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.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. 2). 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). 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. In March 2012, Labor began using e-mail  to communicate with employers in all states about their applications. One employer  representative expressed frustration that neighboring states used different  methods to determine acceptable practices for the same crop and that the  results differed. Officials from Labor and DHS, and State’s contractor attended the most  recent of these meetings, held in Texas in January 2012. 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. 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. 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. 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. 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. 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. We are not recommending that  employers conduct a single labor market test corresponding with their  earliest date of need.
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 agenciesthe 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.
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 Labors 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 Labors 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.