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United States Government Accountability Office: 
GAO: 

Report to the Chairman, Subcommittee on Livestock, Dairy, Poultry, 
Marketing and Agriculture Security, Committee on Agriculture, 
Nutrition, and Forestry, U.S. Senate: 

September 2012: 

H-2A Visa Program: 

Modernization and Improved Guidance Could Reduce Employer Application 
Burden: 

GAO-12-706: 

GAO Highlights: 

Highlights of GAO-12-706, a report to the Chairman, Subcommittee on 
Livestock, Dairy, Poultry, Marketing and Agriculture Security, 
Committee on Agriculture, Nutrition, and Forestry, U.S. Senate. 

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 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. 

Figure: Percentage of Employer Applications Requiring Changes or 
Additional Documentation (FY 2006-2011): 

[Refer to PDF for image: horizontal bar graph] 

Year: 2006; 
Percentage of Employer Applications: 7%. 

Year: 2007; 
Percentage of Employer Applications: 14%. 

Year: 2008; 
Percentage of Employer Applications: 15%. 

Year: 2009; 
Percentage of Employer Applications: 44%. 

Year: 2010; 
Percentage of Employer Applications: 37%. 

Year: 2011; 
Percentage of Employer Applications: 63%. 

Source: GAO analysis of Department of Labor data. 

[End of figure] 

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. 

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. 

View [hyperlink, http://www.gao.gov/products/GAO-12-706]. For more 
information, contact Revae Moran at (202) 512-7215 or moranr@gao.gov. 

[End of section] 

Contents: 

Letter: 

Background: 

Employers Cited Challenges with the Largely Paper-Based Process, 
Implementation of New Rules and Procedures, and Complexity: 

Agencies Took Steps to Improve the Process, but Delays in 
Modernization and Unclear Guidance Continue to Pose Challenges: 

Conclusions: 

Recommendations for Executive Action: 

Agency Comments and Our Evaluation: 

Appendix I: Comments from the Department of Labor: 

Appendix II: Comments from the Department of Homeland Security: 

Appendix III: GAO Contact and Staff Acknowledgments: 

Tables: 

Table 1: Key Department of Labor H-2A Program Requirements: 

Table 2: Status of Agency Plans to Deliver Online H-2A Applications, 
Including Original and Current Planned Implementation Dates: 

Table 3: Examples of Labor's Efforts to Provide Additional Guidance to 
Employers on H-2A Program Requirements, 2010 to 2012: 

Table 4: Standards States Use to Determine Acceptable Terms and 
Conditions in H-2A Job Orders: 

Figures: 

Figure 1: Deadlines for Applying for Workers under the H-2A Program: 

Figure 2: H-2A Application Processing Times, Fiscal Year 2011: 

Figure 3: Percent of Worldwide H-2A Visa Applications Processed by 
Posts in Mexico, Fiscal Year 2011: 

Figure 4: The Paper-based H-2A Application Process: 

Figure 5: Percentage of Employer Applications Issued Deficiency 
Notices from Labor, Fiscal Year 2006-2011: 

Figure 6: Number of Employer Appeals of Labor's Deficiency Notices/ 
Denials, Fiscal Year 2006-2011: 

Figure 7: Percentage of Employer Applications Receiving Requests for 
Evidence from DHS, Fiscal Year 2006-2011: 

Abbreviations: 

DHS: Department of Homeland Security: 

INA: Immigration and Nationality Act: 

Labor: Department of Labor: 

State: Department of State: 

[End of section] 

United States Government Accountability Office: 
Washington, DC 20548: 

September 12, 2012: 

The Honorable Kirsten Gillibrand: 
Chairman: 
Subcommittee on Livestock, Dairy, Poultry, Marketing and Agriculture 
Security: 
Committee on Agriculture, Nutrition, and Forestry: 
United States Senate: 

Dear Madam Chairman: 

The nation's agricultural sector relies on hired farm workers to bring 
products to market. Obtaining enough workers at the right time is 
critical, especially for producers of crops with short harvest 
seasons. Because it is difficult for some agricultural employers to 
find enough U.S. workers, federal law allows these employers to apply 
for permission to hire foreign workers on a temporary or seasonal 
basis and arrange for their entry into the country under special 
visas, known as H-2A visas.[Footnote 1] About 55,000 H-2A visas were 
issued in fiscal year 2011, according to the Department of State 
(State). To ensure protections for workers and proper vetting of these 
foreign workers before entry, state workforce agencies and three 
federal agencies are involved in administering the H-2A process--the 
Departments of Labor (Labor), Homeland Security (DHS), and State. 
Before employers can employ H-2A workers, they must apply for a 
certification from Labor that a labor shortage exists in their 
particular case and U.S. workers will not be adversely affected by 
hiring H-2A workers. If Labor determines these conditions are met, an 
employer can submit a petition to DHS to employ foreign workers. If 
DHS approves the petition, foreign workers can apply to State for a H-
2A visa. In 1997, we reviewed the H-2A program and made 
recommendations to improve service to employers and reduce the amount 
of time it takes federal agencies to process employer applications for 
H-2A workers.[Footnote 2] Agencies have implemented some of our 
recommendations, but questions about whether the H-2A program meets 
employers' needs were raised in recent congressional hearings. In 
response to your request, to identify ways to expedite the application 
process while maintaining worker protections and national security, we 
examined (1) what aspects of the application process, if any, present 
challenges to agricultural employers, and (2) how federal agencies 
have addressed any employer challenges with the application process. 

To identify potential challenges employers experience when applying 
for H-2A workers, we interviewed representatives from 25 employers and 
12 agricultural employer associations. We identified these employers 
through national employer associations and regional associations in 
the states we visited. We also visited three states (New York, North 
Carolina, and Washington), which we selected because they account for 
a sizable proportion of all H-2A workers (about 24 percent of H-2A 
positions certified in fiscal year 2011 according to data reported by 
Labor) and vary in geographic location. Within each state, we 
interviewed a combination of state workforce agency officials, 
representatives from agricultural employer associations, employers, 
and farm worker advocates. Information obtained from our site visits 
and employer interviews cannot be generalized to all states or 
agricultural employers. To review the timeliness of application 
processing, we analyzed data from Labor for fiscal years 2006 through 
2012 and from DHS for fiscal years 2006 through 2011. To assess the 
reliability of the data, we reviewed agency documentation, interviewed 
Labor and DHS officials, tested the electronic data, and compared our 
results with related information reported by the agencies. Based on 
these reviews, we determined that the data used to determine the 
timeliness of application processing were sufficiently reliable for 
the purposes of this report. We reviewed Labor's data on the number of 
H-2A workers employers requested and the number of H-2A workers 
certified by Labor, and determined that these data were not 
sufficiently reliable for our purposes. As a result, we did not report 
the total number of H-2A workers requested and certified. We will 
issue a separate management letter to Labor detailing our findings 
related to this information. We also reviewed employer appeals of 
Labor's adverse rulings to identify the reasons for the appeals and 
the extent to which Labor's decisions were affirmed or 
reversed.[Footnote 3] To identify actions taken by the agencies to 
address employer challenges, we interviewed federal officials who 
process H-2A applications at Labor, DHS, and State. We also reviewed 
agency procedures, relevant federal laws and regulations, and some 
recent legislative proposals to modify or replace the H-2A program. We 
conducted this performance audit from October 2011 to September 2012 
in accordance with generally accepted government auditing standards. 
Those standards require that we plan and perform the audit to obtain 
sufficient, appropriate evidence to provide a reasonable basis for our 
findings and conclusions based on our audit objectives. We believe 
that the evidence obtained provides a reasonable basis for our 
findings and conclusions based on our audit objectives. 

Background: 

Origin of the H-2A Program: 

The H-2A program was preceded by several other temporary worker 
programs designed to address farm labor shortages in the United 
States. During World War I, the Congress authorized the issuance of 
rules providing for the temporary admission of otherwise inadmissible 
aliens, and this led to the establishment of a temporary farm labor 
program designed to replace U.S. workers directly involved in the war 
effort.[Footnote 4] Similarly, initially through an agreement with 
Mexico, a guest worker program was authorized during World War II that 
brought in over 4 million Mexican workers from 1942 to 1964, called 
"braceros" to work on farms on a seasonal basis.[Footnote 5] Although 
the Bracero program expanded the farm labor supply, the program also 
affected domestic farm workers through reduced wages and employment, 
according to a 2009 Congressional Research Service report.[Footnote 6] 
The Bracero program has been criticized by labor groups, which 
identified issues such as mistreatment of workers and lax enforcement 
of work contracts. While the Bracero program was still in effect, the 
Immigration and Nationality Act of 1952 (INA) established the 
statutory authority for a guestworker program that included workers 
performing temporary services or labor, known as "H-2" after the 
specific provision of the law.[Footnote 7] The Immigration Reform and 
Control Act of 1986 amended the INA and effectively divided the H-2 
program into two programs: the H-2A program expressly for agricultural 
employers and the H-2B program expressly for nonagricultural 
employers.[Footnote 8] 

The H-2A program was created to help agricultural employers obtain an 
adequate labor supply while also protecting the jobs, wages, and 
working conditions of U.S. farm workers.[Footnote 9] The H-2A law and 
regulations contain several requirements to protect U.S. workers from 
adverse effects associated with the hiring of temporary foreign 
workers and to protect foreign workers from exploitation.[Footnote 10] 
Under the program, employers must provide H-2A workers a minimum level 
of wages, benefits, and working conditions. For example, employers 
must pay a prescribed wage rate, provide the workers housing that 
meets minimum standards for health and safety, pay for workers' travel 
costs to and from their home country, and guarantee workers will be 
paid for three-quarters of the work contract even if less work is 
needed.[Footnote 11] (see table 1 for more information about the 
conditions of employment that employers are expected to provide 
workers). 

Table 1: Key Department of Labor H-2A Program Requirements: 

Issue: Recruitment of U.S. Workers; 
Requirements: 
* Demonstrate need for a specific number of H-2A workers by completing 
specific U.S. recruitment activities coordinated through the state 
workforce agency; 
* Contact certain former employees and engage in positive recruitment 
of U.S. workers; 
* Hire any qualified, eligible U.S. worker until half of the contract 
work period is over (known as 50 percent rule) and only reject U.S. 
workers for lawful, job-related reasons;[A]; 
* Offer U.S. workers terms and working conditions not less favorable 
than those offered to H-2A workers. 

Issue: Rates of Pay; 
Requirements: Pay all covered workers (H-2A and U.S. workers in 
corresponding employment) at least the highest of various wage rates 
specified in regulation. Wages may be calculated on the basis of 
hourly or "piece" rates of pay. 

Issue: Recordkeeping; 
Requirements: Employers must keep accurate records of hours of work 
offered and hours actually worked each day. On or before each payday 
(which must be at least twice monthly), each worker must be given an 
hours and earnings statement showing hours offered, hours actually 
worked, hourly rate and/or piece rate of pay, and if piece rates are 
used, units produced daily. The statement must also indicate total 
earnings for the pay period and all deductions from wages. 

Issue: Written Disclosure of the Work Contract; 
Requirements: Provide each worker a copy of the work contract--in a 
language understood by the worker--that describes the terms and 
conditions of employment, or in the absence of a written work 
contract, a copy of the job order submitted and approved by the 
department. 

Issue: Guarantees to All Workers; 
Requirements: Guarantee to offer to each covered worker employment for 
a total number of hours equal to at least 75% of the workdays in the 
contract period--called the "three-fourths guarantee." 

Issue: Housing and Meals; 
Requirements: 
* Provide housing, which meets all applicable safety standards, at no 
cost to H-2A workers and to workers in corresponding employment who 
are not reasonably able to return to their residence within the same 
day; 
* Provide each covered worker with three meals per day or furnish free 
and convenient cooking and kitchen facilities where workers can 
prepare their own meals. 

