are encouraged to conduct formal surveys of employers, as their resources permit, to determine the acceptability of wages, benefits, and working conditions on the employer's H-2A application. The following three standards apply:
Verification of a job applicant's legal status to work in the U.S. is done by completing the Form I-9 (Employment Eligibility Verification Form). The basic procedures for filling out the Form I-9 are: