H-2A Visa Program: Modernization and Improved Guidance Could Reduce Employer Application Burden
Highlights
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.
Recommendations
Recommendations for Executive Action
| Agency Affected | Recommendation | Status |
|---|---|---|
| Department of Homeland Security | 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. |
In October 2015, DHS implemented a web-based correspondence system with the capability of automatically tracking reasons for requests for evidence and denials on H-2A cases. This information will assist the agency in identifying issues in the process and could lead to additional training to address these issues.
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| Department of Labor | 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. |
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. DOL expected to fully implement this system by December 2013. In FY15, DOL reported that it had completed implementing this system in September 2013, ahead of schedule.
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| Department of Labor | 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. |
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.
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| Department of Labor | 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. |
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. In FY 2014, ETA published a comprehensive agricultural prevailing practice library for employers on the Office of Foreign Labor Certification website (http://www.foreignlaborcert.doleta.gov/aowl_survey_pdf.cfm).
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