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November 20, 2007

The Disappearing Worker

The immigration debate may divide legislators in Washington, D.C., but the real effects are at training facilities, horse shows and racetracks around the country.

Hunter/jumper trainer Ginny Edwards has tried every method she and her lawyers can think of to get her best groom back in the United States.

It’s been more than a year since the Mexican native went back to renew his visa; now he can’t get back to Edwards’ barn, Hidden Hollow in Upperville, Va., because of tightened immigration regulations. Throughout the process she’s also had trouble finding knowledgeable legal counsel.

This exact dilemma has hit trainers across the country: if their predominantly Mexican workforce follows the law and goes home to renew their documents, it’s very possible they won’t get back in to the United States. If they stay, employers are now harboring illegal help.

If a worker overstays his visa status for more than six months but less than one year, and then leaves the United States, he will be barred from returning to the United States for three years. If he has overstayed more than one year, he will be barred from returning for 10 years. This is determined by the date of authorized stay on his I-94 card.

This penalty discourages many who have over-stayed their visas from ever returning home to “fix it” and inadvertently increases the number of illegal aliens in the United States. It’s easier to remain illegally and live “under the radar” of the law then return and face certain exclusion for three to 10 years.

“Many trainers are damned if they do and damned if they don’t,” Edwards said, referring to the hiring of foreign labor. “More than ever now, it has become unbelievably expensive in the horse show business for trainers to run their barns well and run them legally.”

Earlier this year, legislation that would have reformed the immigration system—by tightening border facilities but also by making it easier for foreign workers in the country to get visas and green cards—failed to move to a vote in the U.S. Senate.
“Immigration reform is a political hot potato,” said Laurie Volk, a Virginia-based attorney Of Counsel to Trow & Rahal P.C., a business immigration firm in Washington, D.C. “President Bush sought to advance it, but he lost support from the most conservative wing of his party and couldn’t move the legislation forward. Thenhe lost his.political capital with Iraq andcouldn’t get any support from the Democrats on immigration reform, so the issue was DOA in Congress.”

Jay Hickey, president of the American Horse Council in Washington, D.C., which supported the bill, said it prompted a hornet’s nest of debate at the national level.

“The problem is that it’s such a political and emotional issue that there wasn’t much trust on either side,” Hickey said in reference to the Senate vote on June 28 that killed the comprehensive package.

Volk agreed, “Amnesty has become a dirty word. The conservative law-and-order sector wants strong enforcement at the borders only. Other interests, such as employers in the horse.industry who rely on foreign labor, want a means whereby their employees can ‘earn amnesty.’ Quid pro quo for legalizing them—for example, by making the alien pay back taxes, undergo criminal background checks, and pay a fine for entering the country illegally.
Staples Or The Stable

According to the U.S. Bureau of Labor Statistics, about 6.9 million people in the country are unemployed. The jobless rate has increased from 4.4 percent to 4.6 percent from September 2006, and yet equestrian facilities are crying for native laborers to replace
their hard-working Hispanic and other foreign workers who can’t make it back into the country.

“Nobody doubts that it’s difficult to get Americans to apply for these jobs,” said Jay Hickey, president of the American Horse Council in Washington, D.C. “If you can work at Staples or McDonald’s, you don’t have to get up early.”

To be fair, the hours in a stable are long, the work physically demanding and the skill set unique; the average American can flip a burger, but few are naturals at packing an abscess. Furthermore, location can be a problem—barns are typically in rural areas and lack public transportation.

“A lot of entry-level workers are in the inner city, and public transportation isn’t adequate to get them here,” said Helen Krieble, president of the Colorado Horse Park. She said the lack of visas available for her Hispanic workers left the CHP severely short-handed from November 2006 to May 2007, and that she couldn’t find any college students or young workers to take their places.

“I had my finance officer, my executive assistant and my chief operating officer out cleaning stalls,” Krieble said.
Could it be that horse people are just the first to smart from the prevail- ing–and perhaps, misguided–attitude of entitlement that has mutated the meaning of work in America?

Hunter/jumper trainer Ginny Edwards thinks so.

“Americans have gotten soft,” she said. “They want to start with a top salary when they have a fraction of the experience, and many aren’t willing to do the work.”