Issue: Transportation; 
Requirements: Provide daily transportation between the workers' living 
quarters and the employer's worksite at no cost to covered workers 
living in employer-provided housing. Employer-provided transportation 
must meet all applicable safety standards, be properly insured, and be 
operated by licensed drivers. 

Issue: Inbound & Outbound Expenses; 
Requirements: If not previously advanced or otherwise provided, the 
employer must reimburse workers for reasonable costs incurred for 
inbound transportation and subsistence costs once the worker completes 
50% of the work contract period and outbound transportation and 
subsistence costs upon completion of the work contract. 

Issue: Prohibitions Against Confiscating Workers' Documents and 
Charging Certain Fees; 
Requirements: 
* Comply with all applicable laws and regulations, including the 
prohibition against holding or confiscating workers' passports or 
other immigration documents; 
* Employers must not seek or receive payment of any kind from workers 
for anything related to obtaining the H-2A labor certification, 
including the employer's attorney or agent fees, application fees, or 
recruitment costs. 

Issue: Notification of Worker Abandonment or Termination; 
Requirements: Notify Labor in writing within 2 workdays if any worker 
(H-2A or U.S. worker) voluntarily abandons the job or is terminated 
for cause before the end of the certified work period. The employer 
also must notify DHS within 2 workdays if an H-2A worker abandons or 
is terminated from the job. 

Source: Department of Labor H-2A Compliance Fact Sheets. 

[A] Employers applying individually (not part of a joint application) 
who did not use more than 500 days of agricultural labor in any 
quarter during the preceding calendar year are exempt from the 50 
percent rule. 20 C.F.R. § 655.135(d) (2012). 

[End of table] 

Current Use of the H-2A Program: 

In fiscal year 2011, Labor received about 4,900 employer applications 
requesting permission to hire H-2A workers.[Footnote 12] State issued 
about 55,000 H-2A visas in fiscal year 2011 and about 94 percent of 
these visas were processed by Mexican posts, according to data 
reported by State. Employers requested H-2A workers to help support 
the production of various commodities, such as fruit, vegetables, 
tobacco, and grain. While many of these employers requested help with 
general farm work, others sought workers with special skills, such as 
sheepherders or combine operators. Employers in some states rely more 
heavily on H-2A workers to meet their labor needs. In fiscal year 
2011, Labor reported that over half of the H-2A positions it certified 
were located in five southeastern states--North Carolina, Florida, 
Georgia, Louisiana, and Kentucky.[Footnote 13] Although California is 
the largest producer of agricultural products in the country, the 
state is ranked thirteenth in its employment of H-2A workers, 
according to a recent Labor report. H-2A workers are expected to work 
temporarily and must leave the country once the temporary work 
contract is complete, but may return in future years to meet 
employers' seasonal needs under specific circumstances.[Footnote 14] 
In fiscal year 2011, about 27 percent of H-2A employers requested H-2A 
workers for 6 months or less and about 73 percent of employers 
requested workers for 7 to 12 months. 

H-2A workers represent a small proportion of the approximately 1 
million hired agricultural workers that the U.S. Department of 
Agriculture estimates are in the United States, many of whom are not 
legally authorized to work in the country (referred to as undocumented 
workers). Research suggests that about half of all U.S. agricultural 
workers are undocumented.[Footnote 15] An employer may inadvertently 
hire undocumented workers if the workers give the employer fraudulent 
documents. Employers may also choose to violate the law and knowingly 
hire undocumented workers rather than employing U.S. workers or 
participating in the H-2A program and meeting its associated 
requirements.[Footnote 16] However, employers knowingly hiring 
undocumented workers rather than using the legal H-2A process risk 
penalties or workforce disruption through DHS's enforcement of 
immigration law or from state actions that may affect the availability 
of undocumented workers. 

Overview of the H-2A Application Process: 

To request H-2A workers, employers apply consecutively to their state 
workforce agency,[Footnote 17] Labor, and DHS; and prospective workers 
apply to State for H-2A visas. Under the law and Labor's H-2A 
regulations, state workforce agencies, Labor, and employers are 
subject to specific deadlines for processing H-2A applications (see 
figure 1).[Footnote 18] DHS and State are not subject to processing 
deadlines under relevant statutes and regulations, according to agency 
officials. 

Figure 1: Deadlines for Applying for Workers under the H-2A Program: 

[Refer to PDF for image: illustration] 

State Workforce Agency reviews Job Order: 

Employer submits job order to State Workforce Agency:   
Days until the first date the employer needs workers: 75. 

Earliest employer can submit job order to State Workforce Agency is 75 
to 60 days from work start. 

Deadline: State Workforce Agency has 7 days to notify employer of any 
deficiencies. 

Employer has 5 days to submit modifications to State Workforce Agency  

Deadline: State Workforce Agency has 3 days to respond to employer's 
modifications; 
Days until the first date the employer needs workers: 60. 

Labor reviews employer's Application for Temporary Employment 
Certification: 

Deadline for employer to submit to Labor a completed application for 
temporary employment certification as well as a State Workforce Agency 
approved job order; 
Days until the first date the employer needs workers: 45. 

Labor has 7 days to notify employer of any deficiencies. 

Employer has 5 business days to revise application and submit 
modifications to Labor. 

Employer must submit a recruitment report, provide evidence of 
workers' compensation insurance coverage, and show proof that a 
housing inspection has been conducted before Labor will make a 
determination. 

Deadline for Labor to decide on granting employer a temporary labor 
certification; 
Days until the first date the employer needs workers: 30. 

DNS reviews employer's request for workers: 

Employer files a petition for nonimmigrant workers with DHS along with 
a temporary labor certification approved by Labor. 
  
DHS reviews and approves or denies the petition. 

DHS notifies employer of approval or denial and notifies State of 
approval. 

State reviews worker visa applications : 

Worker can apply for a H-2A visa with State at an embassy or consulate 
abroad, if a visa is required (some workers are exempt from the visa 
requirement). 

State consulate/embassy adjudicates application, conducts interview 
with applicant, and issues or refuses a visa. 

U.S. Customs Border Protection reviews a worker's visa and other at 
the port of entry and approves or denies the worker's entry. 

A worker arrives and begins work. 

Source: GAO analysis of Labor and DHS regulations and guidance. 

[End of figure] 

Employers interested in hiring H-2A workers must seek approval of the 
proposed terms and conditions of employment from their state workforce 
agencies and submit application packages to Labor.[Footnote 19] First, 
employers must submit job orders to their state workforce agencies 
describing the jobs they are seeking to fill and the number of workers 
needed. The state workforce agencies review the job orders for 
compliance with Labor's H-2A regulations and may provide employers 
information about the wages and employment practices that apply in 
their states.[Footnote 20] During their review, state workforce 
agencies may ask employers to make corrections or provide additional 
documentation. Upon approval, the state workforce agencies begin 
assisting employers in trying to recruit U.S. workers. Employers must 
conduct various recruitment activities and accept referrals of all 
eligible U.S. workers that apply for the jobs until the date on which 
the H-2A workers depart for the place of work. 

Following approval of their job orders by the state workforce 
agencies, employers apply for temporary employment certifications from 
Labor by submitting the job orders, applications, and appendices 
signed by the employers stating that they are in compliance with and 
will continue to comply with all applicable federal requirements. 
[Footnote 21] If an application is incomplete or incorrect, Labor may 
send the employer a notice of deficiency asking for additional 
documentation or corrections. After the employer provides the 
additional information or makes the needed corrections and Labor 
determines the application and job order are complete and meet all 
requirements, it will send a notice of acceptance and direct the 
employer to complete specific recruitment activities and submit 
additional documentation, such as a report describing the employer's 
efforts to recruit U.S. workers. Labor is to then grant the employer a 
temporary labor certification if the employer has established the need 
for the agricultural service or labor to be performed on a temporary 
or seasonal basis and complied with all the procedural requirements as 
well as all applicable regulatory requirements imposed to ascertain 
that (1) there are not sufficient U.S. workers who are qualified and 
available to perform the work, and (2) employing foreign workers will 
not adversely affect the wages and working conditions of similarly 
employed U.S. workers.[Footnote 22] 

After receiving temporary employment certifications from Labor, 
employers submit petitions to DHS requesting that a specific number of 
individuals be classified as H-2A workers for the certified job 
openings.[Footnote 23] The petition includes Labor's certification, 
information about the employer, the positions the H-2A workers will 
fill, and the workers' names, if listed by the employer.[Footnote 24] 
If questions arise, DHS may send the employer a request for additional 
documentation. 

Following approval of the employer's petition by DHS, prospective 
workers can apply with State for H-2A visas, if a visa is required. 
[Footnote 25] State operates visa-issuing posts abroad.[Footnote 26] 
Employers may work with foreign labor contractors who help them 
recruit workers and help workers with the visa application process. 
State's process for determining who will be issued or refused a visa 
contains several steps, including reviewing visa applications, 
checking databases to identify issues, such as security concerns, 
collecting potential workers' fingerprints and photos, and conducting 
in-person interviews of workers. State may deny a visa based on 
certain criminal and related grounds, security and related grounds, or 
an applicant's status as illegal entrant or immigration violator, 
among other reasons.[Footnote 27] 

After receiving the H-2A visa, a worker may present himself at a port 
of entry to apply for admission into the United States. Upon arrival, 
DHS's Customs and Border Protection officers verify the worker's 
eligibility for admission and determine the specific length of stay. 
Generally, DHS grants the H-2A worker admission for a period of time 
authorized on the temporary labor certification. 

Recent Legislative Proposals to Change the H-2A Program: 

Several bills were introduced in 2011 to expand use of an electronic 
system to verify workers' employment eligibility that, if passed, 
could reduce the availability of undocumented workers and increase the 
use of the H-2A program. Some of the federal legislative proposals 
would expand the use of an electronic employment authorization system 
known as E-Verify, which is currently operated by DHS and the Social 
Security Administration.[Footnote 28] A number of states have enacted 
laws mandating that some or all employers within their state use E-
Verify for new hires. Some agricultural employer associations have 
raised concerns that requiring the use of E-Verify could cause 
agricultural employers to lose many of their workers. Such a labor 
shortage could result in more applications for foreign workers through 
the H-2A program. 

Other legislative proposals introduced in 2011 would modify or replace 
the H-2A program. Congress has considered making changes to the H-2A 
program as part a larger effort to address immigration issues. 
Specifically, a legislative proposal known as the Agricultural Job 
Opportunities, Benefits, and Security Act--or AgJOBS--is said to 
represent a compromise between major stakeholders and includes 
provisions to change the H-2A program and develop a new program to 
legalize the status of undocumented farm workers through a two-stage 
process. AgJOBS has been introduced several times and was introduced 
in the Senate as part of the Comprehensive Immigration Reform Act of 
2011 on June 22, 2011.[Footnote 29] Three other proposed bills would 
add a role for the U.S. Department of Agriculture in administering the 
program. Another proposal would, among other things, change the 
application filing deadline for employers from 45 days to 30 days 
prior to the date of need and deem any application approved if Labor 
fails to make a decision within 30 days of the employer's filing date. 
Other proposals include provisions that would allow employers to hire 
H-2A workers as dairy workers or livestock herders without being 
required to show that such positions are of a temporary or seasonal 
nature. 

