H-2A Visa Program:

Modernization and Improved Guidance Could Reduce Employer Application Burden

GAO-12-706: Published: Sep 12, 2012. Publicly Released: Oct 15, 2012.

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moranr@gao.gov

 

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What GAO Found

Over 90 percent of employer applications for H-2A workers were approved in fiscal year (FY) 2011, but some employers experienced processing delays. For example, the Department of Labor (Labor) processed 63 percent of applications in a timely manner in FY 2011, but 37 percent were processed after the deadline, including 7 percent that were approved less than 15 days before workers were needed. This left some employers little time for the second phase of the application process, which is managed by the Department of Homeland Security (DHS), and for workers to obtain visas from the Department of State (State). Although workers can apply for visas online, most of the H-2A process involves paper handling, which contributes to processing delays. In addition, employers who need workers at different times of the season must repeat the entire process for each group of workers. Although the agencies lack data on the reasons for processing delays, employers reported delays due to increased scrutiny by Labor and DHS when these agencies implemented new rules and procedures intended to improve program integrity and protect workers. For example, in FY 2011, Labor notified 63 percent of employers that their applications required changes or additional documentation to comply with its new rules, up sharply from previous years.

Federal agencies are taking steps to improve the H-2A application process. Labor and DHS are developing new electronic application systems, but both agencies’ systems have been delayed. Labor also recently began using e-mail to resolve issues with employers, and all three agencies provided more information to employers to clarify program requirements. Even with these efforts, some employers view Labor’s decisions as inconsistent. For example, some employers received different decisions about issues such as whether they can require workers to have experience in farm work and questioned the methods states used to decide whether the job qualifications in their applications were acceptable. We found states used different methods to determine acceptable qualifications, which is allowed under Labor’s guidance.

Why GAO Did This Study

The H-2A visa program allows U.S. employers anticipating a shortage of domestic agricultural workers to hire foreign workers on a temporary basis. State workforce agencies and three federal agencies—the Departments of Labor, Homeland Security, and State review applications for such workers. GAO was asked to examine (1) any aspects of the application process that present challenges to agricultural employers, and (2) how federal agencies have addressed any employer challenges with the application process. GAO analyzed Labor and DHS data; interviewed agency officials and employer representatives; and conducted site visits in New York, North Carolina, and Washington.

What GAO Recommends

GAO recommends that (1) Labor and DHS use their new electronic application systems to collect data on reasons applications are delayed and use this information to improve the timeliness of application processing; (2) Labor allow employers to submit one application for groups of similar workers needed in a single season; and (3) Labor review and revise, as appropriate, its guidance to states regarding methods for determining the acceptability of employment practices in employers’ applications. DHS and Labor agreed with the recommendation to collect additional data and Labor agreed with the recommendation to update its guidance. Labor disagreed with the recommendation it allow employers to apply once per season. GAO believes the recommendation is still valid and that a single application does not preclude timely testing of the labor market as workers are needed.

For more information, contact Revae Moran at (202) 512-7215 or moranr@gao.gov.

Status Legend:

More Info
  • Review Pending-GAO has not yet assessed implementation status.
  • Open-Actions to satisfy the intent of the recommendation have not been taken or are being planned, or actions that partially satisfy the intent of the recommendation have been taken.
  • Closed-implemented-Actions that satisfy the intent of the recommendation have been taken.
  • Closed-not implemented-While the intent of the recommendation has not been satisfied, time or circumstances have rendered the recommendation invalid.
    • Review Pending
    • Open
    • Closed - implemented
    • Closed - not implemented

    Recommendations for Executive Action

    Recommendation: To improve the timeliness of application processing, as part of creating new online applications, the Secretaries of Labor and Homeland Security should develop a method of automatically collecting data on the reasons for deficiency notices, requests for additional evidence, and denials, and use this information to develop strategies to improve the timeliness of H-2A application processing. Such information could help the agencies determine whether, for example, employers may need more guidance or staff may need more training.

    Agency Affected: Department of Homeland Security

    Status: Open

    Comments: DHS plans to implement an electronic system that would allow employers to file a petition for H-2A workers online by the end of calendar year 2014. We will close this recommendation when this effort is completed.

    Recommendation: To improve the timeliness of application processing, as part of creating new online applications, the Secretaries of Labor and Homeland Security should develop a method of automatically collecting data on the reasons for deficiency notices, requests for additional evidence, and denials, and use this information to develop strategies to improve the timeliness of H-2A application processing. Such information could help the agencies determine whether, for example, employers may need more guidance or staff may need more training.

    Agency Affected: Department of Labor

    Status: Open

    Comments: In December 2012, DOL began accepting online applications for the H-2A program, but this electronic system was not capable of automatically tracking the reasons for deficiency notices, requests for additional evidence, or denials. DOL agreed this information could be useful and reported it planned to explore the level of resources that would be required to add this kind of data collection and reporting function. During FY 2013, the Department began to implement a new electronic filing system for employers who use the program. In May 2013, the Department began developing business requirements to formally collect and report on the reasons for employer-filed application deficiencies, reasons why the Department has issued requests for additional evidence to employers, and specific reasons for denial determinations issued on employer H-2A applications. By December 2013, DOL expects to have fully implemented this system. We will close this recommendation when DOL confirms this.

    Recommendation: To reduce the burden on agricultural employers and improve customer service, the Secretary of Labor should permit the use of a single application with staggered dates of need for employers who need workers to arrive at different points of a harvest season. Employers could still be required to submit evidence of their recruitment efforts, but would not be required to resubmit a full application for each set of workers needed during the season.

    Agency Affected: Department of Labor

    Status: Closed - Not Implemented

    Comments: The Department reported in December 2012 that it did not plan to take action on this recommendation, citing concerns that allowing staggered dates of need would necessarily result in a single recruitment period for all hiring. However, for each of the staggered dates of need specified in an application, as noted in our recommendation, "Employers could still be required to submit evidence of their recruitment efforts, but would not be required to submit a full application for each set of workers needed during the season. In FY13, DOL reported that it continued to disagree with this recommendation and planned to take no action.

    Recommendation: To promote consistency and transparency of decisions made about the acceptability of employer applications and clarify program rules, the Secretary of Labor should review and revise, as appropriate, guidance provided to state workforce agencies on methods to determine the acceptability of employment practices. This guidance should be made available to employers and published on Labor's Web site.

    Agency Affected: Department of Labor

    Status: Open

    Comments: DOL agreed that updated guidance to state workforce agencies would promote consistency and transparency of decisions made on employer applications and clarify program rules. DOL reported that in January 2013, it began performing a comprehensive review of the ET Handbook No. 398, which has provided long standing guidance to State Workforce Agencies on conducting prevailing practice surveys and related employment determinations. The Department is currently examining the legal and budgetary feasibility of promulgating revised guidance. GAO will close this recommendation when the revised guidance is finalized.

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