“To be successful, any new bill requires comprehensive immigration reform: tighter security at the borders; enforcement of immigration laws; some way for those who are illegal now to continue to work in the United States and ‘earn’ their legalization,” Volk added. “Balancing all these competing interests is very tough.”

Hickey said he didn’t anticipate more discussion on immigration reform until the 111th Congress takes over in January 2009.

“It’s not just a job for Congress,” Hickey said. “The American public is going to have to debate in their minds as well: Do they want comprehensive or piece-meal reform, such as taking border security first, then temporary worker programs?”

Another Solution

According to Helen Krieble, an immigration policy expert who’s also the president of the Colorado Horse Park, immigration reform would happen naturally if Washington reformed the country’s temporary guest
worker program.

Krieble has lobbied in Washington to promote her immigration initiative, which would privatize the guest-worker program and allow American employment agencies to recruit (and grant visas to) foreigners looking for temporary work in the United States.

User fees instead of taxes would fund the program, Krieble said, and although the government would provide oversight, moving the guest-worker program into the hands of private business would eliminate the government bureaucracy that has failed to adequately address the issue.

“There should be no misleading [workers] into thinking this is a fast-track to citizenship,” Krieble said. “This is a guest-worker visa.”

Krieble added that many of her Hispanic workers—including those whom she employs at the Colorado Horse Park—don’t want to remain in the United States anyway. They simply want to make money and go back to Mexico, she said.

“I had three guys last year say they weren’t going to come back,” Krieble said. “They said they had made enough money for their start-up business and that they wanted to be back with their families. This is an opportunity for us to get temporary workers and for them to establish a middle class in their own country.”

The Jobs U.S. Workers Don’t Want

Certainly, it’s not just the horse training, showing, racing and breeding industries where foreigners have sought jobs that supply them with extra income to send home to their families. From oyster-shuckers, lawn mowing services and restaurant workers to employees in the hospitality industry, foreign workers have long-filled an employment gap for jobs in which Americans have shown waning interest.

 “It was awful, the trash I went through,” said John Korenak, a hunter/jumper trainer in Wentzville, Mo., whose advertisements for barn help have usually been answered by inattentive, careless and undependable Americans. Equipment disappears. Stalls aren’t cleaned. New workers quit showing up and are never heard from again.

In Virginia, Edwards said she wishes Americans had the same kind of work ethic as most of her foreign employees.

“A groom’s job is every bit as important as the rider’s, trainer’s and farrier’s,” she said. “People from other countries are proud to take winners to the ring; some of my grooms fight over who gets to care for the best horses.”

Back in the St. Louis area, Korenak said he’s picking up the slack now at the barn, which has been even more difficult since he lost one of his top Mexican grooms in May.

“He’d been with us for five years on an H-2B visa and went back to get it renewed,” Korenak said. “We tried to follow the law and got ripped off—we’ve spent a ton in lawyers’ fees.”

In short, people want to be law-abiding, but it’s been made increasingly difficult to do so.

Legal Issues Arise

Such experiences indicate the scope of the issue, which has gotten so prickly that even a good lawyer is challenged to figure out a way to help. There are answers, however.

 If you have a skilled horse show groom with solid experience working with competitive horses, there may be alternatives: a skilled head groom can seek an O-1 visa under a provision of the regulations as an “artist” in the performing art of animal training; or a derivative P-1s visa for an essential support person (groom) assisting a primary P-1 rider/athlete employed by the same employer, or a derivative O-2 visa for an essential support person (groom) assisting a primary O-1 rider or horse trainer employed by the same employer.

Pitting Employer Vs. Employee

On Sept. 14, The Departments of Homeland Security and Commerce jointly enacted new immigration measures intended to improve border security, step up enforcement of immigration laws, streamline existing guest-worker programs and address the failures of the current immigration system.
It’s been suggested that the Departments only adopted the new rules after Congress failed to pass broad legislation earlier in the
summer.

The measures have met with resistance, however. On Oct. 10, a federal court in Northern California barred the Departments of Homeland Security and Commerce from enforcing the new immigration measures.