Employers Cited Challenges with the Largely Paper-Based Process, 
Implementation of New Rules and Procedures, and Complexity: 

Most Applications are Approved, but Some Employers Experience 
Processing Delays: 

In fiscal year 2011, most employers' applications for H-2A workers 
were approved, but some employers experienced delays in having their 
applications for H-2A workers processed. Labor approved 94 percent of 
the H-2A applications for foreign agricultural workers and processed 
63 percent of approved applications by the statutory deadline of at 
least 30 days prior to the date workers were to begin work.[Footnote 
30] However, Labor did not process 37 percent of applications by the 
deadline, including 7 percent of applications approved less than 15 
days before workers were needed, leaving little time for employers to 
petition DHS and for workers to obtain visas from State. According to 
Labor officials, employers' failure to provide required documentation, 
such as an approved housing inspection, contributes to processing 
delays. DHS approved 98 percent of the employer petitions for H-2A 
workers in fiscal year 2011, and about 72 percent of these petitions 
were processed within 7 days. However, 28 percent took longer and DHS 
took a month or longer to process 6 percent of the petitions (see 
figure 2). An official at DHS told us that employers have up to 84 
days plus the applicable mailing time to provide additional 
documentation requested by the agency, which can significantly affect 
how long it takes the agency to process a petition. 

Figure 2: H-2A Application Processing Times, Fiscal Year 2011: 

[Refer to PDF for image: illustration] 
  
Employer can submit job order to State Workforce Agency: 
75 to 60 days until the first date the employer needs workers. 

Deadline for employer to submit job order and application package to 
Labor: 
45 days until the first date the employer needs workers: 
63% Approved by deadline; 
30% Approved 29-15 days before date of need; 
7% Approved less than 15 days before. 
  =    
Deadline for Labor to decide on granting employer a temporary labor 
certification: 
30 days until the first date the employer needs workers: 
72% 7 calendar days or less; 
22% Between 8 and 29 calendar days; 
6% 30 calendar days or more. 

State: 
Data not available, but State officials estimate that H-2A visa 
processing takes up to 11 days. 

Certified date of need. 

Source: State officials and GAO analysis of Labor and DHS data. 

[End of figure] 

State does not monitor visa processing wait times specifically for H-
2A visas, but some employers and State officials we interviewed said 
delays can occur when large groups of workers apply for visas at peak 
times during the year at the Monterrey consulate in Mexico, which 
processes a large proportion of all H-2A visas. State issued visas to 
94 percent of the potential H-2A workers who requested them in fiscal 
year 2011, but it does not collect information on how long it takes 
posts to process them. Individual posts report estimates of typical 
wait times for interview appointments and processing of visas in 
general, but State does not collect data from posts on the amount of 
time it takes them to process H-2A visas. 

H-2A visa processing is concentrated in Mexico. According to data 
reported by State, in fiscal year 2011, 94 percent of all H-2A visas 
for workers from all countries worldwide were issued in Mexico and 
about half were processed by the consulate in Monterrey (see figure 
3). Based on staff estimates, State officials told us that during the 
peak season at its Monterrey consulate it may take up to 11 days from 
the time the workers' appointments for finger printing are scheduled 
until their visas are available for pick up at the consulate.[Footnote 
31] These times can be much shorter at posts that are less busy or 
during periods that are less busy, according to officials with whom we 
spoke. 

Figure 3: Percent of Worldwide H-2A Visa Applications Processed by 
Posts in Mexico, Fiscal Year 2011: 

[Refer to PDF for image: illustrated map] 

Ciudad Juarez: 
Number of H-2A visa applications processed by State in FY 2011: 153; 
Percentage of all H-2A applications processed by State worldwide in FY 
2011: less than 1%. 

Guadalajara: 
Number of H-2A visa applications processed by State in FY 2011: 1,052; 
Percentage of all H-2A applications processed by State worldwide in FY 
2011: 2%. 

Hermosillo: 
Number of H-2A visa applications processed by State in FY 2011: 5,125; 
Percentage of all H-2A applications processed by State worldwide in FY 
2011: 8%. 

Matamoros: 
Number of H-2A visa applications processed by State in FY 2011: 834; 
Percentage of all H-2A applications processed by State worldwide in FY 
2011: 1%. 

Mexico City: 
Number of H-2A visa applications processed by State in FY 2011: 1,245; 
Percentage of all H-2A applications processed by State worldwide in FY 
2011: 2%. 

Monterrey: 
Number of H-2A visa applications processed by State in FY 2011: 30,140; 
Percentage of all H-2A applications processed by State worldwide in FY 
2011: 49%. 

Nogales: 
Number of H-2A visa applications processed by State in FY 2011: 4,669; 
Percentage of all H-2A applications processed by State worldwide in FY 
2011: 8%. 

Nuevo Laredo: 
Number of H-2A visa applications processed by State in FY 2011: 12,430; 
Percentage of all H-2A applications processed by State worldwide in FY 
2011: 20%. 

Tijuana: 
Number of H-2A visa applications processed by State in FY 2011: 1,044; 
Percentage of all H-2A applications processed by State worldwide in FY 
2011: 2%. 

Sources: GAO analysis of State via issuance data; National Atlas of 
the United States (base map).  

[End of figure] 

Although Labor and DHS have data on their respective application 
processing times, Labor, DHS, and State lack an integrated system for 
tracking the applications from the beginning of the process through 
visa approval. Moreover, they do not collect data to determine the 
extent to which employers obtain workers by the time they are needed, 
and the agencies cannot document the total processing time required to 
complete the H-2A application process. The agencies involved in the H-
2A application process largely perform their steps independently and 
measure their progress independently, in part because none of them has 
clear authority or responsibility to assess the performance of the 
process as a whole in achieving timely results for employers, toward 
which they each contribute. Nor are the agencies expressly required to 
coordinate their efforts to process applications for H-2A workers. 
When asked about whether a study could be conducted to determine 
whether H-2A workers arrive by the employer's date of need, officials 
from DHS said they are unable to track this information and State 
officials indicated that this would be beyond the scope of their 
responsibility. They also said conducting such a study would be 
difficult because it would involve matching data from multiple agency 
data systems and could be costly. Each agency has its own strategic 
plan and performance measures, but none has examined the performance 
of the H-2A process as a whole. Although the agencies lack data on the 
reasons for processing delays, our internal control standards suggest 
agencies monitor critical operating data to support program 
improvement efforts.[Footnote 32] 

While the agencies do not collect information on the extent to which 
workers arrive by the date employers state that they are needed, a few 
employers told us that their workers did not arrive on time. In 
addition, while not all employers identified delays, about 260 
employers who participated in the program in 2010 told the National 
Council of Agricultural Employers that their H-2A workers began work 
after the start date they requested on their applications.[Footnote 
33] Seven employers told us that, in the past year, their workers 
arrived late. For example, one apple grower told us that due in part 
to processing delays at Labor and DHS in 2010, more than 30 workers 
arrived 5 days late, resulting in a loss of 15 thousand bushels of 
apples. Another employer in New York told us that his workers arrived 
nearly 3 months late, resulting in a loss of about $200,000 worth of 
unpicked apples, due in part to processing delays at Labor and DHS. 
Moreover, employers frequently expect delays in the application 
process according to representatives of four employer associations. A 
representative for an employer association in North Carolina told us 
that his members have come to expect that workers will arrive a week 
late on average. However, in part due to the lack of integrated data, 
the extent to which these delays can be attributed to employers or 
specific agencies is unknown. 

Inadequate Use of Technology Contributes to Delays: 

Several employers and agency officials told us that reliance on paper 
handling can contribute to delays. While State has an online 
application process that workers can use to apply for a visa, most of 
the employer's portion of the H-2A application process requires paper 
handling. Specifically, employers must submit paper applications and 
paper copies of supporting documentation to state workforce agencies, 
Labor, and DHS (see figure 4). If the state workforce agency, Labor, 
or DHS require additional information from employers, they often mail 
their requests to employers rather than using e-mail. Employers then 
mail their responses back to the agencies. This system may result in a 
lengthy back-and-forth process. For example, one employer told us that 
responding to Labor's deficiency notices--notices explaining why an 
application cannot be accepted and what corrections needed to be made-
-sometimes involves using a pen to strike whole paragraphs on the 
original application and then mailing the entire application back to 
Labor using overnight mail. Another employer told us that his workers 
arrived late by the time he responded to multiple inquiries from Labor 
and DHS. 

Figure 4: The Paper-based H-2A Application Process: 

[Refer to PDF for image: illustration] 

Prospective employer: 

1. Job order: 
* Proposed wages and work location; 
* Terms and working conditions; 
Submitted to State Workforce Agency. 

2. State Workforce Agency approved job order: 
* Application for temporary employment certification; 
* Supporting documentation; 
Submitted to Labor. 

3. Labor approved temporary certification: 
* Petition for workers; 
* Supporting documentation; 
Submitted to DHS. 

4. DHS approved petition; 
Submitted to State. 

Worker seeking H-2A visa: 

5. H-2A visa application: 
* Online application includes employer's approved petition number; 
Submitted to State. 

Source: GAO analysis of agency procedures. 

[End of figure] 

Some employers told us that this largely paper-based system can result 
in lost documentation, delays in communicating with employers, and 
missed opportunities to quickly resolve minor issues. For example, one 
employer told us that he experienced delays in 2010 when he mailed his 
Labor-approved temporary employment certification to DHS, but the 
agency did not receive it. When the employer called Labor and asked 
for a replacement, Labor officials told him that they could not send 
him another one because they do not issue duplicate certifications to 
employers in order to prevent fraud. After some delay, the employer 
was able to have DHS request the required documentation from Labor. 
Similarly, another employer told us that he had to resubmit his 
paperwork and pay an additional fee when his temporary employment 
certification was misplaced by DHS's processing center. Officials at 
DHS also told us that paper handling errors, such as not correctly 
entering employer responses to agency requests for additional 
documentation, sometimes result in delays in application processing 
and that moving to an electronic system could help resolve these 
issues.[Footnote 34] Relying less on paper may improve the customer 
experience for employers using this program. Federal requirements 
encourage agencies to take specific steps to be results-oriented and 
customer focused. For example, the Government Performance and Results 
Act establishes that agencies should develop strategic plans to 
measure the performance and results of their activities and the 
President has issued an executive order to improve the quality of 
service to the public and meet expectations for modern customer 
service through better use of technology.[Footnote 35] 

Representatives from all of the employer associations we spoke to told 
us that they had problems communicating with Labor. For example, some 
employers told us that they did not receive any communication from 
Labor after submitting their applications until they were mailed 
deficiency notices telling them that the application could not be 
accepted. Labor officials told us that, in the past, they would call 
employers to resolve minor problems or errors, but they now send paper 
copies of all deficiency notices to employers by mail to better 
document the process and use e-mail to resolve minor deficiencies when 
possible.[Footnote 36] In addition, Labor officials said that, due to 
limited resources, they do not have the capacity to dedicate staff to 
answering phone calls and that their analysts focus on processing 
applications rather than responding to inquires from employers. They 
also noted that they use helpdesk e-mail boxes to provide employers 
and their representatives with an opportunity to communicate with the 
agency. In addition, they said the H-2A application fees paid by 
employers to defray processing costs cannot be used for ongoing 
administration of the program.[Footnote 37] 

Communication between agencies is also primarily done through paper 
notifications. The agencies do not communicate their decisions to one 
another electronically because they lack data sharing capabilities. 
Specifically, Labor does not communicate with DHS when the agency 
approves an employer's request for H-2A workers. By regulation, 
employers are required to provide the original temporary employment 
certification approved by Labor to DHS, rather than Labor sending it 
to DHS directly.[Footnote 38] Officials at DHS told us that the two 
agencies would need a memorandum of agreement to allow DHS staff to 
access Labor's system in order to obtain information electronically 
about the employer's labor certification. Furthermore, although DHS 
forwards its petition approvals directly to State, the agency does not 
e-mail the documents to State because, according to agency officials, 
the two agencies lack mutual encryption technology to protect 
personally identifiable information. Instead, State must scan the 
approved petition and supporting documentation in order to adjudicate 
and process visas for workers. According to State officials, it takes 
2 days to scan most employers' petition approval notices after 
receiving them from DHS. 

