The departments of Homeland Security and Labor need to streamline operation of the H-2A farm worker program both to facilitate electronic processing of applications and more quickly identify workers who are due back pay, the Government Accountability Office says in a new report.
The Labor Department, GAO says, “has taken steps to return back wages but may not have timely access to complete contact information for workers who have returned to their home countries.” The department hasn’t looked at more efficiency, but a cost-benefit analysis of options for locating workers may "strengthen its efforts to return back wages,” GAO says.
As for DHS, GAO recommends that the department should set up a schedule for transitioning to full electronic processing of H-2A petitions.
The H-2A program has grown exponentially in recent years, but the Labor Department can only investigate a “small share” of employers, GAO says. For example, from fiscal 2018 through FY23, the Office of Farm Labor Certification certified 92,051 H-2A applications submitted by employers, but in the same period, concluded 2,857 investigations, or 3.1%, of H-2A employers.
Eighty-four percent of DOL’s investigations of employers "found one or more violations, with the most common violations related to pay," the report said.
The program itself grew during those six years by more than 50%. In FY23, the State Department issued nearly 310,000 H-2A visas, 87% of which were in the farm workers and laborers, crop, nursery, and greenhouse occupation categories.
The department’s Wage and Hour Division is hampered by “a limited number of investigative staff to conduct wide-ranging enforcement obligations,” GAO says. The division's FY22–26 strategic plan cited “declining staff numbers in the preceding several years [that] hindered its ability to carry out investigations, inspections, and other mission-critical activities,” GAO says. In FY23, the number of WHD investigators stood at 773, one of the lowest in the last 50 years.
Yet those investigators are responsible for not only agricultural labor standards but also for enforcement of WHD regulatory duties including minimum wage and overtime enforcement.
From FY18 through FY23, GAO found that WHD assessed more than $20 million in H-2A back wages. It said H-2A violations made up 54% of back wages assessed agricultural employers.
Cut through the clutter! We deliver the news you need to stay informed about farm, food and rural issues. Sign up for a FREE month of Agri-Pulse here.
Both agencies agree with the recommendations, though DHS says it has begun processing H-2A petitions electronically. The department noted it still requires ag employers to submit a paper form, the I-129, for non-immigrant workers but those are scanned and processed electronically.
“Generally, employers are only required to name H-2A workers on the Form I-129 petition who are already in the U.S. or are nationals of a country not designated as eligible to participate in the H-2A visa program,” GAO says. “The number of workers that employers named on H-2A Form I-129 petitions nearly doubled in the six-year period we reviewed, from 37,939 in FY 2018 to 74,699 in FY 2023.”
DHS says in its comments on the recommendation that it needed to make some changes in its process in order to go fully electronic but maintains that it “remains committed to the timely and efficient processing of H-2A petitions and supporting U.S. employers or U.S. agents” who meet the regulatory requirements to bring workers in from foreign countries.
Michael MarshMichael Marsh, president and CEO of the National Council of Agricultural Employers, said he doubts there will be "significant additional appropriations for DOL in the next administration to accomplish more rigorous determinations," but also says that "whether it is agriculture or any other business, staffing at regulatory agencies will not permit an efficient determination of when back wages are owed to workers. One of the challenges I think for Wage and Hour is finding temporary foreign workers who may have a right to back wages after they return home."
Marsh also said, as he has before, that the data "indicate that it is a small number of actors who are responsible for most of the violations. Most program users strive for compliance but, just as in any other interpersonal situation, bad actors with ill intent will do the wrong thing."
The incoming administration of Donald Trump has not yet named a nominee to be secretary of labor, but Trump has chosen South Dakota Gov. Kristi Noem to head the Department of Homeland Security and Florida Sen. Marco Rubio to be secretary of state.
Both appear to be on board with Trump’s plan to conduct mass deportations of immigrants, which farm employers say could remove up to 1 million farm workers.
The impact of an operation of that size “would be absolutely devastating to America's farmers and ranchers,” Michael Marsh, president and CEO of the National Council of Agricultural Employers, told Agri-Pulse.
Whether Trump will target all immigrants or just those with criminal backgrounds is not clear. Rubio said in an interview recently that the "No. 1 priority is going to be first and foremost people who are here illegally and unlawfully, and have committed or are committing serious crimes, or are a threat to the country."
For more news, go to www.Agri-Pulse.com.
