GAO Study on H-2A Visa Program Forgot Farmworkers

The new US Government Accountability Office report, “H-2A Visa Program: Modernization and Improved Guidance Could Reduce Employer Application Burden,” stresses the need for the Department of Labor (DOL) and the Department of Homeland Security (DHS) to “improve the customer experience;” however, it only focuses on one kind of customer: employers. Though their voices aren’t as loud as the growers’, farmworkers and prospective farmworkers are also DOL’s “customers,” yet their perspective is notably absent from the report’s analysis. While the GAO report does contain some fair analyses and recommendations to improve government processing of H-2A applications, such as better data collection on the reasons that some applications are delayed, Farmworker Justice views this report as a lost opportunity to address how the program could work better for both workers and employers.

According to GAO, Senator Gillibrand requested the study, “to identify ways to expedite the application process while maintaining worker protections and national security.” Consequently, the report mainly focuses on the H-2A application process for employers. Employers complained about delays associated with filing paper applications (the electronic application processes have been delayed but will be available soon) and the need to file two sets of paperwork to hire groups of workers at two different times. GAO reported employer confusion about how the state workforce agencies determine which job terms are allowed in the workers’ contracts. The report found that DOL and DHS lack systems to collect data on the reasons for processing delays, which makes it difficult to improve performance.

GAO recommends that DOL and DHS use their new automated systems to collect data on the reasons that applications get delayed or rejected; that DOL permit employers that hire two groups of H-2A workers arriving at different points of time in the harvest season to submit one application and pay one set of fees; and that DOL provide revised and updated guidance to state workforce agencies on how to determine the acceptability of employment practices.

Farmworker Justice supports GAO’s recommendation that DOL and DHS should collect data on the reasons for processing delays and that DOL provide new guidance to state workforce agencies. However, we join DOL in opposing GAO’s recommendation that DOL allow growers to use one application for two groups of H-2A workers arriving on two different dates because recruitment of available U.S. workers would diminish.

The report’s analysis and conclusions are more troubling than its recommendations. The GAO report reflects a lack of full understanding of DOL’s role in carrying out the labor certification process and its importance in protecting both domestic farmworkers and guestworkers. By statute DOL is charged with ensuring that there is an actual labor shortage and the wages and working conditions of US workers are not adversely affected by agricultural employers’ use of the H-2A program. To satisfy this mandate, DOL oversees the employers’ recruitment efforts, requires that employers pay the highest of the local or regional average wages and ensures that the applications do not contain requirements intended to turn away or disqualify US workers. Yet, even with the current protections in the H-2A regulations many workers interested in working for H-2A employers have been turned away or otherwise treated unfavorably in the workplace. Once H-2A employers invest in the program, they tend to favor H-2A guestworkers over US workers because guestworkers are tied to their employers by their visas and usually willing to work to the limits of human capacity.

Without providing this context or the worker perspective, GAO relies on anecdotal criticisms of the program by a few employers, to conclude that the application process is overly complex and burdensome. For example, GAO cites to employers’ complaints that DOL and the SWAs allow some job terms in some applications while not in others. In reality, employers sometimes use particular job terms, such as a requirement that the worker has experience, to disqualify US worker applicants or discourage them from applying.

In relying on these anecdotes, the report repeats employers’ criticisms aimed at attacking DOL’s so-called “new” regulations (incidentally, the “new” regulations to which the GAO report refers are actually the Reagan-era regulations that have governed the program for many years; Secretary Solis restored these rules after Secretary Chao rewrote the regulations to slash or eliminate many of the long-standing protections) that protect workers. Criticizing the H-2A application process as “overly burdensome” and “unworkable” is part of a grower strategy to push proposals that would strip worker protections from the H-2A program or create a new guestworker program. In fact, one growers’ association that contributed to GAO’s study has already released an article stating that the GAO report confirms the need for guestworker reform.

It is disappointing that GAO failed to recognize DOL’s challenge in balancing employer’s labor needs with its mandate to protect workers. The H-2A program requirements are manageable and essential to protect workers. Changing the H-2A program or creating a new guestworker program is not a solution for agriculture. By their nature, guestworker programs exploit foreign workers and displace US workers. Growers looking for a reliable workforce should support an immigration system that offers the current experienced farmworkers and guestworkers an opportunity to earn a path to citizenship.