In addition, employers who need workers at different times of the 
season must repeat all of the steps of the application process for 
each group of workers needed within a single season, regardless of 
whether the same tasks are involved. Some employers need to stagger 
the arrival of workers at different points of the harvest season, so 
that they have the greatest number of workers when the workload is 
heaviest. Currently, in order to have workers arrive at different 
points of the season, employers must repeat each step of the 
application process and file full, separate applications for each 
additional set of workers, even when the applications are 
substantially similar and the only difference is the date they 
indicate workers are needed. According to a representative of an 
employer association, this can be unnecessarily burdensome because it 
can be paper-intensive and costly. According to Labor officials, the 
reason employers need to submit multiple applications is that Labor 
needs to establish that there is a shortage of U.S. workers each time 
agricultural employers request foreign workers by reviewing the 
employer's documentation of recruitment efforts. However, it is less 
clear why other parts of the application would require resubmission 
when changes are not required. Some employers we spoke to told us they 
would prefer being able to file one application and list several 
different start dates instead of having to resubmit the full 
application separately for each group of workers, especially if they 
need workers to arrive within a few weeks of each other, when labor 
market conditions are unlikely to change substantially. 

Implementation of New Rules and Procedures Lengthen Agencies' 
Processing Times: 

Employers also reported encountering delays due to increased scrutiny 
from DHS and Labor after the agencies implemented new rules and 
procedures in 2008 and 2010, respectively, intended to increase 
program integrity and worker protection. Labor's H-2A regulations 
remained largely unchanged from 1987 until 2008, when Labor issued new 
regulations allowing employers to attest that they met the regulatory 
requirements of the program, such as providing workers adequate 
housing, rather than requiring them to submit documentation to 
demonstrate compliance.[Footnote 39] Labor later determined that the 
2008 regulations did not sufficiently protect workers and issued new 
regulations in 2010 that reinstated many of the 1987 regulations, 
including requiring employers to submit documents with their 
applications to demonstrate compliance.[Footnote 40] Labor officials 
told us that the recent regulatory changes resulted in an increased 
number of deficiency notices while employers adjusted to the changes. 
For example, the percentage of employer applications for which Labor 
issued deficiency notices increased from 7 percent in fiscal year 2006 
to 63 percent in fiscal year 2011 (see figure 5). Labor officials told 
us their case management system does not currently have the ability to 
aggregate the reasons for deficiency notices, but that they can 
identify the reasons on a case-by-case basis. Labor officials also 
told us that many of these notices were issued because employers used 
the wrong forms or failed to provide the required documentation in a 
timely manner. 

Figure 5: Percentage of Employer Applications Issued Deficiency 
Notices from Labor, Fiscal Year 2006-2011: 

[Refer to PDF for image: vertical bar graph] 

Year: 2006; 
Percentage of employer applications: 7%. 

Year: 2007; 
Percentage of employer applications: 14%. 

Year: 2008; 
Percentage of employer applications: 15%. 

Year: 2009; 
Percentage of employer applications: 44%. 

Year: 2010; 
Percentage of employer applications: 37%. 

Year: 2011; 
Percentage of employer applications: 63%. 

Source: GAO analysis of Department of Labor data. 

[End of figure] 

Many employers said Labor's implementation of these new regulations 
has made the application process more difficult, resulting in delays 
and costly appeals. In 2011, Labor issued denials or deficiency 
letters to employers for various reasons, such as failing to establish 
a seasonal or temporary need for workers, job requirements that were 
not consistent with "normal and accepted" practices, and failing to 
provide a written recruitment report. In addition, employer appeals 
increased from 15 to 441 from fiscal year 2006 to fiscal year 2011(see 
figure 6). Judges dismissed or sent most appeals back to Labor for 
further processing. Based on Labor's characterization of the 2011 
rulings, we counted 72 appeals that resulted in substantive rulings in 
fiscal year 2011, roughly equally divided between cases that affirmed 
Labor's decision (38 cases) and others that reversed or partially 
affirmed it. For example, 19 (26 percent) reversed Labor on the basis 
that the employer submitted the appropriate evidence, the employer was 
not given enough time to submit evidence, or the certifying officer 
misinterpreted Labor's regulations, among other reasons.[Footnote 41] 
Appealing denials may be costly and time consuming because employers 
may need to hire a specialized lawyer to represent them at an 
administrative hearing according to representatives of two employer 
associations with whom we spoke. According to Labor officials, most of 
these appeals resulted from employers not providing required 
documentation along with their H-2A applications. At the same time, 
Labor officials said they initially applied a "plain and strict" 
interpretation of the rules, denying applications for which employers 
did not provide the required documentation within the statutory 
deadline for agency processing. The officials added that most 
applications were approved within a few days of the appeal because 
employers submitted the required information, but they agreed that the 
resulting increased rate of denials contributed to an increase in the 
number of appeals, creating additional burden and delays. 

Figure 6: Number of Employer Appeals of Labor's Deficiency Notices/ 
Denials, Fiscal Year 2006-2011: 

[Refer to PDF for image: vertical bar graph] 

Year: 2006; 
Number of appeals: 15. 

Year: 2007; 
Number of appeals: 20. 

Year: 2008; 
Number of appeals: 52. 

Year: 2009; 
Number of appeals: 64. 

Year: 2010; 
Number of appeals: 159. 

Year: 2011; 
Number of appeals: 441. 

Source: GAO analysis of decisions made by Labor's Office of 
Administrative Law Judges. 

[End of figure] 

Some employers experienced delays in obtaining H-2A workers caused by 
application of new procedures. For example, DHS began using a database 
that did not have records on some employers who had previously used 
the H-2A program. Some of these employers experienced delays when DHS 
began issuing requests for evidence asking for more information, such 
as tax records, when the employers were not found in the database. 
[Footnote 42] Some employers also told us they experienced delays in 
obtaining H-2A workers from Jamaica because DHS issued requests to 
employers for evidence about a longstanding practice in which, on 
behalf of a Jamaican governmental organization, amounts were deducted 
from the workers' paychecks to fund a health care plan and personal 
savings accounts.[Footnote 43] Data from DHS show that although 
relatively few applications received requests for further evidence, 
this number has fluctuated in recent years (see figure7). However, 
DHS's case management system does not track the reasons for these 
requests for evidence. 

Figure 7: Percentage of Employer Applications Receiving Requests for 
Evidence from DHS, Fiscal Year 2006-2011: 

[Refer to PDF for image: vertical bar graph] 

Year: 2006; 
Percentage of cases: 7%. 

Year: 2007; 
Percentage of cases: 6%. 

Year: 2008; 
Percentage of cases: 6%. 

Year: 2009; 
Percentage of cases: 15%. 

Year: 2010; 
Percentage of cases: 6%. 

Year: 2011; 
Percentage of cases: 15%. 

Source: GAO analysis of DHS data. 

[End of figure] 

Complexity of the H-2A Program Poses Challenges for Some Employers: 

Several employers also found some of the program rules and paperwork 
requirements to be complicated and were confused about the 
requirements of the H-2A program because some of Labor's decisions 
seemed inconsistent. Six of the employer representatives we 
interviewed cited program complexity as a challenge. The H-2A program 
involves multiple agencies and numerous detailed program rules that 
sometimes conflict with other laws. For example, because of confusion 
regarding the H-2A regulations, one employer expressed uncertainty 
about the appropriate time to reimburse workers for their in-bound 
travel costs, payment of which must be included in the job offer. The 
H-2A regulations specify that workers must be reimbursed upon the 
completion of 50 percent of their work contract but also that H-2A 
employers may be subject to the Fair Labor Standards Act,[Footnote 44] 
under which employers are to make such reimbursements during the first 
week of employment.[Footnote 45] Another representative of an employer 
association told us that employers have difficulty knowing how much to 
pay workers.[Footnote 46] An employer representative in New York told 
us that his association advises employers to use a contracting service 
or an attorney if they are considering using the H-2A program because 
the program is so complex and difficult to navigate. He noted that 
some small farmers don't have the resources to hire an attorney or 
contractor to help them fill out the paperwork. 

Employers also frequently reported that they did not understand the H-
2A program requirements because Labor's decisions seemed to be 
inconsistent. Representatives of seven employer associations told us 
Labor's decisions on the acceptability of the terms and conditions of 
employment appear inconsistent from year to year or from employer to 
employer. For example, a contractor told us that an application she 
submitted on behalf of a farmer in New York was approved for 10 
workers to pick apples at a piece rate of 85 cents in March 2011. 
However, her next order for 45 workers on the same farm the following 
month was not approved and she was instructed to pay $1 per bushel 
instead. One Washington employer was allowed to include minimum 
requirements for how much fruit to pick per day in a 2010 job order 
but was not allowed to do so in 2011. Another grower in Washington 
reported being allowed to include a termination clause in a job order 
while a fellow grower in the same state doing the same type of work 
was not allowed to include this information, even though the two 
growers applied for H-2A workers in the same year. In Massachusetts, 
apple growers were allowed to include experience requirements on their 
applications after appealing Labor's initial decision prohibiting them 
from doing so, but vegetable growers were not.[Footnote 47] 

Agencies Took Steps to Improve the Process, but Delays in 
Modernization and Unclear Guidance Continue to Pose Challenges: 

Labor and DHS Efforts to Modernize the Application Process Have Been 
Delayed: 

To process applications more efficiently and provide better customer 
service, Labor and DHS have taken steps to create new electronic 
applications that will allow employers to file for H-2A workers 
online, but development and implementation of both applications has 
been delayed (see table 2). 

Table 2: Status of Agency Plans to Deliver Online H-2A Applications, 
Including Original and Current Planned Implementation Dates: 

Agency: Labor; 
Originally planned implementation date: August 2011; 
Design complete? Yes; 
Schedule in place for development and implementation? Yes; 
Current planned implementation date: By the end of 2012. 

Agency: DHS; 
Originally planned implementation date: October 2012; 
Design complete? No; 
Schedule in place for development and implementation? No; 
Current planned implementation date: Agency is in the process of 
developing a schedule. 

Source: GAO analysis of documents received from Labor and DHS. 

[End of table] 

Federal law and executive orders provide that federal agencies are to 
be customer service-focused and executive orders provide that federal 
agencies use technology to improve the customer experience.[Footnote 
48] Accordingly, in fiscal year 2009, Labor implemented a web-based 
system for two of its other labor certification programs that allows 
employers to file applications online and for the agency to process 
them electronically. Labor is currently in the process of developing 
an online H-2A application to add to its existing web-based filing 
system, but it has been delayed. 

Specifically, in October 2010, Labor began designing an online H-2A 
application for employers that it planned to deploy in August 2011. 
However, Labor officials told us the online application was delayed 
because the agency could not award the contract to develop it while 
operating under a provisional budget based on a continuing resolution. 
Since then, Labor completed the design of the online H-2A application 
and in June 2012 awarded the contract to develop, test, and implement 
it. Labor officials told us they anticipate the online H-2A 
application will be available for use by employers by the end of 2012 
and, according to the development contract, the online application 
should be available to employers on November 15, 2012. According to 
Labor officials, the online application will allow employers to create 
account profiles and check the status of their H-2A applications. In 
addition, Labor officials said the online H-2A application would also 
result in faster application processing, reduced costs, better 
customer service, and improved data quality. 

