H-2A and H-2B Visa Programs:

Increased Protections Needed for Foreign Workers

GAO-15-154: Published: Mar 6, 2015. Publicly Released: Mar 6, 2015.

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What GAO Found

More than 250,000 foreign workers entered the United States through the H-2A (agricultural) and H-2B (nonagricultural) visa programs in fiscal years 2009 through 2013. U.S. employers use a process that involves multiple federal agencies to petition for and employ temporary foreign workers through these visa programs. The Department of State (State) reported that most workers using these visas were from Mexico. The majority of workers who entered the country were men and most were 40 years old or younger. Most workers were requested for the agriculture, horticulture, or food service industries, but the Department of Homeland Security (DHS) does not electronically maintain standardized data on workers' occupations, so information on occupations held is not fully known.

Generally, employers recruit workers in their home countries either directly or indirectly, using an outside third party, and some abuses—such as charging prohibited fees or not providing adequate job information—have been reported. About 44 percent of U.S. employers who hired H-2A and H-2B workers in fiscal year 2013 indicated on their petition to DHS that they planned to recruit workers indirectly. Some workers, federal officials, and advocacy groups GAO interviewed identified abuse during recruitment including: third-party recruiters charging workers prohibited fees; not providing information about a job, when required, such as wage level; or providing false information about job conditions. Stakeholders have called for providing workers with accurate job details and working conditions at the time of recruitment. However, DHS, which collects petition information from employers, does not electronically capture detailed job information or make these data publicly available. As a result, potential workers and their advocates cannot verify recruiters' job offers. DHS officials said they may capture more information on employers and job offers as the department transitions to an electronic petition system, but specifics have not been drafted.

To help prevent exploitation of and provide protections to workers, federal agencies screen employers and can impose remedies for those who violate visa program rules. However, certain limitations hinder the effectiveness of these remedies. When the Department of Labor (DOL) debars—or temporarily bans from program participation—employers who commit certain violations, it electronically captures limited information on these employers and shares it with DHS and State, which also screen employers' requests to hire workers. DOL and DHS officials said they are working on an agreement to share more information, but it has not been finalized. GAO's past work has shown that establishing guidelines on information sharing enhances interagency collaboration, which in this case could reduce the risk that some ineligible employers could be approved to hire workers. In addition, in fiscal years 2009 through 2013, DOL's H-2 employer investigations focused primarily on H-2A employers, although DOL identified some H-2B industries as high risk. DOL officials said they have not conducted a national investigations-based evaluation of H-2B employers as they have for H-2A employers. Without such an evaluation, it is unclear whether DOL's resources are being focused appropriately. Further, GAO's analysis found that about half of DOL investigations took longer than the 2-year statute of limitations on debarment. Because DOL does not collect data on the nature of the cases affected by this 2-year period, the agency cannot assess whether the statute of limitations has limited its ability to use debarment as a remedy.

Why GAO Did This Study

Tens of thousands of foreign nationals travel to the United States each year under the H-2A and H-2B visa programs. These programs are designed to fill a temporary need that U.S. workers are unavailable to fill. Employers may use third parties to recruit these workers and recruitment generally takes place outside the United States with limited federal oversight. GAO was mandated to study foreign labor recruitment.

This report examines (1) the number of H-2A and H-2B workers who enter the country and the occupations they fill, (2) how U.S. employers recruit H-2A and H-2B workers and what abuse may occur in recruitment and employment, and (3) how well federal departments and agencies protect H-2A and H-2B workers. To address these objectives GAO conducted site visits to Mexico (where many workers originate) and Florida and Texas (where many work). GAO also analyzed relevant data from five federal agencies for fiscal years 2009 through 2013 including data on employers' applications for foreign workers, visas issued, violations committed by employers, and services provided to exploited workers.

What GAO Recommends

GAO recommends, among other actions, that DHS publish information on jobs and recruiters; that DOL and DHS finalize their data sharing agreement; and that DOL review its H-2B enforcement efforts and collect data on cases affected by the debarment statute of limitations. The agencies generally agreed with our recommendations.

For more information, contact Andrew Sherrill, (202) 512-7215, sherrilla@gao.gov 

Recommendations for Executive Action

  1. Status: Open

    Comments: DHS concurred with our recommendation. The agency stated it would review Form I-129 (Petition for a Nonimmigrant Worker) to determine if any changes are needed to capture standardized occupational information for H-2B temporary workers. USCIS' transformation initiative involves digitizing the paper form and possibly modifying it to capture the Standard Occupational Classification code. They will use an OMB-approved version of the form for a future release in their Electronic Immigration System (USCIS ELIS). Given their priorities, USCIS will be addressing other project lines prior to the nonimmigrant benefits, putting the estimated completion date at September 30 2017, at which time GAO will close this recommendation.

    Recommendation: To better report the occupations filled by H-2B workers who have been approved by DHS, the Director of U.S. Citizenship and Immigration Services should implement during its transformation process to an electronic petition form, an occupation classification system that conforms to a national standard.

    Agency Affected: Department of Homeland Security: United States Citizenship and Immigration Services

  2. Status: Open

    Comments: DHS concurred with this recommendation. When USCIS modifies Form I-129 and incorporates it into their Electronic Immigration System (ELIS), they will ensure job-related information is captured. The estimated completion date is December 31, 2017, at which time GAO will close this recommendation.

