Growth of foreign ag workers strains government, report finds

Farm employers’ increasing use of guest visa farmworkers has strained federal agencies and potentially impaired workers’ rights, a federal watchdog found in a new report.

The federal report, issued in November, came days after Donald Trump was reelected president. During his first term, Trump championed the use of guest visa farmworkers — foreign laborers who work temporarily in U.S. agricultural fields — as a legal alternative for farm labor.

Many farmworkers in the United States are undocumented, and Trump has promised mass deportations of people who are not in the country legally. That could mean an even greater increase in guest farmworkers coming to the United States through the H-2A visa program — further straining federal oversight responsibilities.

“Agencies’ approaches to processing H-2A applications amid growth may have unintended consequences for the agencies,” the report from the Government Accountability Office states, “such as their ability to perform oversight, process adjudications for other programs in a timely manner, and ensure workers are provided with information about their rights.”

The H-2A program has grown in popularity as a response to farm labor shortages. Between 2018 and 2023, the number of applications for H-2A workers increased by 72 percent, according to the GAO’s analysis.

However, the time the federal government took to review and approve applications remained static. This was accomplished, in part, by shifting staff from other responsibilities to focus on the H-2A program.

The federal government has said the program is an essential part of national security because it helps ensure widespread access to food throughout the United States. Given that, agencies have prioritized approving H-2A applications quickly.

Eliminating the H-2A program was a component of Project 2025, the blueprint created by Trump’s allies for his next administration. During his campaign, Trump disavowed the policy proposal, and, during his first term, he called H-2A labor a “source of legal and verified labor for agriculture.”

Currently, the H-2A program is intended to be used for field labor. (Some employers, however, use H-2A workers to construct animal confinements rather than work in the fields.) Industry groups representing other parts of the agriculture sector — like dairy farms and meatpacking plants — have pushed to expand the program to include them.

H-2A program’s integrity possibly impaired

Three agencies coordinate approval of H-2A visa applications, though the U.S. Department of Labor performs most oversight. The agency reviews and approves employers’ applications for workers.

The U.S. Department of State interviews potential workers at its consulates in foreign countries, primarily Mexico. The U.S. Department of Homeland Security reviews workers’ visas as they cross into the country.

In budget documents, the Labor Department has said the H-2A program might be compromised by the need to process applications in a timely manner.

When employers apply, they provide evidence that no U.S. workers want the available jobs, list wage rates and show proof of adequate housing. If an employer’s application does not meet all requirements, the agency can send a “notice of deficiency.”

As the H-2A program expanded, the number of notices decreased, the GAO found. In 2018, almost half of applications were flagged for various infractions, such as inaccurate job descriptions, lacking proof of adequate housing or missing information on employee transportation. In 2022, just a third were.

In 2023, the figure jumped back to almost half, which officials contributed to new reporting requirements.

The agency conducts audits to ensure employers comply with requirements. But, with the increase in applications, the number of audits has dropped precipitously. In 2018, the agency conducted more than 500. In 2023, the figure was 30, according to the GAO.

“Officials attributed the reduction in H-2A audits to the competing priorities of staff,” the GAO wrote. “Specifically, officials told us they have limited resources to conduct audits because the same staff who process applications also audit the approved applications.”

Prioritizing the H-2A program also can lead to backlogs in other visa programs the Labor Department oversees, the GAO said. And in some instances, the department has approved H-2A applications for employers that then faced scrutiny.

In 2023, 13 Black farmworkers in Mississippi reached settlements with two employers after the employers hired white South Africans through the H-2A program. The employers told the Labor Department they would offer the same pay and same number of hours to both the U.S. citizens and the H-2A workers — a legal requirement. But the U.S. workers were given fewer hours and less pay, they alleged.

Also, in recent years, contractors in Nebraska who provide detasseling labor — primarily teenagers earning pocket money — have cried foul. H-2A employers have taken some of their business, despite long waitlists of teenagers available to work.

State Department policies may lead to exploitation

The State Department is supposed to conduct interviews with prospective H-2A employees at its consulates. During the interviews, workers are provided with “know your rights” pamphlets since the program has a well-documented history of abuse.

But, during the COVID-19 pandemic, the agency waived the interview requirement, and, now, most H-2A workers are no longer interviewed in person. In 2023, the agency waived 90 percent of interviews, the GAO said.

If an interview is waived, the consulate sends the pamphlet with the worker’s passport. However, the recruiter or the workers’ employer often will pick up passports on workers’ behalf, the GAO said.

This situation — coupled with the fact some employers confiscate passports and charge return fees — “suggests some employers may not prefer to provide H-2A workers with the information about their rights,” according to the GAO’s report.

The State Department said it was taking steps to address this.

For instance, when workers apply for visas online, they must certify they have read the information in the “know your rights” pamphlet in order to complete the application. The state and labor agencies are also collaborating with the U.S. Agency for International Development, or USAID, to identify recruiting fraud.

Labor Department has small number of investigators

H-2A workers often face abuse while in the United States, but a couple factors impair the Labor Department’s ability to investigate abusive employers, according to the GAO.

For one, workers do not feel they can complain. If they do, they could face retaliation, such as being blacklisted by recruiters or being fired, which essentially maroons them in the United States if their passport was taken by an employer. Worker complaints were the origin of only 15 percent of investigations between 2018 and 2023, the GAO found.

However, complaints are valuable to the agency. When investigations begin with worker complaints, investigators found, on average, 38 violations. When investigations began other ways, such as through a report by the media, investigators found, on average, 22 violations.

Second, the Labor Department has relatively few investigators now, and its focus is not just on agriculture or the H-2A program.

The agency’s Wage and Hour Division investigates employment issues, such as stolen wages, for H-2A workers. (The Occupational Safety and Health Administration, another Labor Department division, focuses on workplace safety.) In 2014, the wage and hour division had nearly 1,000 investigators. Now, it has 773 investigators — one of its lowest staffing levels in the past 50 years, according to the GAO.

These issues likely factor into the small number of investigations that the wage and hour division has pursued in recent years. Between 2018 and 2023, the Labor Department approved more than 90,000 H-2A applications, but it investigated fewer than 3,000 employers, according to the GAO.

In April, acting Labor Secretary Julie Su said the department needed more resources to shore up its enforcement responsibilities.

“Laws are only as powerful as their enforcement,” she said. “We need more resources in order to do what we need to do. We cannot allow companies that profit off of workers, who decide that it’s cheaper to break the law and the chances of getting caught are slim and the costs even if you do get caught are negligible, to keep on pursuing those practices.”

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