DHS also plans to implement an online petition for H-2A workers, but 
the agency has experienced delays and is in the process of developing 
a schedule for completing this work. The agency planned to deploy an 
online H-2A petition in October 2012 as part of its Transformation 
Program, which aims to replace the paper-based systems currently used 
to process petitions with an electronic system. However, the 
Transformation Program itself has been delayed several times since its 
inception in 2005, as we have previously reported, and officials told 
us they have not started work on the online H-2A petition and do not 
know when it will be completed. In prior work on the Transformation 
Program, we found DHS was managing the program without specific 
acquisition management controls, such as reliable schedules, which 
contributed to missed milestones.[Footnote 49] DHS officials said they 
were addressing this report's recommendations and are in the process 
of developing an integrated master schedule for all Transformation 
activities, including the online H-2A petition, in accordance with GAO 
best practices outlined in the report. Once the online petition for H-
2A workers is available, employers will be able to file all required 
documents electronically to petition for H-2A workers, create account 
profiles, and check the status of their applications. In addition, the 
agency could streamline benefits processing by eliminating redundant 
data entry and reducing the number of required forms. 

Federal Agencies Updated Processes and Reached Out to Employers, but 
Labor's Guidance to States Needs Improvement: 

Recently and over the course of our review, in addition to taking 
steps to modernize the H-2A application process, federal agencies have 
taken a number of other steps to improve employers' experience with 
the application process. Specifically, Labor made changes to its 
review process to informally resolve issues with employers and reduce 
unnecessary delays and appeals. Labor officials told us that, in 2011, 
they piloted using e-mail to communicate with employers in 10 states 
about their H-2A applications. In March 2012, Labor began using e-mail 
to communicate with employers in all states about their applications. 
Labor also changed its procedures so that it can make corrections to 
minor errors on an employer's H-2A application--such as adding a 
missing phone number--after obtaining the employer's permission via e-
mail to correct the error. In February 2011, Labor instituted a policy 
that gives employers up to 5 additional days to submit required 
documentation on their H-2A applications rather than automatically 
denying them because all of the required documentation was not 
submitted by the deadline.[Footnote 50] 

In addition to the changes outlined above, since implementing its new 
regulations in March 2010, Labor provided employers with more guidance 
about the requirements of the H-2A program in a variety of formats 
(see table 3). 

Table 3: Examples of Labor's Efforts to Provide Additional Guidance to 
Employers on H-2A Program Requirements, 2010 to 2012: 

Date released: March 2010 to February 2012; 
Description: Issued six rounds of answers to frequently asked 
questions. 

Date released: September 2011 and May 2012; 
Description: Posted a document with tips on filing an H-2A application 
on its Web site. 

Date released: October 2011; 
Description: Developed a new Web site dedicated to the H-2A program, 
with program updates and materials. 

Date released: December 2011; 
Description: Published an H-2A Employer guide on its Web site. 

Date released: December 2011 and January 2012; 
Description: Held webinars about the new March 2010 H-2A rules and 
interpretations. 

Date released: February 2012; 
Description: Labor officials attended and presented at conferences 
attended by H-2A employers. 

Date released: March 2012; 
Description: Created an H-2A Ombudsman Program office to help 
employers resolve issues. 

Source: GAO analysis of Labor documents. 

[End of table] 

Labor officials said these efforts resulted in improved timeliness and 
fewer appeals in recent months. Our analysis of Labor's data showed 
that the agency's timeliness remained relatively unchanged, although 
the percentage of applications for which deficiency notices were 
issued and the number of appealed decisions declined substantially 
over that period. For the first half of fiscal year 2012, Labor 
processed 61 percent of certified applications at least 30 days prior 
to the employer's date of need and issued deficiency notices for 38 
percent of employer applications. [Footnote 51] Sixty employer appeals 
were filed during the first half of fiscal year 2012. 

Several employers we interviewed reported that they did not understand 
the H-2A program requirements because Labor's decisions seemed 
inconsistent. A number of the inconsistencies employers cited 
concerned job order terms and conditions, the acceptability of which 
varies by state. Labor officials told us they strive for consistency 
and have many checks in place to ensure consistent decisions. 
Specifically, they said analysts in Labor's processing center follow 
detailed standard operating procedures and the center has multiple 
quality assurance methods to ensure consistency, including supervisory 
review, peer review, and a quarterly quality assurance process. In 
addition, according to Labor officials, processing center analysts are 
given an overview of the H-2A program, study the regulations and 
standard operating procedures, and shadow a more seasoned employee 
before receiving their own cases to adjudicate.[Footnote 52] There are 
also periodic training classes that address adjudication issues that 
have arisen during the last calendar year. 

Labor regulations require H-2A employers to include only terms and 
conditions that meet or exceed prevailing, normal, or accepted 
practices, as determined by the state workforce agency. Labor's 
regulations and its guidance to states allow states to apply different 
standards to determine whether various terms and conditions are 
acceptable.[Footnote 53] For example, state workforce agencies are 
directed to apply a prevailing practice standard to determine whether 
the frequency with which an employer intends to pay H-2A workers is 
acceptable, while states can use a more subjective normal and common 
practice standard to determine whether job qualifications, such as how 
much experience is required, are acceptable (see table 4). 

Table 4: Standards States Use to Determine Acceptable Terms and 
Conditions in H-2A Job Orders: 

Applicable standard for approving terms or conditions of employment: 
Prevailing practice: the practice used by half or more of agricultural 
employers employing a half or more of the workers in the occupation in 
the area; 
Examples of terms and conditions employers address in H-2A job orders 
to which the standard applies: 
* Provision of housing for workers' families; 
* Advancement of required payment for inbound and outbound 
transportation costs; 
* Frequency of payment. 

Applicable standard for approving terms or conditions of employment: 
Normal or common practice: 
Although the terms "normal" and "common" are difficult to quantify, 
the practice may be less than prevailing, but not unusual or rare; 
Consistent with what is normally required by non-H-2A employers in the 
same or comparable occupations and crops in the area; 
Examples of terms and conditions employers address in H-2A job orders 
to which the standard applies: 
* Productivity standards (e.g., minimum level of fruit that must be 
picked to retain employment); 
* Job qualifications, such as requiring specific experience. 

Source: U.S. Department of Labor, Employment and Training 
Administration, H-2A Program Handbook, Handbook No. 398 (Washington, 
D.C.: January 1988). 

[End of table] 

In 1988, Labor provided states with an H-2A Program Handbook that 
included guidance on how to make these decisions and encouraged states 
to administer formal surveys to determine acceptable practices. If the 
state workforce agency cannot use a formal survey, Labor's guidance 
suggests states make these determinations using other information 
sources, such as staff knowledge and experience, informal surveys, 
reviews of job orders used by non-H-2A employers, or consultation with 
experts in agriculture or farm worker advocates. In 2011, Labor began 
posting results from states' prevailing practice surveys online to 
help employers write job orders that are consistent with prevailing, 
normal, and accepted practices. 

Labor's guidance to states for determining acceptable practices, 
however, is broad and not prescriptive, leading states to apply varied 
methods, some of which may be insufficient. For example, the 
Administrative Law Judge who ruled on the Massachusetts apple and 
vegetable growers' appeal of Labor's initial decision to prohibit 
experience requirements did not consider the Massachusetts state 
workforce agency's prevailing practice survey in his ruling because of 
its design flaws. Further, two employer representatives told us they 
considered state prevailing practice surveys to be unreliable and 
inconsistent in their coverage. In addition, officials in the three 
states we visited said they did not include questions about certain 
terms and conditions in formal surveys and used different methods to 
determine whether a particular practice was acceptable: two states 
reviewed job orders filed by non-H-2A employers; the other state 
informally surveyed non-H-2A employers in-person. One employer 
representative expressed frustration that neighboring states used 
different methods to determine acceptable practices for the same crop 
and that the results differed. 

DHS also has taken several steps to improve employers' experience with 
the H-2A application process. Specifically, the agency took steps to 
expedite petitions for H-2A workers and provide more guidance to 
employers. In October 2007, DHS directed its employees to expedite the 
handling and adjudication of H-2A petitions. According to our 
analysis, the agency's processing times have improved in recent years. 
From fiscal year 2006 to fiscal year 2011, the percentage of petitions 
approved within 1 week increased from about 34 percent to 72 percent. 
At the same time, the percentage of petitions that took 1 month or 
longer to approve declined from about 11 percent to about 6 percent. 
In July 2010 and June 2011, DHS invited employers to participate in 
teleconferences to discuss employers' difficulties with some of its 
new systems and procedures. In addition, the agency posted summaries 
of the teleconferences and answers to employers' frequently asked 
questions on its Web site. 

State has addressed employer concerns with the H-2A visa application 
process by hosting face-to-face meetings with employers and other key 
stakeholders, making improvements to its worker processing procedures, 
and taking steps to increase the capacity of its Monterrey consulate 
to process H-2A visas. In 2012, State officials said they reached out 
to Labor to discuss H-2A related issues. They also said the two 
agencies are formalizing working groups in part to improve information 
sharing. State also meets with employers and other stakeholders at 
annual meetings that bring together representatives from Labor, DHS, 
and State. Officials from Labor and DHS, and State's contractor 
attended the most recent of these meetings, held in Texas in January 
2012. A representative of an employer association who attended this 
meeting told us it was helpful to have representatives from all three 
agencies there to answer questions. After hearing at the January 2012 
meeting that some employers had difficulties with getting their 
Mexican H-2A workers processed by their date of need, State directed 
employers with approaching dates of need to request emergency 
appointments for their workers to be processed at posts other than the 
Monterrey consulate. State officials noted that all Mexican posts have 
the capacity to process H-2A visa applications and suggested that 
applicants can visit other posts if it is difficult to get 
appointments at the Monterrey consulate. State also developed new 
procedures to better enable them to handle large groups of workers. In 
addition, State is expanding its Monterrey consulate, which currently 
handles most of the H-2A visas processed. Officials said the new 
facility is scheduled to open in 2014, although they were uncertain 
whether future staffing levels at the facility would increase. 

Conclusions: 

The H-2A program is a means through which agricultural employers can 
legally hire temporary foreign workers when there is a shortage of 
U.S. workers. The H-2A application process consists of a series of 
sequential steps conducted by varied agencies, no one of which bears 
responsibility for monitoring or assessing the performance of the 
process as a whole. Negotiating this largely paper-based process can 
be time consuming, complex, and challenging for employers. The 
associated difficulties can impose a burden on H-2A employers that is 
not borne by employers who break the law and hire undocumented 
workers. Although Labor and DHS have taken some steps to incorporate 
new technologies, delays in the development of electronic application 
filing systems continue burdening employers with paperwork and may be 
consuming more resources from federal agencies than necessary. In 
addition, the absence of systems to collect data on the reasons for 
processing delays makes it difficult for these agencies to identify 
why employer applications are initially rejected, to target their 
efforts to address the most important issues that challenge employers, 
and to improve performance. Meanwhile, employers who require workers 
at different points of the season must bear the additional costs of 
submitting paperwork to multiple agencies for each set of workers. In 
addition, employers continue to express confusion about how state 
workforce agencies and Labor are applying Labor's new regulations. 
Without additional clarification and transparency, employers may 
continue to submit unacceptable paperwork that requires extra 
resources from all parties to process. As immigration rules are 
tightened and the economy improves for U.S. workers, more employers 
may need to use the H-2A program to obtain foreign workers. This 
potential influx of new users could exacerbate existing problems if 
changes are not made to improve the application process. 

Recommendations for Executive Action: 

To improve the timeliness of application processing, as part of 
creating new online applications, we recommend that the Secretaries of 
Labor and Homeland Security: 

* 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. 

To reduce the burden on agricultural employers and improve customer 
service, we recommend that the Secretary of Labor: 

* 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. 

To promote consistency and transparency of decisions made about the 
acceptability of employer applications and clarify program rules, we 
recommend that the Secretary of Labor: 

* 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 Comments and Our Evaluation: 

We provided a draft of this report to Labor, DHS, and State for review 
and comment. State had no comments. Labor and DHS provided written 
comments which are reproduced in appendices I and II. Labor and DHS 
also provided technical comments, which we incorporated as 
appropriate. DHS concurred with our recommendation that the agency 
develop a method to automatically collect additional data through its 
forthcoming electronic application system to improve the timeliness of 
application processing. Similarly, Labor agreed with our 
recommendation that the agency develop a method of automatically 
collecting data on the reasons for deficiency notices and use this 
information to develop strategies to improve the timeliness of H-2A 
application processing and noted that it would explore the resources 
required to collect such information as part of its online application 
system. Labor also agreed with our recommendation that it update the 
guidance it provides to state workforce agencies on methods to 
determine the acceptability of employment practices. 