    Recommendation: To help potential H-2A and H-2B workers and their advocates better assess employment offers and reduce their vulnerability to abuse, the Director of U.S. Citizenship and Immigration Services should, during its transformation to an electronic petition form, ensure that petition job information is collected in an electronic manner and made available to the public as soon as possible following a final adjudication decision. Such job information should include number of positions, wage, and any staffing, placement or recruitment agency the employer plans to use.

    Agency Affected: Department of Homeland Security: United States Citizenship and Immigration Services

  3. Status: Open

    Comments: USCIS reported that in May 2016 it sent a revised version of the draft data sharing memorandum of agreement to the DOL for its review. USCIS indicated that while it waits for a response from DOL, USCIS is working on the Information Sharing Access Agreement. The Information Sharing Access Agreement will accompany the data sharing memorandum of agreement and address the technical aspects of its implementation. In June 2016, DOL reported that it had agreed on the final draft language for the agreement and would be initiating its departmental clearance process in July 2016.

    Recommendation: To help protect workers from being hired by employers who have been debarred from program participation, the Director of U.S. Citizenship and Immigration Services and the Secretary of Labor should finalize and implement their agreement to share data, including those on debarred employers.

    Agency Affected: Department of Homeland Security: United States Citizenship and Immigration Services

  4. Status: Open

    Comments: The Department of Labor (DOL) agreed that all employer-related information they collect should be considered when screening new applications. The agency noted that it currently screens for debarred employers in two ways: 1) by adding debarred employers to its iCERT System, which matches incoming employer applications using the federal Employer Identification Number; and 2) by conducting more intensive reviews during case adjudications using a more expansive set of employer-related information. To achieve greater efficiencies in the screening process, they will explore enhancing iCERT's matching mechanism to flag more information on debarred employers for implementation in CY 2016.

    Recommendation: To help protect workers from being hired by employers who have been debarred from program participation, the Secretary of Labor should direct the Assistant Secretary, Employment and Training Administration, to use all employer-related information it collects on debarred employers to screen new applications.

    Agency Affected: Department of Labor

  5. Status: Open

    Comments: The Department of Labor (DOL) generally agreed with this recommendation. The agency prioritizes a range of research, data analysis, and evaluation projects that consist of external and internal studies. As part of its annual planning process, the agency maintains a strategic enforcement program with national and local initiatives. The agency will incorporate this recommendation into these processes to determine an appropriate time and approach for an evaluation of H-2B employers. We will monitor this effort.

    Recommendation: To ensure that H-2B workers are adequately protected and that DOL's investigative resources are appropriately focused, the Secretary of Labor should direct the Administrator, Wage and Hour Division, to review its enforcement efforts and conduct a national investigations-based evaluation of H-2B employers.

    Agency Affected: Department of Labor

  6. Status: Open

    Comments: The Department of Labor (DOL) generally agreed with this recommendation and said it would consider undertaking this type of data collection on a limited basis. DOL's Office of Inspector General (IG) noted that one of its reports recommended that ETA and WHD take steps to assure that debarments were considered and decisions documented for anyone convicted of foreign labor certification violations, and that debarments were included in the government-wide exclusion system. The IG sends referrals for administrative debarment to DOL at the earliest stage possible following an investigation. However, they do not make those recommendations to DOL on those referrals. Thus, the IG doesn't have the data required to conduct the evaluation GAO recommends. However, the IG agrees with the recommendation that DOL determine whether the 2-year statute of limitations on debarment limits its use as a remedy for employers who violate program requirements. Toward that end, the IG will determine and communicate to DOL the number of labor racketeering and fraud investigation referrals that were sent; and identify and refer to DOL matters that may be appropriate for immediate consideration for debarment and suspensions actions.

    Recommendation: To determine to what extent, if any, the 2-year statute of limitations on debarment limits its use as a remedy for employers who violate program requirements: (1) the Secretary of Labor should direct the Assistant Secretary, Employment and Training Administration, and the Administrator, Wage and Hour Division, to collect data on the nature of the cases where debarment would have been recommended but was not because the 2-year statute of limitations had expired, and based on that data determine whether to pursue a legislative proposal to extend the statute of limitations; and (2) the Department of Labor Inspector General should direct the Assistant Inspector General, Office of Labor Racketeering and Fraud Investigations to provide the Assistant Secretary, Employment and Training Administration, and the Administrator, Wage and Hour Division, data on the number of referrals for debarment that the Inspector General's Office sent to the department after the 2-year statute of limitations had expired.

    Agency Affected: Department of Labor

  7. Status: Open

    Comments: The Department of Labor concurred with this recommendation and confirmed that it is working with DHS on an MOA to share labor certification and petition data between the two agencies. The MOA will allow real-time exchange of unclassified information related to temporary and permanent labor certification applications and DHS's employer and beneficiary related information. It is expected to be implemented it in CY 2016, at which time GAO will close this recommendation. As of June 2016, the MOA had not yet been signed, however, DOL officials reported that they had agreed upon final draft language for the MOA with DHS, and will be initiating the departmental clearance process for the MOA during July 2016. In addition, to enhance the amount of employer information available to partner agencies quickly, in March 2015, DOL began sending copies of its H-2A and H-2B Application for Temporary Labor Certification (Form 9142A, 9142B) for employers that were subject to final debarment action by DOL. These forms contain all information related to the debarred employer.

    Recommendation: To help protect workers from being hired by employers who have been debarred from program participation, the Director of U.S. Citizenship and Immigration Services and the Secretary of Labor should finalize and implement their agreement to share data, including those on debarred employers.

    Agency Affected: Department of Labor

 

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