In fact, federal statistics show that while the Department of Labor approved 99% of all applications for H-2A workers in 1997, the approval rate was just 78% in the first three quarters of fiscal year 2011.
The NCAE survey said that 68.7% of growers said it was “substantially harder to get certified” or “somewhat harder to get certified” in the most recent year. Application denials have caused growers to employ lawyers to appeal their cases. So far in fiscal year 2011, Whitely said that 442 appeals have been made to the Department of Labor Office of Administrative Law Judge, compare to an average of only 18.4 appeals per year from 1995 to 2009.
What’s more, the survey found that the Department of Labor often doesn’t meet its statutory requirement that it must make a certification an H-2A application within 15 days of receipt of an application and at least 30 days prior to the employers stated date of needs. From 1997 to now, the Whitley said the DOL has met its deadline only 40% to 60% of the time. The NCAE survey found that 72% of growers reported their required H-2A workers arrived an average 22 days late, resulting in more than $320 million in economic losses for farmers.
In addition, growers said they were more likely to be subject to wage and hour division audits than when they were not in he program.
“Only 8% of H-2A employers report being audited by the Department of Labor’s Wage and House Division before participating in H-2A, compared to 35% once they used the program,” Whitley said in her testimony.
Whitley said a mandatory E-Verify law would increase the demands on a broken H-2A program and urged Congress to create a new farm worker program as part of E-Verify legislation.