Labor did not agree with our recommendation that it allow employers to 
file a single application per season for workers arriving on different 
start dates, stating that the department's regulations define the date 
of need as the first date the employer requires the services of all H-
2A workers that are the subject of the application, not an indication 
of the first date of need for only some of the workers. Labor stated 
that having each employer file a single application with staggered 
dates of need would result in one recruitment for job opportunities 
that could begin many weeks or months after the original date of need, 
which could nullify the validity of the required labor market test. We 
are not recommending that employers conduct a single labor market test 
corresponding with their earliest date of need. Employers should still 
be required to submit evidence of their recruitment efforts for every 
start date listed on each application, but we believe they should not 
be required to resubmit a full application package for each set of 
workers needed during a season. 

Labor also expressed concern that our report points to the experiences 
of some employers or those of a single employer to support our 
conclusions. As noted earlier in this report, information obtained 
from our interviews cannot be generalized to all states or all 
agricultural employers. In addition, the illustrations used in this 
report highlight challenges expressed by numerous employers with whom 
we spoke, even when we used one employer's experience as an example. 
Further, as we noted previously, agency data are not available to 
document the extent of some employer challenges, such as whether 
workers arrive by the date they are needed by employers. 

As agreed with your offices, unless you publicly announce the contents 
of this report earlier, we plan no further distribution until 7 days 
from the report date. At that time, we will send copies to the 
appropriate congressional committees, the Secretaries of Homeland 
Security, Labor, State, and other interested parties. In addition, 
this report will be available at no charge on the GAO Web site at 
[hyperlink, http://www.gao.gov]. 

If you or your staff members have any questions regarding this report, 
please contact me at (202) 512-7215 or moranr@gao.gov. Contact points 
for our Offices of Congressional Relations and Public Affairs may be 
found on the last page of this report. GAO staff who made major 
contributions to this report are listed in appendix III. 

Sincerely yours, 

Signed by: 

Revae Moran, Director: 
Education, Workforce and Income Security Issues: 

[End of section] 

Appendix I: Comments from the Department of Labor: 

U.S Department of Labor: 
Assistant Secretary for Employment and Training: 
Washington, D.C 20210: 

August 31, 2012: 

Ms. Revae Moran: 
Director: 
Education, Workforce, and Income Security Issues: 
U.S. Government Accountability Office: 
441 0. Street, N.W. 
Washington, D.C. 20548: 

Dear Ms. Moran: 

We want to thank you for the opportunity to review and comment on the 
Government Accountability Office's (GAO) draft report entitled, H-2A 
Visa Program: Modernization and Improved Guidance Could Reduce 
Employer Application Burden (GA0-12-706). 

The Department's H-2A performance data indicate that employers are 
successfully using the program, and we continue to take steps to help 
H-2A employers meet their regulatory obligations and to process 
applications more efficiently. In the past year, the Department 
initiated a number of actions designed to clarify program requirements 
for participating employers and improve program performance. The 
Department engaged in extensive outreach and education efforts to 
familiarize program users with regulatory changes implemented through 
the 2010 H-2A Final
Rule. The Department continues its efforts to make the program more 
effective and efficient for employers, including launching a more user 
friendly H-2A Web site that features a new H-2A Employer Handbook, and 
posting updated Filing Tips, Frequently Asked Questions, and other 
technical assistance materials -- all aimed at assisting small 
growers. The Department continues to meet with employers and other 
stakeholders to provide additional assistance and explanation of the H-
2A program's requirements. 

We are pleased that our performance administering the H-2A program has 
improved significantly over prior years. For Fiscal Year (FY) 2011, 
the Department certified 93 percent of all H-2A applications filed 
covering more than 74,000 farm worker positions, with approximately 85 
percent of our final decisions issued on time. For the first nine 
months of FY 2012, the Department has received more than 4,975 H-2A 
applications requesting more than 75,000 farm workers, a 12 percent 
increase in applications filed over the same time period in FY 2011. 
Employers received certifications for approximately 97 percent of all 
H-2A applications processed, with more than 83 percent of our final 
decisions issued timely. 

However, the Department is aware that the process of issuing 
deficiency notices to employers may lead to multiple communications, 
and possibly delay the rendering of a final decision on its H-2A 
application. In an effort to improve customer service and provide 
greater assistance to the employer community in complying with program 
requirements, the Department expanded the use of e-mail to quickly 
communicate and resolve minor deficiencies with employer-filed H-2A 
applications. Once an employer corrects these minor deficiencies, the 
application and job order are accepted for processing, and the 
employer is provided with instructions for completing the application 
process. This H-2A E-Mail Notification. Program has been well received 
by the grower community and as a result, our deficiency rate has 
significantly decreased. For the fast nine months of FY 2012, the 
percent of employer-filed applications requiring a formal notice of 
deficiency fell substantially to 36 percent, compared to approximately 
63 percent in FY 2011. 

At the outset of the implementation of the H-2A 2010 Final Rule, the 
Department experienced a significant increase in initial application 
denials and subsequent appeals compared to prior years. Based on data 
collected from case adjudications, the Department determined that one 
of the most common reasons for denial is that employers do not provide 
the documentation required to issue the labor certification within 30 
days of the employer's need — the statutory time period within which 
the Department must issue the determination. Those denials often force 
growers into the program's appellate process, which creates additional 
delays. To ameliorate this problem, the Department, within the limits 
of its statutory requirements, implemented a more flexible process in 
January 2011, to provide employers with additional time to submit 
documents necessary to meet program requirements and receive 
certification rather than a denial. These revised procedures have 
significantly reduced the number of appeals filed. For the first nine 
months of FY 2012, approximately 79 appeals were filed with the 
Department's Office of the Administrative Law Judges, compared to 
approximately 441 in FY 2011. 

With this in mind, the GAO report identified the following three 
recommendations for the Department to address: 

1. To improve the timeliness of application processing, as part of 
creating new online applications, we recommend that the Secretaries of 
Labor and Homeland Security 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. 

The Department agrees with this recommendation, but at this time it 
has no automated method of collecting data on the reasons for 
deficiencies, requests for additional evidence, and denials. The H-2A 
on-line filing module within the iCERT Visa Portal System, which is 
scheduled for implementation in December 2012, will not initially 
collect this specific information; however, the Department will 
explore the level of resources required to include this kind of 
collection and reporting function. 

While the Department has no automated method of collecting and 
tracking deficiencies, the manner in which H-2A applications are 
processed at its Chicago National Processing Center (NPC) allows staff 
to extract up-to-date information from case files about the reasons for
deficiencies and denials. Center staff then review and communicate to 
the filing community through (a) posted H-2A Employer Filing Tips to 
inform employers of common mistakes that may result in processing 
delays; (b) Frequently Asked Questions (FAQs); and (c) an H-2A
Employer Handbook. These tools, as GAO acknowledges and which are 
publicly available at [hyperlink, 
http://www.foreignlaborcert.doleta.gov], explain and clarify key 
regulatory requirements for a U.S. employer to successfully 
participate in the H-2A program. 

The Department also recently established an H-2A Ombudsman Program, 
whose primary purpose is to facilitate the fair and equitable 
resolution of concerns that arise within the H-2A program community. 
it does so by conducting independent and impartial inquiries into 
issues related to the administration of the program and proposing 
internal recommendations designed to continuously improve the quality 
of services provided by the OFLC. 

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

An application for Temporary Employment Certification must contain a 
single date of need for all workers under that application. Staggering 
the date of need for some or all workers in a single application would 
result in less protection for American workers and hinder the  
Department from fulfilling its statutory obligation to ensure that 
there are no able, willing and qualified U.S. workers available to 
perform the work. 

The Department's regulations at 20 CFR 655.103 define the date of need 
as the first date the employer requires the services of 14-2A and U.S 
workers as indicated in the Application for Temporary Employment 
Certification, The date is not an indication of the first date of need 
for some workers, but for all the workers that are the subject of the 
application. The filing of an application indicates that the employer 
has full-time work available for all positions it is requesting for 
that single start date and that all information reflects the 
employer's true temporary need. The date of need is a critical element 
of the H-2A labor certification process because it also defines the 
earliest date when recruiting of U.S. workers can begin. In turn, 
recruiting of U.S. workers closer to the date of need is critical to 
an effective test of the labor market. 

Single applications with staggered dates of need would result in one 
recruitment for job opportunities that may begin many weeks or months 
after the original date of need. This would suppress applications from 
U.S. workers who are unable or unwilling to commit to jobs that are 
distant in time. As a result, changing the date of need for some or 
all workers nullifies the validity of the labor market test, which 
eliminates the Department's basis for granting the labor certification. 

3. To promote consistency and transparency of decisions made about the 
acceptability of employer applications and clarify program rules, we 
recommend that the Secretary of Labor 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. 

The Department agrees that updated guidance to state workforce 
agencies on methods to determine the acceptability of employment 
practices would clarify program rules and provide greater transparency 
of decisions made about the acceptability of employer applications. The
Department recognizes that current guidance, while upheld consistently 
in the Department's administrative decisions, needs revision to 
reflect current regulatory processes. 

Although the purpose of GAO's report was to examine employer 
challenges with the H-2A application process, the report could better 
reflect the necessary balance the Department must strike between 
employer requirements and worker protections. The Department's 
statutory responsibility is to certify only those applications for 
which qualified U.S. workers are not available to perform the work and 
the employment of foreign workers will not adversely affect the wages 
and working conditions of similarly employed U.S. workers. 

Additionally, despite stating on page 3 that "information obtained 
from our site visits and employer interviews cannot be generalized to 
all states or agricultural employers," the report later relies on the 
experiences and opinions of "some employers" or, more significantly, a 
single employer. to support its conclusions. In our view, reliance on 
a single employer's experiences to draw conclusions about the 
Department's practices in dealing with all employers, a method that is 
found throughout the draft report, is not consistent with the 
Department's and employers' experiences as supported by data. 

Enclosed are the Department's additional technical comments on the 
draft report. If you would like additional information, please do not 
hesitate to call me at (202) 693-2700. 

Sincerely, 

Signed by: 

Jane Oates: 
Assistant Secretary: 

Enclosure: 

[End of section] 

Appendix II: Comments from the Department of Homeland Security: 

U.S. Department of Homeland Security: 
Washington, DC 20528: 

August 28, 2012: 

Revac Moran, Director: 
Education, Workforce, and Income Security Issues: 
U.S. Government Accountability Office: 
441 G Street, NW: 
Washington, DC 20548: 

Re: Draft Report GAO-12-706, "H-2A Visa Program: Modernization and 
Improved Guidance Could Reduce Employer Application Burden" 

Dear Ms. Moran: 

Thank you for the opportunity to review and comment on this draft 
report. The U.S. Department of Homeland Security (DRS) appreciates the 
U.S. Government Accountability Office's (GAO's) work in conducting its 
review and issuing this report. 

The Department is pleased to note GAO's positive acknowledgment of 
DHS's continued progress in the approval of H-2A petitions. In 
particular, we appreciate GAO's recognition that over 90 percent of 
employer petitions for H-2A workers were approved in Fiscal Year, (FY)
2011. As of June 2012, over 98 percent had been approved in FY 2012. 
Petitions not requiring the issuance of a request for evidence were, 
on average, processed within 11 days of receipt. However, for those 
cases that required a request for evidence in order to reach a final 
decision. the processing time increased in correlation to the 
responsiveness of the petitioner. In order to reduce the number of 
requests for evidence needed, DHS will continue gathering information 
(using the traditional methods discussed below) on stakeholder issues 
or concerns and providing additional guidance for its customers and 
staff to ensure the efficient processing of employer petitions for H-
2A workers. 