In granting the preliminary injunction, the court said that that “the plaintiffs have demonstrated that they will be irreparably harmed if DHS is permitted to enforce the new rule. On the other side of the scale, the government would suffer significantly less harm as a result of a delay in the rule’s implementation.”

It’s expected that the government will appeal the decision, but that could take six months or more for a final ruling.

The new regulations have pros and cons for horsemen.

They simplified the process of employing aliens under the H-2A and H-2B programs, which may prove beneficial to the horse
industry. However, the plan allows more sanctions against employers for employing alien workers with faulty documents and is raising concerns among employers of these low-skilled workers. Many employers in the horse industry use the H-2A and H-2B programs to employ willing alien employees.

The cornerstone of the new requirements is the announced crackdown on employers who “knowingly” hire undocumented
workers. This is the so-called “no-match” regulation. 

Under current law an employer must ask for documents that confirm an individual’s identity and ability to work when employees fill out the required Form I-9. These documents include a social security card. (A new I-9 form was issued in November, and all U.S. employers must use the form for all employees. Employers can obtain the form by going to the forms section of the website www.USCIS.gov).

Each year employers send the Social Security Administration earnings reports (W-2 Forms) in which the employee name and the social security number do not match. If an employer has employees with inaccurate personal identity information, the SSA will send the employer a “no-match” letter.  If an employer receives such a letter, he or she must take the following actions or risk penalties.

•    Within 30 days of receiving the letter, the employer must check the information against his/her own records, make any corrections of errors and verify them with SSA or DHS.

•    If the employer does not find errors in the records, the employer must inform the worker of the discrepancy within 30 days.

•    The worker then has until 90 days after the employer received the letter to contact the appropriate agency and correct the error.

•    If the employee does not resolve the issue during that period, he/she has three days to fill out new paperwork and provide all necessary documentation.

•    If the worker cannot provide the documentation, the employer must fire the worker immediately or be liable to sanctions and fines for “knowingly” employing an undocumented alien and failing to act.

Under the new regulations, fines imposed on employers who knowingly hire illegal immigrants will be raised 25 percent. Current fines are $2,200 for the first offense and up to $10,000 for repeat offenses. The 25 percent increase is the maximum allowed under current law
“There may be others, but it all depends on the job and the facts in the individual case,” noted Volk.
Volk noted that even if a business has excellent corporate counsel, because immigration law is highly specialized even the best corporate lawyers often cannot provide expertise on immigration.

“Until recently, immigration law was slightly frowned upon by other members of the bar,” she said. “Frankly, there are bad immigration practitioners who prey upon foreigners who are unfamiliar with our
language, culture and legal system. It’s important to have an immigration lawyer who not only keeps up with the frequent changes in immigration law, but also who understands your horse business. Most immigration lawyers are based in urban areas and have little experience with the more rural based equine community; they don’t know the difference between a highly skilled groom and a guy who mucks stalls.”

At minimum, horsemen should look for a lawyer who belongs to the American Immigration Lawyer’s Association. Ask for references. Look at the attorney’s website and get a referral from a friend who has successfully obtained immigration benefits from that lawyer. 

If the lawyer won’t speak to you personally, doesn’t return phone calls in a timely fashion, or doesn’t provide you with a written estimate of fees and expenses beforehand, by all means go somewhere else.

Volk said, “Just this week I spoke to a young lady from Sweden who has paid $35,000 in cash over five years to a disreputable lawyer claiming to be working on her green card. She has nothing to show for it and is now deportable. If your instincts tell you you’re not being well served, listen. You are paying good money for legal services. You have the right to competent and responsive counsel.”

Playing Fair


Issues surrounding Mexican immigration have been building since the end of the Bracero Program in the 1960s. The program was a temporary contract labor agreement between the United States and Mexico initiated in 1942 to provide agricultural workers to U.S. farms.

It was a lot easier then for Mexican immigrants to move freely across the border, working in the United States and then returning to their families at the end of the season. But according to many accounts, the program also set the stage for exploitation of the workers, and it was ended in 1964. The potential to violate the humanitarian rights of foreign workers still exists.

Once workers are legalized, however, it increases the likelihood that everyone will play fair.

On the flip side, good foreign workers—especially those who can communicate in English—can command lucrative salaries, relatively speaking, for that kind of labor.

