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

Increased Protections Needed for Foreign Workers [Reissued on May 30, 2017]

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

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What GAO Found

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

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

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

Why GAO Did This Study

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

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

What GAO Recommends

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

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

Recommendations for Executive Action

  1. Status: Closed - Not Implemented

    Comments: USCIS initially indicated that it would examine modifying the petition for H-2B workers, or Form I-129, to capture occupation data using the Standard Occupational Classification code and would develop an electronic version of the form for a future release in USCIS? Electronic Immigration System (USCIS ELIS). The estimated date for completion was September 2017. In September 2016, USCIS indicated that it was revising its schedule for the conversion to electronic nonimmigrant petitions, including the Form I-129, and also noted that it was exploring the adoption of a single set of occupation codes across multiple form types, but had not yet made a final decision whether to implement this. At that time, USCIS estimated the completion date would be March 31, 2018. However, in October 2017, USCIS reported that there was no identifiable and practical path to implement this recommendation given USCIS's challenges with ELIS deployment. USCIS notified GAO that challenges in developing and implementing ELIS have made any GAO recommendations regarding specific forms being incorporated into the system not feasible. In particular, USCIS stated that such challenges prohibit USCIS from providing any realistic time frame as to when, if at all, the nonimmigrant line of business will be under development or operational within ELIS.

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

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

  2. Status: Closed - Not Implemented

    Comments: USCIS initially indicated that when it incorporated the petition for H-2A and H-2B workers, the Form I-129, into USCIS' Electronic Immigration System (USCIS ELIS) it would ensure that job-related information was captured. The estimated date of completion was December 2017. In September 2016, USCIS indicated that it was revising its schedule and the conversion to electronic nonimmigrant petitions, which included the Form I-129, was expected to be completed by March 31, 2018. However, in October 2017, USCIS reported that there was no identifiable and practical path to implement this recommendation given USCIS's challenges with ELIS deployment. USCIS notified GAO that challenges in developing and implementing ELIS have made any GAO recommendations regarding specific forms being incorporated into the system not feasible. In particular, USCIS stated that such challenges prohibit USCIS from providing any realistic time frame as to when, if at all, the nonimmigrant line of business will be under development or operational within ELIS.

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

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

  3. Status: Closed - Implemented

    Priority recommendation

    Comments: The Department of Homeland Security's U.S. Citizenship and Immigration Services (USCIS) and the Department of Labor (DOL) drafted a memorandum of agreement (MOA) to share data related to employers who file applications with DOL or petitions with DHS. The MOA, which covers Employment-Based Petition, Labor Certification, and Labor Condition Application Data, was finalized and signed by USCIS and DOL, and took effect on January 12, 2017.

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

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

  4. Status: Open

    Comments: In June 2016, the agency noted that it continues to screen for debarred employers in two ways: 1) by adding debarred employers to its iCERT System, which matches incoming employer applications using the federal Employer Identification Number; and 2) by conducting additional reviews during analyst case adjudications using a more expansive set of employer-related information. While the Employment and Training Administration explored enhancing its iCERT system in 2015 to flag more information on debarred employers, the agency said this enhancement was not pursued due to technical difficulties in matching open text fields (e.g., physical employer addresses). In January 2017, DOL signed a data sharing memorandum of agreement (MOA) with the Department of Homeland Security (DHS). DOL officials said this MOA will allow DOL access to DHS data--including information from the DHS system that collects information on all employers--and that DOL will be able to use this information to better screen labor condition applications. In March 2018, DOL officials said they were working with DHS to develop a system interface for DOL staff to access DHS information. They said the interface was expected to be completed by October 2018 and then piloted. Once DOL has piloted the system interface with DHS, we will evaluate how DOL is using its employer-related information to screen applications for debarred employers.

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

    Agency Affected: Department of Labor

  5. Status: Closed - Implemented

    Comments: In June 2016, DOL's Wage and Hour Division (WHD) indicated that it was coordinating closely with the department's Chief Evaluation Office on evaluations and special projects involving data analytics. As a result of that coordination, WHD was shifting away from large-scale compliance surveys and toward leveraging internal enforcement data and external survey data to assess compliance levels in priority industries. Also in 2016, the DOL Appropriations Act restricted the department from using funds to enforce certain H-2B provisions. In June 2017, WHD indicated it did not believe an investigations-based evaluation of H-2B employers was appropriate given this budget restriction and other litigation related to the H-2B regulations. Officials said these budget restrictions were continued into FY 2018. Regardless of these restrictions, however, WHD officials said they have taken several steps to improve enforcement of the H-2B program requirements. For example, in 2016 and 2017, WHD held an advanced training for managers and field staff who handle H-2B investigations. In addition, it issued a memorandum that provided guidance under the 2015 Interim Final Rule on the appropriate enforcement actions to take in response to various findings of H-2B investigations. WHD also indicated it has been sharing data with DOL's Office of Foreign Labor Certification to identify employers with H-2B workers. While a national investigations-based evaluation of H-2B employers may not be possible, WHD has taken actions to review and improve its enforcement efforts through training and data sharing, which meet the intent of the recommendation.

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

    Agency Affected: Department of Labor

  6. Status: Open

    Comments: In June 2016, DOL indicated that it was considering the utility of collecting these data in light of the fact that the new H-2B regulations that were issued in April 2015 eliminated the 2-year statute of limitations for the H-2B program. We continue to believe, however, that this data collection would be valuable given that the H-2A program is still subject to the 2-year statute of limitations. The department indicated it was undertaking a modernization of its data systems--by implementing a data governance structure that would manage its data as a business asset--and our recommendation for the collection of these data would be vetted through this process. In June 2017, however, DOL indicated that WHD had concluded that business process improvements, rather than software changes, were more appropriate to ensure timely analysis of potential debarments. As it makes business process improvements, DOL indicated it would continue to evaluate whether data collection meets program needs. DOL did not provide an update on this recommendation in fiscal year 2018.

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

    Agency Affected: Department of Labor

  7. Status: Closed - Implemented

    Priority recommendation

    Comments: The Department of Labor (DOL)and the Department of Homeland Security's U.S. Citizenship and Immigration Services (USCIS) drafted a memorandum of agreement (MOA) to share data related to employers who file applications with DOL or petitions with DHS. The MOA, which covers Employment-Based Petition, Labor Certification, and Labor Condition Application Data, was finalized and signed by DOL and USCIS, and took effect on January 12, 2017.

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

    Agency Affected: Department of Labor

 

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