The draft report contained one recommendation made to DHS, with which 
the Department concurs. Specifically, GAO recommended the Secretaries 
or Labor and Homeland Security: 

Recommendation: 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. 

Response: Concur. U.S. Citizenship and Immigration Services (USCIS) 
has investigated possible avenues for implementing this type of 
electronic reporting. Although USCIS has the ability to track case 
action, its systems are currently not configured to identify the 
reason that each individual petition is deficient.[Footnote 1] 

Even if USCIS had the ability to track the filing deficiencies, we do 
not believe this is the only means of identifying problematic areas of 
adjudication. USCIS has historically gathered information directly 
from other federal agencies (e.g., the Departments of Labor and 
State), from the public through outreach sessions, from quality review 
processes, and in the resolution of individual petitioner inquiries. 
These existing methods have enabled USCIS to develop tools to assist 
the public and to improve training programs at USC1S Service Centers. 

As mentioned in this report, recognizing that delays in adjudications 
are especially burdensome for H-2A petitioners. USCIS provided H-2A 
petitioners with additional information about how to properly file the 
Form I-129. H-2A Petitioners Questions and Answers and Form M-797, 
Operational Checklist for Form I-129 H-2A Filings[Footnote 2] were 
developed and posted on the USCIS Website to address the most common 
filing errors. In addition, USCIS hosted a stakeholder meeting on June 
10, 2011, to discuss best filing practices for H-2A petitions. During 
the meeting, USCIS provided clarification on how petitioners seeking H-
2A classification should complete the Form I-129. For more information 
about what was discussed during the meeting, see Executive Summary of 
the USCIS Stakeholder Engagement: H-2A Agricultural Workers.[Footnote 
3] 

USCIS Service Center personnel are under direction to process the H-2A 
petitions as expeditiously as possible, see October 19, 2007 Neufeld 
memo on the Updated Procedure for H-2A (Agricultural worker) I-129 
Petitions.[Footnote 4]. On the basis of guidance in this memo, USCIS 
makes an initial decision to either approve the petition or request 
additional evidence promptly after receipt of the H-2A Form I-129. If 
additional evidence is needed, the petitioners are given up to 12 
weeks to provide the necessary documentation, USCIS cannot make a 
final decision until the petitioner has responded to request for 
evidence. 

USCIS analysis of all Form I-129 petitions filed on behalf of H-2A 
workers received from January 2011 to June 2012 showed that USCIS 
approved the majority of H-2A petitions without the need to issue a 
Request for Evidence (RFE). In fact. since January 2011, the H-2A 
classification has continued to have one of our highest approval rates 
among all nonimmigrant employment-based classifications, as the 
following table indicates. 

Rates of Approvals, Denials, Request for Evidence: 

January 2011: 
Approvals: 663; 
Denials: 30; 
RFEs: 113; 
Approval Rate: 94.8%; 
Denial Rate: 5.2%; 
RFE Rate[A]: 16.1%. 

February 2011: 
Approvals: 1,107; 
Denials: 14; 
RFEs: 142; 
Approval Rate: 98.7%; 
Denial Rate: 1.3%; 
RFE Rate[A]: 12.6%. 

March 2011: 
Approvals: 1,028; 
Denials: 4; 
RFEs: 281; 
Approval Rate: 99.6%; 
Denial Rate: 0.4%; 
RFE Rate[A]: 27.2%. 

April 2011: 
Approvals: 815; 
Denials: 8; 
RFEs: 161; 
Approval Rate: 99.0%; 
Denial Rate: 1.0%; 
RFE Rate[A]: 19.6%. 

May 2011: 
Approvals: 507; 
Denials: 9; 
RFEs: 63; 
Approval Rate: 98.3%; 
Denial Rate: 1.7%; 
RFE Rate[A]: 12.2%. 

June 2011: 
Approvals: 341; 
Denials: 5; 
RFEs: 56; 
Approval Rate: 98.9%; 
Denial Rate: 1.4%; 
RFE Rate[A]: 16.2%. 

July 2011: 
Approvals: 207; 
Denials: 9; 
RFEs: 63; 
Approval Rate: 96.8%; 
Denial Rate: 3.2%; 
RFE Rate[A]: 22.6%. 

August 2011: 
Approvals: 321; 
Denials: 6; 
RFEs: 56; 
Approval Rate: 98.2%; 
Denial Rate: 1.8%; 
RFE Rate[A]: 14.1%. 

September 201: 
Approvals: 226; 
Denials: 7; 
RFEs: 63; 
Approval Rate: 97.0%; 
Denial Rate: 3.0%; 
RFE Rate[A]: 15.9%. 

October 2011: 
Approvals: 207; 
Denials: 4; 
RFEs: 32; 
Approval Rate: 98.1%; 
Denial Rate: 1.9%; 
RFE Rate[A]: 15.2%. 

November 2011: 
Approvals: 256; 
Denials: 5; 
RFEs: 102; 
Approval Rate: 98.1%; 
Denial Rate: 1.9%; 
RFE Rate[A]: 39.1%. 

December 2011: 
Approvals: 382; 
Denials: 8; 
RFEs: 77; 
Approval Rate: 97.9%; 
Denial Rate: 2.1%; 
RFE Rate[A]: 19.7%. 

January 2012: 
Approvals: 577; 
Denials: 8; 
RFEs: 69; 
Approval Rate: 98.6%; 
Denial Rate: 1.4%; 
RFE Rate[A]: 11.8%. 

February 2012: 
Approvals: 1,127; 
Denials: 10; 
RFEs: 146; 
Approval Rate: 99.1%; 
Denial Rate: 0.9%; 
RFE Rate[A]: 12.8%. 

March 2012: 
Approvals: 1,265; 
Denials: 13; 
RFEs: 155; 
Approval Rate: 99.0%; 
Denial Rate: 1.0%; 
RFE Rate[A]: 12.1%. 

April 2012: 
Approvals: 802; 
Denials: 13; 
RFEs: 82; 
Approval Rate: 98.4%; 
Denial Rate: 1.6%; 
RFE Rate[A]: 10.1%. 

May 2012: 
Approvals: 496; 
Denials: 7; 
RFEs: 95; 
Approval Rate: 98.6%; 
Denial Rate: 1.4%; 
RFE Rate[A]: 8.9%. 

June 2012: 
Approvals: 525; 
Denials: 8; 
RFEs: 27; 
Approval Rate: 98.5%; 
Denial Rate: 1.5%; 
RFE Rate[A]: 5.1%. 

Total: 
Approvals: 9.145; 
Denials: 124; 
RFEs: 1,528; 
Approval Rate: 98.4
Denial Rate: 1.6
RFE Rate[A]: 17.0%. 

[A] Source: USCIS Office of Performance and Quality. 

[End of table] 

Again, thank you for the opportunity to review and comment on this 
draft report. Technical were previously provided under separate cover. 
Please feel free to contact me questions. We look forward to working 
with you in the future. 

Sincerely,  

Signed by: 

Jim H. Crumpacker: 
Director: 
Departmental GAO-OIG Liaison Office: 

Appendix II Footnotes: 

[1] Electronic filing of employment-based visas is currently scheduled 
for inclusion in the Electronic Immigration System in FY 2015, They 
were moved further hack in the schedule (from the originally planned 
date of June 2014) pursuant to a request from the business owners, The 
ability to run reports showing the reason for denial or request for 
evidence may be in place prior to FY 2015 because it is likely to be 
prioritized for a preceding form type. 

[23] Links to these documents may be found at [hyperlink, 
http://www.uscis.gov/h2a.] 

[3] Links to these documents may be found at [hyperlink, 
http://uscis.gov/USCIS/Outreach/Notes%20from%20Previous%20Engagements/20
11/June%202011/H2a_VIBE_exec_summ.pdf]. 

[4] Links to these documents may be found at [hyperlink, 
http://connect.uscis.dhs.gov/workingresources/immigrationpolicy/Document
s/H2AFieldGdns101907.pdf]. 

[End of section] 

Appendix III: GAO Contact and Staff Acknowledgments: 

GAO Contact: 

Revae Moran, Director, (202) 512-7215 or moranr@gao.gov: 

Staff Acknowledgments: 

In addition to the individual named above, Betty Ward-Zukerman, 
Assistant Director; Hedieh Rahmanou Fusfield, Jeffrey G. Miller, and 
Cathy Roark made key contributions to this report. Also contributing 
were Hiwotte Amare, James Bennett, Kathy Leslie, Jonathan McMurray, 
Jean McSween, Kathleen van Gelder, and Craig Winslow. 

[End of section] 

Footnotes: 

[1] 8 U.S.C. §§ 1101(a)(15)(H)(ii)(a) and 1188. 

[2] GAO, GAO-H-2A Agricultural Guestworker Program: Changes Could 
Improve Services to Employers and Better Protect Workers, [hyperlink, 
http://www.gao.gov/products/GAO/HEHS-98-20] (Washington, D.C.: Dec. 
31, 1997). GAO, GAO-H-2A Agricultural Guestworkers: Status of Efforts 
to Improve Program Services, [hyperlink, 
http://www.gao.gov/products/GAO/T-HEHS-00-134] (Washington, D.C.: June 
15, 2000). 

[3] Such decisions include Labor's decisions to send the employer a 
deficiency notice requesting additional documentation or corrections 
to an employer's application package or Labor's denial of an 
employer's request for permission to hire foreign workers under the H-
2A program. Employers may appeal Labor's deficiency notices or denials 
to an Administrative Law judge within Labor's Office of Administrative 
Law Judges. This judge may affirm, reverse, or modify Labor's 
decision; remand the case back to Labor for further action; or dismiss 
the case. 

[4] Act of February 5, 1917, ch. 29, § 3, 39 Stat. 874, 875-78. 

[5] Agreement Between the United States of America and Mexico 
Respecting the Temporary Migration of Mexican Agricultural Workers, 
U.S.-Mex., Aug. 4, 1942, 1942 U.S.T. 209. 

[6] Congressional Research Service, The Effects on U.S. Farm Workers 
of an Agricultural Guest Worker Program. Linda Levine, Specialist in 
Labor Economics, (Washington, D.C.: Dec. 28, 2009). 

[7] Pub. L. No. 82-414, § 101(a)(15)(H)(ii), 66 Stat. 163, 169 
(codified as amended at 8 U.S.C. § 1101(a)(15)(H)(ii)(A) and (B)). INA 
bars the admission of a foreign worker who seeks to enter the United 
States under a H-2A visa, unless the Secretary of Labor provides a 
certification to the Secretaries of State and DHS. 

[8] Pub. L. No. 99-603, § 301(a), 100 Stat. 3359, 3411 (codified as 
amended at 8 U.S.C. § 1101(a)(15)(H)(ii)(A)). 

[9] H.R. Rpt. 99-682, pt. 1, at 79 (1986). 

[10] 8 U.S.C. §§ 1101(a)(15)(H)(ii)(A) and 1188, and 20 C.F.R. pt. 
655, subpt. B (2012). 

[11] 20 U.S.C. § 655.122(c), (d), (h), (i) and (l) (2012). 

[12] Employers can request multiple H-2A workers on one application. H-
2A employers represent a small proportion of the approximately 2.2 
million U.S. farms in fiscal year 2010, according to estimates 
reported by the U.S. Department of Agriculture. 

[13] The top 10 states in the number of positions approved by Labor 
under the H-2A program in fiscal year 2011 were North Carolina, 
Florida, Georgia, Louisiana, Kentucky, Arizona, New York, Washington, 
Virginia, and South Carolina. 