Trainer David Wright from Murfreesboro, Tenn., said inter-barn competition has become fierce for the good grooms—especially now that there are fewer to choose from—and that he lost one worker to another barn that offered a higher salary and a vehicle.

Wright also said he’s raised the salary of another worker who demonstrated he was making less than a comparable head groom at another barn.

Edwards said her grooms start making $450 per week but that her head grooms get close to $800 per week. Those salaries include free housing and free vehicles to drive, she said.

Health insurance is another issue. Working with horses can be dangerous, and legal workers are entitled to workman’s compensation if injured on the job. When workers are illegal, employers can’t get them health insurance, and they have to pay out of their own pockets for hospital bills.

Taking Care Of Business

With compromise on immigration reform a long way off, other horse industries may look to what’s being done in the racing world to recruit and train home-grown talent.

This fall, the first group of certified jockeys-to-be will graduate from the North American Racing Academy, the brainchild of former jockey Chris McCarron.

The school is a partnership between the Kentucky Community and Technical College System and the Kentucky Horse Park, and it will soon offer courses of instruction and certification for support positions, such as grooms, track maintenance staff and breeding farm staff.

“There’s a need to develop our own good-quality labor pool,” said Remi Bellocq, the CEO of the Horseman’s Benevolent and Protective Association, which represents licensed owners and trainers of race horses in 33 states.

“If we want to prepare future assistant trainers and grooms, we need to start with the basics and help people understand equine science and nutrition,” Bellocq said.

Meanwhile in the competition ring, horse shows will carry on as usual, albeit likely with assistants and trainers covering for their disappearing workers by hauling a few more buckets, wrapping a few more legs, and as always, easing the concerns of a few more customers.



Streamlining Existing Guest-Worker Programs

The announcement by the Departments of Homeland Security and Commerce on Sept. 14 also mandated the Department of Labor to review the existing regulations implementing the H-2A program and to institute changes intended to provide agricultural employers with an orderly and timely flow of legal workers.

In the H-2B program, the Department will issue regulations intended to reduce the time for processing applications by moving from a government-certified system requiring DOL to issue labor certifications to an “employer-attested” system.  This will allow employers to attest that they have followed the procedures and could not find willing U.S. workers.

Finally, the Administration will explore ways to expedite background checks on alien workers in order to permit visas to be issued more promptly.

All of these reforms are intended to make the temporary worker programs more responsive to the needs of employers. (The difference between the two visas is that an H-2A visa is for seasonal workers in industries such as tourism, where they can work for up to 10 months in a year, and the H-2B visa is for agricultural seasonal workers.)



Broader Border Security And Interior Enforcement

This fall the Department of Homeland Security also strengthened security at the U.S. border and plans to build 370 miles of fencing, 300 miles of vehicle barriers, set up 105 camera and radar towers, and provide 18,300 border patrol agents.

The current policy of “catch and return”—sending illegal aliens apprehended at the border back to their country of  origin—will be maintained and expanded.

The US-VISIT exit requirement will be expanded, including the establishment of a new land-border exit system for guest workers starting on a pilot basis. This new requirement is intended to ensure that temporary workers in the United States will leave when their work authorization expires.

The Administration will also train hundreds of state and local law enforcement officers to address illegal immigration. There are now 75 additional U.S. Immigration and Customs Enforcement Teams working with local authorities to remove fugitive aliens.



H-2B Disaster Day

Sept. 30, 2007—the day that the H-2B Returning Worker Exemption expired.

This regulation had allowed an exemption of renewal H-2B visa holders from the numerical limitation of H-2B visa applicants.

In other words, only 60,000 to 70,000  first-time H2B visas are granted annually. However, some 250,000 workers apply annually to renew their visas. Historically, they’ve been granted under the exemption.

Now, however, when Congress failed to act on immigration reform earlier this year, the exemption expired and all of the renewal applicants will also fall within the numerical cap. Therefore, many, many applicants will be denied.

“This situation punishes the people who are trying to work legally and also punishes us as employers trying to ‘do the right thing,’ ” said hunter/jumper trainer Patty Peckham (see Forum p. 64).

Erin Richards
 
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