[14] 20 C.F.R. § 655.135(i) (2011). For qualifying work, workers may 
get extensions up to a maximum total stay of 3 years and then, after 
being out of the United States for at least 3 months, apply for 
readmission in future years for additional qualifying work. 8 C.F.R. § 
214.2(h)(5)(viii)(C) (2012). 

[15] The U.S. Department of Agriculture's Economic Research Service 
analyzed Labor's National Agricultural Workers Survey data and found 
that, on average, the proportion of hired crop farm workers who were 
not legally authorized to work in the United States from 2007 to 2009 
was around 50 percent. 

[16] To limit liability should employers inadvertently hire 
undocumented workers, employers may follow statutorily prescribed 
procedures for verifying that an individual is legally authorized to 
work in the United States. 8 U.S.C. § 1324a(a)(3) and (b). 

[17] State workforce agencies oversee and provide employment and 
workforce development services. Employers who need workers in more 
than one state within the same geographic area may submit applications 
for H-2A workers to any one of the state workforce agencies covering 
the anticipated locations. 20 C.F.R. § 655.121(a)(1) (2012). 

[18] 8 U.S.C. § 1188(c) and 20 C.F.R. §§ 121(a), 655.130 - 655.133, 
655.140 - 655.143, and 655.160. Prior to 1999, Labor had more time to 
review employer applications. Congress amended the INA in 1999 to 
allow employers to submit applications to Labor later and require 
Labor to make certification decisions earlier, effectively compressing 
the minimum time available for Labor to process applications from 40 
days to 15. Agriculture, Rural Development, Food and Drug 
Administration, and Related Agencies Appropriations Act, 2000, Pub. L. 
No. 106-78, § 748,113 Stat. 1135, 1167(codified at 8 U.S.C. § 
1188(c)(3)) (1999). Specifically, the 1999 act changed the requirement 
that employers file applications from at least 60 days before the 
first date the employer needs workers to at least 45 days before the 
date of need. Labor was then required to issue certification decisions 
no later than 30 days before the employer's date of need rather than 
20 days before the date of need. 

[19] 20 C.F.R. pt. 655, subpt. B (2012). 

[20] States develop and carry out surveys of employers and use other 
data collection methods to determine wages and employment standards in 
their state. 

[21] The regulation refers to the job order as a Form ETA-790. 
Applications for temporary employment certification may be filed by an 
individual employer, an agent working for the employer (e.g., lawyer 
or labor contractor), or by an employer association on behalf of 
multiple employers. 

[22] 8 U.S.C. § 1188(a) and 20 C.F.R. § 655.161 (2012). 

[23] 8 C.F.R. § 214.2(h)(5) (2012). 

[24] Employers are required to provide the names of the workers if 
they are requesting to extend a worker's length of stay or if the 
worker comes from a country that is not on DHS's list of countries 
from which H-2A workers may be requested. Naming specific workers on 
the application to DHS is otherwise voluntary. 8 C.F.R. § 
214.2(h)(2)(iiii) (2012). When workers' names are identified in the 
applications, DHS checks these names against databases to identify 
issues, such as criminal histories, that may prevent the individuals 
from entering the United States. 

[25] 22 C.F.R. pt. 41, subpt. J (2012). A visa is not required for H-
2A workers coming from Jamaica and certain other Caribbean countries. 
8 C.F.R. § 212.1(b) (2012). In these cases, the worker may go directly 
to a designated port of entry and apply for admission. According to 
DHS officials, DHS and State are in the process of drafting 
regulations to end this exemption from the visa requirement, which had 
its origin several decades ago, and was never revised. Canadian 
citizens are also visa exempt. 

[26] The term "post" refers to a U.S. consulate or embassy abroad. 

[27] 8 U.S.C. § 1182(a(2), (3) and (6) and 22 C.F.R. § 21.121 (2012). 

[28] E-Verify is an internet-based system intended to electronically 
verify U.S. work eligibility. For more information, see GAO, 
Employment Verification: Federal Agencies Have Taken Steps to Improve 
E-Verify, but Significant Challenges Remain, [hyperlink, 
http://www.gao.gov/products/GAO-11-146] (Washington, D.C.: Dec. 17, 
2010). 

[29] Comprehensive Immigration Reform Act of 2011, S. 1258, 112TH 
Cong. tit. I, pt. V (2011). 

[30] Our analysis of Labor's timeliness excluded emergency cases, 
which are applications filed less than 45 days prior to the employer's 
date of need. We calculated the number of calendar days prior to the 
certified start date that determinations were made. Labor reported 
that 85 percent of its determinations were timely in fiscal year 2011. 
Labor changed the method it uses to calculate timeliness in fiscal 
year 2011 after the agency began allowing employers additional time 
(up to 5 days) to submit the documentation required to receive a 
certification. Labor's method for calculating timeliness allows cases 
that receive deficiency notices--63 percent of cases in fiscal year 
2011--an additional 5 days to submit documentation and considers these 
cases timely as long as the agency made a determination at least 24 
days prior to the date of need (5 days past the deadline). This 5 day 
extension comes at the expense of processing time available for DHS 
and State in advance of the date of need because DHS cannot initiate 
its process in advance of Labor's certification. 

[31] After filling out an application, workers must complete a two-
part process to obtain an H-2A visa. According to agency officials, 
first, they visit an Applicant Service Center where they are 
photographed and fingerprinted. Next, they visit a consulate or 
embassy where they are interviewed by a Consular Officer during a 
second appointment on a separate day. 

[32] GAO, Internal Control Management and Evaluation Tool, [hyperlink, 
http://www.gao.gov/products/GAO-01-1008G] (Washington, D.C.: August, 
2001). 

[33] See National Council of Agricultural Employers, H-2A Temporary 
Agricultural Employee Program (Vienna, V.A.: Nov., 2011). 

[34] We previously identified inefficiencies with DHS's paper-based 
processes. DHS agreed with our recommendation to improve the use of 
technology. See GAO, Immigration Benefits: Additional Efforts Needed 
to Help Ensure Alien Files Are Located when Needed, [hyperlink, 
http://www.gao.gov/products/GAO-07-85] (Washington, D.C.: Oct. 27, 
2006); Information Technology: Near-Term Effort to Automate Paper-
Based Immigration Files Needs Planning Improvements, [hyperlink, 
http://www.gao.gov/products/GAO-06-375] (Washington, D.C.: Mar. 31, 
2006); and Immigration Benefits: Improvements Needed to Address 
Backlogs and Ensure Quality of Adjudications, [hyperlink, 
http://www.gao.gov/products/GAO-06-20] (Washington, D.C.: Nov. 21, 
2005). 

[35] 5 U.S.C. § 306 and Exec. Order No. 13,571. 

[36] Labor is required by statute to issue a deficiency notice, when 
applicable, within seven days, ensuring that an employer or its 
representative receives information about an application within 7 
days. 29 U.S.C. § 1188(c)(2). 

[37] Revenues generated from H-2A application fees are deposited and 
combined with other revenue in the General Fund of the U.S. Treasury. 
The Immigration and Nationality Act provides no mechanism for 
dedicated use of these funds by the Secretary of Labor. 

[38] 8 C.F.R. § 214.2(h)(5)(i)(A) (2012). 

[39] 52 Fed. Reg. 20,496 (June 1, 1987) and 73 Fed. Reg. 77,110 (Dec. 
18, 2008). 

[40] 75 Fed. Reg. 6,884 (Feb. 12, 2010). 

[41] The rest of the appealed cases that resulted in rulings were 
mixed rulings and were partially affirmed and partially reversed (15 
cases). 

[42] To enhance the integrity of the program, DHS began using a web-
based database called Validation Instrument for Business Enterprises 
(VIBE) in 2010 to validate information provided on employers' 
petitions for H-2A workers. 

[43] Employers were asked to provide documentation, such as workers' 
recent pay stubs, to show that fees are not being deducted from 
workers' paychecks. DHS and Labor regulations prohibit the collection 
of fees from workers' paychecks as a condition of H-2A employment. 8 
U.S.C. § 214.2(h)(5)(xi) and 20 C.F.R. § 655.20(o) and (p)(2012). The 
basis for these requests for evidence was to ensure that the practices 
of the Jamaican governmental organization did not violate the 
regulatory bans on payment of prohibited fees by workers, which is an 
essential worker protection against abuse and unfair treatment, 
according to DHS officials. DHS has posted guidance on prohibited fees 
on its H-2 web page and conducted national outreach to employers on 
this topic in June 2011. According to agency officials, specific 
guidance pertaining to the Jamaican governmental organization has not 
been issued and these cases are handled the same as other cases 
involving deductions from workers' paychecks. According to DHS 
officials, no petitions have been denied recently due to prohibited 
fees and the number of requests for evidence on this issue has 
decreased. Labor is currently investigating some employers who use 
Jamaican workers and officials told us the agency will be publishing 
general guidance clarifying the permissibility of workers voluntarily 
requesting deductions from wages under the H-2A program. 

[44] 20 C.F.R. §§ 655.122(h)(1) and 655.135(e) (2012). Also see 
Michael Prasad, We Need Your Help! But It's Gonna Cost You: Arriaga, 
Castellanos-Contreras, and Why Point of Hire Fees Should be Paid by 
the Employer, 33 W. New Eng. L. Rev. 817 (2011). 

[45] Employment Standards Administration, Field Assistance Bulletin 
No. 2009-2 (Aug. 21, 2009). 

[46] Labor's H-2A regulations at 20 CFR 655.120(l) provide that 
employers must pay their H-2A workers and workers at least the highest 
of: (i) the Adverse Effect Wage Rate--the minimum wage rate Labor has 
determined must be offered and paid by employers to H-2A workers so 
that the wages of similarly employed U.S. workers will not be 
adversely affected; (ii) the prevailing wage; (iii) the prevailing 
piece rate; (iv) the agreed-upon collective bargaining wage, if 
applicable; or (v) the Federal or State minimum wage, in effect at the 
time the work is performed. 

[47] In addition to rulings from previous appeals, the judge found 
corroborating evidence that apple farming was a difficult and skilled 
job that required training and knowledge of safety issues. He did not 
find similar support for vegetable and tobacco farmers. See Westward 
Orchards, 2011-TLC-00411, and Volante Farms, 2011-TLC-00412 

[48] GPRA Modernization Act of 2010, Pub. L. No. 111-352; Exec. Order 
No. 12,862 (Sept. 11, 1993); Exec. Order No. 13,571 (Apr. 27, 2011). 

[49] GAO, Immigration Benefits: Consistent Adherence to DHS's 
Acquisition Policy Could Help Improve Transformation Program Outcomes, 
[hyperlink, http://www.gao.gov/products/GAO-12-66] (Washington, D.C.: 
Nov. 22, 2011). 

[50] 20 C.F.R. § 655.130(b) (2012). By statute, Labor is not permitted 
to require employers to submit their applications more than 45 days 
before the first date the labor or services of the H-2A worker is 
required. 8 U.S.C. § 1188(c)(1). 

[51] The first half of fiscal year 2012 refers to the period October 
1, 2011 to March 31, 2012. Results for the entire year may differ. 

[52] Our internal control standards state that agency managers should 
identify the knowledge and skills needed for various jobs and provide 
necessary training, among other things. GAO, Standards for Internal 
Control in the Federal Government, [hyperlink, 
http://www.gao.gov/products/GAO/AIMD-00.21.3.1] (Washington, D.C.: 
Nov. 1999). 

[53] The most recent comprehensive guidance to states about the H-2A 
program is Labor's 1988 H-2A Program Handbook. U.S. Department of 
Labor, Employment and Training Administration, H-2A Program Handbook, 
Handbook No. 398 (Washington, D.C.: January 1988). 

[End of section] 

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